FULL TEXTS OF JUSTICE ABADS PONENCIA

LABOR
G.R. No. 177970 August 25, 2010

AGRICULTURAL AND INDUSTRIAL SUPPLIES CORPORATION, DAILY HARVEST MERCANTILE, INC., JOSEPH C. SIA HETIONG and REYNALDO M. RODRIGUEZ, Petitioners, vs. JUEBER P. SIAZAR and THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION, Respondents. DECISION ABAD, J.: This case dwells on circumstances that spell dismissal from work although the company insists that such circumstances indicate abandonment of work. The Facts and the Case On July 3, 1997 respondent Jueber P. Siazar (Siazar) filed a complaint for illegal dismissal and unfair labor practice against petitioner Agricultural and Industrial Supplies Corporation (AISC) and others before the National Labor Relations Commission (NLRC) in NLRC-NCR Case 00-07-0468997. Siazar claimed that he first worked for the Daily Harvest Mercantile, Inc. (DHMI) on April 12, 1993 but was transferred after three years in June 1996 to AISC1 as product designer, mold maker, and CNC programmer with a monthly salary of P25,000.00.2 In early 1997, Siazar discovered that his company was not remitting much of his SSS premiums although the computations appeared on his pay slips. When he told his co-employees about it, they made their own inquiries, too.3 On Siazars arrival at work on June 17, 1997, the company guard refused him entry and handed him two notes from the management: one said that he was not to report for work;4 the other said that he was to report after two days on June 19, 1997 to Atty. Rodriguez at his office in Binondo.5 Too anxious over the matter, Siazar did not wait for June 19 and went straightaway to see Atty. Rodriguez. The latter told Siazar that the company had decided to abolish his department because of redundancy and he could no longer work. Atty. Rodriguez asked Siazar to make a computation of what amount he expected from the company and return to the lawyer with such computation on the following day and the company would immediately pay him.6 When Siazar told his co-employees about this development, they thought that the company removed him from work because of fear that he would agitate them into forming a union, given the nonremittance of the correct amounts of their SSS contributions.7 When Siazar and his wife saw Atty. Rodriguez again at his office on June 19, 1997, the latter insisted on getting Siazar to do the computation he asked. Because of the lawyers insistence, Siazar finally gave him a computation of his claims against the company on June 23, 1997. As

Siazar was unsure of his situation, however, he consulted a lawyer on that same day. This lawyer went with him back to Atty. Rodriguez who confirmed that Siazar had indeed been dismissed because his department was no longer earning money. This surprised Siazar because his department did not generate income on its own, being a mere support unit of the company.8 Since all attempts at negotiation proved futile, Siazar filed his complaint. AISC had a different version. It claimed the company thought of closing down Siazars department where he worked solo since it was no longer making money. Thus, they wrote him the two notes on June 17, 1997.9 Atty. Rodriguez did not say, however that the company was already dismissing Siazar.10 The latter simply decided on his own to drop out of work after learning of the companys plan regarding his department.11 What Atty. Rodriguez and Siazar discussed was how the latter might be compensated if the companys plan went through. In response, Siazar even submitted a proposal that the company found excessive.12 On December 14, 1998 the Labor Arbiter found that the company did not yet dismiss Siazar from work13 since they were still negotiating for a financial package for him. He rather stopped reporting for work of his own accord after learning of the plan to retrench him. Indeed, the company gave Siazar no letter of dismissal or retrenchment.14 Consequently, the Labor Arbiter dismissed the complaint but ordered the company to give Siazar separation pay, his unpaid salary, and a proportionate 13th month pay for 1997.15 Siazar appealed to the NLRC, which ruled16 on June 3, 1999 to uphold the Labor Arbiters finding that the company did not dismiss him from work and that, misunderstanding its action, he ceased to report for work. It was all a misunderstanding, said the NLRC, and each party must bear his own loss to place them on equal footing.17The NLRC sustained the award of separation pay, to be reckoned from June 1996 to June 1997, the time Siazar worked for AISC. The NLRC also affirmed the grant to him of his unpaid salary and proportionate 13th month pay.18 Siazar asked for reconsideration but the NLRC denied it.19 Not dissuaded, Siazar went up to the Court of Appeals (CA)20 but on December 21, 200521 the latter court affirmed the NLRC decision. On motion for reconsideration, however, the CA rendered an Amended Decision22 on December 13, 2006, finding sufficient evidence that the company indeed illegally dismissed Siazar from work. The CA based its finding on the following: (a) Rodriguez told Siazar that he had been terminated; (b) the company did not allow Siazar to enter its premises; (c) it wanted to close his department and retrench him from work; (d) Rodriguez asked Siazar to compute what he expected was to be his separation pay; (e) the company neither gave Siazar notice nor informed him of the reason for his dismissal; and (f) it showed no valid or just cause for the dismissal. The CA thus ordered the company to reinstate Siazar and pay him full backwages, inclusive of allowances and other benefits or their monetary equivalent computed from the time of his dismissal up to the time of his actual reinstatement.23 The company filed a motion for reconsideration, but the CA denied the same on May 22, 2007,24hence the present petition for review on certiorari. Issues Presented Two issues are presented: 1. Whether or not the company dismissed Siazar from work; and 2. In the affirmative, whether or not his dismissal was valid.

Courts Ruling The company insists that the Court should reinstate the original CA decision, given the findings of the Labor Arbiter and the NLRC that it had not dismissed Siazar.25 Ordinarily, the Court will not, on petition for review on certiorari, reexamine the facts of the case. Here, however, since the CA overturned its earlier ruling and its factual findings now differ from those of the Labor Arbiter and the NLRC, the Court is making an exception.26 From an examination of the record, the Court has ascertained that the evidence supports the CAs finding that the company dismissed Siazar from work. This is evident from the following: One. On companys orders, the guard prevented Siazar from entering its premises to work. The company even gave him notice not to report for work and instead told him to see the companys external counsel after two days. If the company had not yet decided to close down Siazars department and wanted merely to explore that possibility with him,27 it had no reason to require him to stay away from work in the meantime. Barring him from work simply meant that the company had taken away his right to continue working for it. Two. It is simply preposterous for Siazar or any employee like him to just give up a job that paid P25,000.00 a month when, according to the company, it had not yet decided to carry out its plan and fire him. Three. That Siazar lost no time in filing a complaint for illegal dismissal negates the notion that he voluntarily left or abandoned his job.28 An employee who files a suit to claim his job back raises serious doubts that he even entertained the idea of leaving it in the first place. Four. Despite Siazars failure to show up for work, the company did not summon him back or ask him to explain his long absence. Normally, an employer would not stand by when an employee just stops coming to work as this would affect its business. That the company just sat by when Siazar did not come to work strengthens his contention that it had dismissed him. Further, the company failed to substantiate its claim that it reported Siazars irregular behavior to the Department of Labor and Employment.29 The Court cannot consider allegations that have not been proved.30 All these show that the company indeed terminated the services of Siazar. The question now is this: was his termination valid? Here, the company did not adduce any evidence to prove that Siazars dismissal had been for a just or authorized cause as in fact it had been its consistent stand that it did not terminate him and that he quit on his own. But given that the company dismissed Siazar and that such dismissal had remained unexplained, there can be no other conclusion but that his dismissal was illegal.31 The Court has held that, under Article 279 of the Labor Code, separation pay may be awarded to an illegally dismissed employee in lieu of reinstatement when continued employment is no longer possible where, as in this case, the continued relationship between the employer and the employee is no longer viable due to strained relations between them32 and reinstatement appears no longer practical due to the length of time that had since passed.33 In awarding separation pay to an illegally dismissed employee, in lieu of reinstatement, the amount to be awarded shall be equivalent to one month salary for every year of service34 reckoned from the first day of employment until the finality of the decision.35 Payment of separation pay is in addition to payment of backwages.36 And if separation pay is awarded instead of reinstatement, backwages shall be computed from the time of illegal termination up to the finality of the decision.37

The separation pay in this case shall be reckoned from the time Siazar worked for AISC, from June 1996 until the finality of this decision. The Court could not hold AISC liable for his work with DHMI for lack of evidence that the latter was simply an alter ego of AISC and had been established to evade an existing obligation, justify a wrong, or protect a fraud.38 WHEREFORE, the Court AFFIRMS the Court of Appeals Amended Decision dated December 13, 2006 and Resolution dated May 22, 2007 in CA-G.R. SP 56228 subject to the MODIFICATION that the liability for respondent Jueber P. Siazars illegal dismissal shall be the sole liability of petitioner Agricultural and Industrial Supplies Corporation and that, in lieu of reinstatement with backwages, the latter shall pay Siazar (a) separation pay in the amount equivalent to one month pay for every year of service computed from June 1996 up to the finality of this decision; and (b) full backwages computed from the date of his illegal dismissal on June 17, 1997 up to the finality of the decision. Let the records of this case be REMANDED to the Labor Arbiter for the proper computation of the awards. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

Rollo, p. 265. Records, p. 137; rollo, pp. 247-248. Rollo, p. 248. Records, p. 51. Id. Rollo, pp. 248-249. Id. at 249. Id. at 250-251. Id. at 219; records, p. 54. Records, p. 54. Id. at 147; rollo, p.16. Rollo, p. 219. Records, pp. 198-208. Id. at 201-206. Id. at 207-208. Docketed as NLRC-NCR CA 018523-99, rollo, pp. 39-68. Id. at 54-58. Id. at 63. Id. at 66-68. Docketed as CA-G.R. SP 56228.

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16

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21

Rollo, pp. 180-186. Penned by Associate Justice Danilo B. Pine, with Associate Justices Marina L. Buzon and Arcangelita M. Romilla-Lontok concurring.

22

Id. at 198-202. Penned by Associate Justice Arcangelita M. Romilla-Lontok, with Associate Justices Marina L. Buzon and Martin S. Villarama, Jr. (now a member of this Court) concurring.
23

Id. at 201. Id. at 238-239. Id. at 24-25.

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25

26

Aklan College, Inc. v. Enero, G.R. No. 178309, January 27, 2009, 577 SCRA 64, 77-78. Factual findings are not reviewable by this Court in petitions for review on certiorari, unless the case falls under any of the following recognized exceptions: (1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) When the inference made is manifestly mistaken, absurd or impossible; (3) Where there is a grave abuse of discretion: (4) When the judgment is based on a misapprehension of facts: (5) When the findings of fact are conflicting; (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) When the findings are contrary to those of the trial court: (8) When the findings of fact are conclusions without citation of specific evidence on which they are based; (9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.
27

Rollo, p. 219.

28

L.C. Ordoez Construction v. Nicdao, G.R. No. 149669, July 27, 2006, 496 SCRA 745, 758; Harborview Restaurant v. Labro, G.R. No. 168273, April 30, 2009, 587 SCRA 277, 282.
29

Records, p. 55.

30

Cabalen Management Co., Inc. v. Quiambao, G.R. No. 169494, March 14, 2007, 518 SCRA 342, 357.
31

See: EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, G.R. No. 145587, October 26, 2007, 537 SCRA 409, 430-432; Seven Star Textile Company v. Dy, G.R. No. 166846, January 24, 2007, 512 SCRA 486, 498.
32

Session Delights Ice Cream and Fast Foods v. The Honorable Court of Appeals, G.R. No. 172149, February 8, 2010.
33

Macasero v. Southern Industrial Gases Philippines, G.R. No. 178524, January 30, 2009, 577 SCRA 500, 507, citing Velasco v. National Labor Relations Commission, G.R. No. 161694, June 26, 2006, 492 SCRA 686, 699.
34

Macasero v. Southern Industrial Gases Philippines, supra note 33; Pangilinan v. Wellmade Manufacturing Corporation, G.R. No. 149552, March 10, 2010.
35

Henlin Panay Company v. National Labor Relations Commission, G.R. No. 180718, October 23, 2009, 604 SCRA 362, 371.

36

Macasero v. Southern Industrial Gases Philippines, supra note 33.

37

RBC Cable Master System v. Baluyot, G.R. No. 172670, January 20, 2009, 576 SCRA 668, 679; General Milling Corporation v. Casio, G.R. No. 149552, March 10, 2010.
38

Velarde v. Lopez, Inc., 464 Phil. 525, 537 (2004); Pantranco Employees Association (PEAPTGWO) v. National Labor Relations Commission, G.R. Nos. 170689 & 170705, March 17, 2009, 581 SCRA 598, 616. G.R. No. 183250 March 10, 2010

WILLIAM UY CONSTRUCTION CORP. and/or TERESITA UY and WILLIAM UY, Petitioners, vs. JORGE R. TRINIDAD, Respondent. DECISION ABAD, J.: This case is about the tenure of project employees in the construction industry. The Facts and the Case On August 1, 2006 respondent Jorge R. Trinidad filed a complaint for illegal dismissal and unpaid benefits against petitioner William Uy Construction Corporation. Trinidad claimed that he had been working with the latter company for 16 years since 1988 as driver of its service vehicle, dump truck, and transit mixer. He had signed several employment contracts with the company that identified him as a project employee although he had always been assigned to work on one project after another with some intervals. Respondent Trinidad further alleged that in December 2004 petitioner company terminated him from work after it shut down operations because of lack of projects. He learned later, however, that although it opened up a project in Batangas, it did not hire him back for that project. Petitioner company countered1 that it was in the construction business. By the nature of such business, it had to hire and engage the services of project construction workers, including respondent Trinidad, whose employments had to be co-terminous with the completion of specific company projects. For this reason, every time the company employed Trinidad, he had to execute an employment contract with it, called Appointment as Project Worker. Petitioner company stressed that employment intervals or gaps were inherent in the construction business. Consequently, after it finished its Boni Serrano-Katipunan Interchange Project in December 2004, Trinidads work ended as well. In compliance with labor rules, the company submitted an establishment termination report to the Department of Labor and Employment (DOLE). On December 23, 2006 the Labor Arbiter rendered a decision, dismissing respondent Trinidads complaint for unjust dismissal. The Labor Arbiter, however, ordered petitioner company to pay Trinidad P1,500.00 in unpaid service incentive leave, taking into consideration the three-year prescriptive period for money claims.2 The Labor Arbiter held that, since Trinidad was a project employee and since his company submitted the appropriate establishment termination report to

DOLE, his loss of work cannot be regarded as unjust dismissal. The Labor Arbiter found no basis for granting Trinidad overtime pay, holiday pay, and 13th month pay. On August 31, 2007 the National Labor Relations Commission (NLRC) affirmed the Labor Arbiters ruling,3prompting respondent Trinidad to elevate his case to the Court of Appeals (CA).4 On April 24, 2008 the latter rendered a decision, reversing the NLRCs findings. Petitioner company moved for a reconsideration of the decision but the CA denied the motion. The Issue Presented The core issue presented in the case is whether or not the CA correctly ruled that petitioner companys repeated rehiring of respondent Trinidad over several years as project employee for its various projects automatically entitled him to the status of a regular employee. The Courts Ruling The CA held that, although respondent Trinidad initially worked as a project employee, he should be deemed to have acquired the status of a regular employee since petitioner company repeatedly rehired him in its past 35 projects that lasted 16 years. The CA explained that Trinidads work as driver of the companys service vehicle, dump truck, and transit mixer was vital, necessary, and indispensable to the companys construction business. The intervals between his employment contracts were inconsequential since stoppage in operations at the end of every construction project was a foreseeable interruption of work. But the test for distinguishing a "project employee" from a "regular employee" is whether or not he has been assigned to carry out a "specific project or undertaking," with the duration and scope of his engagement specified at the time his service is contracted.5 Here, it is not disputed that petitioner company contracted respondent Trinidads service by specific projects with the duration of his work clearly set out in his employment contracts.6 He remained a project employee regardless of the number of years and the various projects he worked for the company.7 Generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and benefits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project. And getting projects is not a matter of course. Construction companies have no control over the decisions and resources of project proponents or owners. There is no construction company that does not wish it has such control but the reality, understood by construction workers, is that work depended on decisions and developments over which construction companies have no say. For this reason, the Court held in Caseres v. Universal Robina Sugar Milling Corporation8 that the repeated and successive rehiring of project employees do not qualify them as regular employees, as length of service is not the controlling determinant of the employment tenure of a project employee, but whether the employment has been fixed for a specific project or undertaking, its completion has been determined at the time of the engagement of the employee. In this case, respondent Trinidads series of employments with petitioner company were coterminous with its projects. When its Boni Serrano-Katipunan Interchange Project was finished in December 2004, Trinidads employment ended with it. He was not dismissed. His employment contract simply ended with the project for which he had signed up. His employment history belies the

claim that he continuously worked for the company. Intervals or gaps separated one contract from another.9 The CA noted that DOLE Order 19 required employers to submit a report of termination of employees every completion of construction project. And, since petitioner company submitted at the hearing before the Labor Arbiter only the termination report covering respondent Trinidads last project, it failed to satisfy such requirement. But respondent Trinidad did not say in his complaint that he had been illegally dismissed after each of the projects for which he had been signed up. His complaint was essentially that he should have been rehired from the last project since he had already acquired the status of a regular employee. Consequently, petitioner company needed only to show the last status of Trinidads employment, namely, that of a project employee under a contract that had ended and the companys compliance with the reporting requirement for the termination of that employment. Indeed, both the Labor Arbiter and the NLRC were satisfied that the fact of petitioner companys compliance with DOLE Order 19 had been proved in this case. Parenthetically, the Social Security System should be able to alleviate the temporary unemployment of construction workers, a problem that is inherent in the nature of their work. WHEREFORE, the Court GRANTS the petition, SETS ASIDE the decision of the Court of Appeals in CA-G.R. SP 101903 dated April 24, 2008, and REINSTATES the decision of the National Labor Relations Commission in NLRC-NCR-CA 051703-07(7) dated August 31, 2007, which affirmed the decision of the Labor Arbiter in NLRC-NCR Case 07-05764-06. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ARTURO D. BRION Associate Justice MARIANO C. DEL CASTILLO Associate Justice

JOSE PORTUGAL PEREZ Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Position Paper, CA rollo, pp. 63- 75. Id. at 77-88. Id. at 122-128. Docketed as CA-G.R. SP 101903.

ALU-TUCP v. National Labor Relations Commission, G.R. No. 109902, August 2, 1994, 234 SCRA 678, 685.
6

Rollo, pp. 117-119. Alcatel Philippines, Inc. v. Relos, G.R. No. 164315, July 3, 2009. G.R. No. 159343, September 28, 2007, 534 SCRA 356, 361. Rollo, pp. 102- 104. February 22, 2010

G.R. No. 177100

BANDILA SHIPPING, INC., MR. REGINALDO A. OBEN, BANDILA SHIPPING, INC. and FUYOH SHIPPING, INC.,Petitioners, vs. MARCOS C. ABALOS, Respondent. DECISION ABAD, J.: Statement of the Case This case is about a Filipino seafarers claim for disability benefits from cholecystolithiasis or gallstone that was discovered when he suffered excruciating pain while working on board an oceangoing vessel, an illness that was not in the list of compensable diseases listed in the standard seafarers contract that he signed with the vessel owner. The Facts and the Case

On July 25, 2002 respondent Marcos C. Abalos entered into a contract of employment with petitioner Bandila Shipping, Inc. (BSI), a Philippine manning agency acting on behalf of its co-petitioner Fuyoh Shipping, Inc., as fourth engineer for the ocean-going vessel M/V Estrella Eterna at US$765.00 per month for 10 months.1 Prior to embarkation, Abalos underwent pre-employment medical examination and was found to be "fit for sea service."2He boarded his vessel in Singapore on August 28, 2002.3 As the vessel headed towards Nagoya, Japan, on January 23, 2003, respondent Abalos felt excruciating pain in his stomach while he was on duty. He tried to tolerate it until he got off but he was unable to sleep because of severe pain. The following day, unable to bear the pain, he told the vessels master about it. After being examined at the International Clinic in Nagoya, Japan, he was diagnosed to be suffering from "gallstone, acute cholecystitis, and pancreatitis suspected." The attending physician found him unfit for duty and recommended his repatriation.4 On January 25, 2003 respondent Abalos was repatriated to the Philippines. He was referred to Dr. Ruby Dizon who found that he had cholecystolithiasis, commonly known as gallstone, and needed to undergo cholecystectomy or gall bladder removal that would cost P80,000.00.5 Unable to get the companys approval for his surgery,6Abalos sought the opinion of other physicians who made the same diagnosis and suggested surgery.7 On June 12, 2003 Abalos filed a complaint with the Labor Arbiter for disability benefits, unexpired portion of his contract, moral and exemplary damages, and attorneys fees against petitioner BSI, its claims manager, and its foreign principal, petitioner Fuyoh Shipping, Inc.,8 in NLRC OFW-(M) Case 03-06-1493-00. Persuaded by the opinion of a company-designated physician that cholecystolithiasis was not work-related, BSI denied liability. Meantime, respondent Abalos amended his complaint to include nonpayment of disability benefits, medical reimbursement, sickness allowance, compensatory damages, moral and exemplary damages, and attorneys fees.9 To establish compensability, respondent Abalos consulted Dr. Efren R. Vicaldo, an internist of the Philippine Heart Center, who certified that: 1) Abalos had gall bladder stones requiring surgery; 2) he was unfit to resume work as seaman; and 3) his illness was work-aggravated with an impediment of grade VII (41.80%).10 Efforts to amicably settle the dispute did not materialize.11 Thus, on January 29, 2004 the Labor Arbiter rendered a decision,12 granting respondent Abalos permanent disability benefit, sickness allowance, and 10 percent of the award as attorneys fees. The Labor Arbiter found that Abalos became ill while on board his assigned vessel and the demanding nature of his work aggravated it, thus, establishing a reasonable connection between the two. He denied the other claims for lack of merit. But, on appeal by petitioner BSI, on February 23, 2006 the National Labor Relations Commission (NLRC) rendered judgment13 that set aside the Labor Arbiters decision. The NLRC pointed out that the applicable standard terms of employment did not regard respondent Abalos illness as an occupational disease. He also failed to show that his work on ship aggravated it. His motion for reconsideration having been denied,14 Abalos went up to the Court of Appeals (CA) in CA-G.R. SP 95238. On January 30, 2007 the CA rendered a decision,15 granting the petition, setting aside the NLRC decision, and reinstating that of the Labor Arbiter. On March 19, 2007 the appellate court denied BSIs motion for reconsideration,16 hence, the present petition for review.

Issue Presented The core issue presented in this case is whether or not Abalos cholecystolithiasis or gallstone is compensable and, thus, entitles him to disability benefits and sickness allowance. The Courts Rulings Whether or not respondent Abalos illness is compensable is essentially a factual issue. Yet the Court can and will be justified in looking into it considering the conflicting views of the NLRC and the CA.17 There is no question as to what respondent Abalos was sick of. He was sick of cholecystolithiasis or gallstone. It does not develop overnight. It is caused by stone formation in the gallbladder that blocks the tube leading out of the gallbladder, causing bile to build up, resulting in gallbladder inflammation. These gallstones are solid accumulations of the components of bile, particularly cholesterol, bile pigments, and calcium.18 The formation of gallbladder stones take months, if not years, to build up. According to the NLRC, medical reports show that gallstone relates to ones weight or diet and in some instances may be a genetic predisposition. It is not one of those enumerated as compensable diseases in the Revised Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels that covered Abalos employment. The NLRC denied him disability benefits and sickness allowance for this reason. The CA held, however, that Abalos diet or sustenance on board the vessel had presumably caused or contributed to his illness for he had no choice but eat ship food. Consequently, although his gallstone is not a compensable illness under his employment contract, it can be said that his illness was either work-related or reasonably connected with his work. But, since cholecystolithiasis or gallstone has been excluded as a compensable illness under the applicable standard contract for Filipino seafarers that binds both respondent Abalos and the vessels foreign owner, it was an error for the CA to treat Abalos illness as "work-related" and, therefore, compensable. The standard contract precisely did not consider gallstone as compensable illness because the parties agreed, presumably based on medical science, that such affliction is not caused by working on board ocean-going vessels. Nor has respondent Abalos proved by some evidence that the nature of his work on board a ship aggravated his illness. No one knew when he boarded the vessel that he was sick of gallstone. By the nature of this illness, it is highly probable that Abalos already had it when he boarded his assigned ship although it went undiagnosed because he had yet to experience its symptoms.
1avv phi1

If respondent Abalos had instead been sick of asthma and the shipping company knew of it even as it assigned him to do work that exposed him to allergens, then it can be said that the company assigned him work that aggravated his illness. Here, however, he himself was unaware that he had gallstone until excruciating pains manifested its presence for the first time when his vessel was sailing the seas. The Court recognized in Vergara v. Hammonia Maritime Services, Inc.19 the significance of the adoption by the Department of Labor and Employment of the Philippine Overseas Employment Administration Standard Employment Contract as a condition for deploying Filipino seafarers working on foreign ocean-going vessels. When the foreign shipping company signs that contract, there is assurance that it voluntarily subjects itself to Philippine laws and jurisdiction. If the NLRC orders the payment of benefits not found in that contract, the particular seaman might be favored but

the credibility of our standard employment contract will suffer. Foreign shipping companies might regard it as non-binding to the detriment of other seamen. ACCORDINGLY, the Court grants the petition, SETS ASIDE the decision of the Court of Appeals in CA-G.R. SP 95238 dated January 30, 2007 and its resolution dated March 19, 2007, and REINSTATES the decision of the National Labor Relations Commission in NLRC NCR CA 03930604 dated February 23, 2006. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ARTURO D. BRION Associate Justice MARIANO C. DEL CASTILLO Associate Justice

JOSE PORTUGAL PEREZ Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Rollo, p. 553. Id. at 13.

Id. at 225. Id. at 554. Id. at 555. Id. Id. at 14. Id. at 555. Id. at 556. Id. Id. at 223. Id. at 223-240. Id. at 552-563. Id. at 359. Id. at 12-23. Id. at 325-354.

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17

Masangcay v. Trans-Global Maritime Agency, Inc., G.R. No. 172800, October 17, 2008, 569 SCRA 592, 607.
18

http://emedicine.medscape.com/article/774352.overview. G.R. No. 172933, October 6, 2008, 567 SCRA 610, 623. June 29, 2010

19

G.R. No. 185269

ELSA S. MALIG-ON, Petitioner, vs. EQUITABLE GENERAL SERVICES, INC., Respondent. DECISION ABAD, J.: This case is about an employee who was considered illegally dismissed notwithstanding the fact that she filed a written resignation from her work. The Facts and the Case

Petitioner Elsa Malig-on (Malig-on) claimed that on March 4, 1996 respondent Equitable General Services, Inc. (the company) hired her as janitress in its janitorial services. The company paid her P250.00 per day for a nine-hour work. After six years or on February 15, 2002 Malig-ons immediate supervisor told her that the company would be assigning her to another client. But it never did despite several follow-ups that she made. Eight months later or on October 15, 2002 the company told Malig-on that she had to file a resignation letter before it would reassign her. She complied but the company reneged on its undertaking, prompting Malig-on to file a complaint against it for illegal dismissal. The company denied Malig-ons allegations. It claimed that she just stopped reporting for work on February 16, 2002 without giving any reason. Consequently, the company wrote her two letters, first on August 23, 2002 and again on September 2, 2002, asking her to explain her continued absence. On October 15, 2002 Malig-on showed up at the companys office and submitted her resignation letter. On January 26, 2004 the Labor Arbiter (LA) rendered a decision, finding Malig-ons resignation valid and binding. But the LA ordered the company to pay her emergency cost of living allowance and the balance of her 13th month pay. On February 28, 2005 the National Labor Relations Commission (NLRC) reversed the LAs decision and ruled that the company had constructively dismissed Malig-on. The NLRC ordered the company to reinstate Malig-on with full backwages from the time the company illegally dismissed her up to the date of the finality of its decision. The respondent company went up to the Court of Appeals (CA) to challenge the NLRC decision. On July 16, 2008 the CA reversed the NLRCs ruling and reinstated that of the LA, hence, this petition by Malig-on. The Issue Presented The issue in this case is whether or not the CA erred in holding that petitioner Malig-on abandoned her work and eventually resigned from it rather than that respondent company constructively dismissed her. The Rulings of the Court True, courts give great weight and respect to the facts as found by quasi-judicial and administrative bodies. But when, as in this case, such bodies have conflicting factual findings, the Court has reason to go over both findings to ascertain which one has support in the evidence.1 The rule in termination cases is that the employer bears the burden of proving that he dismissed his employee for a just cause.2 And, when the employer claims that the employee resigned from work, the burden is on the employer to prove that he did so willingly.3 Whether that is the case would largely depend on the circumstances surrounding such alleged resignation. Those circumstances must be consistent with the employees intent to give up work.4 Here, the company claims that Malig-on voluntarily resigned, gave a letter of resignation that she wrote with her own hand, used the vernacular language, and signed it. But these are not enough. They merely prove that she wrote that letter, a thing that she did not deny. She was quick to point out that she wrote it after being told that she needed to resign so she could be cleared for her next assignment.

According to the company, Malig-on simply dropped out of sight one day on February 16, 2002 for no reason at all. Eight months later or on October 15, 2002 she appeared at the companys office and tendered her resignation. To the companys surprise, three days later or on October 18, 2002 she went to the NLRC office and filed her complaint against the company for illegal dismissal. Clearly, however, these circumstances do not sound consistent with resignation freely made. First, when Malig-on reportedly dropped out of sight and the company had no idea about the reason for it, the natural and right thing for it to do was investigate why she had suddenly vanished. Indeed, the company needed to write Malig-on immediately and ask her to explain in writing why she should not be considered to have abandoned her job so the company may be cleared of its responsibility as employer. This did not happen here. Second, if Malig-on had abandoned her work and had no further interest in it, there was no reason for her to suddenly show up at her former place of work after eight months and file her resignation letter. Her action would make sense only if, as she claimed, she had been on floating status for over six months and the company promised to give her a new assignment if she would go through the process of resigning and reapplying. And, third, that Malig-on went to the NLRC to file a complaint for unjust dismissal just three days after she filed her alleged resignation letter is inconsistent with genuine resignation.5 It would make sense only if, as Malig-on claims, the company tricked her into filing for resignation upon a promise to give her a new work assignment and failed to deliver such promise. The company evidently placed Malig-on on floating status after being relieved as janitress in a clients workplace. But, as the Court has repeatedly ruled, such act of "off-detailing" Malig-on was not the equivalent of dismissal so long as her floating status did not continue beyond a reasonable time. But, when it ran up to more than six months, the company may be considered to have constructively dismissed her from work, that is, as of August 16, 2002.6Thus, her purported resignation on October 15, 2002 could not have been legally possible. The company of course claims that it gave Malig-on notices on August 23, 2002 and September 2, 2002, asking her to explain her failure to report for work and informing her that the company would treat such failure as lack of interest in it, respectively. But these notices cannot possibly take the place of the notices required by law. They came more than six months after the company placed her on floating status and, consequently, the company gave her those notices after it had constructively dismissed her from work.
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An illegally dismissed employee is entitled to two reliefs: backwages and reinstatement.7 Still, the Court has held that the grant of separation pay, rather than reinstatement, may be proper especially when the latter is no longer practical or will be for the best interest of the parties, as in this case.8 Here, after her last work, Malig-on did not appear persistent in getting rehired. Indeed, she did not file any action for constructive dismissal after being placed in a floating status for more than six months. If she were to be believed, it was only eight months later that she showed keen interest in being taken back by following an advice that she first tender her resignation in order to clear up her record prior to being rehired. After just three days from tendering her resignation, Malig-on hastened to the NLRC and accused her employer of illegal dismissal. Under the circumstances, her reinstatement to her former position would only result in a highly hostile work environment for the parties and might further worsen their relations which are already scarred by the present case. The NLRC should have just awarded Maligon separation pay instead of ordering the company to reinstate her.

Backwages represent compensation that should have been earned but were not collected because of the unjust dismissal.9 Malig-on can be said to be entitled to reinstatement from the time she was constructively dismissed in August 2002 until the NLRC ordered her immediate reinstatement in February 2005, a period of two years and six months. For this she is entitled to backwages. But since, as already stated, the circumstances already rule out actual reinstatement, she is entitled to separation pay at the rate of one month for every year of service from 1996, when she began her employment to 2005, when she is deemed to have been actually separated from work, a period of nine years, both amountsthe backwages and the separation payto bear interest of 6 percent per annum until fully paid.10 WHEREFORE, the Court GRANTS the petition and REVERSES the decision of the Court of Appeals dated July 16, 2008 and its resolution dated November 7, 2008 in CA-G.R. SP 100811, and REINSTATES the decision of the National Labor Relations Commission dated February 28, 2005 and its resolution dated July 24, 2007 in NLRC NCR CA 039509-04, with the following MODIFICATION: respondent Equitable General Services, Inc. is directed to pay petitioner Elsa S. Malig-on backwages inclusive of allowances, other benefits or their monetary equivalent, from the time she was constructively dismissed in August 2002 until the NLRC ordered her immediate reinstatement in February 2005, a period of two years and six months and, in addition, separation pay at the rate of one month for every year of service from 1996 when she began her employment to 2005, when her service to the company technically ended, a period of nine years, both amountsthe backwages and the separation payto bear interest of 6 percent per annum from February 2005 until fully paid. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

Emcor Incorporated v. Sienes, G.R. No. 152101, September 8, 2009, 598 SCRA 617, 631632.
2

Polymedic General Hospital v. National Labor Relations Commission, G.R. No. L-64190, January 31, 1985, 134 SCRA 420, 424.
3

Mobile Protective & Detective Agency v. Ompad, 497 Phil. 621, 634-635 (2005). Fortuny Garments v. Castro, G.R. No. 150668, December 15, 2005, 478 SCRA 125, 130. Villar v. National Labor Relations Commission, 387 Phil. 706, 714 (2000).

Veterans Security Agency, Inc. v. Gonzalvo, Jr., G.R. No. 159293, December 16, 2005, 478 SCRA 298, 308.
7

Macasero v. Southern Industrial Gases Philippines, G.R. No. 178524, January 30, 2009, 577 SCRA 500, 507.
8

Velasco v. National Labor Relations Commission, G.R. No. 161694, June 26, 2006, 492 SCRA 686, 699.
9

Golden Ace Builders v. Talde, G.R. No. 187200, May 5, 2010. Id. January 18, 2010

10

G.R. No. 185112

DEPARTMENT OF LABOR AND EMPLOYMENT (DOLE) and NATIONAL MARITIME POLYTECHNIC (NMP),Petitioners, vs. RUBEN Y. MACEDA Respondent. DECISION ABAD, J.: This case pertains to the importance of complying with the prescribed qualification standards, and the appropriate mode of assailing a decision of the Civil Service Commission (CSC).

The Facts and the Case On June 28, 1989 respondent Ruben Y. Maceda, a deck marine officer, joined the National Maritime Polytechnic (NMP), a government school, with a permanent appointment as Instructor I. He rose to the permanent positions of Assistant Professor I and later Associate Professor I. He studied law in the meantime and passed the bar in 1996. He was later designated as Officer-in-Charge (OIC) of the Maritime Training Division and as NMPs legal counsel. In 1998, the NMP again promoted respondent Maceda to the rank of Professor I but this time under a mere temporary appointment. He subsequently wrote the NMP Executive Director, submitting justifications for changing his temporary status to a permanent one. In 1999 the International Maritime Law sponsored his studies in the IMO-International Maritime Law Institute in Malta. He finished his masters degree in 2000. He later developed a module in maritime law for Marine Officers of the NMP and started teaching the subject in May 2004. Yearly, from January 7, 2000 to January 7, 2003, the NMP renewed respondent Macedas temporary appointment as Professor I. In 2001 he resigned from his position as NMP legal counsel. In 2002 the NMP completed the revision of the Qualification Standard (QS) for its staff. Maceda claimed, however, that nothing has since been heard of that revised QS after the NMP submitted the same to the CSC for approval. On February 13, 2003 the Human Resources Management Section of NMP wrote respondent Maceda, advising him that the school would be putting him under contractual employment from January 7 to June 30, 2003 or until such time as the CSC shall have already approved the NMP Maritime Training Revised Qualification Standard. On March 20, 2003 the NMP Executive Director, Noriel Devanadera, wrote respondent Maceda, informing him that his temporary appointment as Professor I was being renewed effective on April 1, 2003 and that the succeeding renewal of his appointment would be subject to his meeting the requirements of the position. The NMP considered Maceda first priority for the Shipboard Rotation Scheme for 2003 and for holding the 3rd Officer position on board ship. He answered the letter, making a number of requests, so he could avail of the Shipboard Rotation Scheme. But the NMP did not act on his letter. Meanwhile, Maceda applied from 2001 to 2003 for the position of Administrative Officer V which then remained vacant. But an OIC was instead appointed to that position. In 2001 the NMP advised all employees occupying next-in-rank positions to the Deputy Executive Director (DED) III to submit their updated Personal Data Sheets (PDS) for evaluation as candidates to that position until May 15, 2001. On May 28, 2001 Maceda belatedly submitted his updated PDS for evaluation. On December 23, 2003, the NMP OIC wrote respondent Maceda, informing him that his appointment as Professor I would be renewed on contractual status effective from January 5 to June 30, 2004. Maceda agreed and signed a contract of employment on January 5, 2004. On the same date, however, Maceda filed a complaint with the CSC regarding his demotion in employment status. The Administrative Officer of the CSC regional office convinced him, however, that the renewal of the appointments of temporary employees is a prerogative of the head of the agency. On June 30, 2004 the NMP OIC informed respondent Maceda that, on instructions from Devanadera, he was not to report for work anymore on the following day. On July 13, 2004,

however, Devanadera asked Maceda to be a guest lecturer in Maritime Law, thus acknowledging the need for his services and his expertise on the subject. On June 2, 2004 respondent Maceda wrote to the members of the Board of Trustees of NMP about his illegal termination as professor and Devanaderas mismanagement of the schools affairs. Further, Maceda charged Devanadera and NMP before the Department of Labor and Employment (DOLE) of oppression leading to his illegal termination. On October 21, 2004, the DOLE Secretary dismissed his complaint. On November 2, 2004 respondent Maceda appealed his case to the CSC but the latter dismissed the same for lack of jurisdiction, pointing out that, since Devanadera was a presidential appointee, the power to discipline him belonged to the President. Maceda filed a motion for reconsideration but on March 7, 2007 the CSC denied the same. The CSC held that, as a holder of a temporary and contractual employment, Maceda did not enjoy security of tenure. The CSC further held that it was his fault that he did not take steps to remedy his deficiency, namely, a shipboard experience on license, after holding the position of Professor I for five years. This prompted Maceda to seek recourse by special civil action of certiorari with the Court of Appeals (CA) in CA-G.R. SP 99539. On May 28, 2008 the CA rendered a decision, granting the petition, ordering the NMP to reinstate Maceda to his previous position as Professor I, and directing it to pay his salary and other benefits from July 1, 2004 until he is reinstated. The DOLE and the NMP moved for reconsideration of the decision but the CA denied the same, hence, this petition. The Issues Presented Petitioners raise two issues for this Courts resolution: 1. Whether or not the CA correctly gave due course to Macedas special civil action of certiorari for the correction of the alleged errors in the rulings of the CSC; and 2. Whether or not the NMP illegally terminated Maceda from employment as professor. The Rulings of the Court One. The CA ruled that there was nothing novel about a petition for certiorari being filed with that court when the act or omission complained of involved grave abuse of discretion or excess of jurisdiction. This Court must disagree. In determining whether the proper remedy is a special civil action for certiorari or a petition for review, it is not so much the nature of the question or questions that would be raised that matters. With very rare exceptions, what is decisive is whether or not the challenged order is a final order that disposes of the merit of the case.1 The Court held in Metropolitan Manila Development Authority v. Jancom Environmental Corp.2 that the remedy for seeking the reversal or modification of a judgment rendered on the merits of the case is appeal. This is true even if the error imputed to the officer, body, or tribunal constitutes alleged lack of jurisdiction over the subject matter of the case or grave abuse of discretion in making its or his findings of fact or of law. The Court cannot countenance the blurring of the distinction between a special civil action for certiorari and a petition for review.3

Besides, it cannot be said that the CSC gravely abused its discretion in dismissing respondent Macedas complaint. Grave abuse of discretion exists where the public respondent acts in a manner so patent and gross that it amounts to an evasion of a positive duty or a virtual refusal to do what the law enjoins on him. It is not sufficient that the CA disagreed with the findings of the CSC or considered them in error; it had to determine that the CSCs findings had run berserk, prompted by passion and personal hostility rather than by reason.4 The CA did not make this determination. Two. At any rate, even if the Court were to disregard the important distinction between a special civil action of certiorari and a petition for review, it still cannot uphold the CAs decision. For instance, it points out that the NMP ignored Macedas solid work, expertise, and experience when it said that he was not qualified to become a permanent professor. But Macedas so-called accomplishments cannot count for much where, as in this case, they do not in fact meet the uniform standards set by the school for its permanent professors. Nor can it be said that the NMP did not give respondent Maceda sufficient leeway to meet those standards. The CAs finding that the NMP disregarded Macedas request5 that he be allowed to avail himself of the schools training privileges, so he could comply with the requirements of the Shipboard Rotation Scheme, is not supported by evidence. Devanadera approved Macedas request through his OED Memorandum Order 303-20036 dated August 5, 2003. Maceda simply did not avail himself of the schools Shipboard Rotation Scheme nor submit the papers needed under that program. The CA also faults the NMP for not appointing Maceda as Administrative Officer V or DED III if he could not be given a permanent appointment as professor. But the power to appoint rests essentially on free choice. The appointing authority has the right to decide who best fits the job from among those who meet the minimum requirements for it. As an outsider, quite remote from the day-to-day problems of a government agency such as NMP, no court of law can presume to have the wisdom needed to make a better judgment respecting staff appointments.7 Lastly, the CA assumed the power and discretion to declare Macedas 15 years of teaching experience sufficient compliance with the "shipboard experience on license" requirement of the NMP. But under the relevant NMP QS then in force, a Professor I, who was a Marine Merchant Officer with a rank of a 3rd Mate Officer, must possess a two-year sea experience (on license) and three years of teaching experience.8 Maceda had sufficient teaching experience but he did not have the required shipboard experience. In fact, he did not board any vessel as a licensed 3rd Mate Officer. The records show that, despite the repeated efforts of the NMP Human Resource Management Section to get him on board, respondent Maceda still did not bother to complete the required shipboard experience.9 Because of this, the NMP could only give him temporary appointment that did not provide any security of tenure.10 Such appointment is of course terminable at the pleasure of the appointing power with or without a cause.11 Maceda contends that the NMP demoted him from a temporary to a contractual position. But, as both the DOLE and the CSC uniformly held, no such demotion took place since a contractual appointment is of the same nature as a temporary appointment. Thus, when the NMP did not further renew Macedas contractual appointment, the same cannot be regarded as a dismissal but an expiration of his term.12 The Court acknowledges respondent Macedas numerous achievements here and abroad as well as his part in teaching Filipino seafarers. But these cannot replace the need for him to meet the prescribed qualification standard for the position of Professor I.13 Such standard is a mix of the

formal education, experience, training, civil service eligibility, physical health, and attitude that the job requires.14 They need to be met by those who seek the position. Maceda did not. ACCORDINGLY, the Court GRANTS the petition, REVERSES the decision dated May 28, 2008 and resolution dated October 29, 2008 of the Court of Appeals in CA-G.R. SP 99539, and REINSTATES Resolution 070433 dated March 7, 2007 of the Civil Service Commission. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ARTURO D. BRION Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE P. PEREZ Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Del Pozo v. Penaco, G.R. No. L-48302, November 23, 1988, 167 SCRA 577, 589. 425 Phil. 961, 973 (2002).

Id.

Toyota Autoparts, Phils., Inc. v. The Director of Bureau of Labor Relations, 363 Phil. 437, 446 (1999).
5

CA rollo, pp. 95-96. Rollo, p. 33. Salles v. Francisco, G.R. No. 95425, February 26, 1992, 206 SCRA 621, 627-628. Rollo, pp. 28-29. CA rollo, p. 185.

10

House of Representatives v. Loanzon, G.R. No. 168267, February 16, 2006, 482 SCRA 533, 539.
11

Pabu-aya v. Court of Appeals, 408 Phil. 782, 790 (2001). CA rollo, p. 39. Mathay, Jr. v. Civil Service Commission, 371 Phil. 17, 29 (1999).

12

13

14

Section 2, Rule IV, Omnibus Rules Implementing Book V of Executive Order No. 292 or the Administrative Code of 1987. G.R. No. 181913 March 5, 2010

DANIEL P. JAVELLANA, JR., Petitioner, vs. ALBINO BELEN, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 182158 ALBINO BELEN, Petitioner, vs. DANIEL P. JAVELLANA, JR. and JAVELLANA FARMS, INC., Respondents. DECISION ABAD, J.: This case is about the proper computation of the monetary awards of an illegally dismissed employee. The Facts and the Case

On May 9, 2000 petitioner Albino Belen (Belen) filed a complaint1 against respondents Javellana Farms, Inc. and Daniel Javellana, Jr. (Javellana) for illegal dismissal and underpayment or nonpayment of salaries, overtime pay, holiday pay, service incentive leave pay (SILP), 13th month pay, premium pay for holiday, and rest day as well as for moral and exemplary damages and attorney's fees.2 Petitioner Belen alleged that respondent Javellana hired him as company driver on January 31, 19943 and assigned him the tasks of picking up and delivering live hogs, feeds, and lime stones used for cleaning the pigpens.4 On August 19, 1999 Javellana gave him instructions to (a) pick up lime stones in Tayabas, Quezon; (b) deliver live hogs at Barrio Quiling, Talisay, Batangas; (c) have the delivery truck repaired; and (d) pick up a boar at Joliza Farms in Norzagaray, Bulacan.5 Petitioner Belen further alleged that his long and arduous day finally ended at 4:30 a.m. of the following day, August 20, 1999. But after just three hours of sleep, respondent Javellana summoned him to the office. When he arrived at 8:20 a.m., Javellana had left. After being told that the latter would not be back until 4:00 p.m., Belen decided to go home and get some more sleep.6 Petitioner Belen was promptly at the office at 4:00 p.m. but respondent Javellana suddenly blurted out that he was firing Belen from work. Deeply worried that he might not soon get another job, Belen asked for a separation pay. When Javellana offered him only P5,000.00, he did not accept it.7 Respondent Javellana claimed, on the other hand, that he hired petitioner Belen in 1995, not as a company driver, but as family driver.8 Belen did not do work for his farm on a regular basis, but picked up feeds or delivered livestock only on rare occasions when the farm driver and vehicle were unavailable.9 Regarding petitioner Belen's dismissal from work, respondent Javellana insisted that he did it for a reason. Belen intentionally failed to report for work on August 20, 1999 and this warranted his dismissal.10 In a decision11 dated November 25, 2002, the Labor Arbiter found petitioner Belen to be a company driver as evidenced by the pay slips12 that the farm issued to him. Since his abrupt dismissal from work violated his right to due process, it was illegal.13 The Labor Arbiter awarded him backwages, separation pay, 13th month pay, SILP, holiday pay, salary differential, and attorney's fees.14 On appeal, the National Labor Relations Commission (NLRC) issued a resolution15 dated October 23, 2003, modifying the decision of the Labor Arbiter. The NLRC was convinced that respondent Javellana hired petitioner Belen as a family driver but required him to make certain errands that were related to the farm business. Like the Labor Arbiter, the NLRC also found Belen to have been illegally dismissed. But since he was but a family driver, the NLRC deleted the award of backwages and separation pay and instead ordered Javellana to pay him 15 days salary by way of indemnity pursuant to Article 149 of the Labor Code. Belen moved for reconsideration, but the NLRC denied his motion.16 Aggrieved, petitioner Belen elevated the matter to the Court of Appeals (CA),17 which in its Decision18 dated September 12, 2007, reverted back to the decision of the Labor Arbiter. The CA held that Belen was a company driver since, aside from driving respondent Javellana and his family, he also did jobs that were needed in Javellana's business operations, such as hauling and delivering live hogs, feeds, and lime stones for the pig pens.19 The CA also said that Javellana's abrupt dismissal of Belen for an isolated case of neglect of duty was unjustified.20 The appellate court, however, modified the award of backwages and separation pay, as it found the computation to be erroneous.21

Both respondent Javellana and petitioner Belen moved for reconsideration of the decision but the CA denied them both on March 3, 2008. 22 Undaunted, they both took recourse to this Court in G.R. 181913 and G.R. 182158, respectively. The Court consolidated the two cases in its Resolution of July 2, 2008.23 But on July 16, 2008, having initially examined the petition in G.R. 181913, the Court denied due course to it for respondent Javellana's failure to sufficiently show reversible error in the assailed decision.24 Javellana moved for reconsideration but the Court denied it with finality on September 22, 2008.25 Questions Presented The questions presented in this case are: 1. Whether or not the Labor Arbiter correctly computed petitioner Belen's backwages and separation pay; and 2. Whether or not the monetary award in his favor should run until the finality of the decision in his case. The Court's Rulings One. Petitioner Belen points out that the Labor Arbiter correctly computed his monetary award although he appeared to have been awarded more than what was right because of a typographical error in the statement of the period that his backwages covered. The Labor Arbiter's approved computation gave the period as from August 20, 1999 to November 19, 2000 when the proper period was from August 20, 1999, the date he was dismissed from work, to November 25, 2002, the date the Labor Arbiter rendered his decision in the case.26 For the same reason, petitioner Belen claims that his separation pay should be computed from January 31, 1994, when he was hired, up to November 25, 2002, when the Labor Arbiter rendered his decision. Belen also insists that the 10% attorney's fees awarded to him be based on the total amount arrived at, not by the appellate court, but by the Labor Arbiter.27 After taking such position initially, petitioner Belen claims that the amount awarded to him by the Labor Arbiter merely represents a portion of what he was entitled to. The award of backwages to which he was entitled should continue to run until the decision in his favor has become final.28
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Respondent Javellana points out, however, that the Labor Arbiter's decision clearly shows that he intended to award backwages and separation pay only until November 19, 2000.29 Javellana also disagreed that the monetary award should be reckoned until the finality of the decision in petitioner Belen's favor. The Labor Arbiter expressly limited the amount of that award since he granted Belen's request to be given separation pay instead of being reinstated.30 It is obvious from a reading of the Labor Arbiter's decision that the date November 19, 2000 stated in the computation was mere typographical error. Somewhere in the body of the decision is the categorical statement that petitioner Belen "is entitled to backwages from August 20, 1999 up to the date of this decision."31 Since the Labor Arbiter actually rendered his decision on November 25, 2002,32 it would be safe to assume that he caused the computation of the amount of backwages close to that date or on November 19, 2002. The same could be said of the computation of petitioner Belen's separation pay.

Two. This leads us to the question, does the amount that the Labor Arbiter awarded petitioner Belen represent all that he will get when the decision in his case becomes final or does it represent only the amount that he was entitled to at the time the Labor Arbiter rendered his decision, leaving room for increase up to the date the decision in the case becomes final? Article 279 of the Labor Code, as amended by Section 34 of Republic Act 6715 instructs: Art. 279. Security of Tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Clearly, the law intends the award of backwages and similar benefits to accumulate past the date of the Labor Arbiter's decision until the dismissed employee is actually reinstated.33 But if, as in this case, reinstatement is no longer possible, this Court has consistently ruled that backwages shall be computed from the time of illegal dismissal until the date the decision becomes final.34 As it happens, the parties filed separate petitions before this Court. The petition in G.R. 181913, filed by respondent Javellana, questioned the CA's finding of illegality of dismissal while the petition in G.R. 182158, filed by petitioner Belen, challenged the amounts of money claims awarded to him. The Court denied the first with finality in its resolution of September 22, 2008;35 the second is the subject of the present case. Consequently, Belen should be entitled to backwages from August 20, 1999, when he was dismissed, to September 22, 2008, when the judgment for unjust dismissal in G.R. 181913 became final. Separation pay, on the other hand, is equivalent to one month pay for every year of service, a fraction of six months to be considered as one whole year.36 Here that would begin from January 31, 1994 when petitioner Belen began his service. Technically the computation of his separation pay would end on the day he was dismissed on August 20, 1999 when he supposedly ceased to render service and his wages ended. But, since Belen was entitled to collect backwages until the judgment for illegal dismissal in his favor became final,37 here on September 22, 2008, the computation of his separation pay should also end on that date. Further, since the monetary awards remained unpaid even after it became final on September 22, 2008 because of issues raised respecting the correct computation of such awards, it is but fair that respondent Javellana be required to pay 12% interest per annum on those awards from September 22, 2008 until they are paid. The 12% interest is proper because the Court treats monetary claims in labor cases the equivalent of a forbearance of credit.38 It matters not that the amounts of the claims were still in question on September 22, 2008. What is decisive is that the issue of illegal dismissal from which the order to pay monetary awards to petitioner Belen stemmed had been long terminated.39 WHEREFORE, the Court GRANTS the petition, SETS ASIDE the decision of the Court of Appeals dated September 12, 2007 and its resolution dated March 3, 2008 in CA-G.R. SP 83354, REINSTATES the decision of the Labor Arbiter dated November 25, 2002 in NLRC-NCR Case 3009-04294-01 with the modification that the awards of backwages be computed from August 20, 1999 to September 22, 2008 and the separation pay, from January 31, 1994 to September 22, 2008; the 10% attorney's fees be based on the awards so computed; and that the amounts due be made to bear interest of 12% per annum from September 22, 2008 until fully paid.

Let the records of the case be remanded to the National Labor Relations Commission upon the finality of this judgment for computation of the exact amounts due petitioner Albino Belen from respondents Javellana Farms, Inc. and Daniel Javellana, Jr. SO ORDERED ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA* Associate Justice ARTURO D. BRION Associate Justice

JOSE PORTUGAL PEREZ Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. REYNATO S. PUNO Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Mariano C. Del Castillo, per raffle dated February 24, 2010.
1

Docketed as NLRC-NCR Case 30-05-02039-00. Rollo (G.R. 182158), pp. 47-48.

Id. at 47. Id. at 14-15. Id. at 15-16, 51. Id. at 16-17. Id. at 17. Rollo (G.R. 181913), p. 13. Rollo (G.R. 182158), p. 169. Rollo (G.R. 181913), pp. 13-14. Rollo (G.R. 182158), pp. 124-133, docketed as NLRC NCR Case 30-09-04294-01. Id. at 73-111. Id. at 129-130. Id. at 132-133. The monetary awards were computed as follows: [A.] Backwages: 1. Basic Salary 8/20/99-10/30/99 = 2.33 P198.00 x 26 x 2.33 10/31/99-10/31/00 = 12 P223.50 x 26 x 12 11/1/00-11/19/00 = 24.63 P250 x 26 x 24.63 2. 3. 13th Month Pay: P241,821.84 / 12 SILP 8/20/99-12/31/99 P223.50 x 5 x 4.37 / 12 1/1/00-11/19/00 P250 x 5 x 34.59 / 12 = P406.96 = P3,603.13 P4,010.09 P265,983.75 = P11,994.84

10

11

12

13

14

= P69,732.00 = P160,095.00 P241,821.84 P20,151.82

TOTAL BACKWAGES B. Separation Pay: 1/31/94-11/19/00 = 8 years, 9 months

P250 x 26 x 9 C. 13th Month Pay: 5/9/97-8/20/99 5/9/97-12/31/97 = 7.73 P185.00 x 26 x 7.73 / 12 1/1/98-12/31/98 = 12 P198.00 x 26 P198.00 x 26 1/1/99 7.67 P223.50 x 26 x 7.67 / 12 = D. SILP: 5/9/97-12/31/97 = P185 x 5 x 7.73 / 12 1/1/98-12/31/98 = P198 x 5 1/1/99-9/20/99 = P223.50 x 5 x 7.67 / 12 [E.] Holiday Pay: 5/9/97-8/20/99 = P198 x 21 [F.] Salary Differential: 5/9/97-2/5/98 = 8.87 P185-100 = P85 x 26 x 8.87 2/6/98-8/20/99 = 18.47 P198-100 = P98 x 26 x 18.47 = SUB-TOTAL G. Attorney's Fees: P409,566.77 x 10% TOTAL
15

= P58,500.00

= P3,098.44 = P5,148.00

P3,714.20

P11,960.64

= P595.85 = P990.00 = P714.27 P2,300.12

P4,158.00

= P19,602.70 P47,061.56 P66,664.26 P409,566.77 P40,956.68 P450,523.45

Rollo (G.R. 182158), pp. 134-141. Resolution dated December 30, 2003, id. at 142-143. Docketed as CA-G.R. SP 83354.

16

17

18

Rollo (G.R. 182158), pp. 34-46. Penned by Associate Justice Arcangelita M. RomillaLontok, with Associate Justices Mariano C. Del Castillo (now a member of this Court) and Romeo F. Barza concurring.
19

Id. at 40, 42. Id. at 43.

20

21

Id. at 44-45. The appellate court computed Belen's monetary awards as follows: A. Backwages: 1. Basic Salary 8/20/99-10/30/99 = 2.33 = P198.00 x 26 x 2.33 10/31/99-10/31/00 = 12 P223.50 x 26 x 12 = 11/1/00-11/19/00 = .63 P250 x 26 x .63 = 2. 3. 13th Month Pay: P85,821.84 / 12 SILP 8/20/99-12/31/99 P223.50 x 5 x 4.37 / 12 = 1/1/00-11/19/00 P250.00 x 5 x 10.63 / 12 = P406.96 P1,107.29 P1,514.25 P94,487.91 P11,994.84

P69,732.00 P4,095.00 -P85,821.84 P7,151.82

TOTAL BACKWAGES B. Separation Pay: 1/31/94-11/19/00 P250 x 26 x 7 C. 13th Month Pay: 5/9/97-8/20/99 5/9/97-12/31/97 = 7.73 P185.00 x 26 x 7.73 / 12 1/1/98-12/31/98 = 12 P198.00 x 26 P198.00 x 26 1/1/99 7.67 P223.50 x 26 x 7.67 / 12 D. Service Incentive Leave Pay: 5/9/97-12/31/97 = P185 x 5 x 7.73 / 12 1/1/98-12/31/98 = P198 x 5 = P595.85 = P990.00 = P3,098.44 = P5,148.00 = 6 years, 9 months = P45,500.00

= P3,714.20

P11,960.64

1/1/99-9/20/99 = P223.50 x 5 x 7.67 / 12 = P714.27 [E.] Holiday Pay: 5/9/97-8/20/99 = P198 x 21 [F.] Salary Differential: 5/9/97-2/5/98 = 8.87

P2,300.12

P4,158.00

P185-100 = P85 x 26 x 8.87 2/6/98-8/20/99 = 18.47 P198-100 = P98 x 26 x 18.47 SUB-TOTAL G. Attorney's Fees: P225,070.93 x 10% TOTAL
22

= P19,602.70 = P47,061.56 P66,664.26 P225,070.93 P 22,507.09 P247,578.02

Id. at 32-33. Rollo (G.R. 181913), p. 41. Id. at 42. Rollo (G.R. 182158), p. 208. Id. at 25-26, 213. See: id. at 25. Id. at 26-28, 213-214. Id. at 194-197. Id. at 198. Id. at 130-131. Id. at 133.

23

24

25

26

27

28

29

30

31

32

33

See: Cocomangas Hotel Beach Resort v. Visca, G.R. No. 167045, August 29, 2008, 563 SCRA 705, 721;Pheschem Industrial Corporation v. Moldez, 497 Phil. 647, 655 (2005).
34

See: Petron Corporation v. National Labor Relations Commission, G.R. No. 154532, October 27, 2006, 505 SCRA 596, 616; Philippine Journalists, Inc. v. Mosqueda, G.R. No. 141430, May 7, 2004, 428 SCRA 369, 376-377; Buenviaje v. Court of Appeals, 440 Phil. 84, 92 (2002).
35

Rollo (G.R. 182158), p. 208.

36

See: Victory Liner, Inc. v. Race, G.R. No. 164820, December 8, 2008, 573 SCRA 212, 214-215; De Guzman v. National Labor Relations Commission, G.R. No. 167701, December 12, 2007, 540 SCRA 21, 34-35; Farrol v. Court of Appeals, 382 Phil. 212, 221 (2000); Litonjua Group of Companies v. Vigan, 412 Phil. 627, 642 (2001).
37

Supra note 34.

38

Suatengco v. Reyes, G.R. No. 162729, December 17, 2008, 574 SCRA 187, 196; Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, July 12, 1994, 234 SCRA 78, 97.
39

See: Equitable Banking Corporation v. Sadac, G.R. No. 164772, June 8, 2006, 490 SCRA 380, 420-421. G.R. No. 174044 November 27, 2009

GLORIA V. GOMEZ, Petitioner, vs. PNOC DEVELOPMENT AND MANAGEMENT CORPORATION (PDMC) - (formerly known as FILOIL DEVELOPMENT AND MANAGEMENT CORPORATION [FDMC]), Respondent. DECISION ABAD, J.: This case is about what distinguishes a regular company manager performing important executive tasks from a corporate officer whose election and functions are governed by the companys by-laws. The Facts and the Case Petitioner Gloria V. Gomez used to work as Manager of the Legal Department of Petron Corporation, then a government-owned corporation. With Petrons privatization, she availed of the companys early retirement program and left that organization on April 30, 1994. On the following day, May 1, 1994, however, Filoil Refinery Corporation (Filoil), also a government-owned corporation, appointed her its corporate secretary and legal counsel,1 with the same managerial rank, compensation, and benefits that she used to enjoy at Petron. But Filoil was later on also identified for privatization. To facilitate its conversion, the Filoil board of directors created a five-member task force headed by petitioner Gomez who had been designated administrator.2 While documenting Filoils assets, she found several properties which were not in the books of the corporation. Consequently, she advised the board to suspend the privatization until all assets have been accounted for. With the privatization temporarily shelved, Filoil underwent reorganization and was renamed Filoil Development Management Corporation (FDMC), which later became the respondent PNOC Development Management Corporation (PDMC). When this happened, Gomezs task force was abolished and its members, including Gomez, were given termination notices on March 5, 1996.3 The matter was then reported to the Department of Labor and Employment on March 7, 1996.4 Meantime, petitioner Gomez continued to serve as corporate secretary of respondent PDMC. On September 23, 1996 its president re-hired her as administrator and legal counsel of the company.5 In accordance with company guidelines, it credited her the years she served with the Filoil task force. On May 24, 1998, the next president of PDMC extended her term as administrator beyond her retirement age,6 pursuant to his authority under the PDMC Approvals Manual.7 She was supposed to serve beyond retirement from August 11, 1998 to August 11, 2004. Meantime, a new board of directors for PDMC took over the company.

On March 29, 1999 the new board of directors of respondent PDMC removed petitioner Gomez as corporate secretary. Further, at the boards meeting on October 21, 1999 the board questioned her continued employment as administrator. In answer, she presented the former presidents May 24, 1998 letter that extended her term. Dissatisfied with this, the board sought the advice of its legal department, which expressed the view that Gomezs term extension was an ultra vires act of the former president. It reasoned that, since her position was functionally that of a vice-president or general manager, her term could be extended under the companys by-laws only with the approval of the board. The legal department held that her "de facto" tenure could be legally put to an end.8 Sought for comment, the Office of the Government Corporate Counsel (OGCC) held the view that while respondent PDMCs board did not approve the creation of the position of administrator that Gomez held, such action should be deemed ratified since the board had been aware of it since 1994. But the OGCC ventured that the extension of her term beyond retirement age should have been made with the boards approval.9 Petitioner Gomez for her part conceded that as corporate secretary, she served only as a corporate officer. But, when they named her administrator, she became a regular managerial employee. Consequently, the respondent PDMCs board did not have to approve either her appointment as such or the extension of her term in 1998. Pending resolution of the issue, the respondent PDMCs board withheld petitioner Gomezs wages from November 16 to 30, 1999, prompting her to file a complaint for non-payment of wages, damages, and attorneys fees with the Labor Arbiter on December 8, 1999.10 She later amended her complaint to include other money claims.11 In a special meeting held on December 29, 1999 the respondent PDMCs board resolved to terminate petitioner Gomezs services retroactive on August 11, 1998, her retirement date.12 On January 5, 2000 the board informed petitioner of its decision.13 Thus, she further amended her complaint to include illegal dismissal.14 Respondent PDMC moved to have petitioner Gomezs complaint dismissed on ground of lack of jurisdiction. The Labor Arbiter granted the motion15 upon a finding that Gomez was a corporate officer and that her case involved an intra-corporate dispute that fell under the jurisdiction of the Securities and Exchange Commission (SEC) pursuant to Presidential Decree (P.D.) 902-A.16 On motion for reconsideration, the National Labor Relations Commission (NLRC) Third Division set aside the Labor Arbiters order and remanded the case to the arbitration branch for further proceedings.17 The Third Division held that Gomez was a regular employee, not a corporate officer; hence, her complaint came under the jurisdiction of the Labor Arbiter. Upon elevation of the matter to the Court of Appeals (CA) in CA-G.R. SP 88819, however, the latter rendered a decision on May 19, 2006,18 reversing the NLRC decision. The CA held that since Gomezs appointment as administrator required the approval of the board of directors, she was clearly a corporate officer. Thus, her complaint is within the jurisdiction of the Regional Trial Court (RTC) under P.D. 902-A, as amended by Republic Act (R.A.) 8799.19 With the denial of her motion for reconsideration,20 Gomez filed this petition for review on certiorari under Rule 45. The Issue Presented The key issue in this case is whether or not petitioner Gomez was, in her capacity as administrator of respondent PDMC, an ordinary employee whose complaint for illegal dismissal and non-payment of wages and benefits is within the jurisdiction of the NLRC.

The Courts Ruling Ordinary company employees are generally employed not by action of the directors and stockholders but by that of the managing officer of the corporation who also determines the compensation to be paid such employees.21Corporate officers, on the other hand, are elected or appointed22 by the directors or stockholders, and are those who are given that character either by the Corporation Code or by the corporations by-laws.23 Here, it was the PDMC president who appointed petitioner Gomez administrator, not its board of directors or the stockholders. The president alone also determined her compensation package. Moreover, the administrator was not among the corporate officers mentioned in the PDMC by-laws. The corporate officers proper were the chairman, president, executive vice-president, vice-president, general manager, treasurer, and secretary.24 Respondent PDMC claims, however, that since its board had under its by-laws the power to create additional corporate offices, it may be deemed to have simply ratified its presidents creation of the corporate position of administrator.25 But creating an additional corporate office was definitely not respondent PDMCs intent based on its several actions concerning the position of administrator.
1avv phi1

Respondent PDMC never told Gomez that she was a corporate officer until the tail-end of her service after the board found legal justification for getting rid of her by consulting its legal department and the OGCC which supplied an answer that the board obviously wanted. Indeed, the PDMC president first hired her as administrator in May 1994 and then as "administrator/legal counsel" in September 1996 without a board approval. The president even extended her term in May 1998 also without such approval. The companys mindset from the beginning, therefore, was that she was not a corporate officer. Respondent PDMC of course claims that as administrator petitioner Gomez performed functions that were similar to those of its vice-president or its general manager, corporate positions that were mentioned in the companys by-laws. It points out that Gomez was third in the line of command, next only to the chairman and president,26 and had been empowered to make major decisions and manage the affairs of the company. But the relationship of a person to a corporation, whether as officer or agent or employee, is not determined by the nature of the services he performs but by the incidents of his relationship with the corporation as they actually exist.27 Here, respondent PDMC hired petitioner Gomez as an ordinary employee without board approval as was proper for a corporate officer. When the company got her the first time, it agreed to have her retain the managerial rank that she held with Petron. Her appointment paper said that she would be entitled to all the rights, privileges, and benefits that regular PDMC employees enjoyed.28 This is in sharp contrast to what the former PDMC presidents appointment paper stated: he was elected to the position and his compensation depended on the will of the board of directors.29 What is more, respondent PDMC enrolled petitioner Gomez with the Social Security System, the Medicare, and the Pag-Ibig Fund. It even issued certifications dated October 10, 2008,30 stating that Gomez was a permanent employee and that the company had remitted combined contributions during her tenure. The company also made her a member of the PDMCs savings and provident plan31 and its retirement plan.32 It grouped her with the managers covered by the companys group hospitalization insurance.33 Likewise, she underwent regular employee performance appraisals,34 purchased stocks through the employee stock option plan,35 and was entitled to vacation and emergency leaves.36 PDMC even withheld taxes on her salary and declared her as an

employee in the official Bureau of Internal Revenue forms.37 These are all indicia of an employeremployee relationship which respondent PDMC failed to refute. Estoppel, an equitable principle rooted on natural justice, prevents a person from rejecting his previous acts and representations to the prejudice of others who have relied on them.38 This principle of law applies to corporations as well. The PDMC in this case is estopped from claiming that despite all the appearances of regular employment that it weaved around petitioner Gomezs position it must have technically hired her only as a corporate officer. The board and its officers made her stay on and work with the company for years under the belief that she held a regular managerial position. That petitioner Gomez served concurrently as corporate secretary for a time is immaterial. A corporation is not prohibited from hiring a corporate officer to perform services under circumstances which will make him an employee.39 Indeed, it is possible for one to have a dual role of officer and employee. In Elleccion Vda. De Lecciones v. National Labor Relations Commission,40 the Court upheld NLRC jurisdiction over a complaint filed by one who served both as corporate secretary and administrator, finding that the money claims were made as an employee and not as a corporate officer. WHEREFORE, the Court GRANTS the petition, REVERSES and SETS ASIDE the decision dated May 19, 2006 and the resolution dated August 15, 2006 of the Court of Appeals in CA-G.R. SP 88819, and REINSTATES the resolution dated November 22, 2002 of the National Labor Relations Commissions Third Division in NLRC NCR 30-12-00856-99. Let the records of this case be REMANDED to the arbitration branch of origin for the conduct of further proceedings. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice ARTURO D. BRION Associate Justice

MARIANO C. DEL CASTILLO Associate Justice ATTESTATION I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Rollo, p. 206. Id. at 346-347. Id. at 221. Id. at 222. Id. at 223. Id. at 224.

Id. at 225. Authority Item 17 (f), Subject 1, Section 4 of the Approvals Manual states that the president is authorized to waive company policy on extension of services of employees beyond normal retirement age.
8

Id. at 515-517. Id. at 685-690. Id. at 226. Docketed as NLRC NCR (SOUTH) 30-12-00856-99. Id. at 227. Id. at 526-527. Id. at 523-525. Id. at 331. Id. at 332-342. Penned by Labor Arbiter Jose G. De Vera. P.D. 902-A states that the following cases fall under the exclusive jurisdiction of the SEC: xxxx c) Controversies in the election or appointment of directors, trustees, officers, or managers of such corporations, partnerships or associations;

10

11

12

13

14

15

16

xxxx
17

Rollo, pp. 112-119. Penned by Commissioner Ireneo B. Bernardo and concurred in by Presiding Commissioner Lourdes C. Javier and Commissioner Tito F. Genilo.
18

Id. at 70-75. Penned by Associate Justice Arcangelita M. Romilla-Lontok and concurred in by Associate Justices Marina L. Buzon and Aurora Santiago-Lagman.
19

Section 5.2 of R.A. 8799 (the Securities Regulation Code, July 19, 2000) provides: The Commissions jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court: Provided, That the Supreme Court in the exercise of its authority may designate the Regional Trial Court branches that shall exercise jurisdiction over the cases x x x.

20

Rollo, p. 111.

21

Easycall Communications Phils., Inc. v. King, G.R. No. 145901, December 15, 2005, 478 SCRA 102, 110.
22

See Nacpil v. International Broadcasting Corporation, 429 Phil. 410, 418 (2002). Supra note 21, at 109. Rollo, p. 418.

23

24

25

Id. at 419. Under Article VI, Section 1(b) of the by-laws, the board may appoint such other officers as it deems necessary.
26

CA rollo, p. 224. Supra note 22, at 418-419. Rollo, p. 223. Id. at 395. Id. at 800-804. Id. at 663-666. Id. at 652. Id. at 661-662. Id. at 650-651. Id. at 671-672.

27

28

29

30

31

32

33

34

35

36

Id. at 669-670. Id. at 658-660. Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 SCRA 307, 324.

37

38

39

Rural Bank of Coron (Palawan), Inc. v. Cortes, G.R. No. 164888, December 6, 2006, 510 SCRA 443, 450; citing Mainland Construction Co., Inc. v. Movilla, G.R. No. 118088, November 23, 1995, 250 SCRA 290, 296.
40

G.R. No. 184735, September 17, 2009. September 29, 2010

G.R. No. 155109

C. ALCANTARA & SONS, INC., Petitioner, vs. COURT OF APPEALS, LABOR ARBITER ANTONIO M. VILLANUEVA, LABOR ARBITER ARTURO L. GAMOLO, SHERIFF OF NLRC RAB-XI-DAVAO CITY, NAGKAHIUSANG MAMUMUO SA ALSONS-SPFL (NAMAAL-SPFL), FELIXBERTO IRAG, JOSHUA BARREDO, ERNESTO CUARIO, EDGAR MONDAY, EDILBERTO DEMETRIA, HERMINIO ROBILLO, ROMULO LUNGAY, MATROIL DELOS SANTOS, BONERME MATURAN, RAUL CANTIGA, EDUARDO CAMPUSO, RUDY ANADON, GILBERTO GABRONINO, BONIFACIO SALVADOR, CIRILO MINO, ROBERTO ABONADO, WARLITO MONTE, PEDRO ESQUIERDO, ALFREDO TROPICO, DANILO MEJOS, HECTOR ESTUITA, BARTOLOME CASTILLANES, EDUARDO CAPUYAN, SATURNINO CAGAS, ALEJANDRO HARDER, EDUARDO LARENA, JAIME MONTEDERAMOS, ERMELANDO BASADRE, REYNALDO LIMPAJAN, ELPIDIO LIBRANZA, TEDDY SUELO, JOSE AMOYLIN, TRANQUILINO ORALLO, CARLOS BALDOS, MANOLITO SABELLANO, CARMELITO TOBIAS, PRIMITIVO GARCIA, JUANITO ALDEPOLLA, LUDIVICO ABAD, WENCISLAO INGHUG, RICARDO ALTO, EPIFANIO JARABAY, FELICIANO AMPER, ALEXANDER JUDILLA, ROBERTO ANDRADE, ALFREDO LESULA, JULIO ANINO, BENITO MAGPUSAO, PEDRO AQUINO, EDDIE MANSANADES, ROMEO ARANETA, ARGUILLAO MANTICA, CONSTANCIO ARNAIZ, ERNESTO HOTOY, JUSTINO ASCANO, RICARDO MATURAN, EDILBERTO YAMBAO, ANTONIO MELARGO, JESUS BERITAN, ARSENIO MELICOR, DIOSDADO BONGABONG, LAURO MONTENEGRO, CARLITO BURILLO, LEO MORA, PABLO BUTIL, ARMANDO GUCILA, JEREMIAH CAGARA, MARIO NAMOC, CARLITO CAL, GERWINO NATIVIDAD, ROLANDO CAPUYAN, EDGARDO ORDIZ, LEONARDO CASURRA, PATROCINIO ORTEGA, FILEMON CESAR, MARIO PATAN, ROMEO COMPRADO, JESUS PATOC, RAMON CONSTANTINO, ALBERTO PIELAGO, SAMUEL DELA LLANA, NICASIO PLAZA, ROSALDO DAGONDON, TITO GUADES, BONIFACIO DINAGUDOS, PROCOPIO RAMOS, JOSE EBORAN, ROSENDO SAJOL, FRANCISCO EMPUERTO, PATRICIO SALOMON, NESTOR ENDAYA, MARIO SALVALEON, ERNESTO ESTILO, BONIFACIO SIGUE, VICENTE FABROA, JAIME SUCUAHI, CELSO HUISO, ALEX TAUTO-AN, SATURNINO YAGON, CLAUDIO TIROL, SULPECIO GAGNI, JOSE TOLERO, FERVIE GALVEZ, ALFREDO TORALBA and EDUARDO GENELSA,Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 155135 NAGKAHIUSANG MAMUMUO SA ALSONS-SPFL (NAMAAL-SPFL), FELIXBERTO IRAG, JOSHUA BARREDO, ERNESTO CUARIO, EDGAR MONDAY, EDILBERTO DEMETRIA, HERMINIO ROBILLO, ROMULO LUNGAY, MATROIL DELOS SANTOS, BONERME MATURAN,

RAUL CANTIGA, EDUARDO CAMPUSO, RUDY ANADON, GILBERTO GABRONINO, BONIFACIO SALVADOR, CIRILO MINO, ROBERTO ABONADO, WARLITO MONTE, PEDRO ESQUIERDO, ALFREDO TROPICO, DANILO MEJOS, HECTOR ESTUITA, BARTOLOME CASTILLANES, EDUARDO CAPUYAN, SATURNINO CAGAS, ALEJANDRO HARDER, EDUARDO LARENA, JAIME MONTEDERAMOS, ERMELANDO BASADRE, REYNALDO LIMPAJAN, ELPIDIO LIBRANZA, TEDDY SUELO, JOSE AMOYLIN, TRANQUILINO ORALLO, CARLOS BALDOS, MANOLITO SABELLANO, CARMELITO TOBIAS, PRIMITIVO GARCIA, JUANITO ALDEPOLLA, LUDIVICO ABAD, WENCISLAO INGHUG, RICARDO ALTO, EPIFANIO JARABAY, FELICIANO AMPER, ALEXANDER JUDILLA, ROBERTO ANDRADE, ALFREDO LESULA, JULIO ANINO, BENITO MAGPUSAO, PEDRO AQUINO, EDDIE MANSANADES, ROMEO ARANETA, ARGUILLAO MANTICA, CONSTANCIO ARNAIZ, ERNESTO HOTOY, JUSTINO ASCANO, RICARDO MATURAN, EDILBERTO YAMBAO, ANTONIO MELARGO, JESUS BERITAN, ARSENIO MELICOR, DIOSDADO BONGABONG, LAURO MONTENEGRO, CARLITO BURILLO, LEO MORA, PABLO BUTIL, ARMANDO GUCILA, JEREMIAH CAGARA, MARIO NAMOC, CARLITO CAL, GERWINO NATIVIDAD, ROLANDO CAPUYAN, JUANITO NISNISAN, AURELIO CARIN, PRIMO OPLIMO, ANGELITO CASTANEDA, EDGARDO ORDIZ, LEONARDO CASURRA, PATROCINIO ORTEGA, FILEMON CESAR, MARIO PATAN, ROMEO COMPRADO, JESUS PATOC, RAMON CONSTANTINO, MANUEL PIAPE, ROY CONSTANTINO, ALBERTO PIELAGO, SAMUEL DELA LLANA, NICASIO PLAZA, ROSALDO DAGONDON, TITO GUADES, BONIFACIO DINAGUDOS, PROCOPIO RAMOS, JOSE EBORAN, ROSENDO SAJOL, FRANCISCO EMPUERTO, PATRICIO SALOMON, NESTOR ENDAYA, MARIO SALVALEON, ERNESTO ESTILO, BONIFACIO SIGUE, VICENTE FABROA, JAIME SUCUAHI, CELSO HUISO, ALEX TAUTO-AN, SATURNINO YAGON, CLAUDIO TIROL, SULPECIO GAGNI, JOSE TOLERO, FERVIE GALVEZ, ALFREDO TORALBA and EDUARDO GENELSA, Petitioners, vs. C. ALCANTARA & SONS, INC., EDITHA I. ALCANTARA, ATTY. NELIA A. CLAUDIO, CORNELIO E. CAGUIAT, JESUS S. DELA CRUZ, ROLANDO Z. ANDRES and JOSE MA. MANUEL YRASUEGUI, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179220 NAGKAHIUSANG MAMUMUO SA ALSONS-SPFL (NAMAAL-SPFL), and its members whose names are listed below, Petitioners, vs. C. ALCANTARA & SONS, INC., Respondent. DECISION ABAD, J.: This case is about a) the consequences of an illegally staged strike upon the employment status of the union officers and its ordinary members and b) the right of reinstated union members to go back to work pending the companys appeal from the order reinstating them. The Facts and the Case C. Alcantara & Sons, Inc., (the Company) is a domestic corporation engaged in the manufacture and processing of plywood. Nagkahiusang Mamumuo sa Alsons-SPFL (the Union) is the exclusive bargaining agent of the Companys rank and file employees. The other parties to these cases are the Union officers1 and their striking members.2

The Company and the Union entered into a Collective Bargaining Agreement (CBA) that bound them to hold no strike and no lockout in the course of its life. At some point the parties began negotiating the economic provisions of their CBA but this ended in a deadlock, prompting the Union to file a notice of strike. After efforts at conciliation by the Department of Labor and Employment (DOLE) failed, the Union conducted a strike vote that resulted in an overwhelming majority of its members favoring it. The Union reported the strike vote to the DOLE and, after the observance of the mandatory cooling-off period, went on strike. During the strike, the Company filed a petition for the issuance of a writ of preliminary injunction with prayer for the issuance of a temporary restraining order (TRO) Ex Parte3 with the National Labor Relations Commission (NLRC) to enjoin the strikers from intimidating, threatening, molesting, and impeding by barricade the entry of non-striking employees at the Companys premises. The NLRC first issued a 20-day TRO and, after hearing, a writ of preliminary injunction, enjoining the Union and its officers and members from performing the acts complained of. But several attempts to implement the writ failed. Only the intervention of law enforcement units made such implementation possible. Meantime, the Union filed a petition4 with the Court of Appeals (CA), questioning the preliminary injunction order. On February 8, 1999 the latter court dismissed the petition. The Union did not appeal from such dismissal. The Company, on the other hand, filed a petition with the Regional Arbitration Board to declare the Unions strike illegal,5 citing its violation of the no strike, no lockout, provision of their CBA. Subsequently, the Company amended its petition to implead the named Union members who allegedly committed prohibited acts during the strike. For their part, the Union, its officers, and its affected members filed against the Company a counterclaim for unfair labor practices, illegal dismissal, and damages. The Union also assailed as invalid the service of summons on the individual Union members included in the amended petition. On June 29, 1999 the Labor Arbiter rendered a decision,6 declaring the Unions strike illegal for violating the CBAs no strike, no lockout, provision. As a consequence, the Labor Arbiter held that the Union officers should be deemed to have forfeited their employment with the Company and that they should pay actual damages ofP3,825,000.00 plus 10% interest and attorneys fees. With respect to the striking Union members, finding no proof that they actually committed illegal acts during the strike, the Labor Arbiter ordered their reinstatement without backwages. The Labor Arbiter denied the Unions counterclaim for lack of merit. On June 29, 1999 the terminated Union members promptly filed a motion for their immediate reinstatement but the Labor Arbiter did not act on the same. At any rate, the Company did not reinstate them. Both parties appealed7the Labor Arbiters decision to the NLRC. The Company impugned the Labor Arbiters decision insofar as it ordered the reinstatement of the terminated Union members. The Union, on the other hand, questioned the declaration of illegality of the strike as well as the dismissal of its officers and the order for them to pay damages. On November 8, 1999 the NLRC rendered a decision,8 affirming that of the Labor Arbiter insofar as the latter declared the strike illegal, ordered the Union officers terminated, and directed them to pay damages to the Company. The NLRC ruled, however, that the Union members involved, who were identified in the proceedings held in the case, should also be terminated for having committed prohibited and illegal acts. The Union filed a petition for certiorari9 with the CA, questioning the NLRC decision. Finding merit in the petition, the CA rendered a decision on March 20, 2002,10 annulling the NLRC decision and reinstating that of the Labor Arbiter. The Company and the Union with its officers and members filed separate petitions for review of the CA decision in G.R. 155109 and 155135, respectively.

During the pendency of these cases, the affected Union members filed with the Labor Arbiter a motion for reinstatement pending appeal by the parties and the computation of their backwages based on the CA decision. After hearing, the Labor Arbiter issued a resolution dated November 21, 2002,11 holding that due to the delay in the resolution of the dispute and the impracticability of reinstatement owing to the fact that the relations between the terminated Union members and the Company had been severely strained by the prolonged litigation, payment of separation pay to such Union members was in order. The Labor Arbiter thus approved the computation and payment of their separation pay and denied all their other claims. Both parties appealed the Labor Arbiters resolution12 to the NLRC. Initially, in its resolution dated April 30, 2003,13 the NLRC declared the Labor Arbiters resolution of November 21, 2002 void for lack of factual and legal basis but ordered the Company to pay the affected employees accrued wages and 13th month pay considering the Companys refusal to reinstate them pending appeal. On motion for reconsideration by both parties, however, the NLRC issued a resolution on August 29, 2003,14 modifying its earlier resolution by deleting the grant of accrued wages and 13th month pay to the subject employees, thus denying their motion for computation. Upon the Unions petition for certiorari15 with the CA, questioning the NLRCs denial of the terminated Union members claim for separation pay, accrued wages, and other benefits, the CA rendered a decision on February 24, 2005,16 dismissing the petition. The CA ruled that the reinstatement pending appeal provided under Article 223 of the Labor Code contemplated illegal dismissal or termination cases and not cases under Article 263. Thus, the CA ruled that the resolution ordering the reinstatement of the terminated Union members and the payment of their wages and other benefits had no basis. Aggrieved, the Union sought intervention by this Court. The Issues Presented The issues presented in these cases are: 1. Whether or not the NLRC properly acquired jurisdiction over the persons of the individual Union members impleaded in the case; 2. Whether or not the Union staged an illegal strike; 3. Assuming the strike to be illegal, whether or not the impleaded Union members committed illegal acts during the strike, justifying their termination from employment; 4. Whether or not the terminated Union members are entitled to the payment of backwages on account of the Companys refusal to reinstate them, pending appeal by the parties, from the Labor Arbiters decision of June 29, 1999; and 5. Whether or not the terminated Union members are entitled to accrued backwages and separation pay. The Rulings of the Court One. The NLRC acquires jurisdiction over parties in cases before it either by summons served on them or by their voluntary appearance before its Labor Arbiter. Here, while the Union insists that summons were not properly served on the impleaded Union members with respect to the Companys amended petition that sought to declare the strike illegal, the records show that they were so served. The Return of Service of Summons17 indicated that 74 out of the 8118 impleaded

Union members were served with summons. But they refused either to accept the summons or to acknowledge receipt of the same. Such refusal cannot of course frustrate the NLRCs acquisition of jurisdiction over them. Besides, the affected Union members voluntarily entered their appearance in the case when they sought affirmative relief in the course of the proceedings like an award of damages in their favor. Two. A strike may be regarded as invalid although the labor union has complied with the strict requirements for staging one as provided in Article 263 of the Labor Code when the same is held contrary to an existing agreement, such as a no strike clause or conclusive arbitration clause.19 Here, the CBA between the parties contained a "no strike, no lockout" provision that enjoined both the Union and the Company from resorting to the use of economic weapons available to them under the law and to instead take recourse to voluntary arbitration in settling their disputes. No law or public policy prohibits the Union and the Company from mutually waiving the strike and lockout maces available to them to give way to voluntary arbitration. Indeed, no less than the 1987 Constitution recognizes in Section 3, Article XIII, preferential use of voluntary means to settle disputes. Thus The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The Court finds no compelling reason to depart from the findings of the Labor Arbiter, the NLRC, and the CA regarding the illegality of the strike. Social justice is not one-sided. It cannot be used as a badge for not complying with a lawful agreement. Three. Since the Unions strike has been declared illegal, the Union officers can, in accordance with law be terminated from employment for their actions. This includes the shop stewards. They cannot be shielded from the coverage of Article 264 of the Labor Code since the Union appointed them as such and placed them in positions of leadership and power over the men in their respective work units. As regards the rank and file Union members, Article 264 of the Labor Code provides that termination from employment is not warranted by the mere fact that a union member has taken part in an illegal strike. It must be shown that such a union member, clearly identified, performed an illegal act or acts during the strike.20
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Here, although the Labor Arbiter found no proof that the dismissed rank and file Union members committed illegal acts, the NLRC found following the injunction hearing in NLRC IC M-000126-98 that the Union members concerned committed such acts, for which they had in fact been criminally charged before various courts and the prosecutors office in Davao City. Since the CA held that the existence of criminal complaints against the Union members did not warrant their dismissal, it becomes necessary for the Court to go into the records to settle the issue. The striking Union members allegedly committed the following prohibited acts: a. They threatened, coerced, and intimidated non-striking employees, officers, suppliers and customers; b. They obstructed the free ingress to and egress from the company premises; and

c. They resisted and defied the implementation of the writ of preliminary injunction issued against the strikers. Cornelio Caguiat, Ruben Tungapalan, and Eufracio Rabusa depicted the above prohibited acts in their affidavits and testimonies. The Sheriff of the NLRC said in his Report21 that, in the course of his implementation of the writ of injunction, he observed that the striking employees blocked the exit lane of the Alson drive with their tent. Tungapalan, a non-striking employee, identified the Union members who threatened and coerced him. Indeed, he filed criminal actions against them. Lastly, the photos taken of the strike show the strikers, properly identified, committing the acts complained of. These constitute substantial evidence in support of the termination of the subject Union members. The mere fact that the criminal complaints against the terminated Union members were subsequently dismissed for one reason or another does not extinguish their liability under the Labor Code. Nor does such dismissal bar the admission of the affidavits, documents, and photos presented to establish their identity and guilt during the hearing of the petition to declare the strike illegal. The technical grounds that the Union interposed for denying admission of the photos are also not binding on the NLRC.22 Four. The terminated Union members contend that, since the Company refused to reinstate them after the Labor Arbiter rendered a decision in their favor, the Company should be ordered to pay them their wages during the pendency of the appeals from the Labor Arbiters decision. It will be recalled that after the Labor Arbiter rendered his decision on June 29, 1999, which decision ordered the reinstatement of the terminated Union members, the latter promptly filed a motion for their reinstatement pending appeal. But the Labor Arbiter did not for some reason act on the motion. As it happened, after about four months or on November 8, 1999, the NLRC reversed the Labor Arbiters reinstatement order. It cannot be said, therefore, that the Company had resisted a standing order of reinstatement directed at it at this point. Of course, on March 20, 2002 the CA restored the Labor Arbiters reinstatement order. And this prompted the affected Union members to again file with the Labor Arbiter a motion for their reinstatement pending appeal. But, acting on the motion, the Labor Arbiter resolved at this point that reinstatement was no longer practicable because of the severely strained relation between the company and the terminated Union members. In place of reinstatement, the Labor Arbiter ordered the Company to pay them their separation pays. Both parties appealed the Labor Arbiters above ruling23 to the NLRC. But, as it turned out the NLRC did not also favor reinstatement. It instead ordered the Company to pay the terminated Union members their accrued wages and 13th month pay considering its refusal to reinstate them pending appeal. On motion for reconsideration, however, the NLRC reconsidered and deleted altogether the grant of accrued wages and 13th month pay. The Union appealed the NLRC ruling to the CA on behalf of its terminated members but the CA denied their appeal. The CA denied reinstatement for the reason that the reinstatement pending appeal provided under Article 223 of the Labor Code contemplated illegal dismissal or termination cases and not cases under Article 264. But this perceived distinction does not find support in the provisions of the Labor Code. The grounds for termination under Article 264 are based on prohibited acts that employees could commit during a strike. On the other hand, the grounds for termination under Articles 282 to 284 are based on the employees conduct in connection with his assigned work. Still, Article 217, which

defines the powers of Labor Arbiters, vests in the latter jurisdiction over all termination cases, whatever be the grounds given for the termination of employment. Consequently, Article 223, which provides that the decision of the Labor Arbiter reinstating a dismissed employee shall immediately be executory pending appeal, cannot but apply to all terminations irrespective of the grounds on which they are based. Here, although the Labor Arbiter failed to act on the terminated Union members motion for reinstatement pending appeal, the Company had the duty under Article 223 to immediately reinstate the affected employees even if it intended to appeal from the decision ordaining such reinstatement. The Companys failure to do so makes it liable for accrued backwages until the eventual reversal of the order of reinstatement by the NLRC on November 8, 1999,24 a period of four months and nine days.
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Five. While it is true that generally the grant of separation pay is not available to employees who are validly dismissed, there are, in furtherance of the laws policy of compassionate justice, certain circumstances that warrant the grant of some relief in favor of the terminated Union members based on equity. Bitter labor disputes, especially strikes, always generate a throng of odium and abhorrence that sometimes result in unpleasant, although unwanted, consequences.25 Considering this, the striking employees breach of certain restrictions imposed on their concerted actions at their employers doorsteps cannot be regarded as so inherently wicked that the employer can totally disregard their long years of service prior to such breach.26 The records also fail to disclose any past infractions committed by the dismissed Union members. Taking these circumstances in consideration, the Court regards the award of financial assistance to these Union members in the form of one-half month salary for every year of service to the company up to the date of their termination as equitable and reasonable. WHEREFORE, the Court DENIES the petition of the Nagkahiusang Mamumuo sa Alsons-SPFL and its officers and members in G.R. 155135 for lack of merit, and REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. SP 59604 dated March 20, 2002. The Court, on the other hand, GRANTS the petition of C. Alcantara & Sons, Inc. in G.R. 155109 and REINSTATES the decision of the National Labor Relations Commission in NLRC CA M-004996-99 dated November 8, 1999. Further, the Court PARTIALLY GRANTS the petition of the Nagkahiusang Mamumuo sa AlsonsSPFL and their dismissed members in G.R. 179220 and ORDERS C. Alcantara & Sons, Inc. to pay the terminated Union members backwages for four (4) months and nine (9) days and separation pays equivalent to one-half month salary for every year of service to the company up to the date of their termination, with interest of 12% per annum from the time this decision becomes final and executory until such backwages and separation pays are paid. The Court DENIES all other claims. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

The officers of the Union are the following: Felixberto Irag, Joshua Barredo, Edilberto Demetria, Romulo Lungay, Bonerme Maturan, Eduardo Campuso, Gilberto Gabronino, Cirilo Mino, Roberto Abonado, Fructoso Cabahog, Alfredo Tropico, Hector Estuita, Eduardo Capuyan, Alejandro Harder, Jaime Montederamos, Reynaldo Limpajan, Ernesto Cuario, Edgar Monday, Herminio Robillo, Matroil delos Santos, Raul Cantiga, Rudy Anadon, Bonifacio Salvador, Florente Seno, Warlito Monte, Pedro Esquierdo, Danilo Mejos, Bartolome Castillanes, Saturnino Cagas, Eduardo Larena, Ermelando Basadre, Elpidio Libranza.Teddy Suelo, Tranquilino Orallo, Manolito Sabellano, Primitivo Garcia, Jose Amoylin, Carlos Baldos, Carmelito Tobias and Juanito Aldepolla.
2

These are Ludivicio Abad, Ricardo Alto, Feliciano Amper, Roberto Andrade, Julio Anino, Pedro Aquino, Romeo Araneta, Constancio Arnaiz, Justino Ascano, Ernesto Baino, Jesus Beritan, Diosdado Bongabong, Carilito Cal, Rolando Capuyan, Aurelio Carin, Angelito Castaeda, Leonaro Casurra, Filemon Cesar, Romeo Comprado, Ramon Constantino, Roy Constantino, Samuel dela Llana, Rosaldo Dagondon, Bonifacio Dinagudos, Jose Eboran, Francisco Empuerto, Nestor Endaya, Ernesto Estilo, Vicente Fabroa, Ramon Fernando, Samson Fulgueras, Sulpecio Gagni, Fervie Galvez, Eduardo Genelsa, Tito Guades, Armando Gucila, Ernesto Hotoy, Wencislao Inghug, Epifanio Jarabay, Alexander Judilla, Alfredo Lesula, Benito Magpusao, Eddie Mansanades, Arguilao Mantica, Silverio Maranian, Ricardo Maturan, Antonio Melargo, Arsenio Melicor, Lauro Montenegro, Leo Mora, Ronaldo Naboya, Mario Namoc, Gerwino Natividad, Juanito Nisnisan, Primo Oplimo, Edgardo Ordiz, Patrocino Ortega, Mario Patan, Jesus Patoc, Manuel Piape, Alberto Pielago, Nicasio Plaza,

Fausto Quibod, Procopio Ramos, Rosendo Sajol, Patricio Solomon, Mario Salvaleon, Bonifacio Sigue, Jaime Sucuahi, Alex Tauto-an, Claudio Tirol, Jose Tolero, Alfredo Toralba, Eusebio Tumulak, Hermes Villacarlos, Saturnino Yagon and Edilberto Yambao.
3

Docketed as NLRC IC M-000126-98. Docketed as CA-G.R. SP 50371. Docketed as NLRC RAB-11-08-01064-98. NLRC records, Vol. 1, pp. 845-869. Docketed as NLRC CA M-004996-99. NLRC records, Vol. 3, pp. 575-591. Docketed as CA-G.R. SP 59604. CA rollo, Vol. 2, pp. 1090-1097. NLRC records, Vol. 6, pp. 164-170. Docketed as NLRC CA M-007314-2002. Id. at 612-620. Id. at 1177-1184. Docketed as CA-G.R. SP 80507. Rollo (G.R. 155109), pp. 787-800. NLRC records, Vol. 1, pp. 57-58, 123-127.

10

11

12

13

14

15

16

17

18

Respondents Ricardo Alto, Ramon Constantino, Rosaldo Dagondon, Vicente Fabroa, Jose Tolero, Mario Namoc and Rolando Naboya were not served with summons due to incomplete address.
19

I Teller 314-317 cited in Azucena, C. Everyones Labor Code, 2007 edition, p. 291.

20

Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission, G.R. Nos. 158786, 158789 & 158798-99, October 19, 2007, 537 SCRA 171, 212.
21

NLRC records, Vol. 1, pp. 110-111. Labor Code, Article 221. Docketed as NLRC CA M-007314-2002.

22

23

24

See Garcia v. Philippine Airlines, Inc., G.R. No. 164856, January 20, 2009, 576 SCRA 479, 489.
25

Kimberly Clark (Phils.) v. Facundo, G.R. No. 144885. July 12, 2006. Rollo (G.R. 155109), p. 1011. Some of them were hired as early as 1972. October 30, 2009

26

G.R. No. 177024

THE HERITAGE HOTEL MANILA (OWNED AND OPERATED BY GRAND PLAZA HOTEL CORPORATION)Petitioner, vs. PINAG-ISANG GALING AT LAKAS NG MGA MANGGAGAWA SA HERITAGE MANILA (PIGLASHERITAGE),Respondent. DECISION ABAD, J.: This case is about a companys objections to the registration of its rank and file union for noncompliance with the requirements of its registration. The Facts and the Case Sometime in 2000, certain rank and file employees of petitioner Heritage Hotel Manila (petitioner company) formed the "Heritage Hotel Employees Union" (the HHE union). The Department of Labor and Employment-National Capital Region (DOLE-NCR) later issued a certificate of registration1 to this union. Subsequently, the HHE union filed a petition for certification election2 that petitioner company opposed. The company alleged that the HHE union misrepresented itself to be an independent union, when it was, in truth, a local chapter of the National Union of Workers in Hotel and Restaurant and Allied Industries (NUWHRAIN). The company claimed that the HHE union intentionally omitted disclosure of its affiliation with NUWHRAIN because the companys supervisors union was already affiliated with it.3 Thus, the company also filed a petition for the cancellation of the HHE unions registration certificate.4 Meanwhile, the Med-Arbiter granted the HHE unions petition for certification election.5 Petitioner company appealed the decision to the Secretary of Labor but the latter denied the appeal.6 The Secretary also denied petitioners motion for reconsideration, prompting the company to file a petition for certiorari7 with the Court of Appeals. On October 12, 2001 the Court of Appeals issued a writ of injunction against the holding of the HHE unions certification election, effective until the petition for cancellation of that unions registration shall have been resolved with finality.8 The decision of the Court of Appeals became final when the HHE union withdrew the petition for review that it filed with this Court.9 On December 10, 2003 certain rank and file employees of petitioner company held a meeting and formed another union, the respondent Pinag-Isang Galing at Lakas ng mga Manggagawa sa Heritage Manila (the PIGLAS union). This union applied for registration with the DOLE-NCR10 and got its registration certificate on February 9, 2004. Two months later, the members of the first union,

the HHE union, adopted a resolution for its dissolution. The HHE union then filed a petition for cancellation of its union registration.11 On September 4, 2004 respondent PIGLAS union filed a petition for certification election12 that petitioner company also opposed, alleging that the new unions officers and members were also those who comprised the old union. According to the company, the employees involved formed the PIGLAS union to circumvent the Court of Appeals injunction against the holding of the certification election sought by the former union. Despite the companys opposition, however, the Med-Arbiter granted the petition for certification election.13 On December 6, 2004 petitioner company filed a petition to cancel the union registration of respondent PIGLAS union.14 The company claimed that the documents submitted with the unions application for registration bore the following false information: (a) The List of Members showed that the PIGLAS union had 100 union members;15 (b) The Organizational Minutes said that 90 employees attended the meeting on December 10, 2003;16 (c) The Attendance Sheet of the meeting of December 10, 2003 bore the signature of 127 members who ratified the unions Constitution and By-Laws;17 and (d) The Signature Sheet bore 128 signatures of those who attended that meeting.18 Petitioner company alleged that the misrepresentation was evidenced by the discrepancy in the number of union members appearing in the application and the list as well as in the number of signatories to the attendance and signature sheets. The minutes reported that only 90 employees attended the meeting. The company further alleged that 33 members of respondent PIGLAS union were members of the defunct HHE union. This, according to the company, violated the policy against dual unionism and showed that the new union was merely an alter ego of the old. On February 22, 2005 the DOLE-NCR denied the companys petition to cancel respondent PIGLAS unions registration for the reason that the discrepancies in the number of members stated in the applications supporting documents were not material and did not constitute misrepresentation. As for the charge of dual unionism, the same is not a ground for canceling registration. It merely exposed a union member to a possible charge of disloyalty, an internal matter. Here, the members of the former union simply exercised their right to self-organization and to the freedom of association when they subsequently joined the PIGLAS union.19 On appeal, the Bureau of Labor Relation (BLR) affirmed the ruling of the DOLE-NCR. It reasoned that respondent PIGLAS unions organization meeting lasted for 12 hours. It was possible for the number of attendees to have increased from 90 to 128 as the meeting progressed. Besides, with a total of 250 employees in the bargaining unit, the union needed only 50 members to comply with the 20 percent membership requirement. Thus, the union could not be accused of misrepresentation since it did not pad its membership to secure registration. As for the issue of dual unionism, it has become moot and academic, said the BLR, because of the dissolution of the old union and the cancellation of its certificate of registration.20 Petitioner company filed a petition for certiorari with the Court of Appeals,21 assailing the order of the BLR. But the latter court dismissed the petition, not being accompanied by material documents and

portions of the record.22The company filed a motion for reconsideration, attaching parts of the record that were deemed indispensable but the court denied it for lack of merit.23 Hence, the company filed this petition for review under Rule 45. Issues Presented The petition presents the following issues: 1. Whether or not the Court of Appeals erred in dismissing the petition for certiorari before it for failure of petitioner company to attach certain material portions of the record; 2. Whether or not the union made fatal misrepresentation in its application for union registration; and 3. Whether or not "dual unionism" is a ground for canceling a unions registration. The Rulings of the Court First. While the Court of Appeals correctly dismissed the companys petition initially for failure to attach material portions of the record, the court should have bended back a little when petitioner company subsequently attached those missing materials to its motion for reconsideration. As a general rule, petitions for certiorari that lack copies of essential pleadings and portions of the record may be dismissed but this rule has not been regarded as absolute. The omission may be cured.24 The Court of Appeals has three courses of action when the annexes to the petition are insufficient. It may dismiss the petition,25 require the submission of the relevant documents, or order the filing of an amended petition with the required pleadings or documents. A petition lacking in essential pleadings or portions of the record may still be given due course, or reinstated if earlier dismissed, upon subsequent submission of the necessary documents or to serve the higher interest of justice.26 Second. Since a remand of the case to the Court of Appeals for a determination of the substantive issues will only result in more delays and since these issues have been amply argued by the opposing sides in the various pleadings and documents they submitted to this Court, the case may now be resolved on the merits. Did respondent PIGLAS union commit fraud and misrepresentation in its application for union registration? We agree with the DOLE-NCR and the BLR that it did not. Except for the evident discrepancies as to the number of union members involved as these appeared on the documents that supported the unions application for registration, petitioner company has no other evidence of the alleged misrepresentation. But those discrepancies alone cannot be taken as an indication that respondent misrepresented the information contained in these documents. The charge that a labor organization committed fraud and misrepresentation in securing its registration is a serious charge and deserves close scrutiny. It is serious because once such charge is proved, the labor union acquires none of the rights accorded to registered organizations. Consequently, charges of this nature should be clearly established by evidence and the surrounding circumstances.27 Here, the discrepancies in the number of union members or employees stated in the various supporting documents that respondent PIGLAS union submitted to labor authorities can be explained. While it appears in the minutes of the December 10, 2003 organizational meeting that

only 90 employees responded to the roll call at the beginning, it cannot be assumed that such number could not grow to 128 as reflected on the signature sheet for attendance. The meeting lasted 12 hours from 11:00 a.m. to 11:00 p.m. There is no evidence that the meeting hall was locked up to exclude late attendees.
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There is also nothing essentially mysterious or irregular about the fact that only 127 members ratified the unions constitution and by-laws when 128 signed the attendance sheet. It cannot be assumed that all those who attended approved of the constitution and by-laws. Any member had the right to hold out and refrain from ratifying those documents or to simply ignore the process. At any rate, the Labor Code28 and its implementing rules29 do not require that the number of members appearing on the documents in question should completely dovetail. For as long as the documents and signatures are shown to be genuine and regular and the constitution and by-laws democratically ratified, the union is deemed to have complied with registration requirements. Petitioner company claims that respondent PIGLAS union was required to submit the names of all its members comprising at least 20 percent of the employees in the bargaining unit. Yet the list it submitted named only 100 members notwithstanding that the signature and attendance sheets reflected a membership of 127 or 128 employees. This omission, said the company, amounted to material misrepresentation that warranted the cancellation of the unions registration. But, as the labor authorities held, this discrepancy is immaterial. A comparison of the documents shows that, except for six members, the names found in the subject list are also in the attendance and signature sheets. Notably, the bargaining unit that respondent PIGLAS union sought to represent consisted of 250 employees. Only 20 percent of this number or 50 employees were required to unionize. Here, the union more than complied with such requirement. Labor laws are liberally construed in favor of labor especially if doing so would affirm its constitutionally guaranteed right to self-organization.30 Here, the PIGLAS unions supporting documents reveal the unmistakable yearning of petitioner companys rank and file employees to organize. This yearning should not be frustrated by inconsequential technicalities. Third. The fact that some of respondent PIGLAS unions members were also members of the old rank and file union, the HHE union, is not a ground for canceling the new unions registration. The right of any person to join an organization also includes the right to leave that organization and join another one. Besides, HHE union is dead. It had ceased to exist and its certificate of registration had already been cancelled. Thus, petitioners arguments on this point may also be now regarded as moot and academic. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Bureau of Labor Relations in BLR-A-26-3-05 dated May 26, 2006. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: LEONARDO A. QUISUMBING Associate Justice

ANTONIO T. CARPIO* Associate Justice

MINITA V. CHICO-NAZARIO** Associate Justice ARTURO D. BRION Associate Justice ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Mariano C. Del Castillo, per Special Order No. 757 dated October 12, 2009.
**

Designated as additional member in lieu of Associate Justice Conchita Carpio Morales, per Special Order No. 759 dated October 12, 2009.
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Rollo, p. 58. Id. at 59-70. Id. at 100. Id. at 109-120. Id. at 99-103. Id. at 218. Docketed as CA-G.R. SP No. 65033. Rollo, pp. 137-147.

Id. at 293-296. Id. at 192. Id. at 182-190. Id. at 233-241. Id. at 272-274. Id. at 44-55. Id. at 161-162. Id. at 157-158. Id. at 148-154. Id. at 164-171. Id. at 375-377. Id. at 333-338. Docketed as CA-G.R. SP No. 97237. Rollo, pp. 33-34. Id. at 289.

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Air Philippines Corporation v. Zamora, G.R. No. 148247, August 7, 2006, 498 SCRA 59, 69.
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Last paragraph of Rule 46 of the Rules of Court. Suan v. Court of Appeals, G.R. No. 150819, July 27, 2006, 496 SCRA 760, 767-768.

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San Miguel Corporation Employees Union-Philippine Transport and General Workers Organization v. San Miguel Packaging Products Employees Union-Pambansang Diwa ng Manggagawang Pilipino, G.R. No. 171153, September 12, 2007, 533 SCRA 125, 144.
28

The pertinent Labor Code provision states: ART. 234. REQUIREMENTS FOR REGISTRATION Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements:

(a) Fifty (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) The names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the union has been in existence for one or more years, copies of its annual financial reports; and (e) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification and the list of the members who participated in it.
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Rule 3, Section 2.A of Department Order No. 40-03, Series of 2003 states that an application for registration of an independent labor union must be accompanied by the following: 1) the name of the applicant labor union, its principal address, the name of its officers and their respective addresses, approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union; 2) the minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); 3) the name of all its members comprising at least 20% of the employees in the bargaining unit; 4) the annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application; 5) the applicants constitution and by-laws, minutes of its adoption and ratification and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s).
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San Miguel Corporation (Mandaue Packaging Products Plants) v. Mandaue Packing Products Plants-San Miguel Packaging Products-San Miguel Corporation Monthlies Rankand-File Union-FFW, G.R. No. 152356, August 16, 2005, 467 SCRA 107, 127. G.R. No. 178762 June 16, 2010

LUZVIMINDA A. ANG, Petitioner, vs. PHILIPPINE NATIONAL BANK, Respondent. DECISION

ABAD, J.: This case is about the dismissal of an employee for offenses committed during her employment in a government-owned corporation but which offenses were discovered after the privatized corporation rehired her to work for it. The Facts and the Case In her Position Paper,1 petitioner Luzviminda A. Ang (Ang) claimed that respondent Philippine National Bank (PNB), then a government-owned corporation, hired her on December 4, 1967 as a probationary clerk. But she rose from the ranks, eventually becoming an Assistant Department Manager I, a position she held when the PNB was privatized on May 26, 1996 and when she, like her co-employees, was deemed automatically retired. The bank computed Angs gratuity benefits, the monetary value of her leave credits, and the other benefits due her and cleared her of any accountability. But the PNB re-employed Ang as Assistant Manager effective on May 27, 1996 and assigned her in its Tuguegarao, Cagayan Branch.2 Less than four months later, however, or on September 3, 1996 the PNB administratively charged her with serious misconduct and willful breach of trust for taking part in a scam, called "kiting operation," where a depositor used a conduit bank account for depositing several unfunded checks drawn against the same depositors other current accounts and from which conduit bank account he later withdrew those checks. The PNB alleged that Ang had allowed this illegal activity from January 2 to April 3, 1996 while she was the Assistant Department Manager I in its Tuguegarao Branch.3 On September 16, 1996 the PNB heaped other charges against Ang of serious misconduct and gross violation of the banks rules and regulations as follows: -- She issued six certificates of deposit between June 5, 1992 up to January 10, 1996 in amounts exceeding the true deposit balance of various depositors; -- She issued two bank commitments dated January 24, 1994 and for providing a credit line in favor of a government contractor without authority and in violation of SEL Cir. 2-166/91 of July 10, 1996; and -- She committed tardiness and "under time" from October to December 1995 and January to March 1996 in violation of Gen. Cir. 1-61/91 of February 1, 1991.4 In answer to the first charge, Ang claimed that it was not a "kiting operation," but an accommodation of a very valued client. She admitted that the checks were not funded and were converted into account receivables or accommodation loans that the client had settled, including interests, penalties, and other charges. Consequently, the PNB did not suffer any loss from those transactions; it even reaped enormous profits from them.5 On the second charge, Ang claimed that the issuance of the certificates had been tolerated to accommodate valued clients as a marketing strategy and prevent their move to other banks. These had been open transactions, said Ang, which were known to all the officers of the branch. Again, the PNB did not suffer any loss on account of the issuance of those certificates. The clients involved maintained their loyalty to the bank.6

On the third charge, Ang claimed that the PNBs loan commitments in those cases amounted to mere recommendations since she had no authority to approve loans. Furthermore, she could not have violated SEL Cir. 2-166/91 dated July 10, 1996 since this was not yet in effect when she issued those commitments on January 24, 1994. Besides, the circular merely prescribed the fees to be collected.7 On the last charge, Ang claimed that she was not covered by the circular governing office hours because she was a bank officer. Managerial employees, according to her, worked beyond the usual eight hours and even worked on Saturdays and Sundays. She added that, since the bank had already made deductions for tardiness on her pay check, she cannot anymore be administratively charged for it.8 Ang further pointed out that the causes for her termination took place when she was yet a government official. The PNB had since ceased to be government-owned. If she were to be charged for those causes, the jurisdiction over her case would lie with the Civil Service Commission. Even then, since she already retired from the government service, the employment that could be terminated no longer existed.9 Ang added that the causes for her termination had also become academic after the PNB cleared her of any accountability when she once retired from employment with it. Pending administrative investigation, the PNB assigned Ang to its Aparri Branch on April 3, 1997.10 Its Inspection and Investigation Unit recommended her dismissal on June 3, 1997 to the Board of Inquiry.11 Ang alleged that the PNB dismissed her from work on July 25, 1997, withholding her fringe benefits, gratuity benefits, monetary value of her leave credits, rights and interests in the provident fund, and other benefits due her as of May 26, 1996.12 She sought reconsideration, but the bank denied it. On January 27, 1998 Ang filed a complaint against the PNB before the National Labor Relations Commission (NLRC), Regional Arbitration Branch II, Tuguegarao, Cagayan in NLRC RAB II CN 0100022-98 for illegal dismissal, illegal deductions, non-payment of 13th month pay, allowances, separation pay, and retirement benefits with prayer for payment of moral and exemplary damages, attorneys fees, and litigation expenses. Answering the complaint, the PNB claimed that it observed due process in terminating Ang, notifying her of the charges and giving her a chance to defend herself in a formal hearing but she waived this and opted to submit a position paper. The PNB Board of Inquiry informed her of its decision before implementing the same. Indeed, she even sought its reconsideration.13 The PNB pointed out that since it separated petitioner Ang for a just cause, she was not entitled to termination pay. Further she ceased to be entitled to the benefits she claimed.14 The PNB also pointed out that although it cleared Ang of any accountability before her retirement as a civil servant, it premised such clearance from existing knowledge and records. The PNB had not yet discovered her frauds and omissions when it issued the clearance. Besides, what the PNB issued was not really a clearance but a certification that Ang had no pending administrative case. It issued that certification on August 12, 1996 and filed the first administrative charge against her on September 3, 1996.15 On March 30, 1999 the Labor Arbiter (LA) rendered a Decision,16 finding the PNBs dismissal of Ang illegal for failure to show that the dismissal was for a valid cause and after notice and hearing. Specifically, the PNB failed to prove any basis for loss of trust. The LA ordered the reinstatement of petitioner Ang to her former position or its substantial equivalent, without loss of seniority rights and

with full backwages and other benefits or their money value from the time of her actual dismissal on July 25, 1996 up to her reinstatement. Further, the LA ordered the PNB to pay Ang P488,567.87 in gratuity pay plus 1 percent interest per month from the time it fell due until actual payment, P1 million as moral damages, and P500,000.00 as exemplary damages plus 10 percent of the total monetary award as attorneys fees. The LA made the monetary value of her fringe benefits and others, not included in the computed amount, subject to recomputation upon the finality of the NLRC decision. In case reinstatement was not feasible, Ang was to have the option to be paid separation pay of at least one month pay for every year of her 30 years of service in addition to her full backwages and gratuity benefits. The PNB appealed the decision to the NLRC but the latter dismissed the appeal on January 30, 2004.17 Upon motion for reconsideration, however, or on October 29, 2004 the NLRC reconsidered its finding of lack of due process, considering Angs admission during direct examination that the PNB informed her of the charges against her and gave her a chance to present her side with the assistance of a counsel. The NLRC deleted the award of damages because of absence of bad faith on the part of the PNB officers but maintained the LAs finding that the PNB had not proved loss of trust as a ground for dismissal. On petition for certiorari with the Court of Appeals (CA), the latter rendered a decision on January 30, 2007,18finding valid reason to uphold Angs dismissal from the service for willful breach of the trust reposed in her by the PNB. As to the procedural aspect, the CA found that without doubt the PNB observed due process in dismissing Ang. She received two memoranda; first informing her of the charges against her, and second informing her of the decision to terminate her services. The CA reversed the NLRC Decision and dismissed Angs complaint. She moved for reconsideration, but this was denied. The Issues Presented Petitioner presents the following issues: 1. Whether or not the CA erred in finding that the PNB dismissed Ang based on the evidence that she betrayed its trust in her as a bank officer; 2. Whether or not the CA erred in holding that the PNB accorded Ang due process when it dismissed her from the service; and 3. Whether or not the CA erred in holding that Ang was not entitled to the benefits that the PNB withheld from her. The Courts Ruling One. Ang claims that her dismissal by PNB, the private corporation, was illegal since she had committed no offense under its employ. The offense for which she was removed took place when the government still owned PNB and she was then a government employee. But while PNB began as a government corporation, it did not mean that its corporate being ceased and was subsequently reestablished when it was privatized. It remained the same corporate entity before, during, and after the change over with no break in its life as a corporation. Consequently, the offenses that Ang committed against the bank before its privatization continued to be offenses against the bank after the privatization. But, since the PNB was already a private

corporation when it looked into Angs offenses, the provisions of the Labor Code governed its disciplinary action. Ordinarily, the Court would not inquire into factual issues raised in a petition for review but, since the findings of the CA clashed with those of the LA and the NLRC, such inquiry would be justified in this case. As to the existence of just cause, it is clear to the Court that Ang did not deny the acts and omissions constituting the offense. The transcript of stenographic notes taken during her direct examination on April 22, 1998 before the NLRC Regional Arbitration Branch in Tuguegarao, Cagayan, shows that her defense consisted in her claim that she accommodated a clients unfunded checks and issued false bank certificates with the knowledge and consent of the branch manager and comptroller. But such uncorroborated defense is unsatisfactory, revealing a mind that was willing to disregard bank rules and regulations when other branch officers concurred. The PNB rightfully separated her from work for willful breach of the trust that it reposed in her under the Labor Code. Her defense that the PNB did not suffer any loss is of no moment. The focal point is that she betrayed the trust of the bank in her fidelity to its interest and rules. Two. As to the issue of due process, a review of the transcript of stenographic notes taken during Angs cross-examination on December 17, 1998 before the NLRC Regional Arbitration Branch in Tuguegarao, Cagayan, reveals that she admitted having received from the PNB a memorandum of September 15, 1996, containing the administrative charges against her and a memorandum of June 3, 1997 containing the decision to terminate her service.19 She likewise admitted that the bank gave her a chance to present her side and to consult a lawyer. Three. Ang claims that she is entitled to the monetary value of her leave credits, gratuity benefits, retirement pay, rights and interests in the provident fund, and other benefits due her as of May 26, 1996. The PNB points out, however, that Ang did not seek reconsideration from the NLRC of its deletion of the LAs award of accrued compensation and other benefits to her. And, although she received an unfavorable decision from the CA, her motion for reconsideration did not raise the matter of accrued compensation and other benefits. Only before this Court did she raise them for the first time. But, contrary to the PNBs position, what the NLRC decision deleted was only the award of damages. It did not touch the benefits mentioned. Consequently, when the CA apparently deleted these as well, Ang has a right to elevate the issue before this Court.
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Although the transformation of the PNB from a government-owned corporation to a private one did not result in a break in its life as juridical person, the same idea of continuity cannot be said of its employees. Section 27 of Presidential Proclamation 50 provided for the automatic termination of employer-employee relationship upon privatization of a government-owned and controlled corporation. Further, such privatization cannot deprive the government employees involved of their accrued benefits or compensation. Thus: Sec. 27. Automatic Termination of Employer-Employee Relations. Upon the sale or other disposition of the ownership and/or controlling interest of the government in a corporation held by the Trust, or all or substantially all of the assets of such corporation, the employeremployee relations between the government and the officers and other personnel of such corporations shall terminate by operation of law. None of such officers or employees shall retain any vested right to future employment in the privatized or disposed corporation, and the new owners or controlling interest holders thereof shall have full and absolute discretion to retain or dismiss said officers and employees and to hire the replacement or replacements

of any one or all of them as the pleasure and confidence of such owners or controlling interest holders may dictate. Nothing in this section shall, however, be construed to deprive said officers and employees of their vested entitlements in accrued benefits or the compensation and other benefits incident to their employment or attaching to termination under applicable employment contracts, collective bargaining agreements, and applicable legislation. Here, when PNB was privatized, Angs employment with it as a government-owned corporation ceased. Indeed, the PNB already computed the retirement and other benefits to which she was entitled as a result of the cessation of her employment. Since she had no pending administrative case on the day she ceased to be a PNB employee and had been cleared of any accountability,20 all those benefits already accrued to her on the date of her termination. Of course, the PNB rehired her immediately but that is another story. In the eyes of the law, her record as employee of the government-owned PNB was untarnished at the time of her separation from it. In fact, the PNB already computed the benefits to which she was entitled and readied their payment. The GSIS rule that the PNB now relies on applied only to employees with pending administrative charge at the time of their retirement. Since Ang had none of that, the cited rule did not apply to her. The Court sees no reason why she should not receive the benefits which she earned or which accrued to her as of May 26, 1996. As for possible benefits accruing to Ang after May 26, 1996, the same should be deemed governed by the Labor Code since the PNB that rehired her on May 27, 1996 has become a private corporation. Under the Omnibus Rules Implementing the Labor Code, Book VI, Rule I, Section 7, the employees separation from work for a just cause does not entitle her to termination pay. Thus, the PNB may rightfully withhold Angs termination pay that accrued beginning on May 27, 1996 because of her dismissal. WHEREFORE, the Court AFFIRMS the Court of Appeals decision dated January 30, 2007 and its resolution dated July 6, 2007 in CA-G.R. SP 88449 in favor of respondent Philippine National Bank but with the MODIFICATION that it directs the latter to pay petitioner Luzviminda A. Ang the benefits due her from the bank as of the date of her retirement on May 26, 1996. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice

JOSE PORTUGAL PEREZ* Associate Justice ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Jose C. Mendoza, per Special Order No. 842 dated June 3, 2010.
1

Records, pp. 7-13. Id. Exhibit "2," id. at 69-77. Id. Id. at 9. Id. Id. at 9-10. Id. at 10. Id. at 93. Supra note 8. Exhibit "2," id. at 69-77. Id. at 8. Id. at 129-130.

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Id. at 64-68. Id. Id. at 174-189. Id. at 269-292. CA rollo, pp. 291-310. Records, TSN, December 17, 1998, pp. 137-149. Exhibit "F," records, p. 16. June 8, 2011

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G.R. No. 178409

YOLITO FADRIQUELAN, ARTURO EGUNA, ARMANDO MALALUAN, DANILO ALONSO, ROMULO DIMAANO, ROEL MAYUGA, WILFREDO RIZALDO, ROMEO SUICO, DOMINGO ESCAMILLAS and DOMINGO BAUTRO,Petitioners, vs. MONTEREY FOODS CORPORATION, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178434 MONTEREY FOODS CORPORATION, Petitioner, vs. BUKLURAN NG MGA MANGGAGAWA SA MONTEREY-ILAW AT BUKLOD NG MANGGAGAWA, YOLITO FADRIQUELAN, CARLITO ABACAN, ARTURO EGUNA, DANILO ROLLE, ALBERTO CASTILLO, ARMANDO MALALUAN, DANILO ALFONSO, RUBEN ALVAREZ, ROMULO DIMAANO, ROEL MAYUGA, JUANITO TENORIO, WILFREDO RIZALDO, JOHN ASOTIGUE, NEMESIO AGTAY, ROMEO SUICO, DOMINGO ESCAMILLAS and DOMINGO BAUTRO, Respondents. DECISION ABAD, J.: These cases are about the need to clearly identify, for establishing liability, the union officers who took part in the illegal slowdown strike after the Department of Labor and Employment (DOLE) Secretary assumed jurisdiction over the labor dispute. The Facts and the Case On April 30, 2002 the three-year collective bargaining agreement or CBA between the union Bukluran ng Manggagawa sa Monterey-Ilaw at Buklod ng Manggagawa (the union) and Monterey Foods Corporation (the company) expired. On March 28, 2003 after the negotiation for a new CBA reached a deadlock, the union filed a notice of strike with the National Conciliation and Mediation Board (NCMB). To head off the strike, on April 30, 2003 the company filed with the DOLE a petition for assumption of jurisdiction over the dispute in view of its dire effects on the meat industry. In an

Order dated May 12, 2003, the DOLE Secretary assumed jurisdiction over the dispute and enjoined the union from holding any strike. It also directed the union and the company to desist from taking any action that may aggravate the situation. On May 21, 2003 the union filed a second notice of strike before the NCMB on the alleged ground that the company committed unfair labor practices. On June 10, 2003 the company sent notices to the union officers, charging them with intentional acts of slowdown. Six days later or on June 16 the company sent new notices to the union officers, informing them of their termination from work for defying the DOLE Secretarys assumption order. On June 23, 2003, acting on motion of the company, the DOLE Secretary included the unions second notice of strike in his earlier assumption order. But, on the same day, the union filed a third notice of strike based on allegations that the company had engaged in union busting and illegal dismissal of union officers. On July 7, 2003 the company filed a petition for certification of the labor dispute to the National Labor Relations Commission (NLRC) for compulsory arbitration but the DOLE Secretary denied the motion. He, however, subsumed the third notice of strike under the first and second notices. On November 20, 2003 the DOLE rendered a decision that, among other things, upheld the companys termination of the 17 union officers. The union and its officers appealed the decision to the Court of Appeals (CA). On May 29, 2006 the CA rendered a decision, upholding the validity of the companys termination of 10 union officers but declaring illegal that of the other seven. Both parties sought recourse to this Court, the union in G.R. 178409 and the company in G.R. 178434. The Issues Presented The issues these cases present are: 1. Whether or not the CA erred in holding that slowdowns actually transpired at the companys farms; and 2. Whether or not the CA erred in holding that union officers committed illegal acts that warranted their dismissal from work. The Rulings of the Court First. The law is explicit: no strike shall be declared after the Secretary of Labor has assumed jurisdiction over a labor dispute. A strike conducted after such assumption is illegal and any union officer who knowingly participates in the same may be declared as having lost his employment.1 Here, what is involved is a slowdown strike. Unlike other forms of strike, the employees involved in a slowdown do not walk out of their jobs to hurt the company. They need only to stop work or reduce the rate of their work while generally remaining in their assigned post. The Court finds that the union officers and members in this case held a slowdown strike at the companys farms despite the fact that the DOLE Secretary had on May 12, 2003 already assumed jurisdiction over their labor dispute. The evidence sufficiently shows that union officers and members simultaneously stopped work at the companys Batangas and Cavite farms at 7:00 a.m. on May 26, 2003.

The union of course argues that it merely held assemblies to inform members of the developments in the CBA negotiation, not protest demonstrations over it. But as the CA correctly observed, if the meetings had really been for the stated reason, why did the union officers and members from separate company farms choose to start and end their meetings at the same time and on the same day? And if they did not intend a slowdown, why did they not hold their meetings after work. There is no allegation that the company prevented the union from holding meetings after working hours. Second. A distinction exists, however, between the ordinary workers liability for illegal strike and that of the union officers who participated in it. The ordinary worker cannot be terminated for merely participating in the strike. There must be proof that he committed illegal acts during its conduct. On the other hand, a union officer can be terminated upon mere proof that he knowingly participated in the illegal strike.2 Still, the participating union officers have to be properly identified.3 The CA held that the company illegally terminated union officers Ruben Alvarez, John Asotigue, Alberto Castillo, Nemesio Agtay, Carlito Abacan, Danilo Rolle, and Juanito Tenorio, there being no substantial evidence that would connect them to the slowdowns. The CA said that their part in the same could not be established with certainty. But, although the witnesses did not say that Asotigue, Alvarez, and Rolle took part in the work slowdown, these officers gave no credible excuse for being absent from their respective working areas during the slowdown. Tenorio allegedly took a break and never went back to work. He claimed that he had to attend to an emergency but did not elaborate on the nature of such emergency. In Abacans case, however, he explained that he was not feeling well on May 26, 2003 and so he decided to take a two-hour rest from work. This claim of Abacan is consistent with the report4 that only one officer (Tenorio) was involved in the slowdown at the Calamias farm.
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At the Quilo farm, the farm supervisor did not include Castillo in the list of employees who failed to report for work on May 26, 2003.5 In Agtays case, the evidence is that he was on his rest day. There is no proof that the unions president, Yolito Fadriquelan, did not show up for work during the slowdowns. The CA upheld his dismissal, relying solely on a security guards report that the company submitted as evidence. But, notably, that report actually referred to a Rolly Fadrequellan, another employee who allegedly took part in the Lipa farm slowdown. Besides, Yolito Fadriquelan was then assigned at the General Trias farm in Cavite, not at the Lipa farm. In fact, as shown in the sworn statements6 of the Cavite farm employees, Fadriquelan even directed them not to do anything which might aggravate the situation. This clearly shows that his dismissal was mainly based on his being the union president. The Court sustains the validity of the termination of the rest of the union officers. The identity and participations of Arturo Eguna,7 Armando Malaluan,8 Danilo Alonso,9 Romulo Dimaano,10 Roel Mayuga,11 Wilfredo Rizaldo,12Romeo Suico,13 Domingo Escamillas,14 and Domingo Bautro15 in the slowdowns were properly established. These officers simply refused to work or they abandoned their work to join union assemblies. In termination cases, the dismissed employee is not required to prove his innocence of the charges against him. The burden of proof rests upon the employer to show that the employees dismissal was for just cause. The employers failure to do so means that the dismissal was not justified.16 Here, the company failed to show that all 17 union officers deserved to be dismissed. Ordinarily, the illegally dismissed employees are entitled to two reliefs: reinstatement and backwages. Still, the Court has held that the grant of separation pay, instead of reinstatement, may be proper especially when as in this case such reinstatement is no longer practical or will be for the

best interest of the parties.17 But they shall likewise be entitled to attorneys fees equivalent to 10% of the total monetary award for having been compelled to litigate in order to protect their interests.18 WHEREFORE, the Court MODIFIES the decision of the Court of Appeals in CA-G.R. SP 82526, DECLARESMonterey Foods Corporations dismissal of Alberto Castillo, Nemesio Agtay, Carlito Abacan, and Yolito Fadriquelan illegal, and ORDERS payment of their separation pay equivalent to one month salary for every year of service up to the date of their termination. The Court also ORDERS the company to pay 10% attorneys fees as well as interest of 6% per annum on the due amounts from the time of their termination and 12% per annum from the time this decision becomes final and executory until such monetary awards are paid. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes

Labor Code, Article 264 (a).

Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc., G.R. No. 140992, March 25, 2004, 426 SCRA 319, 328.
3

Sukhothai Cuisine and Restaurant v. Court of Appeals, G.R. No. 150437, July 17, 2006, 495 SCRA 336, 355.
4

Rollo (G.R. 178409), p. 188. Rollo (G.R. 178434), pp. 49-50. Rollo (G.R. 178409), pp. 23-26. Annex "C-27", CA rollo, p. 292. Annex "C-3", id. at 268; Annex "C-4", id. at 269; Annex "C-8", id. at 273. Id. Annex "C-36", id. at 302. Annex "C-35", id. at 301. Supra note 8. Supra note 7. Annex "C-8", CA rollo, p. 273. Annex "C-29", id. at 294. Lima Land, Inc. v. Cuevas, G.R. No. 169523, June 16, 2010, 621 SCRA 36, 45.

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Malig-on v. Equitable General Services, Inc., G.R. No. 185269, June 29, 2010, 622 SCRA 326, 331.
18

Macasero v. Southern Industrial Gases Philippines, G.R. No. 178524, January 30, 2009, 577 SCRA 500, 507. RAPE G.R. No. 190341 March 16, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ROMY FALLONES y LABANA, Appellant. DECISION

ABAD, J.: This case involves the admissibility of the deceased rape victims spontaneous utterances during the time she was being sexually abused and immediately afterwards. The Facts and the Case The public prosecutor charged the accused Romy Fallones y Labana with rape1 in an amended information dated September 14, 2004 before a Regional Trial Court (RTC).2 The complainant in this case, Alice,3 was a retardate. She died while trial was ongoing, hence, was unable to testify.4 To prove its case, the prosecution presented Allan (Alices father), Amalia5 (her sister), PO3 Lilibeth S. Aguilar (a police investigator), BSDO Eduardo P. Marcelo and BSDO Arturo M. Reyes (the apprehending officers), Dr. Paul Ed D. Ortiz (a medico-legal officer), and Eden H. Terol (a psychologist). The accused testified in his defense.6 Amalia testified that at about 9:45 a.m. on June 29, 2004, her mother told her older sister, Alice, to look for their brother Andoy.7 Since Andoy arrived without Alice, her mother asked Amalia to look for her. Amalia looked in places where Andoy often played and this led her near accused Fallones house. As she approached the house, Amalia heard someone crying out from within, "Tama na, tama na!" Recognizing Alices voice, Amalia repeatedly knocked on the door until Fallones opened it. Amalia saw her sister standing behind him. As Amalia went in to take her sister out, Alice held out a sanitary napkin and, crying, said that Fallones had given her the napkin. Alices shorts were wet and blood-stained. Frightened and troubled, the two girls went home.8 On their way home, Alice recounted to her sister that Fallones brought her to his bathroom, pulled down her shorts, and ravished her. She said that Fallones wet her shorts to make it appear that she tripped and had her monthly period.9 Along the way, they met an uncle and told him what happened. On their arrival, their father brought Alice to the barangay while Amalia returned to Fallones house where she saw her uncle, some relatives, and neighbors accosting and beating Fallones. Shortly after, some barangay officials arrived and intervened.10 Accused Fallones testified that, at about the time and date of the alleged rape, he was at home with his wife, cleaning their house. After his wife left and while he was having his lunch, two men arrived, arrested him at gunpoint, and brought him to the barangay hall. They accused him of raping Alice but he denied the charge. The barangay officials brought him to the police station where he was detained and further interrogated.11 Again, he denied the accusations. On July 10, 2007 the RTC rendered a Decision, finding the accused guilty beyond reasonable doubt of simple rape. The RTC sentenced him to suffer the penalty of reclusion perpetua, and ordered him to pay P50,000.00 as civil indemnity and P50,000.00 as damages. The accused appealed to the Court of Appeals (CA) but the latter court rendered judgment on June 30, 2009, affirming the RTC Decision. Accused Fallones moved for reconsideration but the CA denied his motion, hence, the present appeal to this Court. The Issue Presented The core issue in this case is whether or not the CA erred in affirming the RTCs finding that accused Fallones raped Alice, a mental retardate. The Courts Ruling

Although Alice died before she could testify, the evidence shows that she positively identified Fallones as her abuser before the barangay officials and the police. Amalia, her sister, testified of her own personal knowledge that she had been out looking for Alice that midmorning; that she heard the latters voice from within Fallones house imploring her attacker to stop what he was doing to her; that upon repeatedly knocking at Fallones door, he opened it, revealing the presence of her sister, her shorts bloodied. The prosecution presented the psychologist who gave Alice a series of psychological tests. She confirmed that Alice had been sexually abused and suffered post-traumatic stress disorder. She found Alice to have moderate mental retardation with a mental age of a five-year-old person, although she was 18 at the time of the incident. On cross-examination, the psychologist testified that while Alice may be vulnerable to suggestions, she had no ability to recall or act out things that may have been taught to her. Neither can anyone manipulate her emotions if indeed she was influenced by others.12 Accused Fallones tried to discredit Amalias testimony as hearsay, doubtful, and unreliable. But, although what Alice told Amalia may have been hearsay, the rest of the latters testimony, which established both concomitant (Alices voice from within Fallones house, pleading that she was hurting) and subsequent circumstance (Alice coming from behind Fallones as the latter opened the door, her shorts bloodied), are admissible in evidence having been given from personal knowledge.
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Further, the Court considers a res gestae Amalias recital of what she heard Alice utter when she came and rescued her. Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission.http://www.lawphil.net/judjuris/juri2006/apr2006/gr_163217_2006.html fnt49#fnt49 These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation.13 For spontaneous statements to be admitted in evidence, the following must concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances.14 Here, Fallones act of forcing himself into Alice is a startling event. And Amalia happened to be just outside his house when she heard Alice cry out "tama na, tama na!" When Fallones opened the door upon Amalias incessant knocking, Alice came out from behind him, uttering "Amalia, may napkin na binigay si Romy o." The admissibility of Alices spontaneous statements rests on the valid assumption that they were spoken under circumstances where there had been no chance to contrive.15 It is difficult to lie in an excited state and the impulsiveness of the expression is a guaranty of trustworthiness.16 For his defense, Fallones claimed that the members of Alices family pressured her into pointing to him as her abuser. But he has been unable to establish any possible ill-motive that could prompt Alices family into charging him falsely. Indeed, Fallones admitted at the trial that there had been no animosity between Alices family and him.17 Fallones argues that Alices actuations after the incident negate rape, invoking the Courts ruling in People v. Dela Cruz.18 But the circumstances of the latter case are far too different from those existing in the present case. In Dela Cruz, although the victim was seven years old when the supposed rape took place, she was not mentally retarded. Further, she was already 19 years old when she reported the incident 12 years after it happened. Besides, the medical findings revealed

that her hymen remained intact. Thus, the Court did not believe that she had been raped when she was seven. In sum, the testimony of the witnesses, the physical evidence, the medico-legal finding, and the psychologists report all establish that Fallones raped Alice. The defense offered no witness or evidence of Fallones innocence other than his bare denial. Again, the Court will not disturb the RTCs findings and conclusion being the first-hand observer of the witnesses attitude and behavior during trial. The defense counsel was unsuccessful in impeaching Amalia during cross-examination. In fine, the guilt of the accused has been proved beyond reasonable doubt. Alice is dead but, as Shakespeare wrote in his SonnetsThe Winters Tale, "the silence often of pure innocence persuades when speaking fails."19 WHEREFORE, the Court DENIES the appeal and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR-HC 03182 dated June 30, 2009. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR.* Associate Justice DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura, per Special Order 933 dated January 24, 2011.
1

Records, p. 1, Crim. Case Q-04-127845. Id. at 25.

Pursuant to Republic Act 9262, otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004" and its implementing rules; The real name of the victim, together with the real names of her immediate family members, is withheld and fictitious initials instead are used to represent her to protect her privacy and that of her family. (People v. Cabalquinto, GR. No. 167693, September 19, 2006, 502 SCRA 419).
4

CA rollo, p. 24. Id. Id. at 23, RTC Decision dated July 10, 2007. Supra note 3. TSN, March 6, 2006, pp. 341-368. Id. at 349, 365. Id. at 351-353. TSN, March 14, 2007, pp. 370-386. TSN, December 12, 2005, pp. 323-337. Marturillas v. People, G.R. No. 163217, April 18, 2006, 487 SCRA 273, 308-309. Id. at 309. Id. Capila v. People, G.R. No. 146161, July 17, 2006, 495 SCRA 276, 281-282. TSN, February 14, 2007, pp. 383-384. 388 Phil. 678 (2000). "Bartletts Familiar Quotations" by John Bartlett, p. 222, par. 22.

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G.R. No. 184812

July 6, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. ERMILITO ALEGRE y LAMOSTE, Appellant. DECISION ABAD, J.: This case shows a stark contrast in credibility between the testimony of the complainant who was raped and left for dead and that of the accused who offered only an uncorroborated alibi. The Facts and the Case The City Prosecutor of Manila charged accused Ermelito L. Alegre (Alegre) before the Regional Trial Court (RTC) of that city with frustrated murder in Criminal Case 03-213343 and with qualified rape in Criminal Case 03-213344.1 The evidence for the prosecution shows that VON2 and the accused Alegre were acquaintances.3 Alegre owned the house where his family and VONs relatives lived. On the evening of September 14, 2002 VON went to Alegres house to visit her relatives. In the course of that visit, Alegre asked her to join him for drinks inside a jeep. After finishing a small bottle of gin pomelo, VON returned to her relatives quarters and told her cousin that she was going home. But, as VON stepped out, Alegre invited her to meet his girl friends.4 She could not say whether he was under the influence of drugs at that time.5 Alegre and VON walked along a nearby street until they reached a fenced house. Alegre climbed the fence and told VON to do likewise as his girl friends were in the house. But when she entered the house, it was empty. She hastily went out when Alegre did not respond to her query about his girl friends who were supposed to be there. She tried to go over the fence to get to the street but Alegre warned her that the barangay tanods might see her. When VON did not heed Alegres warning, he punched her on the back and repeatedly stabbed her with an ice pick until she fell to the ground on her back.6 Alegre tore VONs polo and sando and then stripped her of shorts and underwear. She fought back and succeeded in grabbing the ice pick but he choked her, forcing her to drop the weapon. He picked it up and proceeded to sexually ravish her. She felt pain. Afterwards, he stabbed her again on her chest and arms. She had become so weak at this point that she ceased to fight back. Alegre stopped assaulting her when she turned over, facing the ground. VON did not move for some time but, as she coughed, Alegre returned and stabbed her thrice on the back. She suppressed her cough so he would not return.7 When VON felt that Alegre had left, she tried to stand but could not because of muscle cramps in her left leg. She shouted for help but nobody responded. She watched vehicles pass by the street. Finally, in the early morning of the following day, September 15, 2002, she spotted two barangay tanods and they heard her shouts for help.8 Romeo dela Cruz, a barangay kagawad, testified that at about 2:00 in the morning of September 15, 2002, he got a call, informing him that shouts for help had been heard from an abandoned house. Dela Cruz hastily went to the site. He found VON lying naked on the ground, covered with mud and

blood. He called the police and, with his nephews help, got VON into a police car. They brought VON to the Lourdes Hospital, where they did a life-saving procedure on her before moving her to the Philippine General Hospital (PGH)9 for surgical operation.10 Dr. Edwin Paul Lagapa, the doctor who attended to VON at the PGH, found 18 stab wounds all over her body, four of which pierced her heart, caused by a very small, fine pointed instrument. Her forehead suffered injury from a fall. Dr. Lagapa said that she could have died had she not been treated on time. Indeed, he had to perform several life-saving operations on VON.11 On the same day, upon an inter-departmental referral, Dr. Claire Aguirre conducted a gynecological examination of VON. Dr. Aguirre found several abrasions and hymenal lacerations. She found no sperm. Although she could not identify the age of the lacerations, she explained it would take at least seven days for them to heal.12 For his defense, Alegre claimed that he was at Abad Santos, Bacood, Sta. Mesa, on September 14, 2002 with the owner of a jeepney he was repairing. After taking a bath, he rode with his brother in a jeepney that the latter was driving. They went home together at about 10:30 in the evening. After eating, Alegre went to her sisters house, just next to his brothers house, and watched television there. Contrary to VONs story, it was she who invited Alegre to a drink. Consistent with VONs testimony, he said that they pooled their money to buy a bottle of gin pomelo, which they drank in front of his sisters house. He went home afterwards to sleep. VON did not return to his sisters or brothers house.13 Alegre claims that at 4:30 in the morning of September 15, 2002 (about three hours after he left VON), he went with his brother to Mindoro as earlier planned. In Mindoro, his uncle, Ronald Rom, arrested him without a warrant allegedly for a robbery case. He later learned at the police precinct that they were charging him with frustrated murder and rape. Alegre believed that VON filed the cases because he had stabbed her cousin a long time ago. Further, VONs brother had accused him of theft of his VCD player, resulting in his arrest and detention.14 On September 25, 2006 the RTC found Alegre guilty beyond reasonable doubt of frustrated murder and sentenced him to suffer a minimum indeterminate penalty of 9 years and 4 months of prision mayor in its medium period to 17 years and 4 months of reclusion temporal in its medium period as maximum. The RTC also ordered him to indemnify VON in the amount of P25,000.00 as moral damages and P25,000.00 as temperate damages. The RTC also found Alegre guilty beyond reasonable doubt of the rape of VON and sentenced him to suffer the penalty of reclusion perpetua and to pay VON P50,000.00 in civil indemnity and P50,000.00 in moral damages. On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 02583, the latter court rendered judgment on April 28, 2008, affirming in toto the decision of the RTC.15 This prompted Alegre to appeal to this Court.16 The Issue Presented The sole issue presented in this case is whether or not the CA erred in affirming the RTCs finding that there is sufficient evidence to show that Alegre raped and nearly murdered VON as she claimed. The Ruling of the Court

The cornerstone of Alegres appeal is the lack of credibility of VON, given the contradictions in her testimony.17But the settled rule based on reason and experience is that the trial courts findings respecting the credibility of witnesses and their testimonies deserve the highest respect. Since the trial judge saw and heard the witnesses and observed how they testified under intense questioning, he was in a better position to weigh what they said.18Here, the trial court, concurred in by the CA, found VONs testimony credible. It was, according to the trial court, "clear, direct, honest and could only inspire belief."19 Dr. Lagapa and Dr. Aguirre also bolstered her testimony. On the other hand, the RTC found Alegres testimony too weak and insufficient to overcome that of VON. His alibi and his claim that VON filed the charges in retaliation for a past offense he committed against a relative remained uncorroborated or supported by some other evidence. There is also no showing that the trial court overlooked, misunderstood, or misapplied facts or circumstances which would affect the outcome of the case. The conflict in VONs testimony that Alegre refers to concerns the position of her body when she fell on the ground and the order that the rape and the stabbing followed.20 Alegre points out that, on direct examination, VON said that she fell to the ground on her back and that Alegre stabbed her on the chest after raping her but, on cross-examination, she said that she fell to the ground on her stomach and Alegre stabbed her on the chest only after he stripped her of clothing. But Alegre improperly appreciated VONs testimony. Actually, she maintained that he raped her before stabbing her on the chest. In any case, any error in the sequence in which the rape victim narrated these two successive turn of events cannot erode the value of her testimony. For the most part, VON remained consistent under repeated questioning regarding these details. One must understand that rape is not just an assault upon a womans body; it is also a derogation of her dignity. If there were inconsistencies in minute details, they may be attributed to the emotions brought to the surface by the need for her to repeatedly narrate in detail the brutality inflicted on her. The Courts impression is that VON never once faltered in her declaration that Alegre sexually molested her. Dr. Aguirre corroborated her claim with her testimony regarding VONs hymenal lacerations. Dr. Lagapa testified on her multiple stab wounds. Inevitably, when the rape victims straightforward testimony is consistent with the physical evidence of the injuries she received, sufficient basis exists for concluding that she has told the truth.21 Notably, Alegre did not present any evidence, other than his testimony denying the grave charges against him. But to be believed, his denial needed to be buttressed by strong evidence of nonculpability or by the essential weakness of the complainants allegations.22 These do not exist here. Regarding the penalty, both the CA and the RTC failed to take into account Alegres use of a deadly weapon in the rape case, a fact specifically averred in the information and proved during the trial. This qualifies the rape he committed. Article 266-B of the Revised Penal Code provides that the penalty for rape committed with the use of a deadly weapon should be reclusion perpetua to death. But in view of the enactment of Republic Act 9346 which prohibits the imposition of the death penalty, the penalty of reclusion perpetua without eligibility for parole as provided by Act 4103 should instead be imposed. With regard to the damages, in line with recent jurisprudence the civil indemnity must be increased fromP50,000.00 to P75,000.00 and the moral damages from P50,000.00 to P75,000.00.23 WHEREFORE, the Court DENIES the appeal and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR-HC 02583 dated April 28, 2008, which upheld the decision of the Regional Trial Court of Manila in Criminal Cases 03-213343 and 03-213344, with the MODIFICATIONS a) that the

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penalty of reclusion perpetua be without eligibility for parole and b) that the award of P50,000.00 in civil indemnity and P50,000.00 in moral damages in relation to the case of qualified rape be both increased to P75,000.00. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR.* Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice

DIOSDADO M. PERALTA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Jose Catral Mendoza, per raffle dated June 16, 2010.
1

Records, p. 2.

Pursuant to People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, the real name and address of the victim and her relatives have been replaced with fictitious initials.
3

TSN, October 15, 2003, p. 3; TSN, February 3, 2004, p. 19. Id. at 4-5; id. at 24. TSN, February 3, 2004, p. 25. TSN, October 15, 2003, pp. 5-8. Id. at 9-12. Id. at 13. TSN, May 24, 2004, pp. 3-4; TSN, October 15, 2003, p. 13; TSN, February 3, 2004, p. 9. TSN, October 15, 2003, p. 13; TSN, February 3, 2004, pp. 9-10. TSN, February 3, 2004, pp. 8-13. TSN, November 4, 2004, pp. 3-7. TSN, March 28, 2005, pp. 2-4. Id. at 4-6.

10

11

12

13

14

15

Rollo, pp. 12-13. Penned by Associate Justice Andres B. Reyes, Jr. and concurred in by Associate Justice Jose C. Mendoza (now a member of this Court) and Associate Justice Arturo G. Tayag.
16

Id. at 22. CA rollo, p. 41. People of the Philippines v. Ofemiano, G.R. No. 187155, February 1, 2010. CA rollo, p. 52. Id. at 42-43.

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18

19

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21

People of the Philippines v. Ofemiano, supra note 18, citing People v. Malibiran, G.R. No. 173471, March 17, 2009, 581 SCRA 655, 668-669; People v. Corpuz, G.R. No. 168101, February 13, 2006, 482 SCRA 435, 448; People v. Baares, G.R. No. 127491, May 28, 2004, 430 SCRA 81, 92-93.
22

People of the Philippines v. Estrada, G.R. No. 178318, January 15, 2010. People v. Araojo, G.R. No. 185203, September 17, 2009, 600 SCRA 295, 309.

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G.R. No. 191261

March 2, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. JENNY TUMAMBING y TAMAYO, Appellant. DECISION ABAD, J.: This case is about how the credibility of the rape victims identification of her attacker often depends on her spontaneous actions and behavior following the rape. The Facts and the Case The city prosecutor charged the accused Jenny Tumambing (Tumambing) with rape in Criminal Case 04-227897 of the Regional Trial Court (RTC) of Manila. DK,1 the complainant, testified that at around 2:00 a.m. on June 26, 2004 she went to sleep, leaving the lights on, at her cousins rented room. She was startled when somebody entered the room after she had turned off the lights. The intruder, a man, poked a knife at DK and threatened to kill her if she made any noise. He removed DKs clothes and undressed himself. He then succeeded in ravishing her. When the man was about to leave, DK turned the light on and she saw his face. DK recognized him as the same person who passed by her cousins room several times in the afternoon of the previous day, June 25, 2004. Later, she identified the accused Jenny Tumambing as her rapist. On June 27, 2004 the doctor who examined DK found no bruises, hematoma, or any sign of resistance on her body but found several fresh lacerations on her genitals. Tumambing denied committing the crime. He claimed that on June 26, 2004 he slept at the house of his employer, Nestor Ledesma. He went to bed at about 9:00 p.m. and woke up at 6:00 a.m. Tumambing swore that he never left his employers house that night. Ledesma corroborated his story. Barangay officials summoned Tumambing and he went, thinking that it had something to do with a bloodletting campaign. He was shocked, however, when he learned that he had been suspected of having committed rape. On June 27, 2006 the RTC found Tumambing guilty beyond reasonable doubt of the crime charged and sentenced him to suffer the penalty of reclusion perpetua. The RTC also ordered him to indemnify DK ofP50,000.00 and pay her P50,000.00 as moral damages. On November 12, 2009 the Court of Appeals (CA) affirmed in CA-G.R. CR-HC 02433 the decision of the RTC in its entirety, prompting Tumambing to appeal to this Court. The Issue Presented The sole issue presented in this case is whether or not the CA and the trial court erred in finding that accused Tumambing raped DK under the circumstances she mentioned. The Ruling of the Court

A successful prosecution of a criminal action largely depends on proof of two things: the identification of the author of the crime and his actual commission of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offenders identity. The constitutional presumption of innocence that an accused enjoys is not demolished by an identification that is full of uncertainties.2 Here, both the RTC and the CA gave credence to DKs testimony. They maintained that DK categorically and positively identified her rapist. The CA invoked People v. Reyes3 where the Court ruled that it would be easy for a person who has once gained familiarity with the appearance of another to identify the latter even from a considerable distance.4 Ordinarily, the Court would respect the trial court and the CAs findings regarding the credibility of the witnesses.5 But the courts mentioned appear to have overlooked or misinterpreted certain critical evidence in the case. This compels the Court to take a look at the same.6 DKs identification of accused Tumambing as her rapist is far from categorical. The Courts reading of her testimony shows that she was quite reluctant at the beginning but eventually pointed to him when it was suggested that it might be him after all. Several witnesses attested to DKs uncertainties regarding the rapists identity when the barangay chairman arranged for her to meet Tumambing. PO2 Crispulo Frondozo, one of the apprehending officers, testified as follows: Q: Now in the barangay, do you have any occasion to see whether the complainant pinpointed accused as the person who abused her person? A: No, Sir. Q: What about in any precinct or agency, do you have any occasion to see complainant positively identified the accused? A: No, Sir.7 Pedrito Yacub, Sr., the Barangay Chairman to whom DK initially reported the incident testified: Q: When the accused enter the barangay hall upon invitation, what happened next? A: Correction Sir. Not at the barangay hall. In my residence. Q: Then what happened? A: He was surprised and [I] told him that he is a suspect of rape and his reply was "akala ko pakukunan niyo ako ng dugo." Q: What was the reaction of the accused? A: As we sat down in a table, a confrontation ensued. I assured the complainant. Don't be afraid. Tell me. I will protect you. I called her two cousins. Then she stare upon the suspect. I ordered the suspect to turn left, right and backways. Q: After you told the suspect to pose left, right and backways, what happened next?

A: The suspect told the complainant "huwag kang magtuturo. Ninenerbyus na ako." So she could not pinpoint the suspect. I said, "Iha, [i]to ba?" But she cannot point to.8 (Underscoring supplied) DKs above behavior during her initial confrontation with accused Tumambing gives the Court no confidence that, as she claimed in her testimony, she was familiar with the looks of her rapist because she saw him on the previous day as he passed by her cousins rented room many times. If this were the case, her natural reaction on seeing Tumambing would have been one of outright fury or some revealing emotion, not reluctance in pointing to him despite the barangay chairmans assurance that he would protect her if she identified him. In assessing the testimony of a wronged woman, evidence of her conduct immediately after the alleged assault is of critical value.9 The barangay chairman continued: Q: As barangay captain who has the duty to enforce law and city ordinances, you came to know that there were other suspect, what did you do? A: I invited the suspect. Q: Do you remember the person whom you invited known as the second suspect? A: His name is Alvin Quiatcho. For confrontation with the complainant. And confrontation ensued between her and the suspect. I asked her is this the suspect? Q: What was her answer? A: She said, she could not recall. Chairman pa doctor kaya natin siya. It mean[s] "makunan ng cells." The complainant told me chairman padoktor natin [sic] na lang natin siya. Q: Presumably to get some sperm? A: Yes, Sir. Q: What did you do if any with the suggestion of [DK]? A: I told the complainant, it would be difficult to do. Q: After that what happened? A: So since she could not pinpoint also the other suspect, I released the other suspect. She could not pinpoint.10(Underscoring supplied) That DK wanted the sperm of Alvin Quiatcho (Quiatcho), the second suspect, tested and presumably compared with that found in her clearly indicates that she entertained the possibility that it was Quiatcho, rather than accused Tumambing, who raped her. The Court cannot thus accept DKs testimony that she had been familiar with the looks of the man who violated her and that she could not possibly be mistaken in identifying him as Tumambing.

Crispin Dizon, the executive officer of the same barangay, corroborated the barangay chairmans testimony: Q: So what was the question? A: The question was that, "Is this the person you saw and who rape you?" Court: Referring to? Interpreter: Referring to Jenny Tumambing. Q: What was the reply of the victim, if any? A: She did not answer, Sir. Q: What happen next when [DK] did not answer? A: And [DK] was again asked by the Chairman and told her not to fear and tell who raped her and point to him. Q: What was the reply of [DK] if any? A: She did not reply, Sir. Q: Now if you remember how many times did the Chairman asked [DK]? A: Four times, Sir.11 The RTC and the CA thought that DK was quite sure it was Tumambing who sexually attacked her. They pointed out her insistence at the police precinct that it was Tumambing who really raped her and that she positively identified him in open court. But this came about much later. The fact is that she did not refute the testimonies given by neutral witnesses that she could not point to accused Tumambing as her rapist during their initial confrontation at the barangay chairmans residence. These witnesses had no motive or reason to fabricate a story for the defense. By the nature of rape, the court has to, quite often, rely on the sole testimony of the victim. For this reason, the court is always reminded to subject her testimony to a most rigid and careful scrutiny. It cannot afford to overlook details that are essential to an understanding of the truth.12 Here, as shown above, DKs testimony is anything but believable and consistent.
lawphi1

Although she categorically said on cross-examination that she saw her attacker enter the room,13 she did not shout or raise an alarming call. Nor did she try to escape.14 She just lay in bed.15 In fact, she maintained that position in bed even when her attacker was standing before her and removing his clothes.16 She did not shout nor struggle when he penetrated her.17 There is one thing that DK appeared sure of. Her rapist wore a yellow shirt.18 But this is inconsistent with her testimony that after the stranger in her room was done raping her, "bigla na lang po siyang lumabas x x x sinundan ko siya ng tingin."19 Since DK did not say that the man put his clothes back on, it seems a certainty that he collected his clothes and carried this out when he left the room. Since DK then turned on the light for the first time, she had a chance to see him clearly. But, if this were so and he walked out naked, why was she so certain that he wore a yellow shirt?

With such serious doubts regarding the true identity of DKs rapist, the Court cannot affirm the conviction of accused Tumambing. WHEREFORE, the Court SETS ASIDE the decision of the Court of Appeals dated November 12, 2009 in CA-G.R. CR-HC 02433 as well as the decision of the Regional Trial Court of Manila, Branch 27, in Criminal Case 04-227897, and ACQUITS the accused-appellant Jenny Tumambing y Tamayo of the crime charged on the ground of reasonable doubt. The Court orders his immediate RELEASE from custody unless he is being held for some other lawful cause. The Court further ORDERS the Director of the Bureau of Corrections to implement this Decision forthwith and to inform this Court, within five days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR.* Associate Justice MARIANO C. DEL CASTILLO** Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura, per Special Order 933 dated January 24, 2011.
**

Designated as additional member in lieu of Associate Justice Diosdado M. Peralta, per Special Order 954 dated February 21, 2011.
1

Pursuant to Republic Act 9262, otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004" and its implementing rules, the real name of the victim, together with the real names of her immediate family members, are withheld and fictitious initials instead are used to represent her. People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 421-426.
2

People v. Galera, 345 Phil. 731, 745 (1997). 369 Phil. 61, 76 (1999). Rollo, p. 12. People v. Virrey, 420 Phil. 713, 720-721 (2001). People v. Galera, supra note 2, at 754. TSN, May 10, 2005, p. 6. TSN, May 11, 2005, pp. 6-7. People v. Galera, supra note 2, at 750. TSN, May 11, 2005, pp. 9-10. TSN, May 25, 2005, pp. 7-8. People v. Salidaga, G.R. No. 172323, January 29, 2007, 513 SCRA 306, 318. TSN, March 4, 2008, p. 5. Id. at 12. Id. at 7. Id. at 16. Id. at 17. Id. at 35-36. Id. at 19.

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G.R. No. 192466

September 7, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. ALEJO TAROY y TARNATE, Appellant. DECISION ABAD, J.: Apart from the question of credibility of testimonies in a prosecution for rape, this case resolves the question of proof of the territorial jurisdiction of the trial court. The Facts and the Case The public prosecutor charged Alejo Taroy y Tarnate (Taroy) with two counts of rape in Criminal Cases 02-CR-4671 and 02-CR-4672 before the Regional Trial Court (RTC) of La Trinidad, Benguet.1 DES2 was the eldest daughter of MILA3 by her first marriage. MILA married Taroy in 1997 upon the death of her first husband.4 The couple lived with MILAs children in Pucsusan Barangay, Itogon, Benguet, at the boundary of Baguio City.5 DES testified that she was alone in the house on August 10, 1997 doing some cleaning since her mother was at work and her two siblings were outside playing. When Taroy entered the house, he locked the door, closed the windows, removed his clothes, and ordered DES to remove hers. When she resisted, Taroy poked a knife at her head and forced her to submit to his bestial desires. Taroy warned her afterwards not to tell anyone about it, lest MILA and her siblings would suffer some harm. DES was 10 years old then.6 DES testified that Taroy sexually abused her again in September 1998. This time, he entered her room, locked the door, closed the windows, undressed himself, and ordered her to do the same. When she refused, Taroy pointed a knife at her. This compelled her to yield to him. Four years later or on November 1, 2002, when DES was 15, she told her aunt and MILA about what had happened between Taroy and her. They accompanied DES to the National Bureau of Investigation to complain. MILA and a certain Alumno testified that they later accompanied DES to the hospital for examination. MILA corroborated DES testimony regarding how she revealed to her and an aunt the details of the rape incidents. The doctor who examined DES testified that the latter had two narrow notches in her hymen at three oclock and five oclock positions. She explained that these notches or V-shaped or sharp indentions over the hymenal edges suggested a history of previous blunt force or trauma possibly caused by the insertion of an erect male penis. For the defense, Taroy denied raping DES on the occasions mentioned. He averred that the testimony was a fabrication made upon the prodding of her aunt who disliked him. The RTC found Taroy guilty of two counts of rape and sentenced him to suffer the penalty of reclusion perpetua. It also ordered him to pay DES for each count: P75,000.00 as civil indemnity, P75,000.00 as moral damages, andP25,000.00 as exemplary damages.7 The RTC found the testimony of DES credible and worthy of belief.

Taroy challenged the Benguet RTCs jurisdiction over the crimes charged, he having testified that their residence when the alleged offenses took place was in Pucsusan Barangay, Baguio City. The RTC held, however, that Taroys testimony that their residence was in Baguio City did not strip the court of its jurisdiction since he waived the jurisdictional requirement. On January 19, 2010 the Court of Appeals (CA) affirmed the decision of the RTC.8 The CA gave weight to the RTCs assessment of DES credibility and found no evil motive in her. The CA also held that the prosecution has sufficiently established the jurisdiction of the RTC through the testimony of MILA, DES, and Alumno. Taroy seeks his acquittal from this Court. The Issues Presented The issues presented to the Court are: 1. Whether or not the RTC of La Trinidad, Benguet, has jurisdiction to hear and decide the cases of rape against Taroy; and 2. Whether or not the prosecution has proved his guilt in the two cases beyond reasonable doubt. The Courts Rulings One. Venue is jurisdictional in criminal cases. It can neither be waived nor subjected to stipulation. The right venue must exist as a matter of law.9 Thus, for territorial jurisdiction to attach, the criminal action must be instituted and tried in the proper court of the municipality, city, or province where the offense was committed or where any of its essential ingredients took place.10 The Informations11 filed with the RTC of La Trinidad state that the crimes were committed in the victim and the offenders house in City Limit, Tuding, Municipality of Itogon, Province of Benguet. This allegation conferred territorial jurisdiction over the subject offenses on the RTC of La Trinidad, Benguet. The testimonies of MILA and DES as well as the affidavit of arrest12 point to this fact. Clearly, Taroys uncorroborated assertion that the subject offenses took place in Baguio City is not entitled to belief. Besides, he admitted during the pre-trial in the case that it was the RTC of La Trinidad that had jurisdiction to hear the case.13 Taken altogether, that RTCs jurisdiction to hear the case is beyond dispute. Two. What is necessary for the prosecution to ensure conviction is not absolute certainty but only moral certainty that the accused is guilty of the crime charged.14 Here, the prosecution has sufficiently proved the guilt of Taroy beyond reasonable doubt. DES testimony is worthy of belief, she having no ill-motive to fabricate what she said against her stepfather.
1avvphil1

More, contrary to the claims of Taroy, there is nothing in the testimony of DES that would elicit suspicion as to the veracity of her story. For one thing, the fact that she did not shout for help or resist the sexual advances of Taroy does not disprove the fact that he raped her. Women who experience traumatic and terrifying experiences such as rape do not react in a uniform pattern of hysteria and breakdown. Lastly, there is nothing unusual for DES to remain in the family dwelling despite the incidents that had happened to her. She was just a child. Where else would she go except stay with her mother who happened to be married to the man who abused her?

While we do affirm the guilt of Taroy for the crime of rape, we modify the award of exemplary damages in accordance with People v. Araojo.15 The prosecution has sufficiently established the relationship of Taroy to the victim, as well as the minority of DES necessitating the increase of the award of exemplary damages fromP25,000.00 to P30,000.00. WHEREFORE, this Court DISMISSES the appeal and AFFIRMS the Court of Appeals decision in CA-G.R. CR-HC 03510 dated January 19, 2010 with the MODIFICATION that the award of exemplary damages be increased fromP25,000.00 to P30,000.00. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: PRESBITERO J. VELASCO, JR. Associate Justice Chairperson DIOSDADO M. PERALTA Associate Justice MARTIN S. VILLARAMA, JR.* Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. PRESBITERO J. VELASCO, JR. Associate Justice Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes

Designated as additional member in lieu of Associate Justice Maria Lourdes P. A. Sereno, per Special Order 1076 dated September 6, 2011.
1

Branch 9.

Pursuant to Republic Act 9262, otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004" and its implementing rules, the real name of the victim, together with the real names of her immediate family members, is withheld and fictitious initials are used to represent her, both to protect her privacy (People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 421-426).
3

Id. Records, Vol. I, p. 99. Id. at 22 (TSN, July 1, 2003, p. 4). Id. at 5, Exhibit "A". Decision dated March 10, 2008, CA rollo, pp. 60-72. Docketed as CA-G.R. CR-HC 03510.

Figueroa v. People, G.R. No. 147406, July 14, 2008, 558 SCRA 63, 71, citing People v. Casiano, 111 Phil. 73, 93 (1961).
10

See Revised Rules of Criminal Procedure, Rule 110, Section 15. Records, Vol. I, p. 1; Records, Vol. II, p. 1. Id. at 9. Id. at 15-16, Pre-Trial Order dated March 3, 2003. Rules of Court, Rule 133, Section 2. G.R. No. 185203, September 17, 2009, 600 SCRA 295, 309. VAWC/CHILD ABUSE

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G.R. No. 182367

December 15, 2010

CHERRYL B. DOLINA, Petitioner, vs. GLENN D. VALLECERA, Respondent. DECISION ABAD, J.:

This case is about a mothers claim for temporary support of an unacknowledged child, which she sought in an action for the issuance of a temporary protection order that she brought against the supposed father. The Facts and the Case In February 2008 petitioner Cherryl B. Dolina filed a petition with prayer for the issuance of a temporary protection order against respondent Glenn D. Vallecera before the Regional Trial Court (RTC) of Tacloban City in P.O. 2008-02-071 for alleged woman and child abuse under Republic Act (R.A.) 9262.2 In filling out the blanks in thepro-forma complaint, Dolina added a handwritten prayer for financial support3 from Vallecera for their supposed child. She based her prayer on the latters Certificate of Live Birth which listed Vallecera as the childs father. The petition also asked the RTC to order Philippine Airlines, Valleceras employer, to withhold from his pay such amount of support as the RTC may deem appropriate. Vallecera opposed the petition. He claimed that Dolinas petition was essentially one for financial support rather than for protection against woman and child abuses; that he was not the childs father; that the signature appearing on the childs Certificate of Live Birth is not his; that the petition is a harassment suit intended to force him to acknowledge the child as his and give it financial support; and that Vallecera has never lived nor has been living with Dolina, rendering unnecessary the issuance of a protection order against him. On March 13, 20084 the RTC dismissed the petition after hearing since no prior judgment exists establishing the filiation of Dolinas son and granting him the right to support as basis for an order to compel the giving of such support. Dolina filed a motion for reconsideration but the RTC denied it in its April 4, 2008 Order,5 with an admonition that she first file a petition for compulsory recognition of her child as a prerequisite for support. Unsatisfied, Dolina filed the present petition for review directly with this Court. The Issue Presented The sole issue presented in this case is whether or not the RTC correctly dismissed Dolinas action for temporary protection and denied her application for temporary support for her child. The Courts Ruling Dolina evidently filed the wrong action to obtain support for her child. The object of R.A. 9262 under which she filed the case is the protection and safety of women and children who are victims of abuse or violence.6 Although the issuance of a protection order against the respondent in the case can include the grant of legal support for the wife and the child, this assumes that both are entitled to a protection order and to legal support. Dolina of course alleged that Vallecera had been abusing her and her child. But it became apparent to the RTC upon hearing that this was not the case since, contrary to her claim, neither she nor her child ever lived with Vallecera. As it turned out, the true object of her action was to get financial support from Vallecera for her child, her claim being that he is the father. He of course vigorously denied this.
1avv phil

To be entitled to legal support, petitioner must, in proper action, first establish the filiation of the child, if the same is not admitted or acknowledged. Since Dolinas demand for support for her son is based on her claim that he is Valleceras illegitimate child, the latter is not entitled to such support if he had not acknowledged him, until Dolina shall have proved his relation to him.7 The childs remedy

is to file through her mother a judicial action against Vallecera for compulsory recognition.8 If filiation is beyond question, support follows as matter of obligation.9 In short, illegitimate children are entitled to support and successional rights but their filiation must be duly proved.10 Dolinas remedy is to file for the benefit of her child an action against Vallecera for compulsory recognition in order to establish filiation and then demand support. Alternatively, she may directly file an action for support, where the issue of compulsory recognition may be integrated and resolved.11 It must be observed, however, that the RTC should not have dismissed the entire case based solely on the lack of any judicial declaration of filiation between Vallecera and Dolinas child since the main issue remains to be the alleged violence committed by Vallecera against Dolina and her child and whether they are entitled to protection. But of course, this matter is already water under the bridge since Dolina failed to raise this error on review. This omission lends credence to the conclusion of the RTC that the real purpose of the petition is to obtain support from Vallecera. While the Court is mindful of the best interests of the child in cases involving paternity and filiation, it is just as aware of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative fathers legitimate family.12 Vallecera disowns Dolinas child and denies having a hand in the preparation and signing of its certificate of birth. This issue has to be resolved in an appropriate case. ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Regional Trial Court of Tacloban Citys Order dated March 13, 2008 that dismissed petitioner Cherryl B. Dolinas action in P.O. 200802-07, and Order dated April 4, 2008, denying her motion for reconsideration dated March 28, 2008. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice DIOSDADO M. PERALTA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
1

Rollo, pp. 12-23.

"An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefore, And For Other Purposes."
3

Rollo, p. 22. Id. at 41. Id. at 40. Go-Tan v. Tan, G.R. No. 168852, September 30, 2008, 567 SCRA 231, 238.

Article 195, paragraph 4 of the Family Code requires support between parents and their illegitimate children.
8

Tayag v. Tayag-Gallor, G.R. No. 174680, March 24, 2008, 549 SCRA 68, 74. Montefalcon v. Vasquez, G.R. No. 165016, June 17, 2008, 554 SCRA 513, 527. De la Puerta v. Court of Appeals, G.R. No. 77867, February 6, 1990, 181 SCRA 861, 869. Agustin v. Court of Appeals, 499 Phil. 307, 317 (2005). Nepomuceno v. Lopez, G.R. No. 181258, March 18, 2010. September 21, 2010

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G.R. No. 184869

CENTRAL MINDANAO UNIVERSITY, Represented by Officer-In-Charge Dr. Rodrigo L. Malunhao,Petitioner, vs. THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, THE CHAIRPERSON AND COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS PEOPLES, and THE LEAD CONVENOR OF THE NATIONAL ANTI-POVERTY COMMISSION, Respondents. DECISION

ABAD, J.: This case concerns the constitutionality of a presidential proclamation that takes property from a state university, over its objections, for distribution to indigenous peoples and cultural communities. The Facts and the Case Petitioner Central Mindanao University (CMU) is a chartered educational institution owned and run by the State.1In 1958, the President issued Presidential Proclamation 476, reserving 3,401 hectares of lands of the public domain in Musuan, Bukidnon, as school site for CMU. Eventually, CMU obtained title in its name over 3,080 hectares of those lands under Original Certificates of Title (OCTs) 0-160, 0-161, and 0-162. Meanwhile, the government distributed more than 300 hectares of the remaining untitled lands to several tribes belonging to the areas cultural communities. Forty-five years later or on January 7, 2003 President Gloria Macapagal-Arroyo issued Presidential Proclamation 310 that takes 670 hectares from CMUs registered lands for distribution to indigenous peoples and cultural communities in Barangay Musuan, Maramag, Bukidnon. On April 3, 2003, however, CMU filed a petition for prohibition against respondents Executive Secretary, Secretary of the Department of Environment and Natural Resources, Chairperson and Commissioner of the National Commission on Indigenous Peoples (NCIP), and Lead Convenor of the National Anti-Poverty Commission (collectively, NCIP, et al) before the Regional Trial Court (RTC) of Malaybalay City (Branch 9), seeking to stop the implementation of Presidential Proclamation 310 and have it declared unconstitutional. The NCIP, et al moved to dismiss the case on the ground of lack of jurisdiction of the Malaybalay RTC over the action, pointing out that since the act sought to be enjoined relates to an official act of the Executive Department done in Manila, jurisdiction lies with the Manila RTC. The Malaybalay RTC denied the motion, however, and proceeded to hear CMUs application for preliminary injunction. Meanwhile, respondents NCIP, et al moved for partial reconsideration of the RTCs order denying their motion to dismiss. On October 27, 2003, after hearing the preliminary injunction incident, the RTC issued a resolution granting NCIP, et als motion for partial reconsideration and dismissed CMUs action for lack of jurisdiction. Still, the RTC ruled that Presidential Proclamation 310 was constitutional, being a valid State act. The RTC said that the ultimate owner of the lands is the State and that CMU merely held the same in its behalf. CMU filed a motion for reconsideration of the resolution but the RTC denied the same on April 19, 2004. This prompted CMU to appeal the RTCs dismissal order to the Court of Appeals (CA) Mindanao Station.2 CMU raised two issues in its appeal: 1) whether or not the RTC deprived it of its right to due process when it dismissed the action; and 2) whether or not Presidential Proclamation 310 was constitutional.3 In a March 14, 2008 decision,4 the CA dismissed CMUs appeal for lack of jurisdiction, ruling that CMUs recourse should have been a petition for review on certiorari filed directly with this Court, because it raised pure questions lawbearing mainly on the constitutionality of Presidential Proclamation 310. The CA added that whether the trial court can decide the merits of the case based solely on the hearings of the motion to dismiss and the application for injunction is also a pure question of law.

CMU filed a motion for reconsideration of the CAs order of dismissal but it denied the same,5 prompting CMU to file the present petition for review. The Issues Presented The case presents the following issues: 1. Whether or not the CA erred in not finding that the RTC erred in dismissing its action for prohibition against NCIP, et al for lack of jurisdiction and at the same time ruling that Presidential Proclamation 310 is valid and constitutional; 2. Whether or not the CA correctly dismissed CMUs appeal on the ground that it raised purely questions of law that are proper for a petition for review filed directly with this Court; and 3. Whether or not Presidential Proclamation 310 is valid and constitutional. The Courts Rulings One. The RTC invoked two reasons for dismissing CMUs action. The first is that jurisdiction over the action to declare Presidential Proclamation 310 lies with the RTC of Manila, not the RTC of Malaybalay City, given that such action relates to official acts of the Executive done in Manila. The second reason, presumably made on the assumption that the Malaybalay RTC had jurisdiction over the action, Presidential Proclamation 310 was valid and constitutional since the State, as ultimate owner of the subject lands, has the right to dispose of the same for some purpose other than CMUs use. There is nothing essentially wrong about a court holding on the one hand that it has no jurisdiction over a case, and on the other, based on an assumption that it has jurisdiction, deciding the case on its merits, both with the same results, which is the dismissal of the action. At any rate, the issue of the propriety of the RTC using two incompatible reasons for dismissing the action is academic. The CA from which the present petition was brought dismissed CMUs appeal on some technical ground. Two. Section 9(3) of the Judiciary Reorganization Act of 19806 vests in the CA appellate jurisdiction over the final judgments or orders of the RTCs and quasi-judicial bodies. But where an appeal from the RTC raises purely questions of law, recourse should be by a petition for review on certiorari filed directly with this Court. The question in this case is whether or not CMUs appeal from the RTCs order of dismissal raises purely questions of law. As already stated, CMU raised two grounds for its appeal: 1) the RTC deprived it of its right to due process when it dismissed the action; and 2) Presidential Proclamation 310 was constitutional. Did these grounds raise factual issues that are proper for the CA to hear and adjudicate? Regarding the first reason, CMUs action was one for injunction against the implementation of Presidential Proclamation 310 that authorized the taking of lands from the university. The fact that the President issued this proclamation in Manila and that it was being enforced in Malaybalay City where the lands were located were facts that were not in issue. These were alleged in the complaint and presumed to be true by the motion to dismiss. Consequently, the CMUs remedy for assailing the correctness of the dismissal, involving as it did a pure question of law, indeed lies with this Court.

As to the second reason, the CMU claimed that the Malaybalay RTC deprived it of its right to due process when it dismissed the case based on the ground that Presidential Proclamation 310, which it challenged, was constitutional. CMU points out that the issue of the constitutionality of the proclamation had not yet been properly raised and heard. NCIP, et al had not yet filed an answer to join issue with CMU on that score. What NCIP, et al filed was merely a motion to dismiss on the ground of lack of jurisdiction of the Malaybalay RTC over the injunction case. Whether the RTC in fact prematurely decided the constitutionality of the proclamation, resulting in the denial of CMUs right to be heard on the same, is a factual issue that was proper for the CA Mindanao Station to hear and ascertain from the parties. Consequently, the CA erred in dismissing the action on the ground that it raised pure questions of law. Three. Since the main issue of the constitutionality of Presidential Proclamation 310 has been raised and amply argued before this Court, it would serve no useful purpose to have the case remanded to the CA Mindanao Station or to the Malaybalay RTC for further proceedings. Ultimately, the issue of constitutionality of the Proclamation in question will come to this Court however the courts below decide it. Consequently, the Court should, to avoid delay and multiplicity of suits, now resolve the same. The key question lies in the character of the lands taken from CMU. In CMU v. Department of Agrarian Reform Adjudication Board (DARAB),7 the DARAB, a national government agency charged with taking both privately-owned and government-owned agricultural lands for distribution to farmersbeneficiaries, ordered the segregation for this purpose of 400 hectares of CMU lands. The Court nullified the DARAB action considering the inalienable character of such lands, being part of the long term functions of an autonomous agricultural educational institution. Said the Court: The construction given by the DARAB to Section 10 restricts the land area of the CMU to its present needs or to a land area presently, actively exploited and utilized by the university in carrying out its present educational program with its present student population and academic facility overlooking the very significant factor of growth of the university in the years to come. By the nature of the CMU, which is a school established to promote agriculture and industry, the need for a vast tract of agricultural land for future programs of expansion is obvious. At the outset, the CMU was conceived in the same manner as land grant colleges in America, a type of educational institution which blazed the trail for the development of vast tracts of unexplored and undeveloped agricultural lands in the Mid-West. What we now know as Michigan State University, Penn State University and Illinois State University, started as small land grant colleges, with meager funding to support their ever increasing educational programs. They were given extensive tracts of agricultural and forest lands to be developed to support their numerous expanding activities in the fields of agricultural technology and scientific research. Funds for the support of the educational programs of land grant colleges came from government appropriation, tuition and other student fees, private endowments and gifts, and earnings from miscellaneous sources. It was in this same spirit that President Garcia issued Proclamation No. 476, withdrawing from sale or settlement and reserving for the Mindanao Agricultural College (forerunner of the CMU) a land reservation of 3,080 hectares as its future campus. It was set up in Bukidnon, in the hinterlands of Mindanao, in order that it can have enough resources and wide open spaces to grow as an agricultural educational institution, to develop and train future farmers of Mindanao and help attract settlers to that part of the country. xxxx The education of the youth and agrarian reform are admittedly among the highest priorities in the government socio-economic programs. In this case, neither need give way to the other. Certainly, there must still be vast tracts of agricultural land in Mindanao outside the CMU land reservation which can be made available to landless peasants, assuming the claimants here, or some of them,

can qualify as CARP beneficiaries. To our mind, the taking of the CMU land which had been segregated for educational purposes for distribution to yet uncertain beneficiaries is a gross misinterpretation of the authority and jurisdiction granted by law to the DARAB. The decision in this case is of far-reaching significance as far as it concerns state colleges and universities whose resources and research facilities may be gradually eroded by misconstruing the exemptions from the CARP. These state colleges and universities are the main vehicles for our scientific and technological advancement in the field of agriculture, so vital to the existence, growth and development of this country.8 It did not matter that it was President Arroyo who, in this case, attempted by proclamation to appropriate the lands for distribution to indigenous peoples and cultural communities. As already stated, the lands by their character have become inalienable from the moment President Garcia dedicated them for CMUs use in scientific and technological research in the field of agriculture. They have ceased to be alienable public lands.
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Besides, when Congress enacted the Indigenous Peoples Rights Act (IPRA) or Republic Act 83719 in 1997, it provided in Section 56 that "property rights within the ancestral domains already existing and/or vested" upon its effectivity "shall be recognized and respected." In this case, ownership over the subject lands had been vested in CMU as early as 1958. Consequently, transferring the lands in 2003 to the indigenous peoples around the area is not in accord with the IPRA. Furthermore, the land registration court considered the claims of several tribes belonging to the areas cultural communities in the course of the proceedings for the titling of the lands in CMUs name. Indeed, eventually, only 3,080 hectares were titled in CMUs name under OCTs 0-160, 0-161 and 0-162. More than 300 hectares were acknowledged to be in the possession of and subject to the claims of those tribes. WHEREFORE, the Court GRANTS the petition, SETS ASIDE the March 14, 2008 decision and September 22, 2008 resolution of the Court of Appeals in CA-G.R. SP 85456, and DECLARES Presidential Proclamation 310 as null and void for being contrary to law and public policy. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice (On Official Leave) PRESBITERO J. VELASCO, JR.* Associate Justice CONCHITA CARPIO MORALES Associate Justice (On Official Leave) ANTONIO EDUARDO B. NACHURA* Associate Justice

(On Official Leave) TERESITA J. LEONARDO-DE CASTRO* Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice

(On Official Leave) ARTURO D. BRION* Associate Justice LUCAS P. BERSAMIN Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice (On Official Leave) JOSE CATRAL MENDOZA* Associate Justice

(On Leave) MARIA LOURDES P. A. SERENO** Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. RENATO C. CORONA Chief Justice

Footnotes
*

On official leave. On leave.

**

Pursuant to Republic Act 4498, "An Act to Convert Mindanao Agricultural College into Central Mindanao University and to Authorize the Appropriation of Additional Funds Therefor."
2

Docketed as CA-G.R. SP 85456. Rollo, pp. 41-42.

Id. at 85-102; penned by Associate Justice Teresita Dy-Liacco Flores, with the concurrence of Associate Justices Jane Aurora C. Lantion and Michael P. Elbinias.
5

Id. at 103-106; Resolution of the Court of Appeals dated September 22, 2008.

Batas Pambansa Bilang 129. G.R. No. 100091, October 22, 1992, 215 SCRA 86. Id. at 96, 101.

"An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for other Purposes." G.R. No. 179918 September 8, 2010

SHELL PHILIPPINES EXPLORATION B.V., represented by its Managing Director, Jeremy Cliff, Petitioner, vs. EFREN JALOS, JOVEN CAMPANG, ARNALDO MIJARES, CARLITO TRIVINO, LUCIANO ASERON, CHARLITO ALDOVINO, ROBERTO FADERA, RENATO MANTALA, GERTRUDES MENESES, NORBERTO HERNANDEZ, JOSE CABASE, DANILO VITTO, EDWIN MARIN, SAMUEL MARIN, ARMANDO MADERA, EDGARDO MARINO, HERMINO RELOX, ROLANDO TARROBACO, ERNESTO RELOX, ROSALITO RUGAS, ELDIE DIMALIBOT, PLARIDEL MUJE, REYMUNDO CARMONA, RONILO RIOFLORIDO, LEONIDES MANCIA, JONAR GERANCE, RODEL CASAPAO, CARMENCITA MENDOZA, SEVERINO MEDRANO, EDWIN MENDOZA, DOMINEZ SANTIAGO, ROGER MUJE, REYNALDO MORALES, WILLIAM MENDOZA, NELSON SOLIS, ALBERTO MATRE, MARGARITO GADO, BONIFACIO LEOTERIO, NEMESIO PEREZ, JR., ARIEL MENDOZA, PEPITO MENDOZA, SALVADOR FALCULAN, JR., CEASAR ROBLEDO, SUZIMO CERNA, VIRGILIO VATAL, JIMMY ALBAO, CRISANTO SABIDA, LAUDRINO MIRANDA, LEOPOLDO MISANA, JIMMY DELACION, FREJEDO MAGPILI, ROLANDO DIMALIBOT, PEDRO MAPALAD, FAUSTINO BALITOSTOS, LEONARDO DIMALIBOT, MARIANO MAGYAYA, RAUL MIRANO, ERNESTO MATRE, ROMEO ROBLEDO, GILBERT SADICON, ROMEO SIENA, NESTOR SADICON, NOEL SIENA, REDENTER CAMPANG, ARNEL HERNENDEZ, RESTITUTO BAUTISTA, JOSE MUJE, DANILO BILARMINO, ADRIAN MAGANGO, VALERIANO SIGUE, BERNIE MORALES, JOSEPH SALAZAR, PABLITO MENDOZA, JR., ERWIN BAUTISTA, RUBEN BAUTISTA, ALEXANDER ROVERO, EDUARDO QUARTO, RUBEN RIOFLORIDO, NESTOR DELACION, SEVERINO MEDRANO, JOEY FAJECULAY, NICOLAS MEDRANO, FELIX MEDRANO, RODELIO CASAPAO, FELIPE LOLONG, MARCELINO LOLONG, ELDY DIMALIBOT, ROBERTO CASAPAO, SIMEON CASAPAO, HENRY DIMALIBOT, RONALDO MORALES, PEPING CASAPAO, JOEL GERANCE, JAYREE DIMALIBOT, MARIO DIMALIBOT, SANTO DIMALIBOT, ZERAPIN DIMALIBOT, FLORENCIO ROVERO, Respondents. DECISION ABAD, J.: This case is about a question of jurisdiction over an action against a petroleum contractor, whose pipeline operation has allegedly driven the fish away from coastal areas, inflicting loss of earnings among fishermen. The Facts and the Case

On December 11, 1990 petitioner Shell Philippines Exploration B.V. (Shell) and the Republic of the Philippines entered into Service Contract 38 for the exploration and extraction of petroleum in northwestern Palawan. Two years later, Shell discovered natural gas in the Camago-Malampaya area and pursued its development of the well under the Malampaya Natural Gas Project. This entailed the construction and installation of a pipeline from Shells production platform to its gas processing plant in Batangas. The pipeline spanned 504 kilometers and crossed the Oriental Mindoro Sea. On May 19, 2003, respondents Efren Jalos, Joven Campang, Arnaldo Mijares, and 75 other individuals (Jalos, et al) filed a complaint for damages1 against Shell before the Regional Trial Court (RTC), Branch 41, Pinamalayan, Oriental Mindoro. Jalos, et al claimed that they were all subsistence fishermen from the coastal barangay of Bansud, Oriental Mindoro whose livelihood was adversely affected by the construction and operation of Shells natural gas pipeline. Jalos, et al claimed that their fish catch became few after the construction of the pipeline. As a result, their average net income per month fell from a high of P4,848.00 to only P573.00. They said that "the pipeline greatly affected biogenically hard-structured communities such as coral reefs and led [to] stress to the marine life in the Mindoro Sea." They now have to stay longer and farther out at sea to catch fish, as the pipelines operation has driven the fish population out of coastal waters.2 Instead of filing an answer, Shell moved for dismissal of the complaint. It alleged that the trial court had no jurisdiction over the action, as it is a "pollution case" under Republic Act (R.A.) 3931, as amended by Presidential Decree (P.D.) 984 or the Pollution Control Law. Under these statutes, the Pollution Adjudication Board (PAB) has primary jurisdiction over pollution cases and actions for related damages.3 Shell also claimed that it could not be sued pursuant to the doctrine of state immunity without the States consent. Shell said that under Service Contract 38, it served merely as an agent of the Philippine government in the development of the Malampaya gas reserves. Moreover, said Shell, the complaint failed to state a cause of action since it did not specify any actionable wrong or particular act or omission on Shells part that could have caused the alleged injury to Jalos, et al. The complaint likewise failed to comply with requirements of a valid class suit, verification and certification against forum shopping, and the requisites for a suit brought by pauper litigants.4 On March 24, 2004 the RTC dismissed the complaint. It ruled that the action was actually pollutionrelated, although denominated as one for damages. The complaint should thus be brought first before the PAB, the government agency vested with jurisdiction over pollution-related cases.5 Jalos, et al assailed the RTCs order through a petition for certiorari6 before the Court of Appeals (CA). In due course, the latter court reversed such order and upheld the jurisdiction of the RTC over the action. It said that Shell was not being sued for committing pollution, but for constructing and operating a natural gas pipeline that caused fish decline and considerable reduction in the fishermens income. The claim for damages was thus based on a quasi-delict over which the regular courts have jurisdiction. The CA also rejected Shells assertion that the suit was actually against the State. It observed that the government was not even impleaded as party defendant. It gave short shrift to Shells insistence that, under the service contract, the government was solidarily liable with Shell for damages caused to third persons. Besides, the State should be deemed to have given its consent to be sued when it entered into the contract with Shell.

The CA also held that the complaint sufficiently alleged an actionable wrong. Jalos, et al invoked their right to fish the sea and earn a living, which Shell had the correlative obligation to respect. Failure to observe such obligation resulted in a violation of the fishermens rights and thus gave rise to a cause of action for damages.7 Finally, the CA held that Jalos, et al substantially complied with the technical requirements for filing the action. But since they failed to prove the requisites of a class suit, only those who have verified the complaint should be deemed party plaintiffs.8 Shell moved for reconsideration of the CAs decision but the same was denied.9 Hence, it filed this petition for review under Rule 45. The Issues Presented The case presents the following issues: 1. Whether or not the complaint is a pollution case that falls within the primary jurisdiction of the PAB; 2. Whether or not the complaint sufficiently alleges a cause of action against Shell; and 3. Whether or not the suit is actually against the State and is barred under the doctrine of state immunity. The Courts Rulings First. Although the complaint of Jalos, et al does not use the word "pollution" in describing the cause of the alleged fish decline in the Mindoro Sea, it is unmistakable based on their allegations that Shells pipeline produced some kind of poison or emission that drove the fish away from the coastal areas. While the complaint did not specifically attribute to Shell any specific act of "pollution," it alleged that "the pipeline greatly affected biogenically hard-structured communities such as coral reefs and led [to] stress to the marine life in the Mindoro Sea."10 This constitutes "pollution" as defined by law. Section 2(a) of P.D. 984 defines "pollution" as "any alteration of the physical, chemical and biological properties of any water x x x as will or is likely to create or render such water x x x harmful, detrimental or injurious to public health, safety or welfare or which will adversely affect their utilization for domestic, commercial, industrial, agricultural, recreational or other legitimate purposes." It is clear from this definition that the stress to marine life claimed by Jalos, et al is caused by some kind of pollution emanating from Shells natural gas pipeline. The pipeline, they said, "greatly affected" or altered the natural habitat of fish and affected the coastal waters natural function as fishing grounds. Inevitably, in resolving Jalos, et als claim for damages, the proper tribunal must determine whether or not the operation of the pipeline adversely altered the coastal waters properties and negatively affected its life sustaining function. The power and expertise needed to determine such issue lies with the PAB. Executive Order 192 (1987) transferred to the PAB the powers and functions of the National Pollution and Control Commission provided in R.A. 3931, as amended by P.D. 984.11 These empowered the PAB to "[d]etermine the location, magnitude, extent, severity, causes and effects" of

water pollution.12 Among its functions is to "[s]erve as arbitrator for the determination of reparation, or restitution of the damages and losses resulting from pollution." In this regard, the PAB has the power to conduct hearings,13 impose penalties for violation of P.D. 984,14 and issue writs of execution to enforce its orders and decisions.15 The PABs final decisions may be reviewed by the CA under Rule 43 of the Rules of Court.16 Jalos, et al had, therefore, an administrative recourse before filing their complaint with the regular courts.17 The laws creating the PAB and vesting it with powers are wise. The definition of the term "pollution" itself connotes the need for specialized knowledge and skills, technical and scientific, in determining the presence, the cause, and the effects of pollution. These knowledge and skills are not within the competence of ordinary courts.18 Consequently, resort must first be made to the PAB, which is the agency possessed of expertise in determining pollution-related matters.
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To this extent, the failure of Jalos, et al to allege in their complaint that they had first taken resort to PAB before going to court means that they failed to state a cause of action that the RTC could act on. This warranted the dismissal of their action.19 Second. Still, Shell points out that the complaint also states no cause of action because it failed to specify any actionable wrong or particular act or omission on Shells part. The Court cannot agree. As mentioned above, the complaint said that the natural gas pipelines construction and operation "greatly affected" the marine environment, drove away the fish, and resulted in reduced income for Jalos, et al. True, the complaint did not contain some scientific explanation regarding how the construction and operation of the pipeline disturbed the waters and drove away the fish from their usual habitat as the fishermen claimed. But lack of particulars is not a ground for dismissing the complaint. A cause of action is the wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff.20 Its elements consist of: (1) a right existing in favor of the plaintiff, (2) a duty on the part of the defendant to respect the plaintiffs right, and (3) an act or omission of the defendant in violation of such right.21 To sustain a motion to dismiss for lack of cause of action, however, the complaint must show that the claim for relief does not exist and not only that the claim was defectively stated or is ambiguous, indefinite or uncertain.22 Here, all the elements of a cause of action are present. First, Jalos, et al undoubtedly had the right to the preferential use of marine and fishing resources which is guaranteed by no less than the Constitution.23 Second, Shell had the correlative duty to refrain from acts or omissions that could impair Jalos, et als use and enjoyment of the bounties of the seas. Lastly, Shells construction and operation of the pipeline, which is an act of physical intrusion into the marine environment, is said to have disrupted and impaired the natural habitat of fish and resulted in considerable reduction of fish catch and income for Jalos, et al. Thus, the construction and operation of the pipeline may, in itself, be a wrongful act that could be the basis of Jalos, et als cause of action. The rules do not require that the complaint establish in detail the causal link between the construction and operation of the pipeline, on the one hand, and the fish decline and loss of income, on the other hand, it being sufficient that the complaint states the ultimate facts on which it bases its claim for relief. The test for determining the sufficiency of a cause of action rests on whether the complaint alleges facts which, if true, would justify the relief demanded.24 In this case, a valid judgment for damages can be made in favor of Jalos, et al, if the construction and operation of the pipeline indeed caused fish decline and eventually led to the fishermens loss of income, as alleged in the complaint.

Third. Shell claims that it cannot be sued without the States consent under the doctrine of state immunity from suit. But, to begin with, Shell is not an agent of the Republic of the Philippines. It is but a service contractor for the exploration and development of one of the countrys natural gas reserves. While the Republic appointed Shell as the exclusive party to conduct petroleum operations in the Camago-Malampayo area under the States full control and supervision,25 it does not follow that Shell has become the States "agent" within the meaning of the law. An agent is a person who binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter.26 The essence of an agency is the agents ability to represent his principal and bring about business relations between the latter and third persons.27 An agents ultimate undertaking is to execute juridical acts that would create, modify or extinguish relations between his principal and third persons.28 It is this power to affect the principals contractual relations with third persons that differentiates the agent from a service contractor. Shells main undertaking under Service Contract 38 is to "[p]erform all petroleum operations and provide all necessary technology and finance" as well as other connected services29 to the Philippine government. As defined under the contract, petroleum operation means the "searching for and obtaining Petroleum within the Philippines", including the "transportation, storage, handling and sale" of petroleum whether for export or domestic consumption.30 Shells primary obligation under the contract is not to represent the Philippine government for the purpose of transacting business with third persons. Rather, its contractual commitment is to develop and manage petroleum operations on behalf of the State. Consequently, Shell is not an agent of the Philippine government, but a provider of services, technology and financing31 for the Malampaya Natural Gas Project. It is not immune from suit and may be sued for claims even without the States consent. Notably, the Philippine government itself recognized that Shell could be sued in relation to the project. This is evident in the stipulations agreed upon by the parties under Service Contract 38. Article II, paragraph 8, Annex "B" of Service Contract 3832 states that legal expenses, including "judgments obtained against the Parties or any of them on account of the Petroleum Operations", can be recovered by Shell as part of operating expenses to be deducted from gross proceeds. Article II, paragraph 9B of the same document allows a similar recovery for "[a]ll actual expenditures incurred and paid by CONTRACTOR [Shell] in settlement of any and all losses, claims, damages, judgments, and any other expenses not covered by insurance, including legal services." This signifies that the State itself acknowledged the suability of Shell. Since payment of claims and damages pursuant to a judgment against Shell can be deducted from gross proceeds, the State will not be required to perform any additional affirmative act to satisfy such a judgment. In sum, while the complaint in this case sufficiently alleges a cause of action, the same must be filed with the PAB, which is the government agency tasked to adjudicate pollution-related cases. Shell is not an agent of the State and may thus be sued before that body for any damages caused by its operations. The parties may appeal the PABs decision to the CA. But pending prior determination by the PAB, courts cannot take cognizance of the complaint. WHEREFORE, the Court GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. CV 82404 dated November 20, 2006. Respondent Efren Jalos, et als complaint for damages against Shell Philippines Exploration B.V. in Civil Case P-1818-03 of the Regional Trial Court, Branch 41, Pinamalayan, Oriental Mindoro is ordered DISMISSED without prejudice to its refiling with the Pollution Adjudication Board or PAB.

SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO* Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice

Footnotes
*

Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura, per raffle dated June 7, 2010.
1

Docketed as Civil Case P-1818-03 (also referred to as Civil Case R-1818-03 in some parts of the records).
2

Rollo, p. 119. Id. at 141-143. Id. at 146-157.

Id. at 114. Docketed as CA-G.R. CV 82404. Rollo, pp. 96-100. Id. at 102. Id. at 108-110.

Biogenic means "essential to life and its maintenance." (Websters Third New International Dictionary, Unabridged, p. 218.)
10 11

Estrada v. Court of Appeals, 484 Phil. 730, 742 (2004). P.D. 984, Section 6(a). Id., Section 6(d). Id., Section (9). Id., Section 7(d). Id., Section 7(c).

12

13

14

15

16

17

The Alexandra Condominium Corporation v. Laguna Lake Development Authority, G.R. No. 169228, September 11, 2009, 599 SCRA 452, 461.
18

Mead v. Hon. Argel, 200 Phil. 650, 662 (1982). Supra note 11, at 739. Remedial Law Compendium, Vol. I (2002 Ed.), Justice Florenz D. Regalado. p. 66.

19

20

21

Luzon Development Bank v. Conquilla, G.R. No. 163338, September 21, 2005, 470 SCRA 533, 546.
22

Philippine Bank of Communications v. Trazo, G.R. No. 165500, August 30, 2006, 500 SCRA 242, 255.
23

Article XIII, Section 7 provides: SEC. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

24

Raytheon International, Inc. v. Rouzie, Jr., G.R. No. 162894, February 26, 2008, 546 SCRA 555, 565.
25

Rollo, p. 378. Civil Code of the Philippines, Article 1869.

26

27

Philex Mining Corporation v. Commissioner of Internal Revenue, G.R. No. 148187, April 16, 2008, 551 SCRA 428, 442.
28

Nielson & Company, Inc. v. Lepanto Consolidated Mining Company, 135 Phil. 532, 541 (1968).
29

Rollo, p. 384. Id. at 380.

30

31

See Sections 6 and 7, Presidential Decree 87 or The Oil Exploration and Development Act of 1972.
32

Rollo, p. 403. The stipulation reads in full: "8. Legal Expenses. All costs and expenses of litigation, or legal service otherwise necessary or expedient for the protection of the joint interests, including attorneys fees and expenses as hereinafter provided, together with all judgments obtained against the Parties or any of them on account of the Petroleum Operations, and actual expenses incurred in securing evidence for the purpose of defending against the Operations of the subject matter of the Contract. In the event actions or claims affecting interests under the Contract shall be handled by the legal staff not otherwise charged to Operating Expenses of one or more of the Parties, a charge commensurate with the cost of providing and furnishing such services may be made against Operating Expenses."

G.R. No. 176389

December 14, 2010

ANTONIO LEJANO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 176864 PEOPLE OF THE PHILIPPINES, Appellee, vs.

HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants. DECISION ABAD, J.: Brief Background On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.1 The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.2 The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the

penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.3 On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.4 The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,5 hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence6 to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case. Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. Issues Presented Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his innocence. In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are: 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence

Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.8 If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision in Arizona v. Youngblood,10 where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.11 They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Now, to the merit of the case. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990.

As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala Alabang Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening ("bad trip"). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight. Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito lang kami, magbabantay lang kami." Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the

kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a womans voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, "Okay ba?" After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key. Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area. The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit naman pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his companions and told them, "We dont know each other. We havent seen each otherbaka maulit yan." Alfaro and Estrada left and they drove to her fathers house.12 1. The quality of the witness

Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an "asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one of the rooms at the NBI offices. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus: ATTY. ONGKIKO: Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? xxxx A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor. ATTY. ONGKIKO: Q. And what did you say? xxxx A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Q. Atty. Sacaguing, were you able to interview this alleged witness? WITNESS SACAGUING: A. No, sir. ATTY. ONGKIKO:

Q. Why not? WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify. ATTY. ONGKIKO: Q. All right, and what happened after that? WITNESS SACAGUING: A. She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong" COURT: How was that? WITNESS SACAGUING: A. "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan." xxxx ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?" WITNESS SACAGUING: A. I said, "hindi puwede yan, kasi hindi ka naman eye witness." ATTY. ONGKIKO: Q. And what was the reply of Ms. Alfaro? WITNESS SACAGUING: A. Hindi siya nakakibo, until she went away. (TSN, May 28, 1996, pp. 49-50, 58, 77-79) Quite significantly, Alfaro never refuted Sacaguings above testimony. 2. The suspicious details But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes.

Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Secondly, the police had arrested some "akyat-bahay" group in Paraaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents. Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following: a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyatbahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not

make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying.
lavvphil

At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case.13 Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro entered the house. Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gangrape of Carmela. Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can?

Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. 4. The supposed corroborations Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained14 and the presence of semen in Carmelas genitalia,15 indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the

masters bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.16 White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly "cleaned up" Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaros testimony about the movements of the persons involved. Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,17White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.
1avvphi 1

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.18 But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit. Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.19

On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.20 She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood. Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms. What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep. And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.21 The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called "Bagyo," because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted

Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house. 5. The missing corroboration There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated! For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony. But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. Webbs U.S. Alibi Among the accused, Webb presented the strongest alibi. a. The travel preparations Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.22 Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.24

b. The two immigration checks The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.25 Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through.26 He was listed on the United Airlines Flights Passenger Manifest.27 On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Nonimmigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,28 the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991,29 and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.30 c. Details of U.S. sojourn In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.31 In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines.32 In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.33 During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler34 and working at his cousin-in-laws pest control company.35 Webb presented the companys logbook showing the tasks he performed,36 his paycheck,37 his ID, and other employment papers. On June 14, 1991 he applied for a driver's license38 and wrote three letters to his friend Jennifer Cabrera.39 On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.40 On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.41 Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car.42 To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle43 and a car plate "LEW WEBB."44 In using the car in the U.S., Webb even received traffic citations.45 On June 30, 1991 Webb, again accompanied by his father and Aragon,46 bought a bicycle at Orange Cycle Center.47 The Center issued Webb a receipt dated June 30, 1991.48 On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.49 Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.50 There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.51 In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house.52 He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.

d. The second immigration checks As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55 confirmed his return trip. When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry.56 Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, "I saw him do it."? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.

She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi To establish alibi, the accused must prove by positive, clear, and satisfactory evidence57 that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.58 The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm.

If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions. The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,59 the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.60 The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.61 The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus: While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request. The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the

Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..62 The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours. If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it planted in the lower courts minds. 7. Effect of Webbs alibi to others Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall. CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause.

Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. RENATO C. CORONA Chief Justice

Footnotes

Records, Vol. 1, pp. 1-3. Rollo (G.R. 176389), pp. 393-399 and rollo (G.R. 176864), pp. 80-104. Records, Vol. 25, pp. 170-71. CA rollo, Vol. IV, pp. 3478-3479. Resolution dated January 26, 2007, rollo (G.R. 176839), pp. 197-214. A.M. 06-11-5-SC effective October 15, 2007. 373 U.S. 83 (1963). People v. Yatar, G.R. No. 150224, May 19, 2004, 425 SCRA 504, 514. Supra note 7. 488 U.S. 41 (1988).

10

11

Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652; Webb v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243.
12

The ponencia, pp. 4-9.

13

TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits "274" and "275".
14

Exhibits "G" to "G-2", "Q" to "R", "V", "W" and "X", Records, Vol. 8, pp. 308-310, 323-324, 328-330.
15

Exhibits "H" to "K", Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp. xx. TSN, March 25, 1996, pp. 8-14, 17-34. TSN October 10, 1995, pp. 97-98 (Records, Vol. 4, pp. 271-272). TSN, March 14, 1996, pp. 79-89, 103-104. TSN, December 5, 1995, pp. 21-65. Id. TSN, April 16, 1996, pp. 18-38, 79. TSN, August 14, 1997 and September 1, 1997. TSN, July 9, 1997, pp. 22-26. TSN, July 8, 1997, pp. 15-19; and TSN, June 9, 1997, pp. 22-26.

16

17

18

19

20

21

22

23

24

25

Exhibit "227". TSN, May 28, 1997, pp. 112-118, 121-122. Exhibit "223". Exhibits "207" to "219". Exhibit "207-B". Exhibit "212-D".

26

27

28

29

30

31

TSN, June 3, 1997, pp. 14-33; photograph before the concert Exhibit "295," Records (Vol.2), p. 208.
32

TSN, April 23, 1997, pp. 128-129, 134-148. TSN, April 30, 1997, pp. 69-71. TSN, June 2, 1997, pp. 51-64, 75-78. TSN, June 16, 1997, pp. 12, 16-38, 43-59 and 69-93. Exhibits "305". Exhibits "306" and "307". Exhibits "344" and "346". Exhibits "244", "245" and "246". TSN, July 16, 1997, pp. 35, 41-42, 48-49, 58, 61-62. TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84. TSN, June 26, 1997, pp. 13-28. Exhibit "338". Exhibit "348". Exhibits "341" and "342". TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84. Exhibit "349". Exhibit "337-B".

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

TSN, May 9, 1996, pp. 26-32, 37, 44-57. Id. TSN, July 7, 1997, pp. 19-35. TSN, July 2, 1997, pp. 33-37. Exhibit "212-D". Exhibit "261". Exhibit "260". TSN, June 23, 1997. People v. Hillado, 367 Phil. 29 (1999). People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46. Rollo (G.R. 176839), pp. 216-217. Section 44, Rule 130, Rules of Court. Antilon v. Barcelona, 37 Phil. 148 (1917). Rollo (G.R. 176839), pp. 218-219.

50

51

52

53

54

55

56

57

58

59

60

61

62

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION CARPIO MORALES, J.: While it should be the common desire of bench and bar that crime is not left unpunished, it is no less important, if not more so, that the innocent be shielded from hasty prosecution and rash conviction. We have nothing but praise for sincerity and zeal in the enforcement of the law. Nevertheless, the undeserved penalties inflicted upon the blameless, and the indelible stain upon their name, which is never quite washed away by time, should caution all concerned to a more careful and conscientious scrutiny of all the facts before the finger is pointed and the stone is cast.1 (emphasis and underscoring supplied) And so, as in all criminal cases, the very voluminous records of the present cases call for a "more careful and conscientious scrutiny" in order to determine what the facts are before the accuseds conviction is affirmed.

On June 30, 1991, Estrellita Vizconde and her daughters, then 19-year old Carmela and then sevenyear old Jennifer, were found dead in their home at No. 80 Vinzons Street, BF Homes Subdivision, Paraaque. They all bore multiple stab wounds on different parts of their bodies. Some of their personal belongings appeared to be missing. An intense and sustained investigation conducted by the police resulted in the arrest of a group of suspects, the Akyat Bahay gang members, some of whom gave detailed confessions to having committed the crimes, hence, their indictment in court.2 The Makati Regional Trial Court (RTC), Branch 63 eventually found those suspects to have been victims of police frame-up, however, and were thus ordered discharged. Subsequently, in 1995, the National Bureau of Investigation (NBI) which conducted a parallel investigation announced that it had solved the crime by presenting its "star witness" in the person of Jessica Alfaro y Mincey (Alfaro), one of its "informers" or "assets," who claimed to have been an eyewitness to the crime. She named the accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits. She also tagged Paraaque police officer Gerardo Biong as an accessory after the fact. On the basis of Alfaros account, an Information was filed on August 10, 1995 before the Paraaque RTC against Webb, et al.3 for rape with homicide, reading as follows: That on or about the evening of June 29 up to the early morning of June 30, 1991, in the municipality of Paraaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused Hubert Jeffrey P. Webb conspiring and confederating with accused Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael Gatchalian y Adviento, Hiospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez and Joey Filart, mutually helping one another, while armed with bladed instruments, with the use of force and intimidation, with lewd design, with abuse of superior strength, nighttime and with the use of motor vehicle, willfully, unlawfully and feloniously have carnal knowledge of the person of Carmela Vizconde against her will and consent. That by reason or on the occasion of the aforesaid rape or immediately thereafter, the above-named accused with intent to kill, conspiring and confederating together, mutually helping one another, did then and there and with evidence premeditation, abuse of superior strength, nighttime, with the use of motor vehicle, assault and stab with bladed instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby inflicting upon them numerous stab wounds in different parts of their bodies which caused their instantaneous death. The accused GERARDO BIONG and JOHN DOES having knowledge after the commission of the above-mentioned crime, and without having participated therein as principals or accomplices, took part subsequent to its commission by assisting, with abuse of authority as police officer, the abovenamed principal accused, to conceal or destroy the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime. The case was, after the Presiding Judge of Branch 258 of the Paraaque RTC inhibited, re-raffled to Branch 274 of the Paraaque RTC. The trial court, then presided over by Judge Amelita G. Tolentino, tried only seven of the accused, Artemio Ventura and Joey Filart having remained at large.4 At the trial, the prosecution presented Alfaro as its main witness. The other witnesses were Dr. Prospero Cabanayan, the medico-legal officer who autopsied the bodies of the victims; Lolita Carrera Birrer, an ex-lover of Gerardo Biong; Mila Gaviola, former laundrywoman of the Webbs;

Normal White and Justo Cabanacan, security personnel of the Pitong Daan Subdivision, BF Homes, Paraaque, and Lauro G. Vizconde, Estrellitas husband. The defense presented testimonial evidence which tended to cast a bad light on Alfaros reputation for truth, as well as on the implausibility of her account. At all events, some of the accused invoked alibi, claiming to have been somewhere else at the time of the commission of the crime. In Webbs case, he presented documentary and testimonial proof that he was in the United States of America from March 1991 to October 1992. The trial court, impressed by Alfaros detailed narration of the events surrounding the commission of the crime, deemed her a credible witness after finding her testimony to have been corroborated by those of the other prosecution witnesses, as well as by the physical evidence. To the trial court, her testimony was categorical, straightforward, spontaneous, and frank, and withstood grueling crossexaminations by the different defense counsel. On the other hand, it belittled the denial and alibi of accused Webb, Lejano, Rodriguez, and Gatchalian in light of their positive identification by Alfaro. And so after a protracted trial, the trial court rendered on January 4, 2000 a 172-page decision finding all the accused guilty beyond reasonable doubt of rape with homicide. Thus the trial court disposed: WHEREFORE, this Court hereby finds all the principal accused GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA. This Court likewise finds the accused Gerardo Biong GUILTY BEYOND REASONABLE DOUBT AS AN ACCESSORY AFTER THE FACT, AND HEREBY SENTENCES HIM TO SUFFER AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY TO TWELVE (12) YEARS. In addition, the Court hereby orders all the accused to jointly and severally pay the victims surviving heir, Mr. Lauro Vizconde, the following sums by way of civil indemnity: 1) The amount of P150,000.00 for wrongful death of the victims; 2) The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde; 3) The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde; 4) The amount of P97,404.55 as attorneys fees.5 On appeal, the Court of Appeals rendered its challenged Decision of December 15, 2005 affirming with modification the trial courts decision by reducing the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of civil indemnity to Lauro Vizconde to P200,000.00.6 The appellate court found that indeed there was sufficient evidence that Rodriguez, Gatchalian, Fernandez, and Estrada had conspired to rape and kill Carmela as well as to kill Estrellita and Jennifer.

On motion for reconsideration by the accused, the appellate courts Special Division of five members, voting three against two, sustained its affirmance of the trial courts decision.7 Hence, this appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for Deoxyribonucleic Acid (DNA) analysis the semen specimen taken from Carmelas cadaver, which specimen was believed to be still under the safekeeping of the NBI. The Court granted the request pursuant to Section 4 of the Rule on DNA Evidence8 to give the accused and the prosecution access to scientific evidence which could affect the result of the case. On April 27, 2010, however, the NBI informed the Court that it no longer had custody of the specimen which itclaimed had been turned over to the trial court. Parenthetically, the trial court records do not show that the specimen was among the object evidence that was offered in evidence in the case by any of the parties. It was in light of this development that accused Webb filed an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. In the draft decision prepared by Justice Martin S. Villarama as a basis of this Courts deliberation, the decision of the appellate court affirming with modification the trial courts decision was affirmed. In discussing why the Decision of the Court of Appeals is being affirmed with modification, the draft decision which was the basis of this Courts deliberations, started by stating a "fundamental rule," viz: It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings.9 When the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.10 The draft decision, which was later adopted by the dissenters, found "no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions" made by the lower courts. It readily credited the testimony of prosecution "star" witness Jessica Alfaro (Alfaro) who, it observed, "underwent exhaustive and intense cross-examination by eight . . . defense lawyers . . . [and] revealed such details and observations which only a person who was actually with the perpetrators could have known." The trial court banked primarily on Alfaro who claimed to be an eyewitness to the massacre and considered the testimonies of the other prosecution witnesses as merely corroborative of hers. Jurisprudence has consistently summoned, however, that for testimonial evidence to be worthy of belief, it must firstly proceed from the mouth of a credible witness. A person may be credible where he is without previous conviction of a crime; who is not a police character and has no police record; who has not perjured in the past;whose affidavit or testimony is not incredible; who has a good standing in the community; and who is reputed to be trustworthy and reliable.11 Secondly, the persons testimony must in itself be credible. Daggers v. Van Dyck12 illuminates: Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as

probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance. (underscoring supplied) Alfaro was found both by the trial and appellate courts to be a credible witness. She impressed the trial court which found her to have "testified in a categorical, straightforward, spontaneous and frank manner, and [to] ha[ve] remained consistent in her testimony."13 By Alfaros own admission, she was a habitual drug addict who inhaled and sniffed shabu "every other day"14since December 1990. It was about this time that she met Artemio "Dong" Ventura who provided her with a regular supply of shabu at the so-called "house of shabu" in Paraaque.15 In March 1991, she stopped getting her supply of shabu from Ventura as she instead got it from other sources including Orly Bacquir and Cris Santos and places such as Quezon City, Makati and Tondo.16 Alfaros tale about the circumstances surrounding the commission of the complex crime follows: In the afternoon of June 29, 1991, the date of the commission of the crime, before she and accused Peter Estrada, who she claimed was her boyfriend, went to the Alabang Commercial Center, she had taken illegal drugs, and in the evening of even date, she not only smoked shabu but sniffed cocaine as well at the "parking lot."17 It was only in about October 1994 that she stopped taking illegal drugs. The paper of authors Burrus and Marks, "Testimonial Reliability of Drug Addicts,"18 teaches: . . . [W]here the prolonged use of drugs has impaired the witness ability to perceive, recall or relate, impeaching testimony is uniformly sustained by the courts. Aside from organic deterioration, however, testimony may be impugned if the witness was under the influence of drugs at the time of perceiving the event about which he is testifying or at the time he is on the stand. This necessarily follows, for even the temporary presence of drugs affects the functioning of the bodys organs, and thus bears directly on the credibility of the witness testimony19(underscoring supplied) Evidence derived from the testimony of a witness who was under the influence of drugs during the incident to which he is testifying is indeed very unreliable.20 So it has been held that "habitual users of narcotics become notorious liars and that their testimony is likely to be affected thereby."21 We believe it will be admitted that habitual users of opium, or other like narcotics, become notorious liars. The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities.22 (underscoring supplied) Defense witness Dr. Rey San Pedro, then Deputy Executive Director of the Dangerous Drugs Board, opined that drug addicts or dependents are generally liars who would lie for less than noble objectives, such as for money and/or to satisfy their craving for attention, viz: Atty. M. Ongkiko: Q: Based on your experience, Doctor, will this dependency of shabu affect the character of a person specifically, for example, the capacity to tell the truth, would that affect? Witness Dr. Rey San Pedro:

A: Our general examination of patients showed that they become liars. Atty. M. Ongkiko: Q: They become liars. Yes, what would be the usual motivation for a shabu-dependent person to become liars. Why, why do they lie? Witness Dr. Rey San Pedro: A: My experience, Sir, is because they are aware that what they are doing is wrong and therefore they want to hide it. Not only from the family, but also from their friends. Atty. M. Ongkiko: Q: Yes. They could lie on the persons they go out with? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: They could lie on the persons they meet? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: They could lie on the persons from whom they allegedly get the drugs? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Is it not correct, Doctor, that the tendency of a drug dependent is to hide the identity of the drug suppliers. Is this correct? Witness Dr. Rey San Pedro: A: This is our experience. I have not encountered a patient who would tell you where they get their supply. Atty. M. Ongkiko: Q: Who would tell you the correct name of the drug supplier?

Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: And who would tell you the correct address of the drug supplier, correct? Witness Dr. Rey San Pedro: A: Correct. Atty. M. Ongkiko: Q: Their tendency is to give you misleading information, correct? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Now, would a drug dependent on shabu lie for money? Witness Dr. Rey San Pedro: A: Yes. Atty. M. Ongkiko: Q: Yes. When I say lie for money so that she could get money? Witness Dr. Rey San Pedro: A: She could get money. Atty. M. Ongkiko: Q: He will, from her relatives, from her friends, or even from third persons? Witness Dr. Rey San Pedro: A: Yes, Sir. They even sell the family belongings. Atty. M. Ongkiko: Q: They even sell their personal effects? Witness Dr. Rey San Pedro:

A: Yes, Sir. Atty. M. Ongkiko: Q: Would they sell their honor to get money, like a woman becoming a prostitute? Witness Dr. Rey San Pedro: A I have not encountered a case like that. Atty. M. Ongkiko: Q: You have not encountered that much. But tell me, Doctor, would they lie in order to get attention? Witness Dr. Rey San Pedro: A: Yes, they do. Atty. M. Ongkiko: Q: Yes, because they want to be the center of attention to cover up for their drug dependency, correct? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Now, Doctor, if a person were drug dependent on shabu since 1990, 1991, up to and including December, 1994. So, that is a long time, isnt it? Witness Dr. Rey San Pedro: A: 90 to 94? Atty. M. Ongkiko: Q: Yes, drug dependent. What would it take, Doctor, in order that we can cure this patient of his or her dependency on shabu, what would it take? Witness Dr. Rey San Pedro: A: They have to be rehabilitated, Sir, treated and rehabilitated. Atty. M. Ongkiko: Q: Treated and rehabilitated, where?

Witness Dr. Rey San Pedro: A: In a hospital. Atty. M. Ongkiko: Q: In a hospital. Does the government provide for such facilities? Witness Dr. Rey San Pedro: A: Yes, Sir. x x x x23 (underscoring supplied) Former National Bureau of Investigation (NBI) Director Epimaco Velasco had a view similar to that of Dr. San Pedros that any information which is being furnished by a drug addict is "not generally reliable" and his capacity to lie may be "very great."24 In their earlier mentioned paper, Burrus and Marks write on the "peculiar effects upon veracity" of the principal types of drugs, like cocaine and amphetamine which were used by Alfaro: xxxx b. Cocaine Cocaine is a powerful cortical stimulant which causes a state of euphoric excitement and varying degrees of pleasurable hallucinations. Under its influence, a person experiences sensations of great muscular and mental strength and overestimates his capabilities. He is truly, at least while under the drugs influence, in an "unreal" or "dream world," and the majority exception of admitting impeaching testimony where the witness was under the influence of the drug at the time of perception or testifying seems clearly sustainable in medical evidence. Over time, cocaine produces on the addict a degree of physical and mental deterioration not found in connection with the use of opiates. The cocaine addict is not a normal person; many, in fact, become paranoids and suffer from feelings of persecution. Visual, auditory and tactual hallucinations are common, as are digestive tract disorders, and occasionally convulsions. It would seem to follow that, so far as medical evidence is concerned, expert testimony should be admissible to impeach the cocaine addict. Both in its long-run effect of organic deterioration and in its short run influence, the drug severs the users contact with reality, and renders him, to that extent, unreliable. Even the majority admits impeaching testimony in cases of organic deterioration. There are few instances of deterioration more pronounced than that found in the habitual user of cocaine. xxxx e. Amphetamine Similar to the barbiturates and bromides, amphetamine operates upon the central nervous system, and its effect on the users ability to perceive and accurately to relate is dependent on the amount of the drug taken. Rather than a depressant however, amphetamine is a potent stimulant, the initial proper dosage promoting wakefulness and alertness, increased initiative, confidence, euphoria and increased motor activity. Thus, the non-addicts sparing use of the drug, would not seem to impair reliability and impeaching testimony to this end should be excluded.

Overdosage and repeated medication, however, can prove most harmful. Thus, the addict may suffer vasomotor disturbances, dizziness, agitation, confusion and delirium. The usual dosage taken by the addict is sufficient to cause toxic psychosis characterized by hallucinations and paranoid delusions similar in effect to cocaine. In this state, the amphetamine addicts testimonial capabilities are definitely impaired. The result is that with amphetamine, as well as with barbiturates and bromides, impeachment should depend upon the amount of the drug taken and the extent of its use. Absent excessive use to the extent of organic deterioration, the barbiturate, bromide or amphetamine addict, when not intoxicated by the direct influence of the drug, is apparently perfectly reliable and the majority judicial view, under these circumstances seems sustainable. Also, as with marihuana, its effects vary with the personality make-up of the user, with the result that this, too, should be considered in admitting or excluding the impeaching testimony. This, of course, broadens the inquiry from the physiologicalpharmacological effects of drugs upon reliability to the psychological framework of the user in its relation to his ability to tell the truth or proneness to lie.25 (italics in the original; emphasis and underscoring supplied) How Alfaro got to be a "star" witness in this case was narrated by then NBI agent Artemio Sacaguing: Atty. Ongkiko: Q All right, Atty. Sacaguing, how did the NBI treat Ms. Alfaro considering the assistance that he was giving your group? Witness Sacaguing: A We gave her very special treatment. So, we consider her already the darling of the group because she was giving us good projects and she loved it. Atty. Ongkiko: Q What do you mean by she loved it, she loved what? Witness Sacaguing: A She liked being treated that way. Atty. Ongkiko: Q Now tell the Honorable Court, was there ever any time where the group got tired of giving Ms. Alfaro the VIP treatment? xxxx Atty. Ongkiko: All right, Atty. Sacaguing, how long did you give Ms. Alfaro this VIP treatment? Witness Sacaguing:

A Well, she was always there and we treated her very nicely, but later on, about . . . after the lapse of about one or two weeks, the boys, I mean, my associates in my team, began teasing her because she could not give us any project anymore. Atty. Ongkiko: Q What do you mean by projects, leads? Witness Sacaguing: A Projects, cases we could work on. Atty. Ongkiko: Q I see, and what do you mean by teasing? xxxx Atty. Ongkiko: Q Mr. Sacaguing, after your group teased her because, according to you, she could not give you anymore projects, what was the reaction of Ms. Alfaro, if any? Please look at the judge, please do not look at me. Witness Sacaguing: A She seemed to have been piqued and she said . . . Atty. Ongkiko: Q She seemed to have been what? Witness Sacaguing: A Piqued, yes, "napikon". Atty. Ongkiko: Q I see, piqued. Witness Sacaguing: A Piqued. Atty. Ongkiko: Q Piqued. Ano yun, napikon? Court:

p i c q u e d. (underscoring in the original) Atty. Ongkiko: Q And when she was piqued or "napikon", what did she say or what did she do? xxxx Atty. Ongkiko: xxxx Q Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case. Will you tell the Honorable Court? Witness Sacaguing: A She told me, she knew somebody who . . . Court: Face the Court. Witness Sacaguing: A She told me, Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told us, Your Honor. Atty. Ongkiko: Q And what did you say? Please look at the Court. Witness Sacaguing: A I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. Atty. Ongkiko: Q Did she ever bring to you or to your office this man that, according to her, knew about the Vizconde murder case? xxxx Atty. Ongkiko:

Q Atty. Sacaguing, were you able to interview this alleged witness? Witness Sacaguing: A No, sir. Atty. Ongkiko: Q Why not? Witness Sacaguing: A Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not, and the man does not like to testify. Atty. Ongkiko: Q All right, and what happened after that? Witness Sacaguing: A She told me, "easy lang kayo, Sir", if I may quote, "easy lang, Sir, huwag kayong . . ." Court: Q How was that? Witness Sacaguing: A "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko yan, papapelan ko na lang yan." Atty. Ongkiko: Q And what did you understand by her statement as you quoted it? Witness Sacaguing: A I thought it . . . Prosecutor Zuo: Objection, Your Honor, that is asking for the opinion of this witness, Your Honor. Court: Reform your question. Atty. Ongkiko:

Q All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan"? Witness Sacaguing: A I said, "hindi pwede yan, kasi, hindi ka naman eye witness." Atty. Ongkiko: Q And what was the reply of Ms. Alfaro? Witness Sacaguing: A Hindi siya nakakibo, until she went away. Atty. Ongkiko: Q She what? Witness Sacaguing: A She went away, she went out of my office. Court: You speak clearly, Mr. Witness, I could hardly get you. Witness Sacaguing: A She did not answer anymore, Your Honor. She just went out of the office. x x x x26 (emphasis and underscoring supplied) NBI agent Sacaguing was the special "handler" of Alfaro, an NBI "asset" who regularly provided leads on projects or cases being investigated by the NBI, on which account she received special treatment. From Sacaguings above-quoted testimony, Alfaro came forward with her "knowledge" about the commission of the crimes only after being cajoled by the NBI agents about her lack of productivity and her failure to make good her word that she knew and would bring someone who could "shed light" on the crimes that occurred close to four years earlier. It is thus hard to fathom how her motives for suddenly developing a first hand account of the commission of the crimes could be treated as anything but suspect. Yet, the lower courts, despite the peculiar circumstances related by Sacaguing, were not put on guard from swallowing Alfaros testimony. Significantly, Alfaro never disputed Sacaguings above-quoted testimoy. The trial court credited as satisfactory and plausible Alfaros explanation for her silence from the time she allegedly witnessed the crimes in June 1991 up to "about October 1994" when the numbing effects of drug abuse only began to wear off and she had an earnest desire to reform her life. WITNESS JESSICA ALFARO ON CLARIFICATORY QUESTIONS BY THE COURT

Court: Q After that incident, did it not occur to your mind to immediately report the same to the police authorities? Witness Alfaro: A No, Your Honor, I did not. Court: Q Why? Witness Alfaro: A: Because at first, I was so scared. I just want to my Dad, but I didnt have a chance to tell him. Court: Q: No, after the lapse of a reasonable time, after witnessing that incident, did it not also occur to your mind to finally report it to the proper authorities? Witness Alfaro: A: I did not first have that in mind, only recently when I was out on drugs. Court: Q: When? Witness Alfaro: A: When I got out on drugs. Court: Q When was that? Witness Alfaro: A: About October of 1994. Court: Q What prompted you to finally reveal what you have witnessed? Witness Alfaro:

A: Well, when I started having these nightmares about my daughter instead of that Jennifer that I see in my dreams. Its my daughter whom I see crying, and that triggered me, and then I got out from drugs, and then it came to the point when I saw them accidentally, so, thats the thing which triggered me, Your Honor. Court: Q: Any other reason? Witness Alfaro: A: Those are my main reasons. Court: Q: Is that your principal reason? Witness Alfaro: A: I wanted to change my life already.27 (underscoring supplied) Given Alfaros confession of having for years, after the commission of the crimes, been numbed by the effects of drug abuse, would the ponencia take as gospel truth her what it termed "vivid" and "infallible" recollection of the minutiae surrounding the commission of the crime in June 1991, and point to the accused as the malefactors, particularly Webb, despite evidence, documentary and testimonial, supporting his alibi? The explanation for this feat of wizardry is within arms-length Alfaro appears to be a rehearsed witness. Prior to her decision to surface and claim to tell what she "knew" about the crimes, the crimes had already been played out in the media, both print and broadcast, in every gory detail. It was a raging topic that drew intense discussions in both talk shows and informal gatherings, and all sorts of speculations about it were rife. In fact, prior to the arrest of the accused, members of the Philippine National Police (PNP) arrested some members of an "akyat-bahay" gang who were charged accordingly. These gang members were later released upon orders of the Makati Regional Trial Court after it was discovered that their confessions were fabricated by the PNP to conform to the physical evidence found at the crime scene. It is not thus difficult to believe that Alfaro could have become familiar with the evidentiary details of the crimes, given that she was practically a resident at the offices of the NBI which was actively investigating the crimes, not to mention her being an NBI "star" witness. Sadly, dissenters choose to gloss over the strikingly uncanny similarities between the confessions of the "akyat-bahay" gang members and Alfaros testimony. The nature and extent of the similarities were amplified by Justice Dacudao in his Dissenting Opinion, which is quoted at length: It also bothers me that Ms. Alfaros narration of the events in the case under review was in many points uncannily similar to that set forth in the extrajudicial confessions or sinumpaang salaysay executed by certain members of the so-called "Akyat Bahay Gang" of the Barroso group (the brothers Villardo Datuin Barroso, Jr. and Roberto Datuin Barroso and their several companions Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Boy Kulit, Rey Doe and several other John Does). These persons were earlier charged with two cases of

robbery with homicide, and one case of rape with homicide that is now the very subject of the case under review. Indeed, I cannot understand why the three criminal cases that were instituted before the Makati City RTC, Brnach 63, (presided over by Judge Julio R. Logarta,) which recited facts and events that are so strikingly akin to those set forth in the information filed in the case under review, hardly commanded the attention of the trial court. The records of these criminal cases, which were introduced in evidence by the accused-appellants during the trial of the case under review, covered the following: (1) Criminal Case No. 91-7135 filed by then Assistant Chief State Prosecutor Aurelio C. Trampe before the sale of Judge Julio R. Logarta of the Makati City RTC, Branch 63, on November 11, 1991 (for robbery with homicide) against Villardo Barroso y Datuin, Roberto Barroso y Datuin Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Rey Doe and several other John Does still at large. Crim. Case No. 91-7135 That on or about the 30th day of June 1991 at BF Homes Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above named accused conspiring and confederating together and helping one another did then and there willfully, unlawfully, and feloniously, by the use of force upon things, to wit, by breaking the glass in the left side of the door to open it and from where they entered the house, and once inside, willfully, unlawfully and feloniously and intent to gain and against the consent of the owners thereof, forcibly open cabinet and drawers inside the house, take and carry away therefrom, the following pieces of personal property: P140,000.00 in cash Four (4) necklace Five (5) rings Two (2) bracelets Two (2) pairs of earings belonging to Mr. and Mrs. Lauro Vizconde of the total value of Two Hundred Thousand (P200,000.00) Pesos, Philippine currency to the damage and prejudice of said owners in the said total sum, and that on the occasion of the said Robbery and for the purpose of enabling them to take, steal, and carry away the articles above-mentioned herein accused, in pursuant of their conspiracy, did then and there willfully, unlawfully and feloniously and with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault, stab and use personal violence upon JENNIFER NICOLAS VIZCONDE thereby inflicting upon her multiple stab wounds in different parts of her body thus causing her instantaneous death. Contrary to law. (2) Criminal case No. 91-7136 (for the rape with homicide of Carmela Nicolas Vizconde filed by ACSP Aurelio C. Trampe with the same RTC, Branch 63, on November 11, 1919) also against the same accused. It alleged: Crim. Case No. 91-7136

That on or about the 30th day of June 1991 at BF Homes, Paraaque, Metro Manila, Philippines, and within jurisdiction of this Honorable Court, the above-named accused, armed with knives, by means of violence, force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of CARMELA NICOLAS VIZCONDE (without her) consent, and that on the occasion of the commission of rape, and in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault, stab and use personal violence upon said CARMELA NICOLAS VIZCONDE, thereby inflicting upon her multiple stab wounds in different parts of her body, thus causing her instantaneous death. Contrary to law. (3) Criminal Case No. 91-7137 (for robbery, with homicide wherein the victim was ESTRELLITA NICOLAS VISCONDE) likewise filed against the same accused by ACSP Aurelio C. Trampe. It alleged: Crim. Case No. 91-7137 That on or about the 30th day of June 1991 at BF Homes Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and helping one another did then and there, willfully, unlawfully and feloniously, by the use of force upon things, to wit: by breaking the glass in the left side of the door to open it and from where they entered the house and once inside, willfully, unlawfully and feloniously and with intent to gain and against the consent of the owners thereof, forcibly open cabinets and drawers inside the house, take and carry away therefrom the following pieces of personal property: P140,000.00 in cash Four (4) necklace Five (5) rings Two (2) bracelets Two (2) pairs of earings belonging to Mr. and Mrs. Lauro Vizconde, the total value of which is Two Hundred Thousand (P200,000.00) pesos, Philippine Currency, to the damage and prejudice of said owners in the said total sum; and that on the occasion of the said Robbery and for the purpose of enabling them to take, steal and carry way the articles above-mentioned, herein accused, in pursuance of their conspiracy, did then and there willfully, unlawfully and with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault, stab and use personal violence upon ESTRELLITA NICOLAS VIZCONDE thereby inflicting upon her multiple stab wounds causing her instantaneous death. Contrary to law. Consider this: In the aforementioned cases, one of the accused therein (Angelito Santos y Bisen) who by his account was bothered by his conscience, surrendered and executed an affidavit or sinumpaang salaysay narrating his participation in the gruesome killing of members of the Vizconde family and the rape-killing of a young Vizconde girl. And based on the extrajudicial confessions of

the accused in these cases (specifically Angelito Santos y Bisen, Ernesto L. Cesar, the Barroso brothers Villardo, Jr. and Roberto, and Rolando G. Mendoza) it appears that the group conspired to rob the house of the Vizcondes in W. Vinzons Street inside the BF Subdivision; that they used at least two (2) vehicles in going there (a mint green Toyota Corona, and an owners tinted jeepney); that when they entered the subdivision, one of them motioned to the security guards manning the gate that the other vehicles were with him; that when they reached the Vizconde residence at W. Vinzons Street, BF Homes, one of them (Bienvenido "Ben" Baydo) climbed the fence, and once inside the house opened the gate for the group; that Bienvenido "Ben" Baydo put-out the light in the garage; that using a stone "na binalot sa basahan" Ben Baydo broke the glass in the door and opened it; that a woman who had apparently been roused from sleep (apparently referring to Mrs. Estrellita Nicolas Vizconde) came near the door and shouted "magnanakaw"; that Ben Baydo gagged the woman and dragged her inside the masters bedroom where Ben Baydo, Boy Kulit, Rolando Mendoza and Roberto Barroso stabbed her several times (one knife used in stabbing was described as "isang double blade na mga anim na pulgada ang haba nang talim"); that when a young girl (apparently referring to Jennifer Nicolas Vizconde) inside started to cry and shout, she too was stabbed to death by Rolando Mendoza, Ernesto Cesar, Villardo Barroso, Jr., Ben Baydo and Boy Kulit; that in one of the rooms they found a young woman (apparently referring to Carmela Nicolas Vizconde) who was raped successively by Roberto Barroso, Rolando Mendoza, Ben Baydo, and Ernesto Cesar and later repeatedly stabbed to death; and that they ransacked the house for valuables and were able to find cash and jewelries which they later on divided among themselves. Some of the pieces of jewelry were pawned by some of the accused at the Tambunting Pawnshop and the La Cebuana Pawnshop at Dart, Paco. Carefully evaluated, it is plain enough that the statements contained in the extrajudicial confessions or sinumpaang salaysay also overlapped or corroborated each other in their material particulars. Stock must be taken of the fact that the detailed extrajudicial confessions or sinumpaang salaysay of the several accused (especially Villardo Barroso y Datuin, Jr., Roberto Barroso y Datuin, his Rolando Mendoza y Gomez, Ernesto Cesar y Lizardo, Angelito Santos y Bisen) in the three criminal cases, were acknowledged and ratified before Judge Roberto L. Makalintal, Atty. Luis Matro, Atty. Francis Tolentino and Atty. Salvador B. Aguas, who affirmed that the said extrajudicial confessions or sinumpaang salaysay were freely and voluntarily given by the affiants, and that no duress violence, intimidation or coercion of any kind was employed against the affiants when the latter gave their statements if they did not want to; and that indeed the affiants were made aware of their constitutional right to have a lawyer of their choice to assist them during the custodial investigation and to remain silent if they wished to. Nevertheless, as seen in the consolidated decision rendered in the three criminal cases, these extrajudicial confessions or sinumpaang salaysay were declared inadmissible by the Makati City RTC, for having been allegedly obtained through duress, threats, or intimidation. The dismissal of these criminal cases nowithstanding, it does not detract from the fact: (1) that said criminal case had indeed been filed in court, (2) that the criminal indictments were erected on the strength of the extrajudicial confessions or sinumpaang salaysay executed by the accused therein, (3) that these extrajudicial confessions or sinumpaang salaysay set forth facts and events that are eerily similar to those which found their way into the information was filed in the case under review; (4) that the victims in the three criminal cases are also the victims in the case under review; and (5) that since the accused therein had been duly arraigned, as indeed, criminal proceedings had been commenced thereon before a competent court, the accused therein were in real danger of being convicted of the felonies charged.28 (emphasis and underscoring supplied) On the questioned inconsistencies between Alfaros April 28, 1995 and May 22, 1995 Affidavits, the dissenters brush them aside as not necessarily affecting her credibility, citing People v. Sanchez29 which held: . . . [W]e advert to that all-too familiar rule that discrepancies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses. Sworn

statement/affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits. (underscoring supplied) It bears emphasis that the questioned inconsistencies in Alfaros Affidavits, and indeed they are too glaring to escape attention, arise not from an affidavit and testimony at the witness stand but from two affidavits. And the dissenters forget that the first Affidavit, dated April 28, 1995, was given about two months shy of fouryears from the occurrence of the crime in late June 1991 and, therefore, her mental faculties could not have been in "such a state as [not] to afford [her] a fair opportunity of narrating in full the incident" subject of her tale. The second Affidavit, on the other hand, was executed 24 days after the first Affidavit or on May 22, 1995. Does the ponencia find that Alfaros mental faculties were more refreshed at a date more remote from the occurrence of the crime she claims to have witnessed? Again, as did the lower courts, the dissenters disregard the glaring inconsistencies between Alfaros two affidavits vis--vis her testimony in open court which undeniably detract from credibility of witness and of testimony. Consider these inconsistencies reflected in the tabulation below: April 28, 1995 Affidavit Alfaros meeting with Carmela She has not met Carmela before the night of the crime May 22, 1995 Affidavit She knew Carmela personally and met her in a party sometime in February 1991 Alfaro and Peter Estrada made three trips to the Vizconde residence. During their second trip, the other accused stayed behind at the Alabang Commercial Center Parking Lot. Peter Estrada and Alfaro went back to the Vizconde residence after about 30 minutes. This time, Carmela asked Jessica to come back after midnight. Testimony in Court She met Carmela in a party sometime inJanuary 1991 and in a disco sometime in February 1991 The entire groupmade three trips to the Vizconde residence. On thesecond trip, Webb and his companions parked and stayed along Aguirre Avenue. Only Alfaro went to the Vizconde residence.

The number of trips There were only two the group made to the trips made. After the Vizconde residence first trip, Alfaro went back to the parking lot. The group was about to leave when she arrived. Ventura signaled her to board the Nissan Patrol to take more drugs and asked her to leave her car, but she refused. Thereafter, she was instructed to join the convoy of vehicles. They went around BF Homes for about 15 minutes before they finally proceeded to Vinzons Street. What Webb said Alfaro did not hear

Before they left the

After Webb said

any instructions from Webb or any member of the group.

parking lot, Alfarooverheard Webb say, "Pipilahan natin si Carmela, pero ako ang mauuna. After leaving the accused Webb, Lejano and Venturainside the Vizconde residence, Alfaroagain entered the house through the kitchen door; Ventura was coming out as she was about to enter and once inside, curiosity impelled Alfaro to peep through the first door on the left. Noticing the high volume of the TV set inside the room, she saw two bloodied bodies on top of the bed and on the floor, she saw Webb pumping on top of Carmela who was gagged and in tears. Alfaro peeped through the bedroom door and saw two bloodied bodies and Webb pumping Carmela.

"Pipilahan," Lejano retorted, "Oo pero ako ang susunod."The others responded, "Okay, okay." Before going to the bedroom, Alfaro sawVentura rummaging through the ladies bag on top of the dining table. She proceeded to the bedroom after hearing the sound of static and peeped through the door. She could not see anything so she stepped inside where she saw Webb pumping Carmela.

What Alfaro saw at Alfaro did not see the scene of the crime what transpired insidethe Vizconde residence becauseshe did not go in.

Alfaros location in the Vizconde bedroom in relation to what she saw

Alfaro did not seewhat transpired inside the Vizconde residence becauseshe did not enter it.

Alfaro first peeped through the bedroom door and did not see anything. Since she did not see anything, she walked inside the bedroom where she saw the rape of Carmela.

The dissenters approvingly note the trial courts findings that Alfaro had sufficiently explained these discrepancies between her two affidavits as arising from a desire "to protect her former boyfriend Estrada and her relative Gatchalian, the absence of a lawyer during the first taking of her statements by the NBI, her distrust of the first investigators who took her statements and prepared her April 28, 1995 affidavit, and her uncertainty if she could obtain adequate support and security for her own life were she to disclose everything she knows about the Vizconde killings." (underscoring supplied) There was, however, no rational basis for Alfaro to mistrust her "handler" Sacaguing who was present at the execution of the first Affidavit, or the NBI for that matter, she, as stated earlier, having been accorded special treatment precisely because she was one of the more valuable "assets" of the NBI. Sacaguing himself testified that Alfaro was virtually dependent on them . . . "for protection,

for sympathy and even for her spiritual needs."30Accused Gatchalians father, Atty. Francisco Gatchalian, denied that his family was in any way related to Alfaro. And the lawyer who is mentioned in the first Affidavit to have assisted her, Atty. Arturo Mercader, Jr., took the witness stand and categorically stated that he was present during the taking of such first Affidavit of Alfaro, he claiming that, inter alia: Atty. Ongkiko: Q And after the typing of the statement was finished by Agent Tamayo, what happened? Witness Mercader: A Well, I received the statement and showed it to Jessica and asked her to read it also. Atty. Ongkiko: Q Did Jessica Alfaro read her statement? Witness Mercader: A Yes, Your Honor. Atty. Ongkiko: Q How long did it take her to read the statement? Witness Mercvader: A Just for few minutes, Your Honor. Atty. Ongkiko: Q And after she read the statement, what happened next? Witness Mercader: A Well, she signed the statement and afterwards, I also affixed my signature on it, Your Honor. xxxx Atty. Aguirre: Q While assisting Jessica Alfaro, did you notice any action on the part of anybody which pressured Jessica Alfaro to finish her statement? Witness Mercader: A No, Your Honor, none that I have noticed. If I did, I would have objected to.31

xxxx Prosecutor Zuno: Q And that, I believe, to your own perception, at that time she was giving the facts, the answer, in accordance with her recollection? xxxx Witness Mercader: A Your Honor, at that time what I noticed only was the spontaneity of the answers of Jessica. Of course, I could not tell whether from where Jessica was basing it. From the recollection or from a memorize script, I do not know, Your Honor, about that. But definitely, whenever she was asked a question, she answers them readily as if she knows the answer personally.32 (emphasis and underscoring supplied) The trial courts order preventing the defense from cross-examining Alfaro on the inconsistencies between her two Affidavits was thus correctly SET ASIDE by the Court of Appeals, to which this Court, by Resolution of January 22, 1996, referred for disposition G.R. Nos. 122466 and 122504, the accuseds petitions assailing, among other orders, the trial courts order denying their right to cross examine Alfaro, for purposes of impeachment, on her conflicting Affidavits. Thus, the appellate court, in its Decision33 in CA-G.R. SP Nos. 39839 and 39840 of June 21, 1996, held: xxxx [T]he issue of the right of petitioners to cross-examine Jessica Alfaro on the alleged inconsistencies between her first and second affidavits is too crucial to be simply brushed aside with a perfunctory application of the general rule adverted to in the preceding paragraphs. It may bring about a failure of justice. Consequently, we consider the actuations of respondent judge in this regard to be reviewable by certiorari under rule 65 of the Rules of Court. (Emphasis and underscoring supplied) Under Section 11, Rule 132 of the Rules of Court, an adverse partys witness may be impeached (1) by contradictory evidence; (2) by evidence that his general reputation for truth, honesty, or integrity is bad; (3) by evidence that he has made at other times statement inconsistent with his present testimony; and (4) by producing the record of his conviction of an offense. Insofar as impeachment by evidence of prior inconsistent statements however, under Section 13 of the same Rule 132, a proper foundation must first be laid, in that, the attention of the witness should first be called to such statements, and he should be asked whether or not he made them, and afforded an opportunity for explanation, or affirmance, or denial of the authenticity of the writing. (emphasis and underscoring in the original) A testimony given four years after the occurrence of crime which gives minute details that even contradict tales earlier given is too incredible as to draw dubiety. The lucid observations of Court of Appeals Justice Renato C. Dacudao in his Dissent34 for the acquittal of the accused, and the graphic analysis of Justice Roberto Abad in his ponencia on why Alfaros testimony can not be relied upon are thus well taken. It bears stressing that the defenses earnest assertion that the prosecution failed to rebut the pieces of evidence, highlighted by the defense, that seriously dent its (the prosecutions) case has not been controverted.

Respecting Alfaros "eyewitness identification" of Webb as the rapist: As reflected in the tabulations above, she had conflicting claims on whether and where she witnessed the commission of the crime. AT ALL EVENTS, such identification is not as accurate and authoritative as the scientific forms of identification evidence such as Deoxyribonucleic Acid (DNA) testing,35 which testing could not now, in the present case, be carried out in view of the information of the NBI that it no longer has custody of the semen specimen from rape victim Carmelas cadaver, claiming that it had turned it over to the trial court. The NBI did not, however, present any documentary proof of such claim. Parenthetically, it does not appear from the records that the specimen was offered in evidence by any of the parties. To Webbs credit, he had asked for the conduct of DNA evidence on October 6, 1997, during the trial on the merits, when he filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis36 which motion the prosecution opposed.37 The motion was subsequently denied by the trial court by its November 25, 1997 Order,38 citing Lim v. Court of Appeals39 to the effect that DNA, "being a relatively new science, it has not as yet been accorded official recognition by our courts." Besides, the trial court "believed" that no one in the Philippines had as yet the knowledge and expertise to testify on matters involving DNA testing. What is worse, however, is that it "believed" that DNA testing "will not subserve the ends of justice."40 If the motion had been granted and DNA analysis were carried out, nagging doubts on Webbs culpability for the crimes or lack of it could have been dissipated. FINALLY, even assuming arguendo that the burden of evidence had shifted to the defense, the testimonial and documentary evidence of the defense indubitably establishes that, with respect to accused Webb, he was out of the country when the crime occurred. It is undisputed that accused Webbs travel and immigration documents, which have not been found to be spurious, unquestionably show that he left the Philippines for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992. In rejecting Webbs alibi, the dissenters point out: These dates [March 9, 1991 and October 26, 1992] are so distant from the time of the commission of the crime, June 29, 1991 and June 30, 1991, and it would not have been impossible during the interregnum for Webb to travel back to the country and again fly to the US several times considering that the travel time on board an airline from the Philippines to San Francisco, and from San Francisco to the Philippines takes only about twelve (12) hours to fourteen (14) hours. Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29-30, 1991 and then departed for the US again, and returning to the Philippines in October 1992. There clearly exists, therefore, such possibility of Webbs presence at the scene of the crime at the time of its commission, and its excuse cannot be deemed airtight. (underscoring and italics supplied) It is now the dissenters reasoning which turns highly speculative and conjectural, one borne out of unfounded suspicion. It suspects that the Webb family may have used its "financial resources and political influence" to control all the U.S. and Philippine immigration people, thus allowing Webb to secretly "travel back to the country and again fly to the U.S. several times" between March 9, 1991 and October 26, 1992. It bears noting that the prosecution proffered no evidence to establish that during the interregnum Webb had surreptitiously slipped out of the U.S.A. to the Philippines, and that he subsequently re-entere d the U.S.A. by bypassing all immigration controls and protocols in both countries. This is the stuff of which spy novels are made, but not in the real world where the lives of innocent individuals are at stake.

Facts decide cases. Conjectures and suspicions are not facts, hence, they have no evidentiary value. They cannot be the bases of conviction as they cannot substitute for the constitutional requirement of proof of guilt beyond reasonable doubt. Suspicions, no matter how strong they are, must never sway judgment.41 At this juncture, given the evidence on record, it is crucial to heed the Courts caveat that when an accused puts up the defense of alibi, "the courts should not at once have a mental prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him."42 While alibi is, indeed, a weak defense because the accused can easily fabricate his story to escape criminal liability,43 in the present case, Webbs alibi could not have been fabricated with ease. His travel and immigration documents showing his departure from the Philippines and arrival in the U.S.A., not to mention the testimonial and documentary evidence on his activities while in the U.S.A. between March 9, 1991 and October 26, 1992, deserve full credit. If half the world away could not even be considered to be "so far removed from the crime scene"44 as to evince the physical impossibility of actual presence, then the defense of alibi can only be appreciated when an accused lands in a different planet. The dissenters cite People v. Larraaga45 to highlight the weakness of alibi as a defense. That case did not involve foreign and travel immigration documents or even the use of a passport, the accused therein having claimed that he was in Quezon City at the time the crime was committed in Cebu City. Because he was positively identified by several prosecution witnesses whose testimonies, unlike Alfaros, were credible and trustworthy, this Court rejected Larraagas alibi. WHEREFORE, for failure of the prosecution to prove beyond reasonable doubt the guilt of the accused, Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, and Miguel "Ging" Rodriguez, they are ACQUITTED of the crime charged. CONCHITA CARPIO MORALES Associate Justice

Footnotes
1

Salvacion v. Sandiganbayan, G.R. No. L-68633, July 11 1986, 142 SCRA 707, 713.

The cases were (1) Criminal Case No. 91-7135 filed by then Assistant Chief State Prosecutor Aurelio C. Trampe before the sala of Judge Julio R. Logarta of the Makati City RTC, Branch 63, on November 11, 1991 (for robbery with homicide) against Villardo Barroso y Datuin, Roberto Barroso y Datuin Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Rey Doe and several other John Does still at large; (2) Criminal case No. 91-7136 (for the rape with homicide of Carmela Nicolas Vizcondefiled by ACSP Aurelio C. Trampe with the same RTC, Branch 63, on November 11, 1919) also against the same accused and (3) Criminal Case No. 91-7137 (for robbery, with homicide wherein the victim was ESTRELLITA NICOLAS VISCONDE) likewise filed against the same accused by ACSP Aurelio C. Trampe.
3

Records, Vol. I, pp. 1-3.

Rollo (G.R. No. 176389), pp. 393-399 and rollo (G.R. No. 176864), pp. 80-104. Decision dated January 4, 2000. CA rollo, Vol. IV, pp. 3478-3479.

Resolution dated January 26, 2007, rollo (G.R. No. 176839), pp. 197-214. The resolution was penned by Justice Rodrigo V. Cosico, with the concurrence of Justices Regalado E. Maambong and Normandie B. Pizarro. Justices Renato C. Dacudao and Lucenito N. Tagle dissented.
8

A.M. 06-11-5-SC effective October 15, 2007. Section 4 states: Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: a. A biological sample exists that is relevant to the case; b. The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subject to DNA testing , but the results may require confirmation for good reasons; c. The DNA testing uses a scientifically valid technique; d. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and e. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828. People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207. Siao Tick Chong v. Republic, No. L-22151, March 30,1970, 32 SCRA 253, 258.

10

11

12

37 N.J. Eq. 130, 132. Cited in SALONGA, Philippine Law on Evidence, 774 (1964) and VIII Francisco, The Revised Rules Of Court In The Philippines, 458-459 (1997).
13

January 4, 2000 RTC Decision, p. 74.

14

Vide TSN, October 18, 1995, pp. 105-106. TSN, October 23, 1995, pp. 6-9. Id. at 25-27. Id. at 35-36; TSN, October 10, 1995, pp. 80-96, 156-163. 35 N.Y.U.L. Rev. 259 (1960) Ibid. Vide 98 C.J.S. 348.

15

16

17

18

19

20

21

Vide People v. Lewis, 25 Ill. 2d 396, 185 NE 2d 168 where the Supreme Court of Illinois ruled: The question of whether a witness is a narcotics addict is an important consideration in passing upon the credibility of a witness for, as we have stated, the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars. (citations omitted) In People v. Perkins, 26 Ill 2d 2300, 186 NE 2d 330 (1962) , the Supreme Court of Illinois said: The defendant contends that the trial court erred in finding him guilty on the basis of the uncorroborated testimony of a drug addict who was the only witness to the alleged crime, and further urges that the evidence as a whole does not prove him guilty beyond a reasonable doubt. We have repeatedly held that the fact that a witness is a narcotics addict and a police informer has an important bearing upon his credibility and, while his position is not that of an accomplice, the situation is sufficiently similar to that of an accomplice to warrant a close scrutiny of the testimony of such a witness, recognizing the fact that habitual users of narcotics become notorious liars and that their testimony is likely to be affected thereby. (Citations omitted; emphasis supplied)
22

State v. Fong Loon, 29 Idaho 248, 158 Pac. 233, 236. TSN, August 7, 1997, 35-45 TSN, June 4, 1997, pp. 47-48. Atty. Ongkiko: Q: As an investigator, Governor, will you tell the Honorable Court how did you relate or rather assess the reliability of any information furnished by a drug addict? Witness Velasco: A: Well, I will consider it, Your Honor, not generally reliable.

23

24

Atty. Ongkiko: Q: Why do you say that? Witness Velasco: A: Well, because, you know, if one is under the influence of drugs or one is considered to be an addict, you could hardly believe his information. Atty. Ongkiko: Q: Why, why so? Witness Velasco: A: Because he is not in his state of mind. Atty. Ongkiko: Q: Well, what about the capacity to lie, Governor? Witness Velasco: A: Well, the capacity to lie may be very great, Your Honor. Atty. Ongkiko: Q: Well, because, you know, for maintaining or for in order to get money, they will lie." (underscoring supplied)
25

Burrus and Marks Testimonial Reliability of Drug Addicts 35 N.Y.U.L. Rev. 259, 262-263, 269-270, 272-273 (1960).
26

TSN, May 28, 1996, pp. 49-50, 77-79. TSN, July 29, 1996, pp. 77-78. Justice Roberto Abad raised the same points, viz: a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past

27

28

midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been loosed to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house.
29

G.R. Nos. 121039-45, January 25, 1999, 302 SCRA 21. TSN, October 6, 1997, p. 100. Vide TSN, July 31, 1996, pp. 20-21, 44. TSN, August 1, 1996, pp. 10, 15.

30

31

32

33

CA rollo (CA-G.R. SP No. 51173), pp. 209-225, penned by Associate Justice Ricardo P. Galvez, with the concurrence of Associate Justices Antonio M. Martinez and Hilarion L. Aquino.
34

Rollo, pp. 254-285, G.R. No. 176389. People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 586. Records, Vol. 17, pp. 186-196. Webb argued that:

35

36

xxxx 7. Since the semen specimen is still in the custody and possession of the NBI, accused Webb moves for the submission of the semen evidence to a DNA analysis by a US-government or US government accredited forensic laboratory, preferably the Federal Bureau of Investigation, Washington, D.C. If granted, accused Webb reserves his right to be presented at all stages of the DNA typing process and to have access to the results thereof. xxxx
37

Id. at 502-529. Records, Vol. 18, pp. 256-259. G.R. No. 112229, March 18, 1997, 270 SCRA 1, 3.

38

39

40

41

People v. Tajada, G.R. No. 147200, December 17, 2002, 394 SCRA 159, 166; Monteverde v. People, G.R. No. 139610, August 12, 2002, 387 SCRA 196, 215.
42

People v. Abellanosa, G.R. No. 121195, November 27, 1996, 264 SCRA 722, 746-747. People v. Peruelo, No. L-50631, June 29, 1981, 105 SCRA 226-238; People v. Domingo, G.R. No. 184958, September 17, 2009. G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.

43

44

45

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION VILLARAMA, JR., J.: With all due respect to my colleagues, I dissent from the majority decision acquitting all the accusedappellants. In the middle part of 1991, the gruesome deaths of 19-year old Carmela Vizconde, her mother Estrellita and 7-year old sister Jennifer in the hands of unknown assailants inside their home in a private subdivision shocked our countrymen and alarmed the authorities of the rise in heinous crimes, particularly those committed by individuals under the influence of drugs. Investigations conducted by the police and other bodies including the Senate, and even the arrest of two (2) sets of suspects ("akyat-bahay" gang and former contractor/workers of the Vizcondes), failed to unravel the truth behind the brutal killings until an alleged eyewitness surfaced four (4) years later. The

ensuing courtroom saga involving sons of prominent families had become one (1) of the most controversial cases in recent history as the entire nation awaited its long-delayed closure. The Case Subject of review is the Decision1 dated December 15, 2005 of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 00336 affirming with modifications the Decision dated January 4, 2000 of the Regional Trial Court (RTC) of Paraaque City, Branch 274 finding the accused-appellants Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada and Miguel "Ging" Rodriguez guilty beyond reasonable doubt as principals, and accusedappellant Gerardo Biong as accessory, of the crime of Rape with Homicide. The petition for review on certiorari filed earlier by accused Lejano (G.R. No. 176389) is hereby treated as an appeal, considering that said accused had in fact filed a notice of appeal with the CA.2 In view of the judgment of the CA imposing the penalty of reclusion perpetua, such appeal by notice of appeal is in accord with A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)3 which provides under Rule 124 (c): (c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. Accordingly, G.R. No. 176389 was consolidated with the present appeal by all accused (G.R. No. 176864) except Artemio Ventura and Joey Filart who are still at large.4 Only Webb and Gatchalian filed their respective supplemental briefs in compliance with our April 10, 2007 Resolution.5 The Facts The Information filed on August 10, 1995 reads: That on or about the evening of June 29 up to the early morning of June 30, 1991, in the municipality of Paraaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused Hubert Jeffrey P. Webb conspiring and confederating with accused Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael Gatchalian y Adviento, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez and Joey Filart, mutually helping one another, while armed with bladed instruments, with the use of force and intimidation, with lewd design, with abuse of superior strength, nighttime and with the use of motor vehicle, wilfully, unlawfully and feloniously have carnal knowledge of the person of Carmela Vizconde against her will and consent. That by reason or on the occasion of the aforesaid rape or immediately thereafter, the above-named accused with intent to kill, conspiring and confederating together, mutually helping one another, did then and there, and with evident premeditation, abuse of superior strength, nighttime, with the use of motor vehicle, assault and stab with bladed instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby inflicting upon them numerous stab wounds in different parts of their bodies which caused their instantaneous death. That accused GERARDO BIONG and JOHN DOES having knowledge after the commission of the above-mentioned crime, and without having participated therein as principals or accomplices, took part subsequent to its commission by assisting, with abuse of authority as a police officer, the abovenamed principal accused, to conceal or destroy the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime.

CONTRARY TO LAW.6 The RTC and CA concurred in their factual findings based mainly on the testimony of the prosecutions principal witness, Jessica M. Alfaro who is a confessed former drug user, the declarations of four (4) other witnesses and documentary exhibits. Alfaro testified that on June 29, 1991 at around 8:30 in the evening, she drove her Mitsubishi Lancer and, with her then boyfriend Peter Estrada, went to the Ayala Alabang Commercial Center parking lot to get her order of one (1) gram of shabu from Artemio "Dong" Ventura. There she met and was introduced to Venturas friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian and Joey Filart (she had previously seen them in a shabu house located in Paraaque which they frequented as early as January 1991,7 while she had known Ventura since December 19908). After paying for hershabu and while she was smoking it, Webb approached her and requested a favor for her to relay a message to a certain girl who happened to be Carmela, to which she agreed. After the group finished their shabu session, they proceeded to Carmelas place at No. 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. She and Estrada in her car followed the two (2) vehicles: Webb, Lejano, Ventura, Fernandez and Gatchalian on board a Nissan Patrol car; while Filart and Rodriguez rode a Mazda pick-up.9 Upon reaching the area, Alfaro parked her car along Vinzons St. and approached the gate of the house pointed to by Webb. She pressed the buzzer and when a woman came out, she asked for Carmela. When she was able to talk to Carmela (an acquaintance she had met only twice in January 199110), Alfaro relayed Webbs message that he was around. However, Carmela said she cannot make it as she had just arrived home and told Alfaro to come back after twenty (20) minutes. She relayed the answer of Carmela to Webb who then instructed the group to return to Ayala Alabang Commercial Center.11 At the same parking lot, the group had another shabu session before proceeding again to Carmelas residence in a convoy. Alfaro went to Vinzons St. alone while the Nissan Patrol and Mazda parked somewhere along Aguirre Avenue. Upon seeing Carmela who was at their garden, Alfaro was approached by Carmela saying she was going out for a while. Carmela told Alfaro that they come back before 12:00 midnight and she would just leave the pedestrian gate, as well as the iron grill gate leading to the kitchen door, open and unlocked.12 Carmela further instructed Alfaro to blink her cars headlights twice before reaching the pedestrian gate to signal her arrival. Alfaro returned to her car but waited for Carmelas car to get out of the gate. Carmela drove ahead and Alfaro likewise left Vinzons St. Upon reaching the main road, Aguirre Avenue, she saw Carmela drop off the man who was with her in the car (whom she thought to be her boyfriend13). Alfaro looked for the group and relayed Carmelas instructions to Webb. Thereafter, they all went back to the Ayala Alabang Commercial Center.14 At the parking lot, Alfaro relayed to the group what transpired during her last conversation with Carmela. She also told Webb about Carmelas male companion; this changed his mood for the rest of the evening ("bad trip"already15). Webb then gave out complimentary cocaine and all of them used shabu and/or cocaine.16 After about 40 to 45 minutes, Webb decided it was time to leave, declaring: "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said: "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot and their convoy of three (3) vehicles entered Pitong Daan Subdivision for the third time. They arrived at the Vizconde residence between 11:45 to 11:55 p.m.17 Alfaro parked her car in between the Vizconde house and its adjacent house. While waiting for the rest of the group to alight from their cars, Fernandez approached her suggesting that they blow up

the transformer near the pedestrian gate of the Vizconde residence in order to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). She shrugged off the idea and told Fernandez "Malakas lang ang tama mo." When Webb, Lejano and Ventura were already standing infront of the Vizconde residence, Webb repeated to the boys that they will line up for Carmela but he will be the first, and the others said, "O sige, dito lang kami, magbabantay lang kami."18 Alfaro entered first the pedestrian gate which was left open, followed by Webb, Lejano and Ventura. At the garage, Ventura pulled out a chair to get on top of the hood of the Vizcondes Nissan Sentra car and loosened the electric bulb ("para daw walang ilaw"). They proceeded to the iron grill gate which was likewise left open, and passed through the dirty kitchen. It was Carmela who opened the aluminum screen door of the kitchen for them to enter. Carmela and Webb for a moment looked at each other in the eye, and then proceeded towards the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out of the house. Lejano asked where she was going and she told him she will smoke outside. On her way to the screen door, she saw Ventura pulling a drawer in the kitchen. At the garden area, she smoked a cigarette. After about twenty (20) minutes, she was surprised upon hearing a female voice uttered "Sino yan?" and she immediately walked out towards her car. She found the others still outside around her car and Estrada who was inside the car said: "Okay ba?" After staying in her car for about ten (10) minutes, she returned to the house passing through the same iron grill gate and dirty kitchen. While it was dark inside the house, there was light coming from outside. In the kitchen, she saw Ventura searching a ladys bag on top of the dining table. When she asked Ventura what was it he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what particular key and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door of the house but none of them fitted the lock; she also did not find any car key.19 Unable to open the main door, Alfaro walked back towards the kitchen but upon reaching the spot leading to the dining area, she heard a very loud static sound (like that coming from a television which had signed off). Out of curiosity, she went to the door of the masters bedroom where the sound was coming from and peeped inside. She pushed the slightly ajar door with her fingers and the sound grew even louder. After pushing the door wider, she walked into the room. There she saw a man on top of Carmela who was lying on the floor, two (2) bloodied bodies on top of the bed and Lejano who was at the foot of the bed about to wear his jacket. She turned her eyes on Carmela who was gagged, moaning and in tears while Webb was pumping her, his bare buttocks exposed. Webb gave her a look and she immediately left the room. At the dining area, she met Ventura who told her: "Prepare an escape. Aalis na tayo." Shocked by what she saw, Alfaro rushed out of the house and found the rest of the group outside, in her car and on the sidewalk.20 Alfaro boarded her car and started the engine but did not know where to proceed. She saw Webb, Lejano and Ventura leaving the house already. Webb suddenly picked up a stone and threw it to the main door, breaking its glass frame. When the three (3) were near the pedestrian gate, Webb told Ventura that he left behind his jacket. But Ventura said they cannot make it anymore as the iron grills were already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. Near an old hotel in the Tropical Palace area, Alfaro saw the Nissan Patrol slow down and something thrown out into a cogonal area. They went to a large house with high walls and concrete fence, steel gate and long driveway located at BF Executive Village. They parked their cars inside the compound and gathered in the lawn area where the "blaming session" took place. It was only at this point that Alfaro and the others came to know fully what happened at the Vizconde house. The mother was the first one (1) killed, then Jennifer and the last, Carmela.21 Ventura was blaming Webb telling him: "Bakit naman pati yung bata?" According to Webb, the girl was awakened and upon seeing him molesting Carmela, she jumped on him, bit his shoulders and pulled his hair. Webb got mad and grabbed the girl, pushed her to the wall and stabbed her several

times. Lejano excused himself and used the telephone inside the house, while Webb called up someone on his cellular phone. At around 2:00 in the morning, Gerardo Biong arrived and talked to Webb who ordered him to clean up the Vizconde house, and said "Pera lang ang katapat nyan." Biong answered "Okay lang." Webb addressed the group and gave his final instructions: "We dont know each other. We havent seen each other...baka maulit yan." She and Estrada then departed and went to her fathers house.22 Dr. Prospero A. Cabanayan, medico-legal officer of the National Bureau of Investigation (NBI), who conducted the autopsy on the cadavers of the victims, testified on his findings as stated in the autopsy reports he submitted to the court. The bodies were photographed showing their condition before the start of the post-mortem examination.23 Considering that they were almost in complete rigor mortis, the victims must have been dead for twelve (12) hours. Carmelas hands were on her back hogtied with an electric cord and her mouth gagged with a pillow case. She had contusions on her right forearm and thighs, ligature marks on her wrists and nine (9) stab wounds on her chest (five [5] wounds are "connecting" or reaching to the back of the body). Further, specimen taken from her genitalia tested positive for the presence of human spermatozoa, which is indicative of complete penetration plus ejaculation of the male sex organ into the female sex organ. The contusions on her thighs were probably due to the application of blunt force such as a fist blow.24 Dr. Cabanayan further testified that Estrellita was also hogtied from behind and her wrists bore ligature marks from an electric cord with a plug. She sustained twelve (12) stab wounds, eight (8) of which are "communicating" or perforating (through and through stab wounds) which are fatal since vital organs are involved.25 As to Jennifer, her stab wounds, nineteen (19) in all, had the characteristics of one (1) which is extremely blunt, the other extremely sharp. These wounds are located in different parts of her body, most of which are on the left anterior chest. But unlike Carmela and Estrellita, Jennifer had two (2) stab wounds on her back and incise wounds on her left and right forearms, the latter usually referred to as defense wounds. Seven (7) of the nine (9) stab wounds on her chest were perforating, hence fatal wounds.26 Judging from the characteristics of the stab wounds sustained by the victims, Dr. Cabanayan concluded that they could have been inflicted using sharp-edged, pointed and single-bladed instruments such as a kitchen knife.27 Normal E. White, Jr., one (1) of four (4) security guards assigned at Pitong Daan Subdivision which is part of the United BF Homes, testified that he and Edgar Mendez were the guards on duty on the night of June 29, 1991, starting at 7:00 oclock in the evening until 7:00 oclock in the morning of June 30, 1991. On June 30, 1991, at around 6:00 a.m., a homeowner called his attention on the incident the previous night at the Vizconde house. He immediately proceeded to said house where there were already many people. The housemaids of the Vizcondes led him to the entrance at the kitchen and pointed to the masters bedroom. Upon entering the room, he saw the bloodied bodies of the victims: two (2) were on top of the bed, and one (1) lying down on the floor. He is familiar with Mrs. Vizconde, Carmela and Jennifer because they were kind to the guards and usually greeted them. Mrs. Vizconde was gagged and her hands tied, while Jennifer was also lying on top of the bed. Carmela was lying on her back with one (1) of her legs raised, her dress pulled up and her genitals exposed. He also noticed that the TV was still on with loud sound. He went out to call the police but he met their Security Chief whom he informed about the killings at the Vizconde house. He then proceeded directly to the entrance/guard post of the subdivision and was told by Mendez that there were already policemen who had arrived.28 Having been apprised of the arrival of the police, White, Jr. returned to the Vizconde house to observe what was going on. He saw the policemen already investigating the crime scene and one (1) of them he later came to know as Gerardo Biong. There was also a woman who was with Biong when he was conducting the investigation inside the Vizconde premises at the garage area. The maids were being asked if they were able to hear the breaking of the main doors glass frame, and he saw Biong in the act of further breaking the remaining glass. He recognized other homeowners

who were also there, including Michael Gatchalian who passed by infront of the house. Afterwards, he returned to their guard post where their Officer-in-Charge (OIC), Justo Cabanacan, probed him and Mendez on anything they had observed the previous night. He and Mendez told Cabanacan that they did not notice anything unusual except "Mike" (Michael Gatchalian) and his friends entering and exiting the subdivision gate ("labas-masok").29 White, Jr. recounted that Mikes group entered the subdivision on the night of June 29, 1991. Upon approaching the gate, Mikes car slowed down on the hump. He was about to flag down and verify ("sisitahin") but Mike (who was at the right front seat) immediately opened his window to show his face and pointed to two (2) vehicles behind him as his companions. Because of their policy allowing outsiders to enter the subdivision as long as they are accompanied by a homeowner, he and Mendez just let the three (3) vehicles in (Mike was in the first car). That was actually the second time he saw Mike and his "barkada" that night because he had earlier seen them at Vinzons St. near the Gatchalian residence. However, he could no longer remember the precise time he saw the group on these two (2) instances.30 White, Jr. further testified that on the night of June 30, 1991, policemen took him from the Pitong Daan Subdivision Homeowners Association and brought him to the Paraaque Municipal Building. Biong was forcing him to admit that he was one (1) of those who killed the Vizconde women. Biong boxed him insisting he was among the perpetrators and had no mercy for the victims. He and Mendez were later fetched by the Chief of Security of Pitong Daan Subdivision Homeowners Association, Nestor Potenciano Jr., and OIC Justo Cabanacan.31 Biong had also taken their logbook where they list down the names of visitors, plate number of vehicles, name and street of the homeowner they were staying at, etc. However, when presented with the alleged logbook, White, Jr. said it was not the same logbook, he could not recognize its cover and could not categorically confirm the entries supposedly made in his own handwriting.32 Justo Cabanacan, another security guard assigned at the Pitong Daan Subdivision and the one (1) supervising his co-guards White, Jr., Mendez and Tungo, testified that when he reported for duty on June 30, 1991 at about 7:00 oclock in the morning, he was met by Mendez who told him about the killing of a homeowner and her family. When he asked Mendez if he and White, Jr. noticed anything unusual during their tour of duty the previous night, Mendez said everything was alright except for Mike and his friends who had gone in and out of the subdivision ("labas-masok") until the wee hours in the morning of June 30, 1991. White, Jr. also reported to him that on the night of June 29, 1991, while doing his roving duty around the subdivision, he noticed vehicles parked along Vinzons St. near the house of Mr. Almogino where there seemed to be a drinking party, and that Mike was "labas-masok" through the subdivision gate. He confirmed it was indeed their policy that if one (1) is a son/daughter of a homeowner, or accompanied by a homeowner or any relative of homeowner, he/she will no longer be stopped or queried by the guards. In particular, he knows Mike and had seen him visit the house of Lilet Sy, another homeowner. He often goes to Lilet Sys house because of the various complaints of homeowners against her like the presence of too many people at her house until midnight and the vehicles of her visitors running over her neighbors plants. This Lilet Sy is also a suspected drug pusher within the subdivision.33 Cabanacan further testified that around the last week of May or first week of June 1991, he came to know Hubert Webb because he had stopped his car at the subdivision gate as it had no local sticker of Pitong Daan Subdivision. It was around 7:00 oclock in the evening when Webb arrived. He greeted Webb and asked about his destination. Webb replied he was going to see Lilet Sy. When he asked Webb to leave an identification card, Webb pointed to his car sticker saying he is also a BF Homes resident. He explained to Webb that the sticker on his car was for United BF Homes and not the local sticker of Pitong Daan Subdivision. Webb then said: "Taga-diyan lang ako sa Phase III...saka anak ako ni Congressman Webb." He insisted on seeing Webbs ID card and grudgingly Webb obliged and pulled out his wallet. Webb gave him a laminated ID card with Webbs picture and

with the name "Hubert Webb" written on it. After seeing the ID card, he returned the same to Webb and allowed him to enter the subdivision. However, he did not anymore record this incident in their logbook because anyway Webb is the son of the Paraaque Congressman, a well-known personality.34 In the morning of June 30, 1991, Cabanacan said he also went to the Vizconde house upon being told by Mendez and White, Jr. of the killings. By afternoon of the same day, he came to meet Biong who was conducting the investigation. Based on the information given by Mendez and White, Jr., he prepared a written report on the incident which he submitted to Nestor Potenciano, Jr. After the incident, Biong frequented their place to investigate and asserting he had no female companion while conducting his investigation at the Vizconde house on June 30, 1991. Aside from taking their logbook, Biong also took his two (2) guards (Mendez and White, Jr.) to the police headquarters on June 30, 1991 at around 7:00 p.m. The said guards also related to him what Biong did to them. They said Biong punched them and forced them to admit having participated in the Vizconde killings.35 Mila Solomon Gaviola, a laundrywoman who worked at the Webb residence located at Aguirre Avenue, BF Homes, Paraaque from January to July 199136 testified that on June 30, 1991 at around 4:00 in the morning, she went to the room of Hubert to get his and his brothers (Jason and Michaels) dirty clothes, using the small "secret door" at the second floor near the servants quarters. She noticed that Michael and Jason were still asleep while Hubert was sitting on the bed wearing only his pants. When she finished collecting dirty clothes including those of Senator Webb, she brought them down to the laundry area. She ate breakfast and rested for a while. Afterwards, she started washing first Senator Webbs clothes and then those of the sons. She washed Huberts white shirt with round neck and found it had fresh blood stains at the stomach area and also splattered blood ("tilamsik lang") on the chest. She had difficulty removing the blood stains and had to use Chlorox. After she finished washing the clothes, she hanged them to dry on the second floor. Returning to the servants quarters, she peeped into Huberts room through the "secret door." She saw Hubert pacing the floor ("di mapakali"); this was about 9:00 a.m. already. She saw Hubert again around 1:00 oclock in the afternoon as he left the house passing through the "secret door"; he was clad in t-shirt and shorts. Hubert was back at the house by 4:00 oclock in the afternoon. She never saw him again until she left in July 1991.37 Gaviola further testified that on June 30, 1991 at around 7:00 oclock in the morning, she saw Senator Webb at the sala reading a newspaper.38 Lolita Carrera Vda. de Birrer, a widow and resident of United Paraaque Subdivision 5, testified that on June 29, 1991 at around 6:00 p.m., Biong who was then her boyfriend, asked her to come to the Paraaque police station to play "mahjong" at Aling Glos canteen located at the back of their office. They started playing at 6:30 in the evening. Between 1:00 and 2:00 in the morning of June 30, 1991, the radio operator at the police station went down to the canteen telling Biong he has a call. She took Biongs place at the game while Biong went to the headquarters. After a while, she followed Biong to ask if he was joining the next bet. Biong was on the telephone talking with someone and visibly irked. She heard Biongs words: "Ano?... Saan?... Mahirap yan ah! O sige, dadating ako... Ano?... Saan?... Dilaw na taxi?" Biong then told her he was leaving and shortly thereafter a taxicab arrived with a man seated at the back seat. Biong bade her good-bye saying he was going to BF Homes. She continued playing "mahjong" until morning. At around 7:00 a.m., Biong came back and went straight to the washing area of the canteen. She followed him and saw him cleaning blood stains on his fingernails. After wiping his face and hands with a handkerchief, he threw it away and when she asked why, Biong said it smelled stinky. Biong was in bad mood ("aburido") and complained, "Putang inang mga batang yon, pinahirapan ako nang husto". Afterwards, Biong took out a knife with aluminum cover from his drawer and put it in his steel cabinet. She invited him for lunch but another policeman, Galvan, came and told Biong to proceed to BF Homes and investigate the three (3) dead persons there. Biong answered, "Oo, susunod na

ako" and then proceeded to Capt. Bartolomes office. With Capt. Bartolomes permission, she joined them in going to the Vizconde residence.39 Upon arriving at the Vizconde house, Biong asked that the victims relatives and the homeowners association President be summoned. A certain Mr. Lopez and Ms. Moreno arrived and also a security guard named White, Jr. who pointed to the location of the victims bodies. They entered the masters bedroom and she saw the mother and a small girl on top of the bed, and a young woman sprawled on the floor. After inspecting the bodies, Biong went to the toilet and turned on the faucet; the running water washed out the blood on the flooring of the toilet. Biong searched the drawers using his ballpen. She saw him took a round pendant watch and pocketed it. They went out of the room and on the top of the dining table they saw a shoulder bag and scattered next to it were various items such as Carmelas ATM card, her drivers license and calling cards. Biong proceeded to the main door and removed its chain lock. When they came out towards the garage area, Biong saw a stone by the window. He then asked Capt. Bartolome to go inside the room of the two (2) maids to see for himself if indeed the noise of the breaking glass could not be heard. When Capt. Bartolome was already inside the middle room, Biong shattered the remaining glass of the main door with the butt of his gun. When Biong asked if he could hear it, Capt. Bartolome answered in the affirmative. Biong next inspected the garage where he saw the footmarks on the cars hood; Biong also found fingerprints on the electric bulb. She was just beside Biong at the time. They followed Biong towards the back of the house but upon seeing another shoe print on the ground just outside the masters bedroom, he directed them not to proceed any further. They left the Vizconde house at around 10:00 a.m. and proceeded to the Paraaque Municipal Building.40 Birrer further testified that on July 1, 1991 at 10:00 oclock in the morning, Biong arrived at her house bringing along with him the two (2) maids of the Vizcondes. He asked her to cook something for the maids to eat. Biong also instructed her to interview the maids on what they know about the killings. She did as told but the maids said they do not know anything as they were asleep. After they had lunch, Biong told her to let the maids rest. While she and the maids were resting at the sala, Biong requested to use her bathroom. Before taking a bath, Biong took out the contents of his pockets which he put on the dining table. She saw Carmelas ATM card and drivers license, bracelet, earrings and the round pendant watch Biong had taken from a jewelry box while they were inside the Vizconde house. When Biong left her house, he brought all said items with him.41 On July 2, 1991 at around 6:00 p.m., Birrer was at the Paraaque Municipal Building inside Biongs office. She saw Biong open his steel cabinet and took out a brown leather jacket which she thought was imported. When she asked him where it came from, Biong initially just said it was given as a gift but when she further queried, he answered: "Natatandaan mo ba yong nirespondehan ko noong gabi sa BF Homes? Doon galing yon." She asked Biong whether those were the youths he had mentioned earlier and he said yes. As to the jewelries taken by Biong from the Vizconde house, she was with Biong when the latter pawned them at a pawnshop near Chow-Chow; Biong got P20,000.00 for the pawned items.42 Birrer further testified that two (2) weeks after they went to the Vizconde residence to investigate, Biong on two (2) occasions brought her along to a certain house. It was only Biong who went inside the said house as she waited in a taxicab. In both instances, Biong came out of the house with an envelope containing an undisclosed amount of money. She remembered this because when she was already staying in Pangasinan on December 7, 1995, she saw flashed on ABS-CBNs TV Patrol News 7:00 p.m. newscast on television, a video footage of the house of Senator Webb. She was certain it was that house where Biong went and came out carrying cash in an envelope.43 Lauro G. Vizconde, husband of Estrellita and father of Carmela and Jennifer, testified on the personal circumstances of the victims. At the time of their deaths, Estrellita was engaged in business

(at one [1] time or another she was a garment manufacturer, taxi operator, canteen owner and local employment recruiter), Carmela was a graduating B.S. Psychology student at the University of Santo Tomas, while Jennifer was a Grade I pupil at Bloomfield Academy at BF Resort, Las Pias, Metro Manila. He left the Philippines in November 1989 to work in the United States of America. He had not since returned to the country -- until this unfortunate tragedy befell his family -- but communicated with his wife through telephone once or twice a month.44 Lauro G. Vizconde further testified that his daughter, when she was still alive, was so close to him that she confides her daily activities, dreams, ambitions and plans in life. She intended to pursue further masteral and doctoral degrees in business psychology in the U.S.A. In fact, that was the reason he transferred from one (1) state to another looking for a school where Carmela could enroll. However, he had to come home in July 1991 and bury his wife and daughters whose violent deaths he was informed of only upon arriving in the country and when he saw their bodies with stab wounds at the funeral parlor just before burial. He spent burial expenses in the amount of P289,000.00, plus P103,000.00 incidental expenses, P300,000.00 paid for memorial lots and aroundP100,000.00 for the construction of the mausoleum - with a grand total of P793,950.00. He likewise incurred litigation expenses in the amount of P97,404.50.45 In one (1) of their telephone conversations when he was still in the U.S.A., Lauro Vizconde recounted that Carmela mentioned to him that she had turned down a suitor whom she called "Bagyo," who is a son of politician in Paraaque and comes from an affluent family. He also expressed his mental anguish, wounded feelings, emotional suffering due to the untimely demise of his family. It actually cost him his life, his heart bled all the time and only time can tell when he can fully cope with the situation. He is presently totally displaced and jobless; he misses his family and he now lives an abnormal life with no inspiration and no more challenge to work for. When asked how much compensation he will ask for moral damages, he answered saying he leaves the matter to the sound discretion of the court as in truth, no amount can truly compensate him for the loss of his loved ones. He sought justice for the death of his family and hoped that the culprits, whoever they were, will be punished so that the souls of his departed loved ones may rest in peace.46 Defense Evidence The accused chiefly assailed the credibility of prosecution star witness Alfaro, in particular her execution of two (2) allegedly inconsistent affidavits (one on April 28, 1995 and another on May 22, 1995) and raised alibi and denial as defenses to the charge of rape with homicide attended by conspiracy. During the trial, no less than 95 witnesses47 were presented, and voluminous documentary exhibits were submitted. The testimonies of the principal witnesses for the defense are summarized as follows: Hubert Jeffrey P. Webb testified that at the time of the killings between June 29 and 30, 1991, he was still in Anaheim Hills, California, U.S.A., having departed from the Philippines on March 9, 1991 on board a United Airlines flight bound for San Francisco. He was accompanied by Gloria Webb, whose husband Richard Webb is the eldest brother of his father Senator Freddie Webb. It was the first time he traveled to the US and he returned to the Philippines only on October 25, 1992. On the eve of his departure, he, Rael, Tina and his then girlfriend Milagros Castillo went out and had dinner at Bunchchums. Later that night, they went to Faces Disco at Makati Avenue where his friends Paulo Santos and Jay Ortega followed. They went home at 3:00 oclock in the morning already. After driving around in the city and bringing Milagros home, he arrived at his house at around 5:00 a.m. His parents were already preparing to leave and so they headed to the airport.48 Webbs friend Rafael Jose, Paulo Santos, Senator Webbs security staff Miguel Muoz, Webbs secretary Cristina

Magpusao and house girl Victoria Ventoso corroborated Webbs testimony that he departed from the Philippines on March 9, 1991.49 Webb further testified that he stayed at the house of her Auntie Gloria and Uncle Dinky at San Francisco until late April to May 1991. Upon the invitation of her aunt Susan Brottman, sister of his mother, he rode a train and went to Anaheim where he stayed until mid-July 1991. Thereafter, he rented a nearby place but did not complete the one (1) month pre-paid lease period as he proceeded to Longwood, Florida. He stayed at the residence of his Uncle Jack and Sonia Rodriguez for almost a year (August 1991-August 1992). He went back to Anaheim and stayed at the house of his godmother and sister of his mother, Imelda Pagaspas, until October 1992. He met his relatives and other personalities while in the US; visited Lake Tahoe with the Wheelock family; toured Disneyland where Luis Wheelock filmed them and attended a concert with Christopher Esguerra who also took him out to the malls.50 Webb further testified that in the later part of June 1991, his parents joined him in the US. He applied for and was issued a drivers license on June 14, 1991. He also worked at the pest control company of his cousin-in-law Alex del Toro. Aside from his passport and airline ticket for return flight to the Philippines, Webb presented before the court the logbook of jobs/tasks kept by del Toro, in which he pointed to the entries therein which were actually performed by him; and also his purported pay check ($150 "pay to Cash"), ID and other employment papers. He also identified some handwritten letters he mailed while he was in the US and sent to his friend Jennifer Cabrera in the Philippines; photographs and video tape clips taken during his cousin Marie Manlapits wedding to Alex del Toro which wedding he attended in the US together with his mother; and receipt issued for the mountain bicycle he bought on June 30, 1991 from the Orange Cycle store in Anaheim.51 Webb denied having met Carmela Vizconde and neither does he know Jessica Alfaro. He had been jailed since August 9, 1995. When asked about his co-accused, Webb said the only ones he had met before June 29, 1991 were Fernandez and Rodriguez. He used to play basketball with Fernandez at BF Homes Phase III, during which he also met Rodriguez. While he admitted having gone out on a group with Fernandez to the houses of their basketball buddies, he denied having gone out with Rodriguez at any time.52 He also denied knowing Biong who is neither a driver nor security aide of his father.53 Gloria Webb testified that on March 9, 1991, she traveled with Webb on a United Airlines flight to San Francisco. Webb stayed at her residence at 639 Gellert Boulevard, Daly City, California until May 1991 when he left to be with his mothers sister and relatives in Anaheim. Webb and her grandson attended a "concierto" in the evenings and he also joined and helped her son-in-law with his business. Webb went with them to church, to the malls and in shopping. In April 1991, Webb went on a trip to Lake Tahoe with Mr. Wheelock and family.54 Dorothy Wheelock testified that she became a US citizen in 1974 and has been residing at 877 Las Lomas Drive, Milpitas, California. Webbs mother is her childhood friend and schoolmate. When she heard that Webb was in the US looking for a job, she invited him, and her husband Louis Wheelock picked him up at Daly City in April 1991. To reciprocate the Webbs hospitality while they visited the Philippines in 1990, she and her family took Webb to a trip to Lake Tahoe in Nevada during which they even took a video tape. Senator Freddie and Mrs. Webb also visited and stayed with them for four (4) days in July 1991. They took them to a trip to Yosemite Park, also with video footages taken by her husband.55 Steven Keeler testified that he had been an American citizen since 1982 and resident of 4002 River Street, Newport Beach, California. He met Webb at a dinner in the house of Webbs aunt Susan Brottman in Anaheim Hills around May or June 1991. Brottmans son, Rey Manlapit, was his good

friend. They played basketball with Webb, went to bars, shopped and watched TV. He also knew that Webb bought a car and worked for Alex del Toro for Environment First Termite Control. He believed that Webb left for Florida towards the end of summer (July 1991). He could not recall any specific dates he was with Webb.56 Honesto Aragon testified that he went to the US in 1967 and became a US citizen in 1989. On June 28, 1991, he met then Congressman Freddie Webb at the house of the latters sister-in-law, Susan, at Anaheim. Congressman Webb introduced to him his son Hubert Webb. He, Congressman Webb and Hubert went to some stores to go shopping for a bicycle for Hubert. But they only bought bike accessories. He invited them to snack before he brought them to his own house where he introduced to them his son Andrew. The following day, June 29, 1991, they went to Riverside, California to shop for a car for Hubert; though they found a Toyota MR2, they did not buy it because it has questionable ownership. Early morning the next day, he picked up Congressman Webb and they played tennis from 7:00 to 10:00 a.m. He and Congressman Webb were close friends, as both of them were members of a basketball team in Letran. The first time he saw Hubert was when he was still a small kid and the other time on June 28, 1991 at the Brottmans residence in Anaheim.57 Senator Freddie Webb testified that his son Hubert left for the US on March 9, 1991, the first time he had gone out of the country. Hubert stayed with his sister-in-law Gloria. They wanted to show Hubert the value of independence, hard work and perseverance, and for him to learn how to get along and live with other people. Hubert resigned from his job at Saztec before departing for the US. He and his wife also went to the US on June 28, 1991. They stayed at the house of his sister-in-law, Susan Brottman at Anaheim. From San Francisco, they went to Orlando, Florida, then back to Los Angeles and returned to the Philippines on July 21, 1991. Among the places he visited while in the US were the Yosemite Park, Nordstrom, Disneyland, Disneyworld. Upon arriving at Anaheim, he saw his son Hubert and also informed Honesto Aragon regarding their plan to procure a bicycle for Hubert. Hubert was with them again on June 29, 1991 at dinner in the residence of his sister-in-law. On July 1, 1991, they went shopping for some clothes. Together with Aragon, he and Hubert looked for a Toyota MR2 car and paid for it with a check (the car was priced at $6,000-$7,000).58 Senator Webb further testified that he knows Mila Gaviola who used to be their "labandera." She left their house but returned to work for them again about a couple of months after the Mt. Pinatubo eruption. As to Alfaros statements implicating his son Hubert in the Vizconde killings, he said the statements were not accurate because it was physically impossible for Hubert to have participated in the crime as he was abroad at the time.59 Louis Whitaker testified that he left the Philippines and resided in the US since September 1964. He met Jack Rodriguez when the latter fetched him and his wife Sonia at the Los Angeles International Airport on June 28, 1991 upon their arrival from the Philippines. They proceeded to the house of a mutual friend, Salvador Vaca, at Moresbay Street in Lake Forest. They went to see Congressman Webb at a house in Anaheim. That was the first time he met Congressman Webb, Mrs. Webb, the sister-in-law and a Mr. Aragon. On June 29, 1991, he and Rodriguez invited Congressman Webb to see Mr. Vaca perform at La Calesa Restaurant in the City of Testin. When they fetched Congressman Webb at his sister-in-laws house, he met again Mrs. Webb, and also Hubert. He saw Hubert for the second time at Orlando, Florida when he went to the house of Jack Rodriguez there; this was about July or August 1991.60 Sonia H. Rodriguez testified that she was appointed UNESCO Commissioner by then President Fidel V. Ramos. She has known accused Webb since he was a child. On June 28, 1991, she and her husband boarded a plane for Los Angeles, California. They were fetched at the LA airport by oldtime friend Salvador Vaca and proceeded to the latters house in Orange County, California. They had dinner that evening with spouses Freddie and Elizabeth Webb at the house of Susan Brottman.

The next day, in the afternoon of June 29, 1991, her husband and Salvador Vaca picked up Senator Webb from the house of Susan Brottman and then came back to fetch her and Mrs. Vaca to go to La Calesa, a restaurant owned by Mario Benitez, also a Filipino. However, she and Mrs. Vaca decided to stay home. On June 30, 1991 at around 8:00 p.m., she and her husband went to the house of Susan Brottman, together with Salvador and Mrs. Vaca and Louis Whitaker. She recalled that Hubert was there at the time. She saw Hubert again on July 4, 1991 when they went on a lakeside picnic with the Webb family, Brottmans and Vacas. After watching the fireworks, they went to Sizzler Restaurant. The next day, she and her husband stayed overnight at San Francisco where they also met Senator and Mrs. Webb. On August August 4, 1991, Hubert arrived in her home in Florida with her son Tony, daughter-in-law Ana, and stayed with them for almost one (1) year. The last time she saw Hubert was when he left Orlando, Florida on January 27, 1992.61 Webb presented other witnesses to buttress his defense of alibi: Victor Yap (who took video shots of Congressman Webb during a boat ride in Disneyland);62 Armando Rodriguez (who testified seeing Hubert in Orlando either August or September 1991);63 performing artist Gary Valenciano (who testified meeting Hubert at a dinner at the Rodriguez residence in Orlando on November 24, 1991, Jack Rodriguez being the father of his high school classmate Antonio Rodriguez;64 and Christopher Paul Legaspi Esguerra (grandson of Gloria Webb who went with Hubert Webb to watch the concert of the Deelite Band in San Francisco in the later part of April 1991 and saw Hubert Webb for the last time in May 1991).65 Then a practicing lawyer, Atty. Antonio T. Carpio (now an Associate Justice of this Court) testified that on June 29, 1991 between 10:00 and 11:00 oclock in the morning, he had a telephone conversation with former Congressman Webb who said he was calling from Anaheim, U.S.A., where he and his wife went to look for a job for their son Hubert. They also talked about bills to be drafted as his law office had been engaged by Congressman Webb for bill drafting services as well as preparation of his speeches and statements. When asked if he had personal knowledge that Congressman Webb was really in the US at that time, he replied that since Webb had told him he was leaving for the US, he just presumed it was so when Webb said he was then at Anaheim. Neither did he have personal knowledge that Hubert Webb was in the US at the time of his conversation with Congressman Webb.66 Webb submitted the following documentary evidence in connection with his sojourn in the US: 1) Video Tape recording of Disneyland trip on July 3, 1991;67 2) Official Receipt issued by Orange Cycle Center dated June 30, 1991,68 photographs of the bicycle purchased by Webb from said store;69 3) Car plate with the name "Lew Webb";70 4) Passport with Philippine Immigration arrival stamp;71 5) Photographs of Webb with Rodriguez family;72 6) California Drivers License of Webb,73 Original License Card of Webb issued on June 14, 1991;74 7) Statement of Account issued to Environment First Termite Control showing Check No. 0180;75 Bank of America Certification on Check Nos. 0122 and 0180;76

8) Public Records of California Department of Motor Vehicle on sale to Webb of Toyota MR2 car;77 Traffic citations issued to Webb;78 Import documents of said car into the Philippines;79 9) Certification issued by the US Immigration and Naturalization Service and correspondence between US and Philippine Government;80 computer-generated print-out of the US-INS indicating date of Webbs entry in USA as March 9, 1991 and his date of departure as October 26, 1992;81 US-INS Certification dated August 31, 1995 authenticated by the Philippine Department of Foreign Affairs, correcting the earlier August 10, 1995 Certification;82 10) Certification issued by Agnes Tabuena;83 Passenger Manifest of PAL Flight No. 103;84 PAL ticket issued to Webb,85 Arrival in Manila Certification issued by the Philippine Immigration,86 Diplomatic Note of the US Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the USINS stating that the Certification dated August 31, 1995 is a true and accurate statement;87 and Certificate of Authentication of Philippine Consul Herrera-Lim.88 Accused Antonio Lejano and Michael Gatchalian likewise raised the defense of alibi claiming that they spent the night of June 29, 1991 until early morning of June 30, 1991 watching video tapes at the house of Carlos Syap at Ayala Alabang Village. Lejano further testified that with the exception of Miguel "Ging" Rodriguez and Michael "Mike" Gatchalian who are his former schoolmates, he does not know any of his co-accused. They left the house of Syap brothers early morning of June 30, 1991; it was Cas Syap who brought him and Mike home. On July 5, 1991, he and Cas Syap went to the police station where Mike, who was picked up as a suspect by the police on July 4, was detained. When they met Biong there, they told him they are willing to vouch for Mikes innocence and even volunteered to give statements. Biong told them to return the following day. However, when he returned in the morning of July 6, 1991, Biong wanted his fingerprints taken right away but he told Biong he needed to consult someone first. He eventually submitted himself for fingerprinting after his name came out in the media. Lejano pointed out that Alfaro failed to identify him even as she passed by him three (3) times, and was able to do so only when she was coached by the prosecution camp.89 On the part of Michael Gatchalian, he presented nine (9) witnesses: Atty. Porfirio "Perry" Pimentel, RPN 9 broadcast executive who testified that he personally took video footages of Mon Tulfos interviews with some persons in America (including Honesto Aragon and the bicycle shop owner) who attested that Hubert Webb was there at the time of the Vizconde killings, but which segment was edited out in the program he produced (Action 9);90 Mark Anthony So, a former NBI intelligence agent who was tasked to confirm photos of Hubert Webb (his classmate at DLSU St. Benilde) to familiarize Alfaro with his facial features;91 Matthew John Almogino, a childhood friend and neighbor of Gatchalian, who testified that he was among those who went inside the Vizconde house in the morning of June 30, 1991 and Biong even asked him to take pictures; thereupon at around 9:30 a.m., he saw Gatchalian in front of the Vizconde residence telling him that he just woke up and exchanged pleasantries with him; and that as far as he knows, Webb, Fernandez, Lejano and Gatchalian are not "magbabarkada";92 Atty. Leny Mauricio and Ana Marie Pamintuan of The Philippine Star wherein a news article was published stating that Michael Gatchalian had rejected governments offer for him to turn state witness in the Vizconde case;93 Atty. Camilo Murillo who accompanied Gatchalian on July 19, 1991 when he gave his statement to the NBI, testified that Atty. Pete Rivera relayed to Gatchalian the request of then NBI Director Honesto Aragon for him to turn state witness and which offer was refused by Gatchalian and his father;94 and Atty. Manuel Sunga who accompanied Gatchalian to the Department of Justice (DOJ) when he submitted his counter-affidavit (where there were already media people), testified that they

were invited to the conference room where State Prosecutor Zuo in the presence of then Secretary Guingona made the offer for Gatchalian to turn state witness but it was rejected.95 Atty. Francisco C. Gatchalian confirmed that the NBI and later the DOJ made offers for his son to turn state witness in this case but they refused for the reason that his son was innocent of the crime charged. Michael had told him that on the night of June 29, 1991 until early morning of June 30, 1991, Michael was with his friends at Ayala Alabang Village in Muntinlupa at the residence of the Syaps. Gatchalian narrated that when he woke up to jog in the morning of June 30, 1991 around 7:00 to 7:30, he passed by the Vizconde house and saw people milling in front. At about 8:30 a.m., he saw the crowd getting bigger and so he instructed Michael who had wakened up, to find out and check what happened to their neighbor. Michael rushed out towards the Vizconde residence and when he came back about 10:00 oclock that same morning, he reported that the house was robbed and people were killed inside the house. Both of them stayed in their house that day. He denied Alfaros claim that she was their distant relative.96 Accused Miguel Rodriguez maintained he was at home when the killings took place. He presented as witness his first cousin Mark Josef Andres Rualo who testified that at around 1:00 in the morning of June 30, 1991, he called up Rodriguez asking why he has not yet proceeded to the birthday party of Rualo at their house. Rodriguez replied that he could not make it because he was not fetched by his brother Art (who was the one with a car). So he handed the telephone to Art (who had arrived at the party around 9:30 to 10:00 p.m.) for them to talk. From Rodriguezs residence at Pilar Village, it will take about fifteen (15) to twenty (20) minutes by car. It was a big party attended by some eighty (80) guests and which ended by 3:30 to 4:00 a.m. But it was only the first time he had invited Rodriguez to his birthday party. He knows Lejano, Rodriguezs close friend and classmate, because Rodriguez used to bring him along when Rodriguez comes to his house.97 The other witnesses presented by Rodriguez, Col. Charles Calima, Jr. and Michael Rodriguez, testified on the alleged incident of "mistaken identity" wherein Alfaro supposedly pointed to one (1) "Michael Rodriguez," a drug dependent who was pulled out by Col. Calima from the Bicutan Rehabilitation Center on the basis of the description given by NBI agents. They testified that when Alfaro confronted this "Michael Rodriguez," she became very emotional and immediately slapped and kicked him telling him, "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." Contrary to the physical description given by the NBI, the accused Miguel Rodriguez he saw inside the court room had no tattoo on his arm and definitely not the same "Michael Rodriguez" whom Alfaro slapped and kicked at the NBI premises. Michael Rodriguez testified that he was blindfolded and brought to the comfort room by NBI agents and forced to admit that he was Miguel Rodriguez; he identified Alfaro and Atty. Figueras from a collage of photographs shown to him in court.98 Accused Gerardo Biong testified that the last time he handled this case was when General Filart announced the case as solved with the presentation of suspects sometime in October 1991. However, he was subpoenaed by the NBI for the taking of his statement because Lauro Vizconde complained that he had stolen jewelries at the Vizconde house. He had sought the examination of latent fingerprints lifted from the crime scene but the suspects turned out negative when tested. He denied the accusation regarding the destruction of evidence as well as missing items during his investigation at the Vizconde residence. The bloodied bed, mats, pillows and bed sheets were burned by people at the funeral parlor as ordered by Mr. Gatmaitan. Among the suspects he had then were Michael Gatchalian, Tony Boy Lejano and Cas Syap. As to the testimony of Birrer that they played "mahjong" on the night of June 29, 1991, he said it was not true because the place was closed on Saturdays and Sundays. After a surveillance on Birrer, he discovered she had in her possession Carmelas drivers license and was driving a car already. He denied Birrers account that he went to a place after receiving a telephone call at 2:30 in the morning of June 30, 1991. As to Alfaro, he met her for the first time at the NBI on June 23, 1995. His brown jacket was given to him

long ago by a couple whose dispute he was able to settle. He only met Webb and Estrada at the NBI. Biong denied the accusations of Birrer, saying that she was angry at him because they separated and he had hit her after he heard about her infidelity. Neither has he seen Alfaro before the filing of this case. He was administratively charged before the Philippine National Police (PNP) for Grave Misconduct due to non-preservation of evidence. He was offered by the NBI to turn state witness but he declined as he found it difficult to involve his co-accused whom he does not really know.99 Biong admitted that Birrer went along with him, Galvan and Capt. Bartolome to the Vizconde residence in the morning of June 30, 1991. Upon arriving at the Vizconde house, he looked for the victims relatives and the homeowners association president; Atty. Lopez and Mrs. Mia came. In going inside the house, they passed through the kitchen door which was open already. On top of the kitchen table, there was a ladys bag with things scattered; he later inspected them but did not think of examining the bag or taking note of the calling cards and other items for possible relevance to the investigation. Upon entering the masters bedroom, he saw the bloodied bodies. Mrs. Vizcondes hands were hogtied from behind and her mouth gagged while Jennifers body was also bloodied. Carmela who was lying on a floor carpet was likewise gagged, her hands hogtied from behind and her legs spread out, her clothes raised up and a pillow case was placed on top of her private part. He had the bodies photographed and prepared a spot report.100 Biong also admitted that before the pictures were taken, he removed with his bare hands the object, which was like a stocking cloth, that was wrapped around Carmelas mouth and neck. As to the main door glass, it was the upper part which he broke. There was a red jewelry box they saw where a pearl necklace inside could be seen; he remembered he had it photographed but he had not seen those pictures. They left the Vizconde house and brought the cadavers to the funeral parlor. He did not take steps to preserve the bloodied carpet, bed sheets and blankets because they have been previously told by NBI that no evidence can be found on such items. As for the footprint and shoe print found on the hood of the car and at the back of the house, he also could not recall if he had those photographed. It was only the following day that he brought an employee of the Paraaque police to lift fingerprints from the crime scene; he was the one (1) giving instructions at the time. However, no latent fingerprints had been taken; despite attempts, no clear fingerprint had been lifted and he did not any more ask why.101 Biong further admitted that he was so angry with the Vizconde housemaids as he did not believe they did not hear anything despite the loud sound of the breaking of the main door glass. He also admitted mauling Normal E. White, Jr. because he thought he was withholding information during the investigation. Edgar Mendez did not tell him about the entry of a three (3)-vehicle convoy into the subdivision on the night of June 29, 1991. As for Michael Gatchalian, he knows him because on July 3, 1991 at 4:30 a.m., they caught him at Vinzons St. at the entrance of Pitong Daan Subdivision for possession of marijuana. However, he does not know any more what happened to that case he filed against Gatchalian as he was already dismissed from the service.102 He also admitted having mauled Gatchalian while interrogating him for his participation in the Vizconde killings.103 Ruling of the Trial Court On January 4, 2000, the trial court rendered its Decision104 finding all the accused guilty as charged, the dispositive portion of which reads: WHEREFORE, this Court hereby finds all the principal accused GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA. This Court likewise finds the accused Gerardo Biong GUILTY BEYOND REASONABLE DOUBT AS AN ACCESSORY AFTER

THE FACT, AND HEREBY SENTENCES HIM TO SUFFER AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY TO TWELVE (12) YEARS. In addition, the Court hereby orders all the accused to jointly and severally pay the victims surviving heir, Mr. Lauro Vizconde, the following sums by way of civil indemnity: 1. The amount of P150,000.00 for wrongful death of the victims; 2. The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde; 3. The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde; 4. The amount of P97,404.55 as attorneys fees; Let an alias warrant of arrest be issued against the accused Artemio "Dong" Ventura and Joey Filart for their eventual apprehension so that they can immediately be brought to trial. SO ORDERED.105 The trial court found Alfaro as a credible and truthful witness, considering the vast details she disclosed relative to the incident she had witnessed inside the Vizconde house. The trial court noted that Alfaro testified in a categorical, straightforward, spontaneous and frank manner, and has remained consistent in her narration of the events despite a lengthy and grueling cross-examination conducted on her by eight (8) defense lawyers. Neither was her credibility and veracity of her declarations in court affected by the differences and inconsistencies between her April 28, 1995 and May 22, 1995 affidavits, which she had satisfactorily explained during the trial considering the circumstances that she initially desired to protect her former boyfriend Estrada and her relative Gatchalian, the absence of a lawyer during the first taking of her statements by the NBI, her distrust of the first investigators who took her statements and prepared her April 28, 1995 affidavit, and her uncertainty if she could obtain adequate support and security for her own life were she to disclose everything she knows about the Vizconde killings. On the other hand, the trial court ruled that principal accused Webb, Lejano, Rodriguez and Gatchalian failed to establish their defense of alibi, the accused having been positively identified by Alfaro as the group who conspired and assisted one (1) another in plotting and carrying out on the same night the rape of Carmela, on the occasion of which Carmelas mother and sister were also stabbed to death. The trial court held that Alfaro gave a clear, positive and convincing testimony which was sufficiently corroborated on its material points by the testimonies of other witnesses and confirmed by the physical evidence on record. The Court of Appeals Ruling By Decision of December 15, 2005, the CA affirmed with modification the trial courts decision: WHEREFORE, premises considered, the Decision of the Regional Trial Court, Branch 274 of Paraaque City in Criminal Case No. 95-404, finding accused-appellants Hubert "Jeffrey" Webb y Pagaspas, Antonio "Tony Boy" Lejano, Michael Gatchalian y Adviento, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez GUILTY BEYOND REASONABLE DOUBT as principals, and Gerardo Biong as accessory, of the crime of RAPE with HOMICIDE, is AFFIRMED with MODIFICATION, as indicated:

1). We AFFIRM the sentence of accused-appellants Webb. Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez to suffer the penalty of reclusion perpetua and its corresponding accessory penalties under Article 41 of the Revised Penal Code; 2). We MODIFY the penalty of Gerardo Biong who is an accessory to the crime. Accusedappellant Biong is sentenced to an indeterminate prison term of six (6) years of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum, and absolute perpetual disqualification under Article 58 of the Revised Penal Code; and 3). We MODIFY the civil indemnity. Accused-appellants Webb. Lejano, Gatchalian, Fernandez, Estrada and Rodriguez are ORDERED to pay jointly and severally the surviving heir of the victims, Mr. Lauro Vizconde. the amounts of P200,000.00 as civil indemnity, P762,450.00 as actual damages, P2,000,000.00 as moral damages and P97,404.55 as attorney's fees, with the corresponding subsidiary liability against accused-appellant Biong pursuant to Article 110, paragraph 2 of the Revised Penal Code. SO ORDERED.106 The CA upheld the trial court in giving full weight and credence to the eyewitness testimony of Alfaro which was duly corroborated by other prosecution witnesses who had not been shown to have illmotive and malicious intent in revealing what they know about the Vizconde killings. It disagreed with the appellants view that they were victims of an unjust judgment upon their mere allegations that they were tried by publicity, and that the trial judge was biased whose discriminatory and hostile attitude was demonstrated by her rejection of 132 out of 142 exhibits of the defense during the bail hearings and her refusal to issue subpoenas to prospective defense witnesses such as former Secretary Teofisto Guingona and Antonio Calvento. The CA also fully concurred with the trial courts conclusion that all the principal accused failed to establish their defense of alibi after carefully evaluating the voluminous documentary and testimonial evidence presented by the defense. On the issue of conspiracy, the CA found that the prosecution was able to clearly and convincingly establish its presence in the commission of the crime, notwithstanding that appellants Rodriguez, Gatchalian, Estrada and Fernandez did not actually rape Carmela, nor participated in killing her, her mother and sister. On motion for reconsideration filed by the appellants, the CAs Special Division of Five, voting 3-2, affirmed the December 15, 2005 Decision.107 In the Resolution dated January 26, 2007, the majority reiterated that it has fully explained in its Decision why the US-INS Certifications submitted by appellant Webb deserve little weight. It stressed that it is a case of positive identification versus alibi founded on documentary evidence. On the basis of the rule that alibi is accepted only upon the clearest proof that the accused was not and could not have been at the crime scene when it was committed, the CA in resolving the appeal considered the weight of documentary evidence in light of testimonial evidence -- an eyewitness account that the accused was the principal malefactor. As to the issue of apparent inconsistencies between the two (2) affidavits executed by Alfaro, the CA said this is a settled matter, citing the Joint Decision in CA-G.R. SP No. 42285 and CA-G.R. SP No. 42673 entitled "Rodriguez v. Tolentino" and "Webb, et al. v. Tolentino, et al.," which had long become final. Appellants Arguments Appellants Webb and Lejano set forth the following arguments in their Supplemental Appeal Brief as grounds for the reversal of the CA Decision and their acquittal in this case:

I THE EVIDENCE ESTABLISHING APPELLANT WEBB'S ABSENCE FROM PHILIPPINE TERRITORY BETWEEN 9 MARCH 1991 AND 27 OCTOBER 1992 ENGENDERS A REASONABLE DOUBT AND PRECLUDES AN ABIDING CONVICTION, TO A MORAL CERTAINTY, OF HIS GUILT OF THE CRIME CHARGED. THUS, AS CORRECTLY APPRECIATED BY JUSTICES TAGLE AND DACUDAO IN THEIR SEPARATE DISSENTING OPINIONS A. THE PASSPORT OF APPELLANT WEBB, AS THE OFFICIAL TRAVEL DOCUMENT ISSUED BY THE PHILIPPINE GOVERNMENT TO HIM, IS STAMPMARKED AND INITIALED WITH THE DEPARTURE DATE OF 9 MARCH 1991 AND ARRIVAL DATE OF 27 OCTOBER 1992, SHOWING THAT HE WAS NOT IN THE PHILIPPINES BUT ABROAD AT THE TIME OF THE COMMISSION OF THE CRIME ON 29 JUNE 1991. B. THE CERTIFICATIONS AND COMPUTER PRINTOUT ISSUED BY THE UNITED STATES INS NON-IMMIGRANT INFORMATION SYSTEM, WHICH INDICATE EXACTLY THE SAME DEPARTURE AND ARRIVAL DATES OF 9 MARCH 1991 AND 27 OCTOBER 1992, CONFIRM THAT IT WAS PHYSICALLY IMPOSSIBLE FOR APPELLANT WEBB TO HAVE COMMITTED THE CRIME. C. THE RULING THAT APPELLANT WEBB WAS "SMUGGLED" INTO AND OUT OF THE PHILIPPINES WITHIN 9 MARCH 1991 AND 27 OCTOBER 1992, WITH THE US INS CERTIFICATIONS BEING THE PROBABLE PRODUCT OF "MONEY, POWER, INFLUENCE, OR CONNECTIONS" IS BASED ON PURE SPECULATION AND BIASED CONJECTURE AND NOT ON A CONCLUSION THAT ANY COURT OF LAW SHOULD MAKE. D. NO LESS THAN THE HONORABLE JUSTICE ANTONIO T. CARPIO TESTIFIED IN OPEN COURT THAT IN THE MORNING OF 29 JUNE 1991, OR BEFORE THE COMMISSION OF THE CRIME, HE HAD AN OVERSEAS CONVERSATION WITH SEN. FREDDIE N. WEBB ON THE LATTERS PRESENCE IN THE UNITED STATES WITH HIS WIFE AND APPELLANT WEBB. II THE DISSENTING JUSTICES CORRECTLY REJECTED JESSICA ALFARO FOR NOT BEING A CREDIBLE WITNESS AND FOR GIVING INCONSISTENT AND UNRELIABLE TESTIMONY. III THE COURT OF APPEALS MANIFESTLY ERRED IN DISCARDING EACH AND EVERY PIECE OF THE ACCUSEDS EVIDENCE AND PRACTICALLY REDUCING THE APPEAL BELOW INTO AN EXERCISE OF FINDING GROUNDS TO DOUBT, SUSPECT AND ACCORDINGLY REJECT THE PROOF OFFERED BY THEM IN THEIR DEFENSE INSTEAD OF GIVING DUE WEIGHT AND CONSIDERATION TO EACH IN ORDER TO THOROUGHLY SATISFY ITSELF OF THE "MORAL CERTAINTY" REQUIREMENT IN CRIMINAL CASES. IV

IN LIGHT OF THE BASIC TENETS UNDERLYING OUR CRIMINAL JUSTICE SYSTEM, WHICH ESCHEW A FINDING OF GUILT UNLESS ESTABLISHED BEYOND REASONABLE DOUBT AND ORDAIN THE RESOLUTION OF ALL DOUBTS IN FAVOR OF THE ACCUSED, THE COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE CONVICTION OF APPELLANT WEBB WHEN THE DEFENSE OF ALIBI HE ESTABLISHED BY OVERWHELMING EVIDENCE IS SUFFICIENT TO ENGENDER REASONABLE DOUBT AS TO HIS GUILT OF THE OFFENSE CHARGED. THE SCALES OUGHT TO HAVE BEEN TILTED IN HIS, AND NOT THE PROSECUTIONS, FAVOR.108 Appellant Gatchalian reiterates the arguments he had raised in his appeal brief and motion for reconsideration filed before the CA, as follows: I THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCREDIBLE TESTIMONY OF SUPPOSED EYEWITNESS JESSICA ALFARO AND CORROBORATING WITNESSES NORMAL WHITE AND JUSTO CABANACAN. II THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS PROVED THE CONSPIRACY BEYOND REASONABLE DOUBT AND IN CONVICTING HEREIN ACCUSEDAPPELLANT BASED ON SUCH CONSPIRACY. III THE PROCEEDING BELOW WAS ATTENDED BY IRREGULARITIES SHOWING PARTIALITY ON THE PART OF THE TRIAL JUDGE IN VIOLATION OF HEREIN ACCUSED-APPELLANTS RIGHT TO DUE PROCESS. IV THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN ACCUSED-APPELLANT. xxxx I BY ALL STANDARDS OF FAIRNESS AND JUSTICE, THE TESTIMONY OF JESSICA ALFARO CANNOT BE JUDICIALLY RECOGNIZED. II THE CRIMINAL CONNECTION OF MICHAEL GATCHALIAN TO THE GRUESOME VIZCONDE MURDERS HAS NOT EVEN BEEN REMOTELY SHOWN TO SERVE AS A BASIS FOR CONVICTION. III

IN THE REQUIRED JUDICIAL EVALUATION PROCESS, THE ENVIRONMENTAL CIRCUMSTANCES IN THE RECORD OF THIS CASE POINT UNERRINGLY TO THE INNOCENCE OF MICHAEL GATCHALIAN. IV THE RULES ON EVIDENCE ON BURDEN OF PROOF AND OF THE STANDING PRESUMPTIONS IN LAW HAVE BEEN GROSSLY VIOLATED. V MICHAEL GATCHALIAN RESPECTFULLY INVOKES HIS CONSTITUTIONAL RIGHT TO DUE PROCESS ON THE GROUNDS OF BIAS AND PREJUDICE, AND FOR ALL THAT IT IS WORTH, HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND A SPEEDY DISPOSITION OF HIS CASE.109 Additionally, Gatchalian assails the denial by the trial court of his motion (and also appellant Webbs) for DNA testing despite a certification from the NBI that the specimen semen remained intact, which Justice Tagle in his dissenting opinion also found as unjust. He further argues that the right to a speedy trial is violated even if the delay was not caused by the prosecution but by events that are not within the control of the prosecution or the courts. Thus, the length of time which took Alfaro to come forward and testify in this case is most conspicuous. Her delay of four (4) years in reporting the crime has to be taken against her, particularly with the story behind it. She volunteered to come forward only after the arrests of previous accused did not lead anywhere. Moreover, it is clear that she adopted the version previously advanced by an "akyat-bahay" gang, as noted by Justice Dacudao in his dissenting opinion. Gatchalian thus contends that the delay occurred even before a preliminary investigation was conducted and cites cases upholding the right of accused persons to a speedy trial where there was delay in the preliminary investigation.110 Totality of Evidence Established the Guilt of Appelants Beyond Reasonable Doubt Appellants assail the lower courts in giving full faith and credence to the testimonies of the prosecution witnesses, particularly Jessica Alfaro despite inconsistencies and contradictions in her two (2) affidavits, and the alleged "piece by piece discarding" of their voluminous documentary exhibits and testimonies of no less than ninety-five (95) witnesses. They contend that the totality of evidence engenders a reasonable doubt entitling them to acquittal from the grave charge of rape with homicide. After a thorough and conscientious review of the records, I firmly believe that the CA correctly upheld the conviction of appellants. Credibility of Prosecution Witnesses The determination of the competence and credibility of a witness rests primarily with the trial court, because it has the unique position of observing the witness deportment on the stand while testifying.111 It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings.112 When the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.113

Reexamining the testimony of Alfaro, who underwent exhaustive and intense cross-examination by eight (8) defense lawyers, it is to be noted that she revealed such details and observations which only a person who was actually with the perpetrators could have known. More importantly, her testimony was corroborated on its material points by the declarations of other prosecution witnesses, to wit: [1] that their convoy of three (3) vehicles repeatedly entered the Pitong Daan Subdivision on the night of June 29, 1991 was confirmed by the security guard on duty, Normal White, Jr., who also testified that he had seen Gatchalian and his group standing at the vicinity of the Almogino residence located near the end of Vinzons St., which is consistent with Alfaros testimony that on their first trip to the subdivision she parked her car infront of the Vizconde house while appellants parked their respective cars near the dead end of Vinzons St.; [2] that Ventura climbed on the hood of the Nissan Sentra car and loosened the light bulb to turn it off was confirmed by the testimony of Birrer and appellant Biong that they found a shoe print on the hood of the car parked inside the garage of the Vizconde house; even defense witnesses Dennis Almogino (neighbor of the Vizcondes) and SPO2 Reynaldo Carbonnel declared that the garage was totally without light; [3] that a ladys bag was on top of the dining table in the kitchen was likewise confirmed by Birrer and Biong; [4] that a loud static sound coming from the TV set inside the masters bedroom which led Alfaro to the said room, matched with the observations of the Vizconde housemaids, Birrer and Biong that when they went inside the Vizconde house in the morning of June 30, 1991, the TV set inside the masters bedroom was still turned on with a loud sound; [5] the positioning of the dead bodies of Carmela, Estrellita and Jennifer and their physical appearance or condition (hogtied, gagged and bloodied) was correctly described by Alfaro, consistent with the declarations of White, Jr., Birrer and Biong who were among those who first saw the bodies in the morning of June 30, 1991; [6] that Carmela was raped by Webb and how the three (3) women were killed as Alfaro learned from the conversation of the appellants at the BF Executive Village house, was consistent with the findings of Dr. Cabanayan who conducted the autopsy and post-mortem examination of the cadavers in the morning of June 30, 1991 showing that the victims died of multiple stab wounds, the specimen taken from Carmelas vaginal canal tested positive for spermatozoa and the approximate time of death based on the onset of rigor mortis, which would place it between midnight and 2:00 oclock in the morning of June 30, 1991; [7] that Webb, just before going out of the gate of the Vizconde house, threw a stone which broke the glass frame of the main door, jibed with the testimony of Birrer who likewise saw a stone near the broken glass panel at the living room of the Vizconde house, and Biong himself testified that he even demonstrated to Capt. Bartolome and the housemaids the loud sound by again hitting the glass of the main door;114 and [8] that after Webb made a call on his cellular phone, Biong arrived at around 2:00 oclock in the morning of June 30, 1991 at the BF Executive Village house where she and appellants retreated, was consistent with the testimony of Birrer that Biong left the "mahjong" session to answer a telephone call between 1:00 to 2:00 oclock in the morning of June 30, 1991 and thereafter Birrer asked where he was going, to which Biong replied "BF" and shortly thereafter a taxicab with a man at the backseat fetched Biong. Indeed, Alfaro could not have divulged the foregoing details of the crime if she did not really join the group of Webb in going to the Vizconde residence and witness what happened during the time Webb, Lejano and Ventura were inside the house and when the group retreated to BF Executive Village. Contrary to appellants contention, Alfaros detailed testimony appears clear and convincing, thus giving the Court the impression that she was sincere and credible. She even opened her personal life to public scrutiny by admitting that she was addicted toshabu for sometime and that was how she came to meet Webbs group and got entangled in the plot to gang-rape Carmela. Her being a former drug user in no way taints her credibility as a witness. The fact that a witness is a person of unchaste character or even a drug dependent does not per se affect her credibility.115 Alfaros ability to recollect events that occurred four (4) years ago with her mental condition that night of June 29, 1991 when she admittedly took shabu three (3) times and even sniffed cocaine, was likewise questioned by the appellants. When the question was posed to Alfaro on cross-examination, she positively stated that while indeed she had taken shabu at that time, her perception of persons

and events around her was not diminished. Her faculties unimpaired by the drugs she had taken that night, Alfaro was able to vividly recall what transpired the whole time she was with appellants. Alfaro testified that even if she was then a regular shabu user, she had not reached that point of being paranoid ("praning"). It was the first time Alfaro sniffed cocaine and she described its initial effect as being "stoned," but lasting only five (5) to seven (7) minutes. However, she did not fall asleep sinceshabu and "coke" are not downers. Alfaro further explained her indifference and apathy in not dissuading Webb and her group from carrying out their evil plan against Carmela as due to the numbing effect of drugs, which also enabled her to dislodge from her mind the harrowing images of the killings for quite sometime. Eventually, the chance to redeem herself came when she was invited to a Christian fellowship, and with her childs future in mind, her desire to transform her life grew stronger. As she cast off her addiction to drugs, its desensitizing effect began to wear off and her conscience bothered her no end. Under such circumstances, the delay of four (4) years in admitting her involvement in the Vizconde killings cannot be taken against Alfaro. In fact, she had to muster enough courage to finally come out in the open considering that during her last encounter with appellants at a discotheque in 1995, she was threatened by appellant Rodriguez that if she will not keep her mouth shut, she will be killed. He even offered her a plane ticket for her to go abroad. Coming from wealthy and influential families, and capable of barbaric acts she had already seen, appellants instilled such fear in Alfaro that her reluctance to report to the authorities was perfectly understandable. I find that the circumstances of habitual drug use and delay in reporting a crime did not affect the competence and credibility of prosecution witness Alfaro. It bears stressing that the fact of delay alone does not work against the witnesses. Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained.116 Besides, appellants failed to adduce any evidence to establish any improper motive that may have impelled Alfaro to falsely testify against them, other than their allegation that she regularly associated with NBI agents as one (1) of their informants. The absence of evidence of improper motive on the part of the said witness for the prosecution strongly tends to sustain the conclusion that no such improper motive exists and that her testimony is worthy of full faith and credit.117 Neither had appellants established any ill-motive on the part of the other prosecution witnesses. Inconsistencies and Discrepancies in Alfaros April 28, 1995 and May 22, 1995 Affidavits Appellants, from the start of preliminary investigation, have repeatedly harped on the discrepancies and inconsistencies in Alfaros first and second affidavits. However, this Court has repeatedly ruled that whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight.118 With greater relevance should this rule apply in situations when a subsequent affidavit of the prosecution witness is intended to amplify and correct inconsistencies with the first affidavit, the discrepancies having been adequately explained. We held in People v. Sanchez119 ...we advert to that all-too familiar rule that discrepancies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses. Sworn statements/affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits.120

Alfaro explained the circumstances surrounding her execution of the first Affidavit dated April 28, 1995 which was done without the presence of a lawyer and at the house of agent Mario Garcia where she was brought by Atty. Sacaguing and Moises Tamayo, another agent of task force AntiKidnapping, Hijack and Robbery (AKHAR). The unusual questioning of these men gave her the impression that she was merely being used to boost their career promotion and her distrust was even heightened when they absolutely failed to provide her security. She was aghast upon discovering the completed affidavit which falsely stated that it was made in the presence of her lawyer of choice (Atty. Mercader who was not actually present). Agent Tamayo also incorporated inaccurate or erroneous information indicating that she was a college graduate even if she tried to correct him. Tamayo simply told her to just let it remain in the statement as it would not be noticed anyway.121 Moreover, on account of her urgent concern for her own security and fear of implicating herself in the case, Alfaro admitted down playing her own participation in her narration (including the circumstance that she had previously met Carmela before the incident) and those of her exboyfriend Estrada and her relative, Gatchalian. Prosecution Evidence Sufficient to Convict Appellants This Court has consistently held that the rule on the trial courts appreciation of evidence must bow to the superior rule that the prosecution must prove the guilt of the accused beyond reasonable doubt. The law presumes an accused innocent, and this presumption must prevail unless overturned by competent and credible proof.122Thus, we are tasked to consider two crucial points in sustaining a judgment of conviction: first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecutions compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.123 There appears to be no question about the fact that a horrible and most unfortunate crime has been committed. It is, in this case, indeed a given fact, but next to it is the pivotal issue of whether or not the prosecution has been able to discharge its equal burden in substantiating the identities of accused-appellants as the perpetrators of the crime. As well said often, conviction must rest on the strength of the prosecutions case and not on the weakness of the defense. Positive Identification of Accused-Appellants Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution.124 Both the RTC and CA found the eyewitness testimony of Alfaro credible and competent proof that appellants Webb, Lejano, Gatchalian, Fernandez, Rodriguez and Estrada were at the scene of the crime and that Webb raped Carmela as the bloodied bodies of her mother and sister lay on top of the bed inside the masters bedroom, and right beside it stood Lejano while Ventura was preparing for their escape. At another house in BF Executive Village where the group retreated after leaving the Vizconde house, Alfaro witnessed the blaming session, particularly between Ventura and Webb, and thereupon learned from their conversation that Carmelas mother and sister were stabbed to death before she herself was killed. Alfaro likewise positively identified appellant Biong, whom somebody from the group described as the driver and bodyguard of the Webb family, as the person ordered by Webb to "clean the Vizconde house." The testimony of Alfaro on its material points was corroborated by Birrer, Dr. Cabanayan, White, Jr., Cabanacan and Gaviola. Appellants presence at the scene of the crime before, during and after its commission was duly established. Their respective participation, acts and declarations were likewise detailed by Alfaro who was shown to be a credible witness. It is axiomatic that a witness who

testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on cross-examination is a credible witness.125 A criminal case rises or falls on the strength of the prosecutions case, not on the weakness of the defense. Once the prosecution overcomes the presumption of innocence by proving the elements of the crime and the identity of the accused as perpetrator beyond reasonable doubt, the burden of evidence then shifts to the defense which shall then test the strength of the prosecutions case either by showing that no crime was in fact committed or that the accused could not have committed or did not commit the imputed crime, or at the very least, by casting doubt on the guilt of the accused.126 Appellants Alibi and Denial We have held in a number of cases that alibi is an inherently weak and unreliable defense, for it is easy to fabricate and difficult to disprove.127 To establish alibi, the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime. Physical impossibility "refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places."128 Due to its doubtful nature, alibi must be supported by clear and convincing proof.129 "Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission of the felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the common notion, alibi is in fact a good defense. But, to be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accuseds presence at the crime scene, the alibi will not hold water. 130[emphasis supplied.] The claim of appellant Webb that he could not have committed the crime because he left for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992 was correctly rejected by the RTC and CA. These dates are so distant from the time of the commission of the crime, June 29, 1991 and June 30, 1991, and it would not have been impossible during the interregnum for Webb to travel back to the country and again fly to the US several times considering that the travel time on board an airline from the Philippines to San Francisco, and from San Francisco to the Philippines takes only about twelve (12) to fourteen (14) hours. Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29-30, 1991 and then departed for the US again, and returning to the Philippines in October 1992. There clearly exists, therefore, such possibility of Webbs presence at the scene of the crime at the time of its commission, and his excuse cannot be deemed airtight. This Court in People v. Larraaga131 had similarly rejected the defense of alibi of an accused, involving a shorter travel distance (Quezon City to Cebu) and even shorter period of time showing the least possibility of an accuseds presence at the time of the commission of the crime (a matter of hours) than in the case at bar (March 9, 1991 to June 29, 1991 which is three [3] months). In denying the motion for reconsideration of accused Larraaga, we held that accused Larraaga failed to establish his defense of alibi, which is futile in the face of positive identification: This case presents to us a balance scale whereby perched on one end is appellants alibi supported by witnesses who were either their relatives, friends or classmates, while on the other end is the positive identification of the herein appellants by the prosecution witnesses who were not, in any

way, related to the victims. With the above jurisprudence as guide, we are certain that the balance must tilt in favor of the latter. Besides, a thorough examination of the evidence for the prosecution shows that the appellants failed to meet the requirements of alibi, i.e., the requirements of time and place. They failed to establish by clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997. Not even Larraaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the hearing, it was shown that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and evening. Indeed, Larraagas presence in Cebu City on July 16, 1997 was proved to be not only a possibility but a reality. Four (4) witnesses identified Larraaga as one of the two men talking to Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larraaga approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of Jacquelines prior story that he was Marijoys admirer. Shiela confirmed that she knows Larraaga since she had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 oclock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized the two (2) men as Larraaga and Josman, having seen them several times at Glicos, a game zone, located across her office at the third level of Ayala Center. Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van. And over and above all, Rusia categorically identified Larraaga as one of the participes criminis.132 [emphasis supplied] In the light of relevant precedents, I find no reversible error committed by the RTC in refusing to give credence to appellant Webbs argument that he could not have committed the crime of rape with homicide because he was still in the US on June 29 and 30, 1991. The RTC thus correctly ruled: Granting for the sake of argument that the claim of departure for the United States of the accused Webb on March 9, 1991 and his arrival in the Philippines on October 26, 1992 had been duly established by the defense, it cannot prove that he remained in the United States during the intervening period. During the long span of time between March, 1991 to October, 1992, it was not physically impossible for the accused Webb to have returned to the Philippines, perpetrate the criminal act, and travel back to the United States. It must be noted that the accused Webb is a scion of a rich, influential, and politically powerful family with the financial capacity to travel back and forth from the Philippines to the United States. He could very well afford the price of a plane ticket to free him from all sorts of trouble. Since there are numerous airlines plying the route from Manila to the United States, it cannot be said that there was lack of available means to transport. Moreover, the lapse of more than three (3) months from the time the accused Webb left the Philippines for the United States on March 9, 1991 to June 29 and 30, 1991 when the crime was committed is more than enough time for the accused Webb to have made several trips from the United States to the Philippines and back. The Court takes judicial notice of the fact that it only requires the short period of approximately eighteen (18) hours to reach the Philippines from the United States, with the advent of modern travel.

It must likewise be noted that the father of the accused Webb, besides being rich and influential, was at that time in 1991, the Congressman of Paraaque and later became a Senator of the Republic of the Philippines. Thus, the Webb money and connections were at the disposal of the accused Webb, and it is worthy of belief that the accused Webb could have departed and entered the country without any traces whatsoever of his having done so. In fact, defense witness Andrea Domingo, former Commissioner of the Bureau of Immigration and Deportation testified on the practice of "human smuggling" at the Ninoy Aquino International Airport. On this point, the Supreme Court has declared in a case that even the lapse of the short period of one (1) week was sufficient for an accused to go to one place, to go to another place to commit a crime, and then return to his point of origin. The principal factor considered by the Supreme Court in denying the defense of alibi in People vs. Jamero (24 SCRA 206) was the availability to the accused of the means by which to commit a crime elsewhere and then return to his refuge. x x x133 [emphasis supplied] There is likewise no merit in appellant Webbs contention that the CA misappreciated his voluminous documentary evidence and numerous witnesses who testified on his stay in the US. The CA, after a meticulous and painstaking reevaluation of Webbs documentary and testimonial evidence, sustained the RTCs conclusion that these pieces of evidence were either inadmissible, incompetent or irrelevant. I quote with approval the CAs findings which are well-supported by the evidence on record: (a) U.S. INS Certifications xxxx The Court seriously doubts that evidentiary weight could be ascribed to the August 31, 1995 and October 13, 1995 Certifications of the U.S. INS and computer print-out of the Nonimmigrant Information System (NIIS) which allegedly established Webbs entry to and exit from the United States. This is due to the fallibility demonstrated by the US INS with regard to the certifications which the said office issued regarding the basic information under its direct control and custody. It is to be remembered that as part of his evidence, Webb presented the explanation of one Steven P. Bucher, Acting Chief of Records Services Branch of the U.S. INS, who admitted that the U.S. INS had previously reported on August 10, 1995, erroneously, that it had no record of the arrival and departure of Webb to and from the United States. The said office later on admitted that it failed to exhaustively study all information available to it. We are not convinced with this explanation. It is to be noted that the U.S. INS is an agency well known for its stringent criteria and rigid procedure in handling documents relating to ones travel into and out of its territory. Such being the case, it would therefore be hard to imagine that the said agency would issue a certification that it had no record of a persons entry into and exit from the United States without first conducting an efficient verification of its records. We do not also believe that a second search could give rise to a different conclusion, considering that there is no showing that the records searched were different from those viewed in the first search. The later certifications issued by the U.S. INS modifying its first certification and which was issued only a few weeks earlier, come across as a strained effort by Webb at establishing his presence in the United States in order to reinforce his flimsy alibi. It is not amiss to note that a reading of the first Certificate of Non-existence of Record (Exhibit "212D") subscribed by Debora A. Farmer of the U.S. INS would show that the U.S. INS had made a "diligent" search, and found no record of admission into the United States of Webb. The search

allegedly included an inquiry into the automated and non-automated records systems of the U.S. INS. Be it also noted that the basis of the U.S. INS second certification (Exhibit "218") was a printout coming also from automated information systems. As pointed out by the Office of the Solicitor General in its appeal brief, "how it became possible for the U.S. INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on accused-appellant Webb when the said port of entry had no such record was never sufficiently addressed by the defense." It is with this view that the Court recognizes little if not nil probative value in the second certification of the U.S. INS. xxxx (b) Passenger Manifest of United Airlines Flight The purported passenger manifest for the United Airlines flight that allegedly conveyed accusedappellant Webb for the United States, was not identified by the United Airlines personnel who actually prepared and completed the same. Instead, the defense presented Dulcisimo Daluz, the supervisor of customer services of United Airlines in Manila, who had no hand in the actual preparation or safekeeping of the said passenger manifest. It must be stressed that to satisfactorily prove the due execution of a private document, the testimony of the witness with regard to the execution of the said document must be positive. Such being the case, his testimony thereto is at most hearsay and therefore not worthy of any credit. Likewise, we note that the said passenger manifest produced in court is a mere photocopy and the same did not comply with the strict procedural requirement of the airline company, that is, all the checking agents who were on duty on March 9, 1991 must sign or initial the passenger manifest. This further lessens the credibility of the said document. (c) United Airline Ticket ...the alleged United Airline ticket of accused-appellant Webb offered in evidence is a mere photocopy of an alleged original, which was never presented below. Other than the submission that the original could no longer be produced in evidence, there is no other proof that there ever was an original airline ticket in the name of Webb. This does not satisfy the requirements set forth under Section 5 of Rule 130. x x x we find that the photocopy presented in evidence has little if no probative value. Even assuming there was such an original ticket in existence, the same is hardly of any weight, in the absence of clear proof that the same was indeed used by accused-appellant Webb to go to the United States. (d) Philippine passport The passport of accused-appellant Webb produced in evidence, and the inscriptions appearing thereon, also offer little support of Webbs alibi. Be it noted that what appears on record is only the photocopy of the pages of Webbs passport. The Court therefore can only rely on the appreciation of the trial court as regards the authenticity of the passport and the marks appearing thereon, as it is the trial court that had the exclusive opportunity to view at first hand the original of the document, and determine for itself whether the same is entitled to any weight in evidence.

(e) Video footage of accused-appellant Webbs parents in Disneyland and Yosemite Park. The video footage serendipitously taken by Victor Yap allegedly of Senator Webb and his family while on vacation at Disneyland in Anaheim, California on July 3, 1991 does little to support the alibi of accused-appellant Webb for it is quite interesting to note that nowhere did accusedappellant Webb appear in this footage. None of the people shown in the film was identified as the accused-appellant Webb. Moreover, the records disclose that just before the segment of the film that showed Senator Webb, there was a gap or portion of static that appeared which did not appear in any other portion of the footage. We find that this supports the conclusion that the videotape was possibly tampered as an additional support to the alibi of accused-appellant that he was in the United States. xxxx (f) Video footage at Lake Tahoe and the del Toro-Manlapit Wedding ...the video footage showing accused-appellant Webb seemingly on holiday at Lake Tahoe with the Wheelocks, to our mind does not disprove that Webb was in the country at the time of the Vizconde killing. Firstly, the date being shown intermittently in the footage was not the same or near the date of the Vizconde killing. As we have earlier stated, we do not discount the possibility that Webb was in the Philippines during the time he was supposed to have been in the United States, especially, when there are eyewitnesses who testified to the effect that Webb was in the Philippines only a couple of weeks before the killing and who also testified of Webbs participation in the crime. In any case, we take judicial notice that modern electronic and photographic advances could offer a means to splice or modify recorded images to configure to a desired impression, including the insertion or annotation of numeric figures on a recorded image. Likewise, the videotape and photographs taken on Alex del Toros wedding also fail to convince, as this wasallegedly taken on October 10, 1992 well after the fateful days of June 29 and 30, 1991. (g) Photograph of Webb and Christopher Esguerra before the Dee Lite Concert The photograph of accused-appellant Webb with Esguerra allegedly taken in late April 1991 before they went to a band concert has little probative value. It must be pointed out that the image in the picture itself does not depict the date or place it was taken, or of any Dee Lite concert allegedly attended by Webb. Likewise, we observed that the photograph appears to have been trimmed down from a bigger size, possibly to remove the date printed therein. It is also to be noted that Esguerra admitted that the inscription appearing at the back of the photograph of, "Hubert and I before the Dee Lite Concert, April 1991" was only written by him in 1995, after it was given to him by accused-appellants mother, Elizabeth, before he took the witness stand. The Court cannot therefore but cast suspicion as to its authenticity. (h) Webbs Drivers License We agree with the trial court's observation that the Drivers License allegedly obtained by accused-appellant from the California Department of Motor Vehicle sometime in the first week of June 1991 is unworthy of credit, because of the inconsistencies in Webbs testimony as to how he obtained the same. In one testimony, Webb claimed he did not make an application but just walked in the licensing office and he did not submit any photograph relative to his application. In a later testimony, he claimed that he submitted an ID picture for his drivers license, and that the picture appearing on his drivers license was the very same picture he submitted together with his application for the drivers license. These are two inconsistent testimonies on the same subject

matter, which render the said drivers license and the alleged date when the same was obtained, unworthy of credit. (i) Logbook of Alex del Toro and Check Payments of Webbs salary The employment records of accused-appellant, which include the alleged logbook of del Toro in his pest control business, and check payments to Webb were also offered to support the latters alleged presence in the United States on the dates near the day of the Vizconde killings. A review of the logbook shows that the same is unworthy of any evidentiary weight. The entries where the accused Webb were indicated to have performed work for del Toro, showed that the name of Webb ("Hubie"/"U.B.") was merely superimposed on the actual entries and could have been easily fabricated to create the impression that Webb had some participation in the business of del Toro, and therefore, are not reliable proofs of Webbs presence and occupation in the United States around the time of the Vizconde killing. The alleged check payments of Webbs salary are also unreliable. The check dated June 13, 1991 was made payable to "Cash", while the other check which appeared to be payable to "Hubert Webb" was however dated only July 10, 1991. Neither of the said checks squarely placed accusedappellant Webb in the United States at the time of the Vizconde killings. Simply put, neither check is therefore clear proof to support Webbs alibi. (j) Bicycle/Sportscar The Toyota MR2 sportscar and Cannondale bicycle allegedly purchased by accused-appellant Webb and his father in the United States appear to have been purchased with great haste, and under suspicious circumstances. Consider that immediately after the accused-appellants father, former Senator Freddie Webb, arrived in the United States, the first thing he did was go out with his friend Honesto Aragon and accused-appellant to look for a bicycle and a car to be used by the latter in going to and from work. The car was bought sometime in early July 1991 and the bicycle sometime on June 30, 1991. It is a wonder to this Court that the accused-appellant and his father would buy a bicycle and a sportscar at practically the same time to provide the accused-appellant transportation to his work. Would not just a car or a bicycle do for him? Also, the hurried purchase of the car right after the arrival of Freddie Webb appears at the very least, suspicious, as a prospective car-buyer would understandably want to make a canvas first for the best car to buy, and not just to purchase the first car he sees. Moreover, as aptly observed by the trial court, though it was made clear that the purpose of purchasing the said bicycle and car was for accused-appellants convenience in going to and from his work -- we find, that this contradicts the other evidence presented by accused-appellant because it appears from his evidence that other than his brief stint in del Toros pest control company business and his employment as a gasoline station attendant which incidentally was not sufficiently proven, all that accused-appellant did in the United States was to go sightseeing, shopping and meet with family and friends. Lastly, the fact that the car and the bicycle were allegedly purchased in close proximity to the date of the rape and killing of the Vizconde women does little to dissuade the perception that the car and bicycle were purchased only for the purpose of providing a plausible defense of alibi for Webb. (k) Letters to Jennifer Claire Cabrera

Cabrera, a friend and neighbor of accused-appellant in BF Homes, Paraaque, produced four (4) letters allegedly written and sent to her by Webb while he was in the United States, in order to support the accused-appellantsalibi. These were allegedly the only letters sent by Webb to her. The letters were allegedly written and posted at around the same time the Vizconde rape and killing happened, such that, if the letters were to be duly considered, they would place Webb in the United States at the same time the June 30, 1991 killings occurred; thus, bolstering Webbs defense of alibi. However, the said letters, to our mind, are not convincing proof of alibi, inasmuch said letters were produced only in 1995 at the time she gave a statement, and the same time Webb was charged. However, Cabrera admitted that she knew Webb was being involved or accused in the Vizconde killings as early as 1991 and that she was shocked upon learning that he was being implicated therein. The Court finds it incredible that despite being shocked in 1991, about the involvement of her friend, accused-appellant in the Vizconde rape-slay, Cabrera would wait until 1995 to "produce" the letters that could have cleared her friends name. An interregnum of four years before coming out with valuable proof in support of a friend is to our mind, a telling factor on the credibility of the alleged letters. Also, the impression that may be inferred from reading the letters was one of a man who was pining away for his ladylove. Webb was quite expressive with his feelings when he wrote that he missed Cabrera, "a lot," yet after only four letters that was conveniently written sometime in June 1991, he thereafter stopped writing letters to Cabrera as if the whole matter was already forgotten. It is highly suspicious therefore that the only letters of accused-appellant Webb to Cabrera were written and sent at the exact opportune time that the Vizconde killings occurred which conveniently supplied a basis for his defense of alibi. Moreover, from the contents of the letters, we can deduce that there was some sort of romantic relationship with the accused-appellant Webb and Cabrera. In fact, Webb in his letters referred to Cabrera as his "sweetheart" and "dearest", and confessed to her that all he thinks about was her, and he was hoping he would dream of her at night. It is not improbable, therefore, that Cabrera could have prevaricated herself to save her friend. In sum, accused-appellant tried vainly to establish his defense of alibi with the presentation of not only a substantial volume of documentary evidence but also testimonies of an overwhelming number of witnesses which were comprised mostly of relatives and family friends who obviously wanted him to be exonerated of the crime charged. It is for this reason that we regard their testimonies with an eye of suspicion for it is but natural, although morally unfair, for a close relative or friend to give weight to blood ties and close relationship in times of dire needs especially when a criminal case is involved.134 [emphasis supplied] The rule is well-entrenched in this jurisdiction that in determining the value and credibility of evidence, witnesses are to be weighed, not numbered. The testimony of only one witness, if credible and positive, is sufficient to convict.135 As to appellant Webbs voluminous documentary evidence, both the RTC and CA judiciously examined each exhibit and concluded that these do not pass the test of admissibility and materiality insofar as proving the physical impossibility of his presence at the Vizconde residence on June 29, 1991 until the early morning of June 30, 1991. Appellant Webb cites the opposite view taken by Justices Tagle and Dacudao in their dissenting opinions and urges this Court to accord the US INS certification and other documents relative to his arrival and departure in the US on the dates March 9, 1991 and October 26, 1992, respectively, the

presumption of regularity being official documents issued by US authorities. Justices Tagle and Dacudao concurred in stating that the conclusion of their three (3) colleagues (majority) that the US INS certifications did not exclude the possibility of Webb traveling back to the Philippines and again departing for the US between March 9, 1991 and October 26, 1992 -- is nothing but speculation and conjecture. Webb further mentions that since a Justice of this Court "confirmed appellant Webbs alibi of being in the United States on 29 June 1991[,] [a]t the very least, such exculpatory testimony coupled with the plethora of appellant Webbs other documentary and testimonial evidence on his presence in the United States on 29 June 1991 raises reasonable doubt as to appellant Webbs guilt of the crime charged."136 I find the contentions bereft of merit. In the first place, let it be emphasized that Justice Carpios testimony before the trial court confirmed merely the fact that his conversation with then Congressman Webb took place on June 29, 1991 and what the latter relayed to him about his location at the time such telephone call was made, who was with him in the US (his wife and appellant Webb) and the purpose of their US trip (to find a job for appellant Webb). Said witness even admitted that he had no personal knowledge that appellant Webb was in fact in the United States at the time of his telephone conversation with Congressman Webb.137 As to the travel documents consisting of his US passport, US INS certifications and other evidence presented by appellant Webb in support of his alibi, while it is true that such presentation of passport, plane ticket and other travel documents can serve as proof that he was indeed out of the country at the time of the Vizconde killings,138it must still be shown that the evidence is clear and convincing, and the totality of such evidence constitutes an airtight excuse as to exclude the least possibility of his presence at the crime scene. However, appellant Webb failed in this regard and the RTC and CA did not err in giving scant weight to his arsenal of evidence, particularly so on the strength of the positive identification of appellant Webb as Carmelas rapist and one of those who actually took part in the brutal killing of Carmela, her mother and sister between midnight of June 29, 1991 and early morning of June 30, 1991. Indeed, alibi cannot be sustained where it is not only without credible corroboration, but also where it does not, on its face, demonstrate the physical impossibility of the accuseds presence at the place and time of the commission of the crime.139 Against positive evidence, alibi becomes most unsatisfactory. Alibi cannot prevail over the positive identification of a credible witness.140 Appellant Webb was placed at the crime scene by Alfaro who positively identified him as the one (1) who plotted and committed the rape of Carmela, and later fatally stabbed her, her mother and sister, aided by or in concert with Lejano and Ventura. Gaviola and Cabanacan gave corroborating testimonies that appellant Webb was here in the country, as he was just in his house at BF Homes Subdivision Phase III, at least a few weeks prior to and on June 29 to 30, 1991. Verily, it is only when the identification of the accused as the author of the crime charged is inconclusive or unreliable that alibi assumes importance. Such is not the situation in the case at bar where the identification of the perpetrators by a lone eyewitness satisfied the moral certainty standard. It is the prosecutions burden to prove the guilt of the accused beyond reasonable doubt. Definitely, "reasonable doubt" is not mere guesswork whether or not the accused is guilty, but such uncertainty that "a reasonable man may entertain after a fair review and consideration of the evidence." Reasonable doubt is present when --

after the entire comparison and consideration of all the evidences, leaves the minds of the [judges] in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.141 That reasonable doubt is not engendered by the presentation of certifications of entry into and exit from the US, passport with stamp marks of departure and declarations of witnesses who are mostly relatives and friends of appellant Webb, can be gleaned from the fact that passports and plane tickets indicating dates of arrival and departure do not necessarily prove that the very same person actually took the flight. This Court takes judicial notice of reported irregularities and tampering of passports in the years prior to the recent issuance by the DFA of machine-readable passports. In fact, the proliferation of photo-substituted passports, fake immigration stamps, assumed identity and double passports, among others, have been cited as grounds to justify the necessity of amending the Philippine Passport Act of 1996 (R.A. No. 8239) as proposed in the Senate, "x x x to rally for the issuance of passports using tamper proof and the latest data encryption technology; and provide stiffer penalties against proliferators of fake passports."142 It is worthy of note I note that the original of Webb's passport was not offered in evidence and made part of the records, which only gives credence to the prosecutions allegation that it bore signs of tampering and irregularities. And as earlier mentioned, the much vaunted US-INS second certification dated August 31, 1995 based on a mere computer print-out from the Non-immigrant Information System (Exhibit "213-1-D") retrieved from the US- INS Archives in Washington, and the accompanying certifications, have little probative value, the truth of their contents had not been testified to by the persons who issued the same. Moreover, the issuance of this certification only a couple of weeks after the August 10, 1995 US-INS Office in San Francisco was issued, only raised questions as to its accuracy. Said earlier certification through Debora A. Farmer stated that: [a]fter diligent search no record is found to exist in the records of the Immigration and Naturalization Service. The search included a review of the Service automated and nonautomated records system; there is no evidence of any lawful admission to the United States as an immigrant, or as a nonimmigrant, relating to Hubert P. Webb, born November 7, 1968, in the Philippines. The records searched are current as of July 1, 1995 for the immigrants and nonimmigrants.143 [emphasis supplied] The above finding was relayed by Thomas Schiltgen, District Director of the Immigration and Naturalization Service, San Francisco to Ms. Teresita V. Marzan, Consul General of the Philippines: SUBJECT: WEBB, HUBERT RE: Hubert Jeffrey Webb Dear Requester: YOUR REQUEST WAS RECEIVED BY THIS OFFICE ON 07/10/95. WE HAVE COMPLETED OUR SEARCH FOR RECORDS RESPONSIVE TO YOUR REQUEST BUT DID NOT LOCATE ANY. IF YOU STILL BELIEVE THAT WE HAVE RECORDS WITHIN THE SCOPE OF YOUR REQUEST, AND CAN PROVIDE US WITH ADDITIONAL INFORMATION, WE WILL CONDUCT ANOTHER SEARCH. IF YOU ELECT TO REQUEST ANOTHER SEARCH, WE RECOMMEND THAT YOU NOT FOLLOW THE APPEALS PROCEDURE DESCRIBED BELOW UNTIL WE HAVE COMPLETED THAT SEARCH.

YOU MAY APPEAL THE FINDING IN THIS MATTER BY WRITING TO THE OFFICE OF INFORMATION AND PRIVACY, UNITED STATES DEPARTMENT OF JUSTICE, SUITE 570, 1310 G. STREET, N.W., FLAG BUILDING, WASHINGTON D.C., 20530 WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS LETTER. YOUR LETTER SHOULD REFERENCE THE INS CONTROL NUMBER ABOVE AND THE LETTER AND THE ENVELOPE SHOULD BE CLEARLY MARKED FOIA/PA APPEAL. SINCERELY, (SGD.) DISTRICT DIRECTOR144 [emphasis supplied] To show that the August 10, 1995 US-INS Certification was erroneous, appellant Webb presented the Memorandum addressed to Secretary Domingo L. Siazon signed by Consul Leo M. Herrera-Lim, the Diplomatic Note dated October 30, 1995 and the letter of Debora Farmer stating that the San Francisco certification was erroneous.145 The prosecution, however, presented another document which indicated that an appeal to the U.S. Department of Justice, Office of Information and Privacy yielded a negative result on any record on file that one (1) Hubert Webb arrived in the United States on March 9, 1991, and further that Richard L. Huff, Co-Director of the Office of Information and Privacy had in effect sustained as correct the US-INS San Francisco report that there is no such data on Hubert Webb in the San Francisco database so that the Philippine Embassy in Washington, D.C. should instead ask the assistance of other U.S. government agencies in their search for data on appellant Webb.146 The defense endeavored to explain why the US-INS Archives in Washington could have made the "mistake" of stating that it had no data or information on the alleged entry of appellant Webb on March 9, 1991 and his exit on October 26, 1992. However, it had not satisfactorily addressed the nagging question of how it became possible for the US-INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on appellant Webb when the said port of entry had no such record. Considering that many visitors (nonimmigrants) are admittedly not entered into the NIIS database, and that diligent search already yielded a negative response on appellant Webbs entry into the US on March 9, 1991 as per the August 10, 1995 Certification, as to what US government agency the alleged computergenerated print-out in the August 31, 1995 certification actually came from remains unclear. Appellant Webbs reliance on the presumption of regularity of official functions, stressing the fact that the US-INS certifications are official documents, is misplaced. The presumption leaned on is disputable and can be overcome by evidence to the contrary.147 In this case, the existence of an earlier negative report on the NIIS record on file concerning the entry of appellant Webb into and his exit from the US on March 9, 1991 and October 26, 1992, respectively, had raised serious doubt on the veracity and accuracy of the subsequently issued second certification dated August 31, 1995 which is based merely on a computer print-out of his alleged entry on March 9, 1991 and departure on October 26, 1992. As to the testimony of former Foreign Affairs Secretary Domingo L. Siazon, the same cannot be given due credence since he is incompetent to testify on the contents of the August 31, 1995 USINS Certification, having merely received the said document in his capacity as the head of the Department of Foreign Affairs of the Philippines. Consul Leo M. Herrera-Lims testimony likewise did not carry much weight considering that its significance is confined to the fact that the document from the US-INS was transmitted and received by the DFA. It is to be noted that the certification issued by the Philippine Embassy with respect to the US-INS Certifications contained a disclaimer, specifically stating that the Embassy assumed no responsibility for the contents of the annexed document.148 The same observations regarding the "consularized certifications" was reflected in the

Decision dated April 16, 1998 in CA-G.R. SP No. 42285 ("Miguel Rodriguez v. Amelita Tolentino") and CA-G.R. SP No. 42673 ("Hubert P. Webb v. Amelita Tolentino").149 Appellant Webbs travel documents and other supposed paper trail of his stay in the US are unreliable proof of his absence in the Philippines at the time of the commission of the crime charged. The non-submission in evidence of his original passport, which was not formally offered and made part of the records, had deprived the RTC, CA and this Court the opportunity to examine the same. Such original is a crucial piece of evidence which unfortunately was placed beyond judicial scrutiny. IWe quote the following observations made by the prosecution on Webbs passport from the appeal brief of the OSG: In tandem with the presentation of the various U.S. INS certifications to bolster appellant Webbs story of a U.S. sojourn before, during and after the commission of the offense charged, he further anchors his defense on his passport (Exh. AAAAAA and 294) ostensibly to show, among others, that the grant by the United States government granted him a visa effective from April 6, 1989 to April 6, 1994 and the U.S. Immigration in San Francisco stampmarked it on March 9, 1991 (Exh. AAAAAA6) on page 30 thereof (Exh. AAAAAA-2 and 294-D). On its face, what the entries in the passport plainly suggest is that appellant Webb violated U.S. immigration laws by "overstaying" beyond the usual six-(6) month period allowed for tourists. However, he being the son of a Senator would not unnecessarily violate U.S. immigration laws. It would be quite easy for him to apply for and secure an extension of his authorized stay in the U.S., if only he requested. But why did not he or his parents secure the extension? Why was there no evidence to show that he ever requested an extension? Did he really overstay in the U.S. or could he simply enter and leave the U.S. and the Philippines without marking his passport? These raise serious questions on the integrity of the passport. Is appellant Webb really untouchable that even U.S. authorities in various states would let him get "off the hook" without much of a fuss after his alleged brushes with the law (TSN - Hubert Webb dated September 10, 1997, p. 82)? This is especially incredible considering that he was allegedly apprehended in the United States near the U.S. border (Ibid., pp. 82-83) where authorities are always on the look out for illegal aliens. The questions involving appellant Webbs passport are not limited to the stamp marks (or lack of stamp marks) therein. There are unusual things about his passport which he has been unable to explain satisfactorily. The passport of her mother, Elizabeth Webb, for example, appears to be well preserved despite having been usedmore frequently than that of appellant Webb who supposedly used it in only one trip abroad. Not only do some of the pages appear smudged or untidy, but more significantly, the perforations on the passport pages indicating the serial number of appellant Webbs passport no longer fit exactly on the pages -- that is, they are no longer aligned. The perforations are intended not only to indicate the serial number of the passport but more importantly to countercheck intercalations and tampering. The "non-alignment" of the perforations is thus significant. In addition to the over-all shabby appearance of appellant Webbs passport, what is evident is the torn plastic portion of the dorsal page thereof near the holders signature. There is also the matter of the marked difference in the signatures of appellant Webb as appearing on the dorsal side of the passport (Exh. AAAAAA-3 and 294-A-1) as compared with that appearing on his laminated photograph (Exh. AAAAAA-5 and 294-C-1). Of course, he tried to offer an explanation on the variance in the two (2) signatures. All he could reason out, however, was that he wrote his name

using his normal penmanship when in a lazy mood (TSN -- Hubert Webb dated August 14, 1997, p. 27), implying that the signature appearing on his laminated photograph is his real signature. A review of his other documentary evidence supposedly bearing his signature shows that what appears therein is his name written in his "normal penmanship," and that it is only in the laminated picture (Exh. AAAAAA-5 and 294-C) that such "real signature" appears. Following appellant Webbs explanation, it means that he was in a lazy mood all the time! 150 Two (2) more documents presented by appellant Webb deserve a close look -- his US Drivers License supposedly issued on June 14, 1991, and the Passenger Manifest. The RTCs evaluation of said documents revealed their lack of probative value, thus: On August 14, 1997, [Webb] testified that he did not make any application since the procedure in California provides for a walk-in system, that he did not submit any photograph relative to his application for a Californian Drivers License, inasmuch as a photograph of him was taken, and that, his drivers license was issued sometime on the first week of June, 1991. On the other hand, on September 1, 1997, the accused suddenly and completely changed his testimony while still on direct examination. He claims that the picture appearing on the drivers license was the very same he submitted together with his application for the drivers license. Thus, the discrepancy as to the source of the photograph (Exhibit "334-E") between the testimony given on August 14, 1997 where the accused Webb said that the California Department of Motor Vehicle took his picture, and the testimony given on September 1, 1997 where he said that he submitted it to the California DMV as an attachment to his supposed drivers license application renders the accused Webbs testimony as unbelievable and unworthy of credence. It is beyond belief that the same picture submitted by the accused Webb became the picture in the drivers license allegedly issued on June 14, 1991. Moreover, it is contrary to human nature and experience, aside from the fact that it is likewise contrary to the procedure described by the accused Webb in obtaining a drivers license in the State of California. Since a drivers license is one of the principal means of identification in the United States as well as in the Philippines, to allow the applicants to produce their own pictures would surely defeat the purpose in requiring them to appear before the Department of Motor Vehicle, that is, to ensure the integrity and genuineness of the drivers license. The Court takes note that the accused Webb, in his fervent desire to exculpate himself from criminal liability, earlier offered in evidence the letter dated January 10, 1992 of Mr. Robert L. Heafner, Legal Attache of the Embassy of the United States to the then Director of the National Bureau of Investigation, Alfredo S. Lim, (Exhibit "61") which stated in very clear terms that the accused Webbs California Drivers License Number A8818707 was issued on August 9, 1991. Furthermore, the said letter states the listed address of the accused Webb at the time of the issuance of the drivers license was 532 So. Avenida Faro Ave., Anaheim, California 92807. The said listed address of the accused Webb at the time his drivers license was issued has demolished the testimony of the defense witness Sonia Rodriguez that the accused Webb was supposed to be already living with the Rodriguez family in Longwood, Florida by the first week of August, 1991. The accused Webb likewise offered in evidence the official communication coming from the Federal Bureau of Investigation dated December 31, 1991 (Exhibit "MMM" and submarkings; Exhibit "66-C" and submarkings) which likewise gave the information that the accused Webb was issued California Drivers License No. 8818707 on August 9, 1991, and that as of August 9, 1991, the address of the accused Webb was 532 South Avenida Faro, Anaheim, California 92807. The fact that the alleged Drivers License No. A8818707 was issued on two (2) different dates (August 9, 1991 and June 14, 1991) casts a serious doubt on its provenance and authenticity.

xxxx In order to establish that the accused Hubert Webb departed from the Philippines on 09 March 1991 on board UA flight 808 the defense also presented witness Dulcisimo Daluz, Station Manager of United Airlines for Manila who in turn presented a document purporting to be the Passenger Manifest for the flight departing on 09 March 1991 (Exhibits "233-A" to "233-N"). This document merits outright rejection considering that the defense witness Daluz confirmed that the same was prepared by the UA departure area personnel and not by himself. Thus, this document is merely hearsay and is devoid of any merit whatsoever. In respect of the plane ticket of the accused Hubert Webb, what was likewise offered as part of the testimony of Daluz was a mere photo copy, wherein Daluz also admitted not having any direct participation in its preparation. The spurious nature of the document was observed by the witness Daluz himself who admitted that there wereirregularities in the Passenger Manifest presented by the defense. According to Daluz, it is a strict procedural requirement that all the checking agents who were on duty on March 9, 1991 were supposed to initial the Passenger Manifest, However, he admitted that Exhibits "223" and "223-N" did not contain the initials of the checking agents who were supposed to initial the same. The defense presented Agnes Tabuena, Vice-President for Finance and Administration of the Philippine Airlines for the purpose of establishing that Hubert Webb arrived in the Philippines only on 26 October 1992. Like witnesses Daluz and Nolasco, Tabuenas statements on the witness stand and the Certification was based exclusively on the Passenger Manifest of PALs PR 103. Unfortunately for the defense, the said testimony is of no probative value and of doubtful veracity considering that the witness did not prepare the same, nor did the witness identify the persons who prepared the same other than that they were "airport staff", nor did she had any idea when the document was transmitted to her office. In fact, the witness could not even interpret the contents of the said Passenger Manifest, much more testify as to the due execution and genuineness thereof. In view of the vital necessity to the other accused of establishing accused Webbs alibi, it is important to note that Atty. Francisco Gatchalian, father of the accused Michael Gatchalian was then a high ranking PAL Official and a colleague of Tabuena. This makes the source of the document, even ignoring the fact of its inadmissibility, suspicious.151 [emphasis supplied.] The alibi of appellants Gatchalian and Lejano, who claimed they were at the Syap residence at Ayala Alabang Village watching video tapes the whole night of June 29, 1991 until early morning of June 30, 1991, was even less plausible considering the distance of that place from Pitong Daan Subdivision, which is just a few minutes ride away. The RTC noted the manifestation of the defense on Andrew Syaps refusal to testify on Gatchalian and Lejanos whereabouts during the night in question, despite their efforts to convince him to do so. It further noted the testimony of Assistant NBI Director Pedro Rivera that Carlos Syap upon seeing Gatchalian with their group even berated Gatchalian for dragging him into his (Gatchalians) own problem. Aside from Alfaro, security guard Normal White, Jr. also testified that the presence of Gatchalian (son of a homeowner), who pointed to the other appellants in the two (2) cars behind him as his companions, was the reason they allowed his friends to enter the subdivision on the night of June 29, 1991. White, Jr. also categorically declared he had, earlier that same night, seen Gatchalian with his friends standing at Vinzons St. Thus, other than the hearsay declaration of his father who merely testified on what his

son told him about spending the night watching video tapes at the Syap residence on June 29, 1991, Gatchalian presented no corroborative evidence of his alibi. As to appellant Lejano, he was positively identified by Alfaro as the first to express approval of Webbs plan to gang-rape Carmela by saying, "Ako ang susunod." Lejano was also with Alfaro, Webb and Ventura in going inside the Vizconde house, and whom she later saw inside the masters bedroom, at the foot of the bed where the bloodied bodies of Estrellita and Jennifer lay, and just standing there about to wear his jacket while Webb was pumping the hogtied and gagged Carmela on the floor. His alibi is likewise feeble, as he could have easily gone to the Vizconde house within a few minutes from the Syap residence where he and Gatchalian allegedly watched video tapes. Appellant Fernandez, on his part, insisted that Alfaros story was simply fabricated by her "hidden mentors" who considered the sworn statement of Roberto D. Barroso taken on November 4, 1991. Barroso was one (1) of the members of the "Akyat Bahay" gang who were earlier charged before the Makati City RTC in Criminal Case Nos. 91-7135-37 for Rape with Homicide and for Robbery with Homicide in connection with the Vizconde killings. There is an uncanny congruence in the details of the incident as testified to by Alfaro, with the sworn statement of Barroso particularly pertaining to the manner by which the garage light of the Vizconde house was put out, the smashing of the glass panel of the main door, and the appearance of a woman who opened the main door saying "Sino kayo?"152 Such submissions are inane, in view of the dismissal of those cases filed against the first set of suspects based on lack of evidence. Contrary to Fernandezs insinuation of a fabricated eyewitness account, Alfaro gave much more minute details than the limited narration given by Barroso. More important, Alfaros testimony was sufficiently corroborated on its material points, not only by the physical evidence, but also by the testimonies of four (4) disinterested witnesses for the prosecution: White, Jr., Cabanacan, Gaviola and Birrer. Fernandez also cited as among the reasons why Alfaros declarations were far from positive, the non-recovery of the fatal weapons used in the killings. He contended that a crucial link in the prosecutions physical evidence was thus missing, as Alfaro could not even say what was the "object" or "thing" which she saw thrown out of the Nissan Patrol while the group was on their way to the BF Executive Village. Hence, her suggestion that what she saw Ventura took from the kitchen drawer may have been kitchen knives used to kill the victims must fail.153 Such proposition fails to persuade. The failure to present the murder weapon will not exculpate the accused from criminal liability. The presentation and identification of the weapon used are not indispensable to prove the guilt of the accused, much more so where the perpetrator has been positively identified by a credible witness.154 Appellant Rodriguez denies being a conspirator with Webbs group in the commission of the crime, asserting that his presence and participation in the Vizconde killings, from the time of its inception up to its consummation, was not established beyond reasonable doubt. He cites the failure of Alfaro to mention his name as part of the "group" twice in her testimony. These instances refer to Alfaros direct examination when she was asked to name the persons riding the convoy of three (3) vehicles when they left Ayala Alabang Commercial Center parking lot to proceed to the Vizconde residence at Pitong Daan Subdivision,155 and the second time when she was asked to enumerate the members of the "group" who were waiting along Aguirre Avenue during their second trip to the Vizconde residence.156 Thus, when Alfaro testified that the rest of the group acted as lookouts while she, Webb, Lejano and Ventura went inside the Vizconde house, it must be understood as limited only to those she had previously enumerated, which definitely did not include Rodriguez.157

The argument is untenable. The mere fact that Alfaro missed out naming Rodriguez in two (2) instances during her direct examination does not give rise to the conclusion that he was not positively identified by Alfaro as among those present and participated prior to, during and after the commission of the crime as lookouts along with the rest of the group. Contrary to Rodriguezs claim, the first time that Alfaro referred to and enumerated the members of the "group" which she had unexpectedly joined that night, was at the beginning of her narration on how she met Venturas friends when she got her order of shabu at the Ayala Alabang Commercial Center parking lot. Q. And you said that Dong Ventura introduced you to this group, will you name the group that was introduced to you by Dong Ventura? A. First, he introduced me to Hubert Webb, then Fyke Fernandez, Miguel Rodriguez, and then Tonyboy Lejano, Michael Gatchalian.158 Alfaro was again asked to enumerate the members of the "group" when the prosecution asked her to name the members of the group, in the later part of her direct examination during the same hearing.159 She also testified that after everyone, including Rodriguez, took part in a shabu session, they left the parking lot.160 It thus logically follows that whenever Alfaro made reference to the "group" in her entire narration, it necessarily included those she had enumerated she had met and had a shabu session with at the Ayala Alabang Commercial Center parking lot. This same group was with her from their first trip to the Vizconde residence until the time they left Pitong Daan Subdivision and retreated to a house at BF Executive Village early morning of June 30, 1991. Alfaro had specifically mentioned Rodriguez when asked by Prosecutor Zuo to describe their relative positions at the lawn area of the BF Executive Village house, thus establishing his presence during the "blaming session": A. x x x kalat kami, sir, pero hindi kami magkakalayo x x x xxxx Q. How about Miguel Rodriguez, how far was he from Hubert? A. Two meters away. xxxx A. Mike is very very near Ging Rodriguez.161 It must be stressed that Alfaro categorically declared it was Rodriguez who approached her at Faces Disco on March 30, 1995 and told her to shut up or she would be killed. Aside from making that threat, Rodriguez also offered Alfaro a plane ticket so she could leave the country.162 Rodriguezs bare denial cannot be given any evidentiary weight. We have ruled that denial is a self-serving negative evidence that cannot be given greater weight than the declaration of a credible witness who testified on affirmative matters.163 Rodriguezs attempt to set up an alibi through the testimony of his cousin Mark Rualo was equally frail. Even assuming as true Rualos testimony that he had indeed invited Rodriguez to attend his birthday party on June 29, 1991 but Rodriguez opted to stay in his house and even talked to him on the phone when he called Rodriguez to ask why he was not yet at the party, it cannot serve as proof of Rodriguezs whereabouts at the time of the commission of the crime. It did not rule out the actual presence of Rodriguez at the crime scene.

Appellant Estrada, just like Rodriguez and Fernandez, did not take the witness stand and simply relied on the alibidefense of his co-accused, principally that of Webb. Alfaro testified that it was Estrada, then her boyfriend, who was together with her in her car throughout the night of June 29, 1991 until early morning of June 30, 1991. Estrada was among those who acted as lookouts outside the Vizconde house after they all concurred in the plan of Webb to gang-rape Carmela while they were still at the parking lot of the Ayala Alabang Commercial Center. Conspiracy among appellants duly proven The existence of conspiracy between appellants Webb, Ventura, Lejano, Gatchalian, Fernandez, Rodriguez and Filart was satisfactorily proven by the prosecution. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to actually pursue it. It may be proved by direct or circumstantial evidence.164 Although only one (1) rape was actually proven by the prosecution, as conspirators who mutually agreed to commit the crime and assisted one (1) another in its commission, on the occasion of which the rape victim Carmela, her mother Estrellita and sister Jennifer, were killed, each of the accused-appellants shall be criminally liable for rape with homicide. Indeed, appellants by their individual acts, taken as a whole, showed that they were acting in unison and cooperation to achieve the same unlawful objective, even if it was only Webb, Ventura and Lejano who actually went inside the Vizconde house while Estrada, Fernandez, Rodriguez, Gatchalian and Filart stood as lookouts outside the house. Under these premises, it is not even necessary to pinpoint the precise participation of each of the accused-appellants, the act of one being the act of all.165 One who participates in the material execution of the crime by standing guard or lending moral support to the actual perpetrators thereof is criminally responsible to the same extent as the latter. There being conspiracy among the accused-appellants, they are liable as co-principals regardless of the manner and extent of their participation.166 Biong guilty as accessory after the fact Appellant Biong contends that he cannot be convicted as accessory to the crime of rape with homicide because the acts imputed to him did not result in the hiding of the case. There was no evidence that such indeed was his intent or motive. He points out that the bodies of the victims were found at their respective places where they were assaulted and there was no evidence that they had been moved an inch from where they breathed their last. He asserts that non-preservation of the evidence is not an accessory crime under the Revised Penal Code.167 The contentions have no merit. The Revised Penal Code in Article 19 defines an accessory as one who has knowledge of the commission of the crime, yet did not take part in its commission as principal or accomplice, but took part in it subsequent to its commission by any of three modes: (1) profiting himself or assisting the offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or instruments thereof in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.168

Under paragraph 3 of Article 19 of the Revised Penal Code, as amended, there are two (2) classes of accessories, one of which is a public officer who harbors, conceals or assists in the escape of the principal. Such public officer must have acted with abuse of his public functions, and the crime committed by the principal is any crime, provided it is not a light felony. Appellant Biong is one (1) such public officer, and he abused his public function when, instead of immediately arresting the perpetrators of the crime, he acceded to the bidding of appellant Webb to "clean the Vizconde house," which means he must help hide any possible trace or sign linking them to the crime, and not necessarily to prevent the discovery of the bodies in such actual condition upon their deaths. Hence, such "cleaning" would include obliterating fingerprints and other identifying marks which appellants Webb, Lejano and Ventura might have left at the scene of the crime. Contrary to Biongs assertion, his failure to preserve evidence at the crime scene such as fingerprints on the doors and objects inside the masters bedroom where the bodies were found, the bloodied floor of the toilet, the actual material used in gagging Carmela and Estrellita, the bloodied blankets and bed sheets, the original condition of the broken glass panel of the main door, the shoe print and foot prints on the car hood and at the back of the house, fingerprints on the light bulb at the garage -- was a form of assistance to help the perpetrators evade apprehension by confusing the investigators in determining initially what happened and the possible suspects. Consequently, Biongs unlawful taking of the jewelries and Carmelas ATM card and drivers license, his act of breaking the larger portion of the main door glass, the washing out of the blood on the toilet floor and permitting the relatives to burn the bloodied bed sheets and blankets -had in fact misled the authorities in identifying potential suspects. Thus, the police had a difficult time figuring out whether it was robbers who entered the Vizconde house and perpetrated the rape-slay, or drug-crazed addicts on the loose, or other persons having motive against the Vizconde family had exacted revenge, or a brutal sexual assault on Carmela by men who were not strangers to her which also led to the killings. On the basis of strong evidence of appellant Biongs effort to destroy crucial physical evidence at the crime scene, I hold that the RTC did not err in convicting him as an accessory to the crime of rape with homicide. Penalty The CA was correct in affirming the sentence imposed by the RTC upon each of the accusedappellants Webb, Lejano, Gatchalian, Rodriguez, Fernandez and Estrada. The proper penalty is reclusion perpetua because the imposition of the death penalty under the Revised Penal Code (in Article 335 thereof, as amended by R.A. No. 2632 and R.A. No. 4111, when by reason or on the occasion of rape, a homicide is committed), was prohibited by the Constitution at the time the offense was committed.169 At any rate, the subsequent passage of R.A. No. 9346 entitled "An Act Prohibiting the Imposition of the Death Penalty in the Philippines," which was signed into law on June 24, 2006, would have mandated the imposition on accused-appellants the same penalty of reclusion perpetua. As to the penalty imposed by the CA on appellant Biong as accessory after the fact to the crime of rape with homicide, we find the same proper and in order. DNA Testing Appellant Gatchalian reiterates his and appellant Webbs motion for DNA testing of the semen specimen taken from the vaginal cavity of Carmela during the autopsy conducted by Dr. Cabanayan, which motion was denied by the RTC for lack of available scientific expertise and technology at the time.

With the great advances in forensic science and under pertinent state laws, American courts allow post-conviction DNA testing when its application has strong indications that the result could potentially exonerate the convict. Indeed, even a convicted felon has the right to avail of new technology not available during his trial. On October 2, 2007, this Court approved the Rule on DNA Evidence170 which took effect on October 15, 2007. Pursuant to Section 4 of the Rule, the court may at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing after due notice and hearing. Such order shall issue upon showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.171 By Resolution dated April 20, 2010, this Court granted appellant Webbs request to submit for DNA analysis the semen specimen taken from the cadaver of Carmela Vizconde under the custody of the National Bureau of Investigation (NBI). We ordered (1) the NBI to assist the parties in facilitating the submission of the said specimen to the UP-Natural Science and Research Institute (UP-NSRI), Diliman, Quezon City; and (2) the NBI and UP-NSRI to report to this Court within fifteen (15) days from notice regarding compliance with and implementation of the said resolution. In his Compliance and Manifestation dated April 27, 2010, Atty. Reynaldo O. Esmeralda, NBI Deputy Director for Technical Services, informed this Court that the semen specimen/vaginal smear taken from the cadaver of Carmela Vizconde and all original documents (autopsy and laboratory reports, and photographs) are no longer in the custody of the NBI as these were submitted as evidence to the Regional Trial Court (RTC) of Paraaque City, Branch 274 by then NBI Medico-Legal Chief, Prospero A. Cabanayan, M.D., when the latter testified on direct and cross-examination on January 30, 31, February 1, 5, 6 and 7, 1996. Attached thereto are certified true copies of Laboratory Report No. SN-91-17 (stating positive result for the presence of human spermatozoa), Autopsy Report No. N-91-1665 (with remarks: "Smear for presence of spermatozoa"), copy of the sworn statement of Dr. Cabanayan and certified true copy of the envelope bearing his signed handwritten notation that all original photographs have been submitted as evidence during the aforementioned hearing dates.172 On May 11, 2010, the Office of the Solicitor General (OSG) filed a Motion for Reconsideration of our Resolution dated April 20, 2010 on grounds that (a) the DNA testing order was issued in disregard of Section 4 of the Rule on DNA Evidence which requires prior hearing and notice; (b) a determination of propriety of DNA testing at this stage under the present Rule, separate from that filed by Webb before the trial court on October 6, 1997, is necessary as there was no opportunity back then to establish the requisites for a DNA testing order under the Rule which took effect only in 2007; (c) the result of the DNA testing will constitute new evidence, which cannot be received and appreciated for

the first time on appeal; and (d) this Court failed to elucidate an exceptional circumstance to justify its decision to consider a question of fact, as this Court itself acknowledged in its April 20, 2010 Resolution that the result of DNA testing is not crucial or indispensable in the determination of appellant Webbs guilt for the crime charged.173 On May 21, 2010, Atty. Roberto Makalintal, Jr., Branch Clerk of RTC Paraaque City, Branch 274, submitted his Comment on The Compliance and Manifestation Dated April 27, 2010 of the NBI stating that: (a) There is no showing of actual receipt by RTC Branch 274 of the specimen/vaginal smear mentioned in Dr. Cabanayans affidavit dated April 27, 2010; (b) Based on available records such as the TSN of January 31, 1996 and February 7, 1996 during which Dr. Cabanayan testified, no such specimen/vaginal smear was submitted to RTC Branch 274; (c) The TSN of January 31, 1996 on pages 57, 58 and 69 suggest that marked in evidence as Exhibits "S", "T" and "U" by then Chief State Prosecutor Jovencito Zuo were only the photographs of the three slides containing the semen specimen; (c) In the hearing of February 7, 1996, Dr. Cabanayans last testimony before RTC Branch 274 in this case, he testified that the last time he saw those slides was when he had the photographs thereof taken in 1995 (the first time was when he examined them in 1991), and as far as he knows between 1991 and 1995, those slides were kept in the Pathology Laboratory of the NBI; and (d) The entire records of the cases were already forwarded to this Court a long time ago, including the evidence formally offered by the prosecution and the accused.174 Under our Resolution of June 15, 2010, we required the NBI to (a) show proof of the release of the semen specimen to the RTC of Paraaque City, Branch 274 in 1996; and (b) comment on the alleged conflicting representations in its Compliance and Manifestation dated April 27, 2010, both within ten days from notice. However, the NBI has not complied with said directive. In his Comment on the OSGs motion for reconsideration, appellant Fernandez argued that when this Court, in the higher interest of justice, relaxed the Rule on DNA Evidence to afford Webb the fullest extent of his constitutional rights, the prosecution was not thereby denied its equally important right to due process. Contrary to the OSGs claim that this Court immediately granted DNA testing without observing the requisites under Section 4 of the Rule on DNA Evidence, and without due notice and hearing, appellant asserts that the Resolution dated April 20, 2010 clearly defines the parameters of the DNA analysis to be conducted by the UP-NSRI assisted by the NBI. Indeed, there are ample safeguards in the Rule to assure the reliability and acceptability of the results of the DNA testing. Fernandez, however, objected to the statement of the OSG that "in the light of positive identification" of appellant Webb by the principal witness for the prosecution, Jessica Alfaro, the existing circumstances more than warrant the affirmation of Webbs guilt. Alfaros cross-examination exposed her as an "out-and-out perjurer, a bold and intentional liar under oath" and a "fake witness" whose account of the incident is "shot-through with fatal omissions, self-contradictions, inconsistencies and inherent improbabilities."175 Appellant Lejano likewise filed his comment, pointing out that the trial court denied Webbs motion to direct the NBI to submit semen specimen for DNA analysis on November 25, 1997 only after lengthy exchange of pleadings between the defense and prosecution, the latter having properly opposed said motion. Hence, the People cannot now rightfully claim that there was no notice or hearing on the issue of submitting the semen specimen for DNA analysis. Citing Brady v. Maryland,176 Lejano contended that the suppression of exculpatory evidence or evidence that will show reasonable probability that the verdict would have been different had the evidence been disclosed grossly violates an accuseds right to due process. In this case, the evidence needs only to be subjected to DNA analysis to establish the innocence of appellant Webb, as well as of petitioner and appellant Lejano. It was further asserted that the semen specimen was already existing at the time of the trial, and hence can hardly be considered as "new evidence" and that DNA testing of said semen specimen taken from the victim Carmela Vizconde "has the scientific potential to produce new

information that is relevant to the proper resolution of the case" (Sec. 4 (d), Rule on DNA Evidence).177 On his part, appellant Webb stressed that there are exceptional circumstances that justify this Courts order to immediately conduct the DNA analysis. He has been behind bars for more than fifteen (15) years. He has filed a motion for DNA analysis as early as 1997 or thirteen (13) years ago. The result of such test could yield evidence that could acquit him while no damage will be suffered by the prosecution considering that this Court emphasized in its Resolution of April 20, 2010 that the prosecutions evidences and concerns regarding the proper preservation of evidence in the custody of the NBI would have to be addressed in the light of the requirements laid down by the Rule on DNA Evidence. As to the prosecutions argument that this Court cannot receive and appreciate "new evidence," Section 4 of the Rule states that "the appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing"; DNA testing is even available post-conviction (Ibid, Sec. 6). This Court in accordance with proper procedure thus decided to receive DNA evidence in order not to further delay the case, appellants after all, were convicted more than ten (10) years ago in 2000 and have been incarcerated for fifteen (15) years now. Webb further underscored that where the evidence has not been offered, it is the prosecution who should have the legal custody and responsibility over it.178 The NBIs letter dated April 23, 1997 confirmed that the semen specimen was in its custody. The NBIs repudiation of such fact is belied by the records; the Prosecutions Formal Offer of Evidence shows that Exhibits "S", "T" and "U" were merely photographs of the slides containing the vaginal smear. Also, nowhere in the transcript of stenographic notes taken during Dr. Cabanayans testimony was it shown that he turned over the actual slides to the trial court. On the contrary, when Dr. Cabanayan was asked on February 6, 1996 to produce the slides, which he had promised to bring during the previous hearing, he admitted that he "forgot all about it" when he came to the hearing. Thus, it appears from the record that from the time the semen specimen was taken from Carmela Vizcondes cadaver, it has always been in the custody of the NBI.179 Evidently, the NBI could no longer produce the semen specimen/vaginal smear taken from the cadaver of Carmela Vizconde and consequently DNA analysis of said physical evidence can no longer be done. Hence, this Court set aside the April 20, 2010 resolution and forthwith proceeded to resolve the present appeal on the basis of existing evidence which have been formally offered by the parties and/or made part of the records. Appellant Webbs Urgent Motion To Acquit With the recall of the order for DNA testing, appellant Webb moved for his acquittal on the ground of violation of his constitutional right to due process by reason of the States failure to produce the semen specimen, either through negligence or willful suppression. Webb argues that the loss or suppression by the prosecution of the semen specimen denied him the right to avail of the latest DNA technology and prove his innocence. Citing American jurisprudence (Matter of Dabbs v. Vergari,180 California v. Trombetta181 and Brady v. Maryland182), Webb contends that in disallowing the DNA examination he had requested, the RTC denied him from presenting a "complete defense" through that "singular piece of evidence that could have definitively established his innocence," the trial court relying instead on the identification of Jessica Alfaro, a "perjured witness." The constitutional duty of the prosecution to turn over exculpatory evidence to the accused includes the duty to preserve such evidence.

Webb maintains that the semen specimen extracted from the cadaver of Carmela had exculpatory value, as even NBIs Dr. Cabanayan testified during the hearing of February 7, 1996, that it was still possible to subject the same to DNA analysis to identify the person to whom the sperm belonged. Thus, a DNA analysis of said semen specimen excluding appellant Webb as the source thereof would disprove the prosecutions evidence against him. Further, Webb points out that the prosecution considered the presence of spermatozoa on the body of Carmela as evidence that she was raped, offering the photographs of the glass slides containing the sperm cells as proof that she was in fact raped on or about the late evening of June 29, 1991 or early morning of June 30, 1991. But the only evidence of the prosecution that it was Webb who raped Carmela was the testimony of Alfaro which was given full credit by the RTC and CA despite all its inconsistencies, and despite all documentary and testimonial evidence presented by the defense proving that Webb was at the United States at the time the crime was committed. On the matter of preserving DNA evidence, Webb cites Section 12 of the Rule on DNA Evidence which authorizes the court to order the appropriate government agency to preserve the DNA evidence during trial and even when the accused is already serving sentence, until such time the decision of the court has become final and executory. While this Court has given Webb the best opportunity to prove his innocence in the order granting DNA analysis of the sperm specimen taken from Carmelas cadaver, such potentially exculpatory evidence could not be produced by the State. Webb now claims that as a result of the destruction or loss of evidence under the NBIs custody, he was effectively deprived of his right to present a complete defense, in violation of his constitutional right to due process, thus entitling him to an acquittal. Loss of Semen Specimen Not Ground For Acquittal of Webb Webbs argument that under the facts of this case and applying the cited rulings from American jurisprudence, he is entitled to acquittal on the ground of violation of his constitutional right to due process,is without merit. In Brady v. Maryland183 it was held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In said case, the petitioner was convicted of murder committed in the course of robbery and sentenced to death. He later learned that the prosecution suppressed an extrajudicial confession made by his accomplice who admitted he did the actual killing. The US Supreme Court granted a new trial and remanded the case but only on the question of punishment. In Matter of Dabbs v. Vergari,184 the court ordered DNA testing of specimen taken from a rape victim after the sexual assault and from the accused who was convicted, DNA testing being unavailable at the time of the trial. Accused therein was identified by the victim as her attacker. The court found the factual circumstances clearly showed that the semen specimen could have come only from the accused. It noted that the witness testified that accused acted alone, had ejaculated and she did not have sexual intercourse with any other person within 24 hours prior to the sexual assault. DNA testing ultimately revealed that petitioners DNA composition did not match with that found on the victims underwear. Consequently, the court granted petitioners subsequent motions to vacate the judgment of conviction. In California v. Trombetta,185 a case involving the prosecution for drunk driving, the US Supreme Court ruled that the Due Process Clause of the Constitution does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the States failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting "in good faith and in accord with their normal practice." x x x The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence. More importantly, Californias policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspects defense. To meet this standard of constitutional materiality, x x x evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case. [italics supplied.] From the above cases, it is clear that what is crucial is the requirement of materiality of the semen specimen sought for DNA testing. Appellant Webb must be able to demonstrate a reasonable probability that the DNA sample would prove his innocence. Evidence is material where "there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."186 In People v. Yatar,187 decided before the promulgation of the Rule on DNA Evidence, the Court expounded on the nature of DNA evidence and the factors to be considered in assessing its probative value in the context of scientific and legal developments. The proper judicial approach is founded on the concurrence of relevancy and reliability. Most important, forensic identification though useful does not preclude independent evidence of identification. DNA is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons 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. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. 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. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault. 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.

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. 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. Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. 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 victims vaginal canal. 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 unchartered 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, 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. 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 appellants semen found in the victims 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, appellants 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 of 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 victims vagina (Exhibits "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, Exhibits "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.188 [emphasis supplied.] Indeed, in other jurisdictions it has been recognized that DNA test results are not always exculpatory. Postconviction test results are not always exculpatory. In addition, exculpatory test results will not necessarily free the convicted individual. If the evidence does exclude the petitioner, the court must weigh the significance of the exclusion in relation to all the other evidence. Convicted offenders often believe that if crime scene evidence does not contain their DNA they will automatically be exonerated. Not finding the petitioners DNA does not automatically indicate the case should be overturned, however. In a rape case, for example, the perpetrator may have worn a condom, or not ejaculated. In some cases, the absence of evidence is not necessarily evidence of the defendants absence or lack of involvement in the crime.189 We hold that the source of the semen extracted from the vaginal cavity of the deceased victim is immaterial in determining Webbs guilt. From the totality of the evidence presented by both the prosecution and the defense, Webb was positively identified as Carmelas rapist. As the records bear out, the positive identification of appellant Webb as Carmelas rapist satisfied the test of moral certainty, and the prosecution had equally established beyond reasonable doubt the fact of rape and the unlawful killing of Carmela, Estrellita and Jennifer on the occasion thereof. Even assuming that the DNA analysis of the semen specimen taken from Carmelas body hours after her death excludes Webb as the source thereof, it will not exonerate him from the crime charged. Alfaro did not testify that Webb had ejaculated or did not use a condom while raping Carmela. She testified that she saw Webb rape Carmela and it was only him she had witnessed to have committed the rape inside the Vizconde residence between late evening of June 29, 1991 and early morning of June 30, 1991. Moreover, she did not testify that Carmela had no sexual relations with any other man at least 24 hours prior to that time. On the other hand, a positive result of DNA examination of the semen specimen extracted by Dr. Cabanayan from Carmelas cadaver would merely serve as corroborative evidence. As to the loss of the semen specimen in the custody of the NBI, appellant Webbs contention that this would entitle him to an acquittal on the basis of Brady v. Maryland is misplaced. In Arizona v. Youngblood,190 a 10-year old boy was molested and sodomized by the accused, a middle-aged man, for 1 hours. After the assault, the boy was examined in a hospital where the physician used swab to collect specimen from the boys rectum and mouth, but did not examine them at anytime. These samples were refrigerated but the boys clothing was not. Accused was identified by the victim in a photographic lineup and was convicted of child molestation, sexual assault and kidnapping. During the trial, expert witnesses had testified that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated the accused. The Court held: There is no question but that the State complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and the clothing, and the boys examination at the hospital. The State provided respondents expert

with the laboratory reports and notes prepared by the police criminologist, and respondents expert had access to the swab and to the clothing. xxxx The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. x x x We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the polices obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. In this case, the police collected the rectal swab and clothing on the night of the crime: respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence such as it was was made available to respondents expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion and we agreethat there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause. [emphasis supplied.] In this case, there is no showing of bad faith on the part of the police investigators, specifically the NBI, for the non-production of the vaginal swab and glass slide containing the semen specimen, during the trial and upon our recent order for DNA testing. The prosecution did not conceal at anytime the existence of those vaginal swab and glass slide containing the vaginal smear. Curiously, despite Dr. Cabanayans admission during the hearing that it was still possible to subject the semen specimen to DNA analysis, the defense never raised the issue thereafter and resurrected the matter only in October 1997 when Webbs counsel filed his motion. It bears to stress that the vaginal smear itself was not formally offered by the prosecution, but only the photographs of the glass slide containing the semen specimen for the purpose only of proving that Carmela was in fact raped and not that Webb was the source of the sperm/semen. As noted by the RTC when it denied Webbs motion for DNA on November 25, 1997, prevailing jurisprudence stated that DNA being a relatively new science then, has not yet been accorded official recognition by our courts. The RTC also considered the more than six (6) years that have elapsed since the commission of the crime in June 1991, thus the possibility of the specimen having been tampered with or contaminated. Acting on reasonable belief that the proposed DNA examination will not serve the ends of justice but instead lead to complication and confusion of the issues of the case, the trial court properly denied Webbs request for DNA testing. We thus reiterate that the vaginal smear confirming the presence of spermatozoa merely corroborated Alfaros testimony that Carmela was raped before she was killed. Indeed, the presence or absence of spermatozoa is immaterial in a prosecution for rape. The important consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ.191 On the other hand, a negative result of DNA examination of the semen specimen could not have exonerated Webb of the crime charged as his identity as a principal in the rape-slay

of Carmela was satisfactorily established by the totality of the evidence. A finding that the semen specimen did not match Webbs DNA does not necessarily negate his presence at the locus criminis. Civil Liability of Appellants The Court sustains the award of P100,000.00 as civil indemnity, pursuant to current jurisprudence that in cases of rape with homicide, civil indemnity in the amount of P100,000.00 should be awarded to the heirs of the victim.192Civil indemnity is mandatory and granted to the heirs of the victims without need of proof other than the commission of the crime. For the deaths of Estrellita and Jennifer, the award of civil indemnity ex delicto to their heirs, was likewise in order, in the amount of P50,000.00 each.193 Following People v. Dela Cruz,194 P75,000.00 civil indemnity and P75,000 moral damages in rape cases are awarded only if they are classified as heinous.195As the rape-slay of Carmela took place in 1991, R.A. No. 7659 entitled "AN ACT TO IMPOSE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES," which was approved on December 13, 1993 and was to become effective fifteen (15) days after its publication in two national newspapers of general circulation, was not yet effective.196 As to moral damages, recent jurisprudence allows the amount of P75,000.00 to be awarded in cases of rape with homicide.197 We find the amount of P2,000,000.00 as moral damages awarded by the RTC as affirmed by the CA, rather excessive. While courts have a wide latitude in ascertaining the proper award for moral damages, the award should not be to such an extent that it inflicts injustice on the accused.198 The award of P2,000,000.00 as moral damages to the heir of the victims should accordingly be reduced to P500,000.00. The rest of the awards given by the trial court are affirmed. In view of the foregoing, I respectfully vote that the appeals in the above-entitled cases be DISMISSED and the Decision dated December 15, 2005 of the Court of Appeals in CA-G.R. CR H.C. No. 00336 be AFFIRMED with MODIFICATION only as to the award of damages. MARTIN S. VILLARAMA, JR. Associate Justice

Footnotes
1

Penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Regalado E. Maambong and Lucenito N. Tagle (dissented in the resolution of appellants motion for reconsideration).
2

Rollo (G.R. No. 176389), p. 13. Effective October 15, 2004. Rollo (G.R. No. 176389), pp. 393-399 and rollo (G.R. No. 176864), pp. 80-104. Rollo ( G.R. No. 176864), pp. 263-499, 525-550. Records, Vol. 1, pp. 1-3.

TSN, October 19, 1995, pp. 3-6 (Records, Vol. 5, pp. 37-40); TSN, October 23, 1995, pp. 10-24 (Records, Vol. 5, pp. 258-272).
8

TSN, October 23, 1995, pp. 6-10 (Records, Vol. 5, pp. 254-258). TSN, October 10, 1995, pp. 79-81 and 93-99 (Records, Vol. 4, pp. 253-255, 267-273).

10

TSN, October 18, 1995, pp. 18-19, 27-40, 54 and 62-63 (Records, Vol. 4, pp. 943-944, 953-966, 980 and 988-989); TSN, October 30, 1995, pp. 27-29 (Records, Vols. 5 & 6, pp. 900-902); TSN, November 8, 1995, pp. 91, 114, 117-118 (Records, Vol. 6, pp. 395, 418 and 421-422); TSN, October 16, 1995, pp. 142-143 (Records, Vol. 4, pp. 694-695); Exhibit "A", Records, Vol. 8, p. 508.
11

TSN, October 10, 1995, pp. 99-103 (Records, Vol. 4, pp. 273-278). Pictures of the Vizconde house at Records, Vol. 1, pp. 82-87. TSN, February 26, 1996, pp. 77-82. TSN, October 10, 1995, pp. 104-121 and 155 (Records, Vol. 4, pp. 278-295 and 329). TSN, March 4, 1996, p. 28. TSN, October 10, 1995, pp. 156-164 (Records, Vol. 4, pp. 330-338).

12

13

14

15

16

17

Id., at p. 165 (339); TSN, October 16, 1995, pp. 33-35 (Records, Vol. 4, pp. 586-588); TSN, October 24, 1995, pp. 98-100 (Records, Vols. 5, 6 & 7, pp. 528-530); TSN, February 29, 1996, pp. 42-64.
18

TSN, October 10, 1995, pp. 36-53 (Records, Vol. 4, pp. 589-607).

19

Id., at pp. 40-72, 75-76 (Id., at pp. 593-625, 628 to 628-A); TSN, January 25, 1996, pp. 1415; TSN, February 26, 1996, pp. 104-106.
20

TSN, October 10, 1995, pp. 76-97 (Records, Vol. 4, pp. 628-A to 649); May 22, 1995 Affidavit, Records, Vol. l, p. 96.
21

Id., at pp. 97-104 (Id. at pp. 649-656); TSN, February 19, 1996, pp. 6-39; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.
22

Id., at pp. 111-112, 121-142 (Id. at pp. 663-664, 673-694); TSN, February 27, 1996, pp. 38, 50-51; TSN, February 8, 1996, pp. 50, 55, 60-81; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.
23

Exhibits "G" to "G-2", "Q" to "R", "V", "W" and "X", Records, Vol. 8, pp. 308-310, 323-324, 328-330.
24

Exhibits "H" to "K", Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp. 64, 67-91; TSN, January 31, 1996, pp. 7-8.

25

Exhibit "Y" to "BB", Records, Vol. 8, pp. 456-459; TSN, January 31, 1996, pp. 59-75. Exhibits "M" to "U", Records, Vol. 8, pp. 319-322; TSN, January 31, 1996, pp. 8-10, 13-20. TSN, January 31, 1996, pp. 7, 17-18 and 74. TSN, March 25, 1996, pp. 8-14, 17-34. Id., at pp. 21-22, 34-55; TSN, May 2, 1996, pp. 63-64. TSN, March 25, 1996, pp. 57-69. Id., at pp. 70-79. Id., at pp. 79-109.

26

27

28

29

30

31

32

33

TSN, March 14, 1996, pp. 12, 15-25, 41-45, 48, 51-54, 63-64; TSN, March 18, 1996, pp. 88-97.
34

TSN, March 14, 1996, pp. 79-89, 103-104. Id., at pp. 104-106; TSN, March 18, 1996, pp. 20-22. Employment Contract of Gaviola, Exhibit "C", Records, Vol. 8, p. 304. TSN, December 5, 1995, pp. 21-65. TSN, December 6, 1995, p. 19; TSN, December 13, 1995, pp. 88-89. TSN, April 16, 1996, pp. 18-38, 79. Id., at pp. 38-56. Id., at pp. 55-66; TSN, April 23, 1996, pp. 12-13. TSN, April 16, 1996, pp. 66-86. Id., at pp. 96-104. TSN, February 11, 1997, pp. 14-19, 24-28, 31.

35

36

37

38

39

40

41

42

43

44

45

Id., at pp. 48-49, 53-72, 82-102; Exhibits "SSSS" and "TTTT", Records, Vol. 12, pp. 790795.
46

Id., at pp. 80-82, 103-105. See page 4 of CA Decision, rollo (G.R. No. 176389), p. 121. TSN, August 14, 1997, pp. 11-19.

47

48

49

TSN, July 8, 1997, pp. 15-23, 61-62; TSN, June 9, 1997, pp. 9-10, 20-26; TSN, July 3, 1997, pp. 9-19; TSN, June 19, 1997, pp. 9-12, 29-36, 53-54; TSN, July 1, 1997, pp. 25-27.
50

Id., at pp. 28-73.

51

TSN, September 1, 1997, pp. 5-79; Exhibits "223" to "295", Records, Vol. 21, pp. 11-25, 26, 31, 203, 207; Exhibits "79", "319", "331", "234", "295", "346", "305", "306", "307" and "244" to "246".
52

Id., at pp. 81-86. Id., at pp. 90-91. TSN, April 30, 1997, pp. 73-74. TSN, April 23, 1997, pp. 128-129, 134-148. TSN, June 2, 1997, pp. 51-64, 75-78. TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84. TSN, July 16, 1997, pp. 37-42, 46-51, 58-62. Id., at pp. 65-70. TSN, June 26, 1997, pp. 13-28. TSN, May 9, 1996, pp. 26-32, 37, 44-57. TSN, July 29, 1997, pp. 54-58. TSN, July 7, 1997, pp. 19-35. TSN, July 2, 1997, pp 33-37. TSN, June 3, 1997, pp. 14-33. TSN, August 12, 1997, pp. 9-12, 28-30. Exhibit "331". Exhibit "337-B". Exhibit "349", Records, Vol. 21, p. 116 (Vol. 3), 29-32 (Vol. 4). Exhibit "348". Exhibit "319-A". Exhibits "323", "325", "326".

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

Exhibit "344". Exhibit "346". Exhibit "309", "309-A" and submarkings. Exhibit "347" and submarkings. Exhibit "338". Exhibits "341" and "342", Records, Vol. 21, pp. 6-9, 40, 63-65, 112, 140, 141-145 (Vol. 3). Exhibits "369" and "364", Records, Vol. 21, pp. 24, 104-142 (Vol. 4). Exhibits "207" to"219". Exhibit "207-B". Exhibit "212-D", Records, Vol. 21, p. 265 (Vol. 1). Exhibit "260". Exhibit "261". Exhibit "262".

74

75

76

77

78

79

80

81

82

83

84

85

86

Exhibit "192", Records, Vol. 21, pp. 253-279 (Vol. 1), 1-7, 157, 158, 169 (Vol. 2), 194 (Vol. 1).
87

Exhibit "215" "215-B" "215-C", Records, Vol. 21, pp. 254-256, 272-274 (Vol. 1). Exhibit "216"; TSN, April 15-17, 1997. TSN, October 9, 1997, pp. 39-64. TSN, February 4, 1998, pp. 6-7, 17-30. TSN, February 9, 1998, pp. 18-19, 21-62. TSN, January 21, 1998, pp. 14, 39-56. TSN, February 16, 1998 and February 19, 1998. TSN, January 22, 1998, pp. 18-21, 40-44. TSN, January 26, 1998, pp. 91-92, 104-121. TSN, February 3, 1998, pp. 10-11, 29-42.

88

89

90

91

92

93

94

95

96

97

TSN, January 14, 1998, pp. 6-7, 9-26, 38-41, 43-47.

98

TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits "274" and "275".
99

TSN, November 12, 1997, pp. 7-8, 17-19, 38-43, 55-72. TSN, November 17, 1997, pp. 43-73. Id., at pp. 78-125. TSN, November 12, 1997, pp. 37-39, 51-52, 91-94. TSN, November 18, 1997, pp. 37-44.

100

101

102

103

104

Records, Vol. 25, pp. 1-171. Penned by Judge Amelita G. Tolentino (now an Associate Justice of the Court of Appeals).
105

Records, Vol. 25, pp. 170-171. CA rollo, Vol. IV, pp. 3478-3479.

106

107

Justices Renato C. Dacudao and Lucenito N. Tagle dissented. See Dissenting Opinion, CA rollo Vol. IV.
108

Rollo (G.R. No. 176864), pp. 266-267. Id., at pp. 356-358. Id., at pp. 402-404. People v. Comanda, G.R. No. 175880, July 6, 2007, 526 SCRA 689. People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828. People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207. See photographs, Exhibits "GGGG-1" and "GGGG-4", Records, Vol. 12, pp. 742-746.

109

110

111

112

113

114

115

People v. Comiling, G.R. No. 140405, March 4, 1004, 424 SCRA 698, 719, citing Francisco, Evidence, Vol. VII, 1990 ed., p. 743.
116

People v. Simon, G.R. No. 130531, May 27, 2004, 429 SCRA 330, 352, citing People v. Rostata, G.R. No. 91482, February 9, 1993, 218 SCRA 657.
117

People v. Zinampan, G.R. No. 126781, September 13, 2000, 340 SCRA 189, 200. Fukuzume v. People, G.R. No. 143647, November 11, 2005, 474 SCRA 570. G.R. No. 121039-45, January 25, 1999, 302 SCRA 21.

118

119

120

Id., at p. 50.

121

TSN, October 17, 1995, pp.12-15, 23, 40-41, 139, 152, 161; TSN, October 18, 1995, p. 180; TSN, July 2, 1996 , pp. 74, 82-86; TSN, July 11, 1996, pp. 43-52.
122

People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478, 495, citing People v. Quima, No. L-74669, 14 April 1988, 159 SCRA 613 citing People v. Alto, 135 Phil. 136 (1968).
123

People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 597.

124

People v. Meneses, G.R. No. 11742, March 26, 1998, 288 SCRA 95, 97, citing People v. Teehankee, Jr., 319 Phil. 128, 179 (1995).
125

People v. Magallanes, G.R. No. 136299, August 29, 2003, 410 SCRA 183, 197. People v. Rodrigo, supra at p. 596.

126

127

People v. Mosquerra, G.R. No. 129209, August 9, 2001, 362 SCRA 441, 450, citing People v. Batidor,G.R. No. 126027, February 18, 1999, 303 SCRA 335, 350; People v. Realin, G.R. No. 126051, January 21, 1999, 301 SCRA 495, 512; People v. Tulop, G.R. No. 124829, November 21, 1998, 289 SCRA 316, 333.
128

Id., at p. 450, citing People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46; People v. Reduca, G.R. Nos. 126094-95, January 21, 1999, 301 SCRA 516, 534; and People v. De Labajan, G.R. Nos. 129968-69, October 27, 1999, 317 SCRA 566, 575.
129

Id., at p. 451, citing People v. Hillado, G.R. No. 122838, May 24, 1999, 307 SCRA 535, 553 and People v. Balmoria, G.R. Nos. 120620-21, March 20, 1998, 287 SCRA 687, 708.
130

People v. Florentino Bracamonte, G.R. No. 95939, June 17, 1996, as cited in People v.

Aonuevo, G.R. No. 112989, September 18, 1996, 262 SCRA 22, 36.
131

G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530. En Banc Resolution, July 21, 2005, 463 SCRA 654, 662-664. Records, Vol. 25, pp. 122-124. CA rollo, Vol. IV, pp. 3455-3463.

132

133

134

135

Bastian v. Court of Appeals, G.R. No. 160811, April 14, 2008, citing People v. Benito, G.R. No. 128072, February 19, 1999, 303 SCRA 468; People v. Canada, No. L63728, September 15, 1986, 144 SCRA 121;People v. Luces, G.R. No. L-60744, November 25, 1983, 125 SCRA 813; People v. Demeterio, No. L-48255, September 10, 1983, 124 SCRA 914; People v. Romero, No. L-38786, December 15, 1982, 119 SCRA 234; and People v. Zabala, 86 Phil. 251 (1950).
136

Rollo (G.R. No. 176864), pp. 288-299. TSN, August 12, 1997, pp. 9-12, 28-30.

137

138

Vide: People v. Tagun, G.R. No. 137745, February 15, 2002, 377 SCRA 154, 169.

139

People v. Malones, G.R. No. 124388-90, March 11, 2004, 425 SCRA 318, 339-340, citing People v. Aliposa, G.R. No. 97935, October 23, 1996, 263 SCRA 471.
140

Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 605.

141

Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007, 531 SCRA 1, 31, citing People v. Balacano,G.R. No, 127156, July 31, 2000, 336 SCRA 615, 621.
142

Sourced from Internet -- http://www.pinoymoneytalk.com/forum/index.php?topic=5848.0; See also "Passport-reading Machine Uncovers Fake Documents" by Tina Santos, Philippine Daily Inquirer, first posted 03:29:00 06/15/2008 at website -http://newsinfo.inquirer.net/breakingnews/nation/view/20080615-142790/Passport-readingmachine-uncovers-fake-documents; "DFA-RP Passport Exposes Filipinos to Discrimination" by Venorica Uy, inquirer.net, Last Updated 07-05pm (Mla time) 03/13/2007 sourced fromhttp://www.pinoymoneytalk.com/forum/index.php?topic=5848.0
143

Exhibits "YY", "DDD" and "213-1-D", Records, Vol. 9, pp. 1142, 1147 and Records, Vol. 26, p. 270.
144

Exhibits "XX" and "LLL", Records, Vol. 9, pp. 1141 and 1157. Exhibits "30", "33" and "34", Records, Vol. 9, pp. 708, 711-713. Cited by reference in Exhibit III, Records, Vol. 9, p. 1154. You were informed by the San Francisco District Office of the Immigration and Naturalization Service that no records responsive to you request could be located in its file. It has been determined that this response is correct. For your information, the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants. A notation concerning the entry of a visitor may be made in the Nonimmigrant Information System (NIIS), but many visitors are not entered into this system. The NIIS was searched, and no records pertaining to Mr. Webb are found. I am informed by the San Francisco District Office that this matter is still pending in that office and that a formal response to your request will be issued shortly. It is possible that either the State Department or the United States Customs Service might have information concerning Mr. Webbs entry into the country. I suggest you write to those agencies to request the information you seek.

145

146

147

Vide: Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 604. Exhibit "42-M", Records, Vol. 9, p. 440. Records, Vols. 24 & 25, pp. 98-109. CA rollo, Vol. IV, pp. 2684-2687. Records, Vol. 25, pp. 143-153.

148

149

150

151

152

CA rollo, Vol. IV, pp. 3564-3566. Id., at p. 3564.

153

154

People v. Ortiz, G.R. No. 133814, July 17, 2001, 361 SCRA 274, citing People v. Sumaoy, G.R. No. 105961, October 22, 1996, 263 SCRA 460 and People v. Padao, G.R. No. 104400, January 28, 1997, 267 SCRA 64.
155

TSN, October 10, 1995, pp. 97-98 Id., at pp. 129-131. CA rollo, Vol. IV, pp. 3542-3550. TSN, October 10, 1995, p. 81. Id., at p. 88. Id., at p. 97. TSN, October 16, 1995, pp. 117-119. TSN, October 17, 1995, pp. 72-79, 95. People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324, 335.

156

157

158

159

160

161

162

163

164

Article 8, The Revised Penal Code, as amended; People v. Amodia, G.R. No. 173791, April 7, 2009, 584 SCRA 518, citing People v. Pelopero, G.R. No. 126119, October 15, 2003, 413 SCRA 397, 410.
165

People v. Lagarto, G.R. Nos. 118828 & 119371, February 29, 2000, 326 SCRA 693, 748, citing People v. Layno, G.R. No. 110833, November 21, 1996, 264 SCRA 558; People v. Sumalpong, G.R. No. 124705, January 20, 1998, 284 SCRA 229; People v. Obello, G.R. No. 108772, January 14, 1998, 284 SCRA 79;People v. Pulusan, G.R. No. 10037, May 21, 1998, 290 SCRA 353; People v. Medina, G.R. No. 127157, July 10, 1998, 292 SCRA 436; and People v. Chua, G.R. No. 121792, October 7, 1998, 297 SCRA 229.
166

People v. Sicad, G.R. No. 133833, October 15, 2002, 391 SCRA 19, 34, citing People v. Diaz, G.R. No. 110829, April 18, 1997, 271 SCRA 504, 515 and People v. Abordo, G.R. No. 107245, December 17, 1999,321 SCRA 23, 39 .
167

CA rollo, Vol. IV, p. 3081.

168

People v. Antonio, G.R. No. 128900, July 14, 2000, 335 SCRA 646, 677, citing People v. Malvenda, G.R. No. 115351, March 27, 1998, 288 SCRA 225.
169

People v. Magana, G.R. No. 105673, July 26, 1996, 259 SCRA 381, 402. A.M. No. 06-11-5-SC.

170

171

Id., Sec. 4. Rollo (G.R. No. 176389), pp. 531-542. Id., at pp. 543-554. Id., at pp. 560-563. Id., at pp. 580-585. 373 U.S. 83 (1963). Rollo (G.R. No. 176389), pp. 586-592.

172

173

174

175

176

177

178

See City Prosecution Office of General Santos City v. Bersales, A.M. No. MTJ-04-1552, June 9, 2004, 431 SCRA 430, 436.
179

Id., pp. 149 Misc. 2d 844, 570 N.Y.S. 2d 765 (Sup. Ct. Westchester Co. 1990). 467 U.S. 479 (1984). 373 U.S. 83 (1963). Id. Supra note 180. Supra note 181, Matter of Dabbs v. Vergari, supra. G.R. No. 150224, May 19, 2004, 428 SCRA 504. Id., at pp. 514-517.

180

181

182

183

184

185

186

187

188

A Litigators Guide to DNA From the Laboratory to the Courtroom by Ron C. Michaelis, Robert G. Flanders, Jr. and Paula H. Wulff, 2008 published by Elsevier Inc., p. 370.
189 190

488 U.S. 51 (1988), 102 L Ed 281, 109 S Ct 333.

191

People v. Bato, G.R. No. 134939, February 16, 2000, 325 SCRA 671, 678, citing People v. Juntilla, G.R. No. 130604, September 16, 1999, 314 SCRA 568, 583; People v. Sacapao, G.R. No. 130525, September 3, 1999, 313 SCRA 650, 659; and People v. Manuel, G.R. No. 121539, October 21, 1998, 298 SCRA 184.
192

People v. Pascual, G.R. No. 172326, January 19, 2009, 576 SCRA 242, 260, citing People v. Sevilleno,G.R. No. 152954, March 10, 2004, 425 SCRA 247, 257.

193

Nueva Espaa v. People, G.R. No. 163351, June 21, 2005, 460 SCRA 547, 555-556, citing People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.
194

G.R. No. 166723, August 2, 2007, 529 SCRA 109, 118. People v. Arellano, G.R. No. 176640, August 22, 2008, 563 SCRA 181, 189. Id. People v. Pascual, supra at 260-261. Nueva Espaa v. People, supra at 558.

195

196

197

198

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION SERENO, J.: The duty of the prosecution is not merely to secure a conviction, but to secure a just conviction. This highly publicized case became the center of the nations attention owing to the public outrage over the atrocious nature of the crime committed in what was then thought to be a relatively secure neighborhood. Worse, it brought inconsolable grief to a husband and father who lost his entire family to senseless violence while he was working overseas. Events soon after the occurrence of the crime on 30 June 1991 would only help fuel civic indignation. Just two days thereafter, or on 2 July 1991, La Salle Engineering student Eldon Maguan was gunned down in cold blood by businessman Rolito Go over a parking skirmish in San Juan.1 After the lapse of only 11 days, young Maureen Hultman and Roland John Chapman were fatally shot by Claudio Teehankee, Jr. in Dasmarinas Village after a minor scuffle.2 The vehement outcry to find and punish those responsible for the Vizconde horror initially led, four months after, to the arrest and eventual filing by the prosecution of Information for two counts of robbery with homicide and one count of robbery with rape against six named and an undetermined number of unnamed persons touted as members of the Akyat Bahay gang. In view of the illegal arrests of the accused and noncompliance with the requirements for conducting custodial investigation, including evidence of torture in extracting confessions from the accused, the trial court in its 1993 Decision3 pronounced the accused not guilty of the charges. During the same year (1993), another set of suspects (apparently former contractors/workers of the Vizcondes) was identified, only to be released later on due to insufficiency of evidence.4 Almost four years after the crime was committed, self-confessed drug user Jessica Alfaro (Alfaro) named young men from wealthy and powerful families as perpetrators of the crime, which she claimed to have witnessed, thereby tantalizing a sympathetic public with ideal visions of justice of morally depraved offenders finally caught and no longer able to wreck random havoc on the lives of law-abiding citizens; of privileged perpetrators subjected to the rule of law no matter how high and mighty; of bereaved families brought a measure of comfort for the vindication of wasted young lives.

However, there was little objective forensic evidence obtained from the crime scene due to deplorable missteps taken by the investigating police officers. Consequently, Senior Police Officer 1 Gerardo Biong and some John Does were charged as accessories to the crime for "conceal[ing] and destroy[ing] the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime."5 A review of the proceedings during preliminary investigation and trial showed that the prosecution did not fare much better, for it committed acts of prosecutorial misconduct that effectively deprived the accused of their constitutionally guaranteed right to due process. At the outset, it cannot be overemphasized that the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."6 In the words of Richard Refshauge: "The adversarial system is rooted in the notion of a contest with winners and losers, yet the prosecutor is ethically forbidden from embracing that notion. The question then, is not what will make the prospect of a conviction more certain, but what is fair and what will contribute to justice."7 Thus, a criminal trial is not about personal redress for the victims, but about determining the guilt and the just punishment of the accused.8 What is in truth referred to when expanding on the concept of "fair trial" is that the rights of the accused are protected, to the extent necessary to ensure fairness for him. Rights of the victim are not ignored, but they are respected only to the extent that they are consistent with the fairness of the trial for the accused.9 In Allado V. Diokno,10 we also elucidated this delicate balancing of interests in the following manner: The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners. The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the

strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community. Indeed, at the core of our criminal justice system is the presumption of innocence of the accused until proven guilty. Lip service to this ideal is not enough, as our people are well acquainted with the painful reality that the rights of the accused to a fair trial were violated with impunity by an unchecked authority in our not so distant history. In response, the rights of the accused were enshrined in no less than the 1987 Constitution, particularly Article III thereof. They are further bolstered by the Rules of Court, related legislation, general rules on evidence, and rules on ethical conduct. The said rights of the accused come with the corresponding duties, nay, guarantees on the part of the State, the prosecution in particular. The prosecutions disregard of these standards amounts to prosecutorial misconduct. Some examples of prosecutorial misconduct would be the intimidation of defense witnesses, the obstruction of defense lawyers access to prosecution witnesses, the coercion of confession from the accused, the issuance of prejudicial comments about the accused, the mishandling and/or withholding of evidence, and the failure to preserve evidence.11 Issuance of Prejudicial Comments About the Accused Section 14(2), Article III of the 1987 Constitution emphatically mandates: Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied.) The presumption of innocence of the accused is at the center of our criminal justice system the cornerstone, as it were, of all the other rights accorded to the accused, including the right to due process of law. In pronouncing the presumption of innocence of the accused and their right to due process, the Constitution declares that the risk of letting the guilty walk free would be error on the side of justice. This outcome is infinitely better than imprisoning an innocent person. Because the accused must be presumed innocent, and because they are entitled to due process of law, it is the duty of the prosecution not to issue prejudicial statements about them while the trial is

being conducted. This standard applies with even more force to the trial judge who must at all times not only be impartial, but also appear to be so.12 Allegations of issuance of prejudicial comments about the accused in this case pertained to the acts of the trial judge, and not the prosecution. When allegations of instances of the trial judges bias were first brought to this Court, it was understandable that the Court would accord the judge the presumption of regularity in the performance of her duties. Her subsequent acts, however, as well as her Decision taken together showed a pattern now recognizable in retrospect as bias against the accused, amounting to denial of due process. In Webb, et al. v. People,13 the accused assailed the Court of Appeals for denying their Petition for the inhibition from the case of Judge Amelita Tolentino, the presiding judge of Branch 274 of the Regional Trial Court of Paranaque. Webbs first Motion for the disqualification of Judge Tolentino, filed prior to their arraignment, was anchored on the ground that the said judge had allegedly told the media that "failure of the accused to surrender following the issuance of the warrant of arrest is an indication of guilt." This motion was denied by Judge Tolentino. Two days later, Webb filed a second motion to disqualify her. Allegedly, she had further told the media that the accused "should not expect the comforts of home," pending the resolution of his Motion to be committed to the custody of the Philippine National Police at Camp Ricardo Papa, Bicutan, Paranaque. The judge again denied the Motion. Gerardo Biong also filed a motion to disqualify her on the ground of bias and partiality, but this Motion was also denied. Thereafter, at the hearing for the accuseds Petitions for bail during which the prosecution presented Jessica Alfaro, Judge Tolentino issued an Order. The judge ruled that Alfaro could not be crossexamined on the contents of the latters April 28 Affidavit. The affidavit was held to be inadmissible in evidence, as it was allegedly not executed in the presence of a counsel. Alfaro was asked about her brother Patrick Alfaro and her uncle Robert Alfaro. She admitted that her brother was a drug addict and had been arrested by the National Bureau of Investigation (NBI) for illegal drug possession. She further claimed that her brother was now in the United States. The prosecution objected to further questions regarding the arrest and departure of Alfaros brother on the ground that it was irrelevant, immaterial and impertinent for cross-examination. Despite the defense counsels explanation that the questions were for the purpose of establishing Alfaros bias and motive for testifying against the accused, the trial court sustained the objection. Similar objections on the ground of irrelevance, immateriality and impertinence were sustained by the trial court when the defense counsel cross-examined Alfaro on her educational attainment. Prior to the cross-examination, Alfaro was shown her transcript of records indicating her completion of only one academic year, thus earning nine units of college. Accused then filed a Motion to disqualify Judge Tolentino or inhibit herself from the case due to bias and prejudice, but she denied the Motion. The accused thus assailed before this Court [1] the Order of judge Tolentino denying Webbs motion for hospitalization; and [2] the Order of Judge Tolentino disallowing the defense to cross-examine Alfaro on the contents of her April 28 affidavit. Accused later filed with this Court a Supplemental Petition to set aside Judge Tolentinos Order denying their Motion for inhibition. This Court resolved to refer the petitions to the Court of Appeals for proper disposition.

In the meantime, the hearing on the accuseds Petitions for bail continued, with petitioner Webb filing a motion for deposition of witnesses residing in the United States, who would testify on his presence in that country on the date of the commission of the crime. This Petition was denied by Judge Tolentino on the ground that petitioner failed to allege that the witnesses did not have the means to go to the place of the trial. Petitioner Webb filed another Supplemental Petition to the Court of Appeals challenging the said Order. The defense made their Formal Offer of Evidence upon conclusion of the hearings on the Petitions for bail. The prosecution filed its Comment/Objection to the Formal Offer of Evidence. Judge Tolentino ruled on the accuseds formal offer of evidence, admitting only ten [10] out of the one hundred forty-two [142] exhibits offered by the defense. Subsequently, the judge denied the accuseds Petitions for bail. The Court of Appeals rendered its Decision on the various Petitions and Supplemental Petitions, reversing Judge Tolentinos refusal to admit Alfaros April 28 Affidavit. The appellate court, however, denied all the other reliefs prayed for. The accused thus elevated the matter to this Court. They subsequently filed a Supplemental Petition, alleging, among others, that during the trial on the merits, Judge Tolentino had allowed prosecution witness Atty. Pedro Rivera to testify on the character of the accused, although the defense had not put his character in issue; that the judge disallowed the defense to impeach the credibility of Atty. Rivera by the presentation of an earlier statement executed by him, on the ground that his statement was immaterial; and that, after ruling that the proffer of oral evidence made by defense counsel Atty. Vitaliano Aguirre was improper on cross-examination, Judge Tolentino struck the proffer from the record. We affirmed the Court of Appeals disposition, explaining as follows: A critical component of due process is a hearing before an impartial and disinterested tribunal [and] every litigant is entitled to nothing less than the cold neutrality of an impartial judge for all the other elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.[However, t]his right must be weighed with the duty of a judge to decide cases without fear of repression. Hence, to disqualify a judge on the ground of bias and prejudice the movant must prove the same by clear and convincing evidence. As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on grounds of bias and prejudice. Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judges integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge. The only exception to the rule is when the error is so gross and patent as to produce an ineluctable inference of bad faith or malice. A perusal of the records will reveal that petitioners failed to adduce any extrinsic evidence to prove that respondent judge was motivated by malice or bad faith in issuing the assailed rulings. Petitioners simply lean on the alleged series of adverse rulings of the respondent judge which they characterized as palpable errors. This is not enough. We note that respondent judges rulings resolving the various motions filed by petitioners were all made after considering the arguments raised by all the parties. It is true that the respondent judge erred in some of her rulings such as her rejection of petitioners one hundred thirty two pieces of evidence. It appears, however, that respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that "the defects in [their] admissibility have been cured through the introduction of

additional evidence during the trial on the merits." This correction diminishes the strength of petitioners charge that respondent judge is hopelessly biased against them. There is still another reason why we should observe caution in disqualifying respondent judge. The trial of the petitioners is about to end and to assign a new judge to determine the guilt or innocence of petitioners will not be for the best interest of justice. The records of the case at bar run into volumes. These voluminous records cannot capture in print the complete credibility of witnesses when they testified in court. As the respondent judge observed the demeanor of witnesses while in the witness chair, she is in the best position to calibrate their credibility. The task of evaluating the credibility of witnesses includes interpreting their body language and their meaningful nuances are not expressed in the transcripts of their testimonies. We hasten to stress that a party aggrieved by erroneous interlocutory rulings in the course of a trial is not without remedy. The range of remedy is provided in our Rules of Court and we need not make an elongated discourse on the subject. But certainly, the remedy for erroneous rulings, absent any extrinsic evidence of malice or bad faith, is not the outright disqualification of the judge. For there is yet to come a judge with the omniscience to issue rulings that are always infallible. The courts will close shop if we disqualify judges who err for we all err. Mishandling and/or Withholding of Evidence The rights of the accused to have compulsory process to secure the production of evidence on their behalf is a right enshrined in no less than our Constitution, particularly Article III, Section 14 thereof, to wit: Section 14: (1)No person shall be held to answer for a criminal offense without due process of law. (2)In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, andshall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, andto have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. Xxx (Underscoring supplied.) This right is echoed and further fleshed out in the Rules of Criminal Procedure. Rule 115, Section 1 thereof, provides: SECTION 1. Rights of accused at the trial.In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his tail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to

have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law. (Underscoring supplied.) Section 10, Rule 116 of the Rules of Criminal Procedure, in fact further mandates: SEC. 10. Production or inspection of material evidence in possession of prosecution.Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing ofany written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in possession or under the control of the prosecution, police, or other law investigating agencies. (Underscoring supplied.) Thus, the accuseds right of access to evidence requires the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. Applying this standard to the present case, it is notable that during preliminary investigation, the NBI presented to the Department of Justice (DOJ) Panel, among others, the Sworn Statement of their principal witness, Alfaro, dated 22 May 1995. Before submitting his Counter-Affidavit, Webb filed with the DOJ Panel a Motion for Production and Examination of Evidence and Documents for the NBI to produce, among others, any other written statements of Alfaro. The DOJ Panel granted the Motion, and the NBI submitted a mere photocopy of an earlier Sworn Statement of Alfaro dated 28 April 1995. The Statement did not appear to be signed by Alfaros counsel of choice, named as Atty. Arturo Mercader, Jr.. in the same document. In this earlier Sworn Statement, Alfaro declared that she had never met Carmela before that fateful night; that she did not know why the accused wanted to enter the Vizconde house, except that they were after Carmela; that the accused entered the premises by jumping over the fence; that she did not know how the

accused were able to enter the house, as she was about ten (10) meters away from the kitchen door; that she did not know who opened that door for the accused, but hinted that one of the maids must have done it since Estrellita and Carmela were tied; and that she had no idea what transpired in the house until they left the area. This Statement contradicted salient points in Alfaros 22 May 1995 Sworn Statement, which was the basis of the NBIs complaint. In her 22 May 1995 Sworn Statement, Alfaro claimed to have known Carmela since February 1991; that the group decided to rape Carmela when Alfaro informed Webb that Carmela had dropped off a man who appeared to be her boyfriend; that Carmela left open the gate through which they entered the premises freely; that Alfaro led the group in entering the kitchen door; that she witnessed the rape of Carmela by Webb and also saw the bodies of Estrellita and Jennifer piled up on the bed. The NBI explained that they produced a mere photocopy of the 28 April 1995 Sworn Statement, because the original was lost. When the DOJ Panel refused to issue a subpoena duces tecum to Atty. Mercader, the accused filed a case with the Regional Trial Court of Makati, Branch 63, to obtain the original of the first Sworn Statement. Atty. Mercader then appeared and produced before the trial court the original Sworn Statement of Alfaro dated 28 April 1995, which also contained his signature. Webb retained a certified true copy of the first Sworn Statement (certified by Assistant State Prosecutor Jovencito Zuno), while the duplicate original copy thereof was submitted to the DOJ Panel. The DOJ Panel still found probable cause to charge the accused and on 10 August 1995, an Information for Rape with Homicide was filed with the Regional Trial Court of Paranaque against Webb, et al. It was raffled to Branch 274, presided by Judge Amelita Tolentino, who thereupon issued warrants for their arrest. Webb et al. came to this Court to assail the DOJ Panels finding and the trial courts issuance of warrants for their arrest. We upheld the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor: Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspects life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in Section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan which laid down the proposition that a prosecutors intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutors duty to disclose to the defense exculpatory evidence in its possession. The rationale is well put by Justice Brennan in Brady "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. (Citations omitted.) Nevertheless, we ruled that with the production of the first Sworn Statement, "(p)etitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion." It appeared, however, that the prosecution would continue to suppress Alfaros first Sworn Statement. When bail hearings commenced on 9 October 1995, the prosecution started with a presentation of the testimony of Alfaro. On 16 October 1995, Alfaro was allowed by the trial court to testify on the circumstances surrounding the execution of the two Sworn Statements, notwithstanding that said statements were not presented for proper identification and marking. On cross-examination, Alfaro admitted that in the first Sworn Statement were answers that were not hers, but were only supplied by the NBI agents then present during the statement-taking. For instance, she stated that the answer to question number 8 is not true, because she only finished second year and was not actually a college graduate. On the third day of Alfaros cross-examination, the prosecution objected to questions referring to the first Sworn Statement on the ground that it was made without the assistance of counsel. The trial court sustained the objection.14 The accuseds counsel orally sought reconsideration, but this was denied.15 When counsel moved for reconsideration, the trial court denied the motion "with finality."16 The accuseds counsel then showed the trial court their copy of the first Sworn Statement containing Atty. Mercaders signature and certified as a true copy by Asst. Prosecutor Zuno. In turn, Assitant Prosecutor Atty. Zuno, who had the duplicate original thereof, failed or refused to produce

the statement despite repeated requests from the accused Webb. (It was produced only on 24 October 1995.) Alfaros cross-examination continued, with no question pertaining to the first Sworn Statement allowed. On 8 November 1995, the trial court issued its Order dated 30 October 199517 in open court. The Court rejected the admissibility of the first Sworn Statement and barred its use for the purpose of impeaching Alfaros credibility or for refuting her subsequent statements. All previous questions and answers connected with the said Sworn Statement were also ordered expunged from the records. The trial court reasoned that the said Sworn Statement was an "illegally obtained evidence, and therefore, cannot be used either directly or indirectly against Alfaro." Citing Section 12, Article III of the Constitution, the trial court concluded that "Alfaro could not be cross-examined by the defense on the contents of the said affidavit in order to discredit her statement dated May 22, 1995 and her testimony in open court."18 This Order led accused Webb et al. to seek Judge Tolentinos inhibition and to incorporate the above instance as part of their proof of the trial judges bias. The Court of Appeals denied the Petition, and we affirmed the denial in the manner laid out in the preceding discussion. Failure to Preserve Evidence As discussed in the preceding section, the accuseds right to access to evidence necessitates in the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. When the prosecution is called upon not to suppress or alter evidence in its possession that may benefit the accused, it is also necessarily obliged to preserve the said evidence. To hold otherwise would be to render illusory the existence of such right. The advent of DNA technology prompted this Courts promulgation of the New Rules for DNA Evidence.19 As DNA evidence provides objective proof of identification and may be obtained from evidence left in the scene of the crime or in the victims person, it also gives new meaning to the above duty of the prosecution. The prosecution did not fare well when measured against this standard. Alfaro testified that the group had earlier agreed that Webb would be the first to rape Carmela. When Alfaro said she saw Webb pumping Carmela, while two bloodied bodies were on top of the bed, the former was so shocked that she "stepped back and turned around to go outside." On her way out, she met Ventura near the door. He said, "Prepare escape." Things had apparently gone awry, so they left the place. The NBI proclaimed that the semen samples they had collected from Carmela were preserved in slides and remained intact. Thus, in order for the prosecutions theory to be consistent, pursuant to the quantum required in criminal cases, the DNA evidence in the slides must positively match that from accused Webb. Based on the foregoing circumstances, the defense counsel accordingly filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during the course of the trial. Several exchanges of pleadings on the matter were filed before the trial court, and at no time was the timeliness of the filing of the Motion at issue. It could not have been, considering that the Motion was timely filed during the course of the trial. While the Motion was filed six years after the crime was committed, the trial of the accused herein did not start until more than four years after the commission of the crime. The trial court denied the Motion on 25 November 1997, holding that since more than six (6) years had lapsed since the commission of the crime, there was no assurance that the semen specimen remained uncontaminated. Also, the trial court held that Webb was not able to show that the proper

procedure for the extraction and preservation of the semen sample had been complied with. Finally, the trial court held that a DNA test would only lead to confusion of the issues. However, as correctly held by Justice Lucenito Tagle in his Dissenting Opinion, the trial judges objections to the DNA testing were based on mere conjectures that ran against the presumption of regularity in the performance of official duty. Meanwhile, the idea that a negative DNA test result would not have necessarily exculpated Webb, because previous sexual congress by Carmela with another man prior to the crime could not be discounted, would unrealistically raise the bar of evidence and for the wrong party, i.e., for the part of the defense, instead of for the prosecution. If a negative DNA test result could not be considered as providing certainty that Webb did not commit the crime, would it not have at least cast a reasonable doubt that he committed it? Moreover, the argument against the relevance of the semen sample that the presence of semen was not necessary to prove that rape was committed is not in point. What the defense was after when it sought DNA testing was neither to prove nor to disprove the commission of rape, but to pinpoint the identity of the assailant. In this case, semen with spermatozoa was in fact obtained, and it did possess exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals,20 we held that "courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Hence, it is the constitutional duty of the trial judge to afford all possible means to both the NBI and the counsel for accused, in order that such evidence may be scrutinized in open court. The Court held in People v. Yatar: 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. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, o saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding or furniture could also be transferred to the victims body during the assault. 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.21 Thus, when the present case reached this Court and a similar Motion was filed, we resolved to grant22 petitioners motion to allow DNA testing of the semen sample collected from the victim in order to compare it with Webbs DNA. Unfortunately, said semen sample appears to have been lost by the NBI, which had custody thereof. Does the prosecutions loss of this potentially exculpatory evidence result in a fundamentally unfair trial of the accused that entitles him to a judgment of acquittal? In resolving this question in the negative, the Dissent cites Youngblood v. Arizona,23 a United States Supreme Court Decision, which held that the prosecutions failure to keep intact a piece of potentially exculpatory evidence does not result in a due process violation, unless the accused is able to show that the prosecution acted in bad faith.

However, reliance on Youngblood is ill-advised. First, Youngblood was promulgated more than two decades ago, in 1988, when DNA testing was still in its infancy. Since then, the technology has grown by leaps and bounds.24 In the United States, there are now only eight (8) states that have not adopted statutes allowing post-conviction DNA testing25, with some requiring the correlative duty to preserve DNA evidence. So far, 261 convicts in the United States have been exonerated as a result of post-conviction DNA testing.26 Second, Youngblood was not a product of a unanimous Decision. The majority opinion in Youngblood was penned by Justice Rehnquist and concurred in by Justices White, OConnor, Scalia and Kennedy, with Justice Stevens concurring with the result and writing a Separate Opinion. Justice Blackmun wrote a strong Dissent, which was joined in by Justices Brennan and Marshall. A critique27 of the Youngblood decision points out that there are two competing due process interests therein. On the one hand is adjudicative fairness, which "seeks to ensure that the accused receives meaningful protection in court, in other words, reliable fact finding and a fair trial. [and which] manifests itself in an assessment of the materiality of evidence and prejudice to the accused [as] paramount in determining whether a due process violation has occurred." On the other hand is instrumentalism, which seeks "to impose restraints on the state. [by] punishing the state for police and prosecutorial misconduct. to deter future misconduct and to create a prophylactic effect. In measuring the misconduct, one examines the subjective intent of the officer and whether the officer acted in good faith or bad faith. Under this approach, the focus is on the state, not the individual. Moreover, the focus on the state and on deterring official misconduct invites an examination of the costs of providing additional process." The majority opinion in Youngblood focused on the state of mind of the police officer rather than on materiality and fairness to the accused. However, in his Separate Opinion wherein he registered his reservation to the bad faith standard being laid out by the majority, Justice Stevens recognized that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." While the earlier case Brady v. Maryland28 held that due process violation could be committed even without bad faith,29 the majority distinguished Youngblood from Brady by holding that the evidence in Brady was clearly favorable to the accused, while that in Youngblood was only potentially exculpatory. Justice Blackmun opined, though, that it was impossible for the accused to prove that a particular piece of evidence was exculpatory when, precisely, it was no longer in existence. Justice Blackmun also disapproved of the bad-faith standard, because "(a)part from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between good faith and bad faith is anything but bright, and the majoritys formulation may well create more questions than it answers." Justice Blackmun proposed the following alternative to the bad-faith standard: Rather than allow a States ineptitude to saddle a defendant with an impossible burden, a court should focus on the type of evidence, the possibility it might prove exculpatory, and the existence of other evidence going to the same point of contention in determining whether the failure to preserve the evidence in question violated due process. To put it succinctly, where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they

reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime. Justice Blackmun then gave his opinion on how to balance the defendants rights and the duty imposed upon the law enforcement to preserve evidence: Due process must also take into account the burdens that the preservation of evidence places on the police. Law enforcement officers must be provided the option, as is implicit in Trombetta, of performing the proper tests on physical evidence and then discarding it. Once a suspect has been arrested, the police, after a reasonable time, may inform defense counsel of plans to discard the evidence. When the defense has been informed of the existence of the evidence, after a reasonable time, the burden of preservation may shift to the defense. There should also be flexibility to deal with evidence that is unusually dangerous or difficult to store. Third, it is not amiss to note that in the year 2000, the injustice of the Youngblood decision was brought into sharp relief when more sophisticated DNA technology was used on the degraded evidence. The technology yielded a DNA profile that (1) exonerated Larry Youngblood of the crime charged (child molestation, sexual assault and kidnapping) and (2) enabled the police to find the real offender. Excerpts from the website of The Innocence Project, an organization advocating the use of DNA evidence, are as follows: Larry Youngblood was convicted in 1985 of child molestation, sexual assault, and kidnapping. He was sentenced to ten years and six months in prison. In October 1983, a ten year old boy was abducted from a carnival in Pima County, Arizona, and molested and sodomized repeatedly for over an hour by a middle aged man. The victim was taken to a hospital, where the staff collected semen samples from his rectum as well as the clothing he was wearing at the time of the assault. Based on the boys description of the assailant as a man with one disfigured eye, Youngblood was charged with the crime. He maintained his innocence at trial, but the jury convicted him, based largely on the eyewitness identification of the victim. No serological tests were conducted before trial, as the police improperly stored the evidence and it had degraded. Expert witnesses at trial stated that, had the evidence been stored correctly, test results might have demonstrated conclusively Youngbloods innocence. Larry Youngblood appealed his conviction, claiming the destruction of potentially exculpatory evidence violated his due process rights, and the Arizona Court of Appeals set aside his conviction. He was released from prison, three years into his sentence, but in 1988, the Supreme Court reversed the lower courts ruling, and his conviction was reinstated (Arizona v. Youngblood, 488 U.S. 51). Youngblood remained free as the case made its way through the Arizona appellate court system a second time, but returned to prison in 1993, when the Arizona Supreme Court reinstated his conviction. In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorneys office dismissed the charges against Larry Youngblood that year. Shortly thereafter, the DNA profile from the evidence was entered into the national convicted offender databases. In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to twenty-four years in prison.30

In view of all the foregoing salient objections to Youngblood, it should not be adopted in this jurisdiction. While it is a laudable objective to inquire into the state of mind of the prosecution and punish it when it has committed prosecutorial misconduct, there are times when, undoubtedly, whether through malice or plain ineptitude, its act or omission results in plain injustice to the accused. In our various decisions relating to interlucotory orders and incidents pertaining to this case, this courts adherence to instrumentalism has led to our finding in each instance that there was no due process violation committed against petitioner, because bad faith was not shown by the prosecution or the trial judge. However, since "the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side,"31 the measure of whether the accused herein has been deprived of due process of law should not be limited to the state of mind of the prosecution, but should include fundamental principles of fair play. Hence, as we write finis to this case, it is time we evaluate the total picture that the prosecutions acts or omissions have wrought upon the accuseds rights with each seemingly innocuous stroke, whatever its intention may have been. The various violations of the accuseds rights have resulted in his failure to secure a just trial. As such, the judgment of conviction cannot stand. MARIA LOURDES P. A. SERENO Associate Justice

Footnotes
1

Go v. Court of Appeals, G.R. No. 101837, 11 February 1992, 206 SCRA 138. People v. Teehankee, Jr., G.R. Nos. 111206-08, 6 October 1995, 319 Phil.128 (1995).

Decision dated 13 September 1993 issued by the Regional Trial Court of Makati, Branch 63 in Criminal Case Nos. 91-7135 to 37.
4

Lejano v. People, G.R. Nos. 176389 and 176864, 20 April 2010. Information, Regional Trial Court rollo, vol. 1, p. 34.

Tan v. Gallardo, G.R. Nos. L-41213-14 October 5, 1976, 73 SCRA 306, citing Suarez v. Platon, et al., 69 Phil. 556 (1940).
7

The Prosecution Role in Upholding the Right to a Fair Trial and Responding to Victims/ Witnesses, The Prosecutor Papers, November 2005 at 10.
8

R v. Boucher, (1954) S.C.R. 16. Stuart, Don, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW, 2001.p.7.

10

G.R. No. 113630, 5 May 1994, 232 SCRA 192.

11

Cramm, Paul, D. The Perils of Prosecutorial Misconduct, http://www.247pressrelease.com/press-release/theperils-of-prosecutorial-misconduct102380.php accessed on 10 December 2010.
12

Montemayor v. Bermejo, Jr., A.M. No. MTJ-04-1535, 12 March 2004, 425 SCRA 403. G.R. No.127262, 24 July 1997, 276 SCRA 243, 342 Phil. 206. TSN, 19 October 1995, pp. 23-24. Id., pp. 25-33. Id., pp. 33-45. Order, Regional Trial Court rollo, vol. 1, pp. 852-860. Id. at pp. 7-8. A.M. No. 06-11-5-SC effective 15 October 2007. G.R. No. 125901, 8 March 2001, 406 Phil. 449. G.R. No. 150224, 19 May 2004, 428 SCRA 504. Resolution dated 20 April 2010. 488 U.S. 51 (1988).

13

14

15

16

17

18

19

20

21

22

23

24

In his Article, OLD BLOOD, BAD BLOOD, AND YOUNGBLOOD: DUE PROCESS, LOST EVIDENCE, AND THE LIMITS OF BAD FAITH, 86 Wash. U. L. Rev. 241, Norman C. Bay reported (pp. 282-283): Forensic DNA typing was not developed until 1985, when Dr. Alec Jeffreys, an English scientist, used the technique to exonerate one suspect in the sexual assault and murder of two young girls and to inculpate another. Three years later, in 1988, the same year Youngblood was decided, the FBI began testing DNA. That same year, for the first time, a state appellate court upheld the admission of DNA evidence in a criminal case. The crime at issue in Youngblood occurred well before the advent of DNA testing, and the Supreme Court decided the case when DNA testing was in its infancy, still embroiled in litigation over its reliability and admissibility. In the two decades since it was first used, forensic DNA typing has continued to progress. At this point, scientists have developed three generations of tests. The current, dominant generation of technology is the polymerase chain reaction (PCR). This approach analyzes DNA taken from the nucleus of a cell. PCR allows the DNA in a biological sample to be replicated; only a minute amount of DNA is needed and the sample from which it comes can be highly degraded. Only a few cells are required for reliable results. Usable DNA can be recovered from a myriad of items, including computer keyboards, hats, bandannas, eyeglasses, facial tissue, cotton

swabs, dirty laundry, toothpicks, chewing gum, cigarette butts, envelope seals, the mouths of bottles, the rims of glasses, or urine stains. PCR is usually followed by short tandem repeat (STR) testing, which compares thirteen specific regions, or loci, found on nuclear DNA. The odds that two unrelated individuals will share the same thirteen-loci DNA profile can be as high as one in a billion or more. Thus, PCR-STR analysis is both highly sensitive and discriminating. It is sensitive in that small amounts of biological material can be tested. It is discriminating in that the results of a thirteen-loci comparison generate unique DNA profiles that can establish guilt or innocence to a practical certainty in certain types of cases. Yet another powerful forensic DNA tool has emerged: mitochondrial DNA (mtDNA) testing. Unlike STR analysis, this technique examines the DNA contained in the mitochondria of a cell, not its nucleus. This is important because some biological material, including hair shafts, bones, and teeth, lack nuclei, but possess mitochondria. In some cases, especially those involving decomposed tissue, only teeth or bones may remain. Mitochondrial DNA testing allows for the study and comparison of DNA in such material. One drawback to mtDNA is that it is not as discriminating as STR. Mitochondrial DNA is passed maternally; consequently, siblings and maternal relatives have the same mtDNA, and the test cannot distinguish among them. Nonetheless, mtDNA provides a powerful supplement to STR and may allow for analysis when none is otherwise available. Among other things, mtDNA has identified one of the unknown soldiers in the Tomb of the Unknown Soldier in Arlington National Cemetery, the remains of Czar Nicholas II and his family, and the likely offspring of Thomas Jefferson and Sally Heming. Since 1985, the field of forensic DNA typing has continued to progress. Emerging Ychromosome analysis focuses on variations in male genetic material; it may prove to be helpful in sexual assault cases involving multiple male perpetrators. Hand-held or portable devices with "labs-on-a-chip" may be developed that allow for rapid DNA testing at a crime scene. Robotic systems are already being used to help process DNA samples. Similarly, computer software compares and interprets STR data. In short, forensic DNA typing will continue to become increasingly automated, faster, cheaper, and more accurate. This, in turn, ought to affect the due process calculus when the state loses or destroys potentially exculpatory evidence. The context in which such problems arise today is entirely different than when Youngblood was decided." (Citations omitted.)
25

98 J. Crim. L. & Criminology 329

26

The Innocence Project. <http://www.innocenceproject.org> accessed on 12 December 2010.

27

86 Wash. U. L. Rev. 241. 373 U.S. 83 (1963).

28

29

The Court in Brady held: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

The Innocence Project Know the Cases: Browse Profiles: Larry Youngblood, <http://www.innocenceproject.org/Content/Larry_Youngblood.php> accessed on 12/13/2010
30 31

Tan v. People, G.R. No. 173637, 21 April 2009, 586 SCRA 139.

The Lawphil Project - Arellano Law Foundation

SUPPLEMENTAL OPINION BRION, J.: In addition to my vote and independently of the merits of the present case, I write this opinion to point out the growing disregard and non-observance of the sub judice rule, to the detriment of the rights of the accused, the integrity of the courts, and, ultimately, the administration of justice. I seize this opportunity fully aware that the present case dubbed in the news media as the Vizconde Massacre is one of the most sensational criminal cases in Philippine history in terms of the mode of commission of the crime and the personalities involved. From the time the charges were filed, the case has captured the publics interest that an unusual amount of air time and print space have been devoted to it. Of late, with the publics renewed interest after the case was submitted for decision, key personalities have again been unabashedly publicizing their opinions and commenting even on the merits of the case before various forms of media. A Senior Justice of this Court, who was a witness in the case (while he was in private law practice) and who consequently inhibited himself from participation, was even publicly maligned in the print and broadcast media through unsupported speculations about his intervention in the case. That was how bad and how low comments about the case had been. In essence, the sub judice rule restricts comments and disclosures pertaining to pending judicial proceedings. The restriction applies not only to participants in the pending case, i.e., to members of the bar and bench, and to litigants and witnesses, but also to the public in general, which necessarily includes the media. Although the Rules of Court does not contain a specific provision imposing the sub judice rule, it supports the observance of the restriction by punishing its violation as indirect contempt under Section 3(d) of Rule 71: Section 3. Indirect contempt to be punished after charge and hearing. x x x a person guilty of any of the following acts may be punished for indirect contempt: xxxx (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice[.] Persons facing charges for indirect contempt for violation of the sub judice rule often invoke as defense their right to free speech and claim that the citation for contempt constitutes a form of impermissible subsequent punishment. We have long recognized in this jurisdiction that the freedom of speech under Section 4, Article III of the Constitution is not absolute. A very literal construction of the provision, as espoused by US Supreme Court Justice Hugo Black,1 may lead to the disregard of other equally compelling constitutional rights and principles. In Vicente v. Majaducon,2 this Court declared that "[the freedom

of speech] needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests such as the maintenance of the integrity of courts and orderly functioning of the administration of justice." Courts, both within and outside this jurisdiction, have long grappled with the dilemma of balancing the publics right to free speech and the governments duty to administer fair and impartial justice. While the sub judice rule may be considered as a curtailment of the right to free speech, it is "necessary to ensure the proper administration of justice and the right of an accused to a fair trial."3 Both these latter concerns are equally paramount and cannot lightly be disregarded. Before proceeding with this line of thought, however, let me clarify that the sub judice rule is not imposed on all forms of speech. In so far as criminal proceedings are concerned, two classes of publicized speech made during the pendency of the proceedings can be considered as contemptuous: first, comments on the merits of the case, and second, intemperate and unreasonable comments on the conduct of the courts with respect to the case. Publicized speech should be understood to be limited to those aired or printed in the various forms of media such as television, radio, newspapers, magazines, and internet, and excludes discussions, in public or in private, between and among ordinary citizens. The Constitution simply gives the citizens the right to speech, not the right to unrestricted publicized speech. Comments on the merits of the case may refer to the credibility of witnesses, the character of the accused, the soundness of the alibis offered, the relevance of the evidence presented, and generally any other comment bearing on the guilt or innocence of the accused.4 The danger posed by this class of speech is the undue influence it may directly exert on the court in the resolution of the criminal case, or indirectly through the public opinion it may generate against the accused and the adverse impact this public opinion may have during the trial. The significance of the sub judice rule is highlighted in criminal cases, as the possibility of undue influence prejudices the accuseds right to a fair trial. "The principal purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence."5 Public opinion has no place in a criminal trial. We ruled that it is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.6 The right to a fair trial is an adjunct of the accuseds right to due process which "guarantees [him] a presumption of innocence until the contrary is proved in a trial x x x where the conclusions reached are induced not by any outside force or influence but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded."7 In foreign jurisdictions, the courts do not hesitate to exercise their power to punish for contempt where necessary to dispose of judicial business unhampered by publications that tend to impair the impartiality of verdicts.8 If the media publish prejudicial material, they can appear to urge, or may in fact be urging, a particular finding: the media can "wage a campaign" against one of the parties to proceedings. If the jury decides in accordance with an outcome promoted by the media, it will appear as if the jurors were swayed by the media. By the same token, if the jurys decision does not accord with media opinion, it may appear as if they were deliberately reacting against it. Either way, it may appear that the jurys decision was not impartial and based on the evidence presented in court, even if it was.9

The accused must be assured of a fair trial notwithstanding the prejudicial publicity;10 he has a constitutional right to have his cause tried fairly by an impartial tribunal, uninfluenced by publication or public clamor.11 "The sub judice doctrine protects against the appearance of decisions having been influenced by published material."12 As may be observed from the cited material, the sub judice rule is used by foreign courts to insulate members of the jury from being influenced by prejudicial publicity. But the fact that the jury system is not adopted in this jurisdiction is not an argument against our observance of the sub judice rule; justices and judges are no different from members of the jury, they are not immune from the pervasive effects of media. "It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion."13 As I said in another case, in a slightly different context, even those who are determined, in their conscious minds, to avoid bias may be affected.14 Also, it is not necessary that the publicity actually influenced the courts disposition of the case; "the actual impact of prejudicial publicity is not relevant to liability for sub judice contempt."15 In several cases, the Court has noted the enormous effect of media in stirring public sentience x x x Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on [witnesses and judges] directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.16 Comment on the conduct of the courts with respect to the case becomes subject to a contempt proceeding when it is intemperate, is contumacious, and unduly impairs upon the dignity of the court. A comment that impairs of the dignity of the court "excites in the mind of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them[.]"17 If the speech tends to undermine the confidence of the people in the honesty and integrity of the court and its members, and lowers or degrades the administration of justice, then the speech constitutes contempt.18 "Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein."19 Without the sub judice rule and the contempt power, the courts will be powerless to protect their integrity and independence that are essential in the orderly and effective dispensation and administration of justice. This, of course, is not meant to stifle all forms of criticism against the court. As the third branch of the government, the courts remain accountable to the people. The peoples freedom to criticize the government includes the right to criticize the courts, their proceedings and decisions. This is the principle of open justice, which is fundamental to our democratic society and ensures that (a) there is a safeguard against judicial arbitrariness or idiosyncrasy, and that (b) the publics confidence in the administration of justice is maintained.20 The criticism must, however, be fair, made in good faith, and "not spill over the walls of decency and propriety."21 And to enhance the open court principle and allow the people to make fair and reasoned criticism of the courts, the sub judice rule excludes from its coverage fair and accurate reports (without comment) of what have actually taken place in open court. In sum, the court, in a pending litigation, must be shielded from embarrassment or influence in its allimportant duty of deciding the case.22 Any publication pending a suit, reflecting upon the court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. The resulting (but temporary)

curtailment of speech because of the sub judice rule is necessary and justified by the more compelling interests to uphold the rights of the accused and promote the fair and orderly administration of justice. If we do not apply at all the sub judice rule to the present case, the reason is obvious to those who have followed the case in the media both parties are in pari delicto as both have apparently gone to the media to campaign for the merits of their respective causes. Thus, the egregious action of one has been cancelled by a similar action by the other. It is in this sense that this Supplemental Opinion is independent of the merits of the case. Their common action, however, cannot have their prejudicial effects on both; whatever the results may be, doubts will linger about the real merits of the case due to the inordinate media campaign that transpired. Lest we be misunderstood, our application of the sub judice rule to this case cannot serve as a precedent for similar future violations. Precisely, this Supplemental Opinion is a signal to all that this Court has not forgotten, and is in fact keenly aware of, the limits of what can be publicly ventilated on the merits of a case while sub judice, and on the comments on the conduct of the courts with respect to the case. This Court will not standby idly and helplessly as its integrity as an institution and its processes are shamelessly brought to disrepute.

Footnotes See Justice Blacks concurring opinion in Smith v. California, 361 U.S. 147 (1959), part of which reads:
1

Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge. No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are "more important interests." The contrary notion is, in my judgment, court-made, not Constitution-made. (361 U.S. 147, 157-159).
2

A.M. No. RTJ-02-1698, June 23, 2005, 461 SCRA 12, 24-25, citing Choa v. Chiongson, A.M. No. MTJ-95-1063, August 9, 1996, 260 SCRA 477, 484-485. Law Reform Commission New South Wales, Discussion Paper 43 (2000) Contempt by Publication,http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43chp02, last visited December 9, 2010.
3 4

Ibid.; the Discussion Paper 43 (2000) of the Law Reform Commission of New South Wales has identified some "high-risk publications" against which the sub judice rule applies. These include: a. A photograph of the accused where identity is likely to be an issue;

b. Suggestions that the accused has previous criminal convictions, has been previously charged for committing an offense and/or previously acquitted, or has been involved in other criminal activity; c. Suggestions that the accused has confessed to committing the crime in question; d. Suggestions that the accused has confessed to committing the crime in question; e. Suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused; and f. Comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution, or which make favorable or unfavorable references to the character or credibility of the accused or a witness.
5

Ibid. Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154 SCRA 542, 546.

Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, 360 SCRA 248, 259-260.
8

People v. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64, 81, citing U.S. v. Sullen, 36 F. 2d 220.
9

Supra note 3. See Wayne Overbeck, Major Principles in Media Law, p. 298. Supra note 6, at 546. Supra note 3. Supra note 7, at 260.

10

11

12

13

14

Separate Opinion of the author in Louis "Barok" C. Biraogo v. The Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, part of which reads: Where the government simply wants to tell its story, already labeled as true, well ahead of any court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion that news of government scandals generate, it does not require a leap of faith to conclude that an accused brought to court against overwhelming public opinion starts his case with less than equal chance of acquittal. The presumption of innocence notwithstanding, the playing field cannot but be uneven in a criminal trial when the accused enters trial with a government-sponsored badge of guilty on his forehead. The presumption of innocence in law cannot serve an accused in a biased atmosphere pointing to guilt in fact because the government and public opinion have spoken against the accused. [Citations omitted]
15

Supra note 3.

16

Supra note 7, at 259-260.

Supra note 8, at 82, citing J. Perfectos dissenting opinion in In re Francisco Brillantes, 42 O.G. 59.
17 18

Id. at 94.

19

In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 448, citing Roxas v. Zuzuarregui, G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.
20

Id.at 434.

21

Tiongco v. Savillo, A.M. No. RTJ-02-1719, March 31, 2006, 486 SCRA 48, 64, citing In re Almacen, infra note 22.
22

In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562. December 14, 2010

G.R. No. 176389

ANTONIO LEJANO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 176864 PEOPLE OF THE PHILIPPINES, Appellee, vs. HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants. DECISION ABAD, J.: Brief Background On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel

"Ging" Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.1 The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.2 The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.3 On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.4 The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,5 hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence6 to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case.

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. Issues Presented Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his innocence. In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are: 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.8 If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision in Arizona v. Youngblood,10 where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State

presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.11 They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Now, to the merit of the case. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990. As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink

her cars headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala Alabang Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening ("bad trip"). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight. Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito lang kami, magbabantay lang kami." Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a womans voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, "Okay ba?" After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key. Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the

bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area. The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit naman pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his companions and told them, "We dont know each other. We havent seen each otherbaka maulit yan." Alfaro and Estrada left and they drove to her fathers house.12 1. The quality of the witness Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an "asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one of the rooms at the NBI offices. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone

to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus: ATTY. ONGKIKO: Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? xxxx A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor. ATTY. ONGKIKO: Q. And what did you say? xxxx A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Q. Atty. Sacaguing, were you able to interview this alleged witness? WITNESS SACAGUING: A. No, sir. ATTY. ONGKIKO: Q. Why not? WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify. ATTY. ONGKIKO: Q. All right, and what happened after that? WITNESS SACAGUING: A. She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong" COURT:

How was that? WITNESS SACAGUING: A. "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan." xxxx ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?" WITNESS SACAGUING: A. I said, "hindi puwede yan, kasi hindi ka naman eye witness." ATTY. ONGKIKO: Q. And what was the reply of Ms. Alfaro? WITNESS SACAGUING: A. Hindi siya nakakibo, until she went away. (TSN, May 28, 1996, pp. 49-50, 58, 77-79) Quite significantly, Alfaro never refuted Sacaguings above testimony. 2. The suspicious details But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Secondly, the police had arrested some "akyat-bahay" group in Paraaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents. Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following:

a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyatbahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying.
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At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case.13

Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro entered the house. Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gangrape of Carmela. Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see.

Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. 4. The supposed corroborations Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained14 and the presence of semen in Carmelas genitalia,15 indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.16 White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly "cleaned up" Vizconde residence on Webbs orders.

What is more, White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaros testimony about the movements of the persons involved. Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,17White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.
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Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.18 But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit. Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.19 On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.20 She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood. Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep. And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.21 The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called "Bagyo," because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house. 5. The missing corroboration There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated! For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony. But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in

Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. Webbs U.S. Alibi Among the accused, Webb presented the strongest alibi. a. The travel preparations Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.22 Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.24 b. The two immigration checks The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.25 Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through.26 He was listed on the United Airlines Flights Passenger Manifest.27 On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Nonimmigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,28 the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991,29 and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.30 c. Details of U.S. sojourn

In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.31 In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines.32 In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.33 During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler34 and working at his cousin-in-laws pest control company.35 Webb presented the companys logbook showing the tasks he performed,36 his paycheck,37 his ID, and other employment papers. On June 14, 1991 he applied for a driver's license38 and wrote three letters to his friend Jennifer Cabrera.39 On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.40 On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.41 Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car.42 To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle43 and a car plate "LEW WEBB."44 In using the car in the U.S., Webb even received traffic citations.45 On June 30, 1991 Webb, again accompanied by his father and Aragon,46 bought a bicycle at Orange Cycle Center.47 The Center issued Webb a receipt dated June 30, 1991.48 On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.49 Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.50 There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.51 In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house.52 He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992. d. The second immigration checks As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55 confirmed his return trip. When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry.56 Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification

The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, "I saw him do it."? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and

passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi To establish alibi, the accused must prove by positive, clear, and satisfactory evidence57 that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.58 The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions. The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,59 the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the

State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.60 The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.61 The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus: While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request. The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..62 The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours. If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs

passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it planted in the lower courts minds. 7. Effect of Webbs alibi to others Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall. CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. RENATO C. CORONA Chief Justice

Footnotes
1

Records, Vol. 1, pp. 1-3. Rollo (G.R. 176389), pp. 393-399 and rollo (G.R. 176864), pp. 80-104. Records, Vol. 25, pp. 170-71. CA rollo, Vol. IV, pp. 3478-3479. Resolution dated January 26, 2007, rollo (G.R. 176839), pp. 197-214. A.M. 06-11-5-SC effective October 15, 2007. 373 U.S. 83 (1963). People v. Yatar, G.R. No. 150224, May 19, 2004, 425 SCRA 504, 514.

Supra note 7. 488 U.S. 41 (1988).

10

11

Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652; Webb v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243.
12

The ponencia, pp. 4-9.

13

TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits "274" and "275".
14

Exhibits "G" to "G-2", "Q" to "R", "V", "W" and "X", Records, Vol. 8, pp. 308-310, 323-324, 328-330.
15

Exhibits "H" to "K", Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp. xx. TSN, March 25, 1996, pp. 8-14, 17-34. TSN October 10, 1995, pp. 97-98 (Records, Vol. 4, pp. 271-272). TSN, March 14, 1996, pp. 79-89, 103-104. TSN, December 5, 1995, pp. 21-65. Id. TSN, April 16, 1996, pp. 18-38, 79. TSN, August 14, 1997 and September 1, 1997. TSN, July 9, 1997, pp. 22-26. TSN, July 8, 1997, pp. 15-19; and TSN, June 9, 1997, pp. 22-26. Exhibit "227". TSN, May 28, 1997, pp. 112-118, 121-122. Exhibit "223". Exhibits "207" to "219". Exhibit "207-B". Exhibit "212-D".

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24

25

26

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31

TSN, June 3, 1997, pp. 14-33; photograph before the concert Exhibit "295," Records (Vol.2), p. 208.

32

TSN, April 23, 1997, pp. 128-129, 134-148. TSN, April 30, 1997, pp. 69-71. TSN, June 2, 1997, pp. 51-64, 75-78. TSN, June 16, 1997, pp. 12, 16-38, 43-59 and 69-93. Exhibits "305". Exhibits "306" and "307". Exhibits "344" and "346". Exhibits "244", "245" and "246". TSN, July 16, 1997, pp. 35, 41-42, 48-49, 58, 61-62. TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84. TSN, June 26, 1997, pp. 13-28. Exhibit "338". Exhibit "348". Exhibits "341" and "342". TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84. Exhibit "349". Exhibit "337-B". TSN, May 9, 1996, pp. 26-32, 37, 44-57. Id. TSN, July 7, 1997, pp. 19-35. TSN, July 2, 1997, pp. 33-37. Exhibit "212-D". Exhibit "261". Exhibit "260". TSN, June 23, 1997.

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40

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55

56

57

People v. Hillado, 367 Phil. 29 (1999). People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46. Rollo (G.R. 176839), pp. 216-217. Section 44, Rule 130, Rules of Court. Antilon v. Barcelona, 37 Phil. 148 (1917). Rollo (G.R. 176839), pp. 218-219.

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60

61

62

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION CARPIO MORALES, J.: While it should be the common desire of bench and bar that crime is not left unpunished, it is no less important, if not more so, that the innocent be shielded from hasty prosecution and rash conviction. We have nothing but praise for sincerity and zeal in the enforcement of the law. Nevertheless, the undeserved penalties inflicted upon the blameless, and the indelible stain upon their name, which is never quite washed away by time, should caution all concerned to a more careful and conscientious scrutiny of all the facts before the finger is pointed and the stone is cast.1 (emphasis and underscoring supplied) And so, as in all criminal cases, the very voluminous records of the present cases call for a "more careful and conscientious scrutiny" in order to determine what the facts are before the accuseds conviction is affirmed. On June 30, 1991, Estrellita Vizconde and her daughters, then 19-year old Carmela and then sevenyear old Jennifer, were found dead in their home at No. 80 Vinzons Street, BF Homes Subdivision, Paraaque. They all bore multiple stab wounds on different parts of their bodies. Some of their personal belongings appeared to be missing. An intense and sustained investigation conducted by the police resulted in the arrest of a group of suspects, the Akyat Bahay gang members, some of whom gave detailed confessions to having committed the crimes, hence, their indictment in court.2 The Makati Regional Trial Court (RTC), Branch 63 eventually found those suspects to have been victims of police frame-up, however, and were thus ordered discharged. Subsequently, in 1995, the National Bureau of Investigation (NBI) which conducted a parallel investigation announced that it had solved the crime by presenting its "star witness" in the person of Jessica Alfaro y Mincey (Alfaro), one of its "informers" or "assets," who claimed to have been an eyewitness to the crime. She named the accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits. She also tagged Paraaque police officer

Gerardo Biong as an accessory after the fact. On the basis of Alfaros account, an Information was filed on August 10, 1995 before the Paraaque RTC against Webb, et al.3 for rape with homicide, reading as follows: That on or about the evening of June 29 up to the early morning of June 30, 1991, in the municipality of Paraaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused Hubert Jeffrey P. Webb conspiring and confederating with accused Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael Gatchalian y Adviento, Hiospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez and Joey Filart, mutually helping one another, while armed with bladed instruments, with the use of force and intimidation, with lewd design, with abuse of superior strength, nighttime and with the use of motor vehicle, willfully, unlawfully and feloniously have carnal knowledge of the person of Carmela Vizconde against her will and consent. That by reason or on the occasion of the aforesaid rape or immediately thereafter, the above-named accused with intent to kill, conspiring and confederating together, mutually helping one another, did then and there and with evidence premeditation, abuse of superior strength, nighttime, with the use of motor vehicle, assault and stab with bladed instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby inflicting upon them numerous stab wounds in different parts of their bodies which caused their instantaneous death. The accused GERARDO BIONG and JOHN DOES having knowledge after the commission of the above-mentioned crime, and without having participated therein as principals or accomplices, took part subsequent to its commission by assisting, with abuse of authority as police officer, the abovenamed principal accused, to conceal or destroy the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime. The case was, after the Presiding Judge of Branch 258 of the Paraaque RTC inhibited, re-raffled to Branch 274 of the Paraaque RTC. The trial court, then presided over by Judge Amelita G. Tolentino, tried only seven of the accused, Artemio Ventura and Joey Filart having remained at large.4 At the trial, the prosecution presented Alfaro as its main witness. The other witnesses were Dr. Prospero Cabanayan, the medico-legal officer who autopsied the bodies of the victims; Lolita Carrera Birrer, an ex-lover of Gerardo Biong; Mila Gaviola, former laundrywoman of the Webbs; Normal White and Justo Cabanacan, security personnel of the Pitong Daan Subdivision, BF Homes, Paraaque, and Lauro G. Vizconde, Estrellitas husband. The defense presented testimonial evidence which tended to cast a bad light on Alfaros reputation for truth, as well as on the implausibility of her account. At all events, some of the accused invoked alibi, claiming to have been somewhere else at the time of the commission of the crime. In Webbs case, he presented documentary and testimonial proof that he was in the United States of America from March 1991 to October 1992. The trial court, impressed by Alfaros detailed narration of the events surrounding the commission of the crime, deemed her a credible witness after finding her testimony to have been corroborated by those of the other prosecution witnesses, as well as by the physical evidence. To the trial court, her testimony was categorical, straightforward, spontaneous, and frank, and withstood grueling crossexaminations by the different defense counsel.

On the other hand, it belittled the denial and alibi of accused Webb, Lejano, Rodriguez, and Gatchalian in light of their positive identification by Alfaro. And so after a protracted trial, the trial court rendered on January 4, 2000 a 172-page decision finding all the accused guilty beyond reasonable doubt of rape with homicide. Thus the trial court disposed: WHEREFORE, this Court hereby finds all the principal accused GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA. This Court likewise finds the accused Gerardo Biong GUILTY BEYOND REASONABLE DOUBT AS AN ACCESSORY AFTER THE FACT, AND HEREBY SENTENCES HIM TO SUFFER AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY TO TWELVE (12) YEARS. In addition, the Court hereby orders all the accused to jointly and severally pay the victims surviving heir, Mr. Lauro Vizconde, the following sums by way of civil indemnity: 1) The amount of P150,000.00 for wrongful death of the victims; 2) The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde; 3) The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde; 4) The amount of P97,404.55 as attorneys fees.5 On appeal, the Court of Appeals rendered its challenged Decision of December 15, 2005 affirming with modification the trial courts decision by reducing the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of civil indemnity to Lauro Vizconde to P200,000.00.6 The appellate court found that indeed there was sufficient evidence that Rodriguez, Gatchalian, Fernandez, and Estrada had conspired to rape and kill Carmela as well as to kill Estrellita and Jennifer. On motion for reconsideration by the accused, the appellate courts Special Division of five members, voting three against two, sustained its affirmance of the trial courts decision.7 Hence, this appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for Deoxyribonucleic Acid (DNA) analysis the semen specimen taken from Carmelas cadaver, which specimen was believed to be still under the safekeeping of the NBI. The Court granted the request pursuant to Section 4 of the Rule on DNA Evidence8 to give the accused and the prosecution access to scientific evidence which could affect the result of the case. On April 27, 2010, however, the NBI informed the Court that it no longer had custody of the specimen which itclaimed had been turned over to the trial court. Parenthetically, the trial court records do not show that the specimen was among the object evidence that was offered in evidence in the case by any of the parties. It was in light of this development that accused Webb filed an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process.

In the draft decision prepared by Justice Martin S. Villarama as a basis of this Courts deliberation, the decision of the appellate court affirming with modification the trial courts decision was affirmed. In discussing why the Decision of the Court of Appeals is being affirmed with modification, the draft decision which was the basis of this Courts deliberations, started by stating a "fundamental rule," viz: It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings.9 When the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.10 The draft decision, which was later adopted by the dissenters, found "no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions" made by the lower courts. It readily credited the testimony of prosecution "star" witness Jessica Alfaro (Alfaro) who, it observed, "underwent exhaustive and intense cross-examination by eight . . . defense lawyers . . . [and] revealed such details and observations which only a person who was actually with the perpetrators could have known." The trial court banked primarily on Alfaro who claimed to be an eyewitness to the massacre and considered the testimonies of the other prosecution witnesses as merely corroborative of hers. Jurisprudence has consistently summoned, however, that for testimonial evidence to be worthy of belief, it must firstly proceed from the mouth of a credible witness. A person may be credible where he is without previous conviction of a crime; who is not a police character and has no police record; who has not perjured in the past;whose affidavit or testimony is not incredible; who has a good standing in the community; and who is reputed to be trustworthy and reliable.11 Secondly, the persons testimony must in itself be credible. Daggers v. Van Dyck12 illuminates: Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance. (underscoring supplied) Alfaro was found both by the trial and appellate courts to be a credible witness. She impressed the trial court which found her to have "testified in a categorical, straightforward, spontaneous and frank manner, and [to] ha[ve] remained consistent in her testimony."13 By Alfaros own admission, she was a habitual drug addict who inhaled and sniffed shabu "every other day"14since December 1990. It was about this time that she met Artemio "Dong" Ventura who provided her with a regular supply of shabu at the so-called "house of shabu" in Paraaque.15 In March 1991, she stopped getting her supply of shabu from Ventura as she instead got it from other sources including Orly Bacquir and Cris Santos and places such as Quezon City, Makati and Tondo.16 Alfaros tale about the circumstances surrounding the commission of the complex crime follows:

In the afternoon of June 29, 1991, the date of the commission of the crime, before she and accused Peter Estrada, who she claimed was her boyfriend, went to the Alabang Commercial Center, she had taken illegal drugs, and in the evening of even date, she not only smoked shabu but sniffed cocaine as well at the "parking lot."17 It was only in about October 1994 that she stopped taking illegal drugs. The paper of authors Burrus and Marks, "Testimonial Reliability of Drug Addicts,"18 teaches: . . . [W]here the prolonged use of drugs has impaired the witness ability to perceive, recall or relate, impeaching testimony is uniformly sustained by the courts. Aside from organic deterioration, however, testimony may be impugned if the witness was under the influence of drugs at the time of perceiving the event about which he is testifying or at the time he is on the stand. This necessarily follows, for even the temporary presence of drugs affects the functioning of the bodys organs, and thus bears directly on the credibility of the witness testimony19(underscoring supplied) Evidence derived from the testimony of a witness who was under the influence of drugs during the incident to which he is testifying is indeed very unreliable.20 So it has been held that "habitual users of narcotics become notorious liars and that their testimony is likely to be affected thereby."21 We believe it will be admitted that habitual users of opium, or other like narcotics, become notorious liars. The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities.22 (underscoring supplied) Defense witness Dr. Rey San Pedro, then Deputy Executive Director of the Dangerous Drugs Board, opined that drug addicts or dependents are generally liars who would lie for less than noble objectives, such as for money and/or to satisfy their craving for attention, viz: Atty. M. Ongkiko: Q: Based on your experience, Doctor, will this dependency of shabu affect the character of a person specifically, for example, the capacity to tell the truth, would that affect? Witness Dr. Rey San Pedro: A: Our general examination of patients showed that they become liars. Atty. M. Ongkiko: Q: They become liars. Yes, what would be the usual motivation for a shabu-dependent person to become liars. Why, why do they lie? Witness Dr. Rey San Pedro: A: My experience, Sir, is because they are aware that what they are doing is wrong and therefore they want to hide it. Not only from the family, but also from their friends. Atty. M. Ongkiko: Q: Yes. They could lie on the persons they go out with?

Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: They could lie on the persons they meet? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: They could lie on the persons from whom they allegedly get the drugs? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Is it not correct, Doctor, that the tendency of a drug dependent is to hide the identity of the drug suppliers. Is this correct? Witness Dr. Rey San Pedro: A: This is our experience. I have not encountered a patient who would tell you where they get their supply. Atty. M. Ongkiko: Q: Who would tell you the correct name of the drug supplier? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: And who would tell you the correct address of the drug supplier, correct? Witness Dr. Rey San Pedro: A: Correct. Atty. M. Ongkiko: Q: Their tendency is to give you misleading information, correct?

Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Now, would a drug dependent on shabu lie for money? Witness Dr. Rey San Pedro: A: Yes. Atty. M. Ongkiko: Q: Yes. When I say lie for money so that she could get money? Witness Dr. Rey San Pedro: A: She could get money. Atty. M. Ongkiko: Q: He will, from her relatives, from her friends, or even from third persons? Witness Dr. Rey San Pedro: A: Yes, Sir. They even sell the family belongings. Atty. M. Ongkiko: Q: They even sell their personal effects? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Would they sell their honor to get money, like a woman becoming a prostitute? Witness Dr. Rey San Pedro: A I have not encountered a case like that. Atty. M. Ongkiko: Q: You have not encountered that much. But tell me, Doctor, would they lie in order to get attention?

Witness Dr. Rey San Pedro: A: Yes, they do. Atty. M. Ongkiko: Q: Yes, because they want to be the center of attention to cover up for their drug dependency, correct? Witness Dr. Rey San Pedro: A: Yes, Sir. Atty. M. Ongkiko: Q: Now, Doctor, if a person were drug dependent on shabu since 1990, 1991, up to and including December, 1994. So, that is a long time, isnt it? Witness Dr. Rey San Pedro: A: 90 to 94? Atty. M. Ongkiko: Q: Yes, drug dependent. What would it take, Doctor, in order that we can cure this patient of his or her dependency on shabu, what would it take? Witness Dr. Rey San Pedro: A: They have to be rehabilitated, Sir, treated and rehabilitated. Atty. M. Ongkiko: Q: Treated and rehabilitated, where? Witness Dr. Rey San Pedro: A: In a hospital. Atty. M. Ongkiko: Q: In a hospital. Does the government provide for such facilities? Witness Dr. Rey San Pedro: A: Yes, Sir. x x x x23 (underscoring supplied)

Former National Bureau of Investigation (NBI) Director Epimaco Velasco had a view similar to that of Dr. San Pedros that any information which is being furnished by a drug addict is "not generally reliable" and his capacity to lie may be "very great."24 In their earlier mentioned paper, Burrus and Marks write on the "peculiar effects upon veracity" of the principal types of drugs, like cocaine and amphetamine which were used by Alfaro: xxxx b. Cocaine Cocaine is a powerful cortical stimulant which causes a state of euphoric excitement and varying degrees of pleasurable hallucinations. Under its influence, a person experiences sensations of great muscular and mental strength and overestimates his capabilities. He is truly, at least while under the drugs influence, in an "unreal" or "dream world," and the majority exception of admitting impeaching testimony where the witness was under the influence of the drug at the time of perception or testifying seems clearly sustainable in medical evidence. Over time, cocaine produces on the addict a degree of physical and mental deterioration not found in connection with the use of opiates. The cocaine addict is not a normal person; many, in fact, become paranoids and suffer from feelings of persecution. Visual, auditory and tactual hallucinations are common, as are digestive tract disorders, and occasionally convulsions. It would seem to follow that, so far as medical evidence is concerned, expert testimony should be admissible to impeach the cocaine addict. Both in its long-run effect of organic deterioration and in its short run influence, the drug severs the users contact with reality, and renders him, to that extent, unreliable. Even the majority admits impeaching testimony in cases of organic deterioration. There are few instances of deterioration more pronounced than that found in the habitual user of cocaine. xxxx e. Amphetamine Similar to the barbiturates and bromides, amphetamine operates upon the central nervous system, and its effect on the users ability to perceive and accurately to relate is dependent on the amount of the drug taken. Rather than a depressant however, amphetamine is a potent stimulant, the initial proper dosage promoting wakefulness and alertness, increased initiative, confidence, euphoria and increased motor activity. Thus, the non-addicts sparing use of the drug, would not seem to impair reliability and impeaching testimony to this end should be excluded. Overdosage and repeated medication, however, can prove most harmful. Thus, the addict may suffer vasomotor disturbances, dizziness, agitation, confusion and delirium. The usual dosage taken by the addict is sufficient to cause toxic psychosis characterized by hallucinations and paranoid delusions similar in effect to cocaine. In this state, the amphetamine addicts testimonial capabilities are definitely impaired. The result is that with amphetamine, as well as with barbiturates and bromides, impeachment should depend upon the amount of the drug taken and the extent of its use. Absent excessive use to the extent of organic deterioration, the barbiturate, bromide or amphetamine addict, when not intoxicated by the direct influence of the drug, is apparently perfectly reliable and the majority judicial view, under these circumstances seems sustainable. Also, as with marihuana, its effects vary with the personality make-up of the user, with the result that this, too, should be considered in admitting or excluding the impeaching testimony. This, of course, broadens the inquiry from the physiologicalpharmacological effects of drugs upon reliability to the psychological framework of the user in its relation to his ability to tell the truth or proneness to lie.25 (italics in the original; emphasis and underscoring supplied)

How Alfaro got to be a "star" witness in this case was narrated by then NBI agent Artemio Sacaguing: Atty. Ongkiko: Q All right, Atty. Sacaguing, how did the NBI treat Ms. Alfaro considering the assistance that he was giving your group? Witness Sacaguing: A We gave her very special treatment. So, we consider her already the darling of the group because she was giving us good projects and she loved it. Atty. Ongkiko: Q What do you mean by she loved it, she loved what? Witness Sacaguing: A She liked being treated that way. Atty. Ongkiko: Q Now tell the Honorable Court, was there ever any time where the group got tired of giving Ms. Alfaro the VIP treatment? xxxx Atty. Ongkiko: All right, Atty. Sacaguing, how long did you give Ms. Alfaro this VIP treatment? Witness Sacaguing: A Well, she was always there and we treated her very nicely, but later on, about . . . after the lapse of about one or two weeks, the boys, I mean, my associates in my team, began teasing her because she could not give us any project anymore. Atty. Ongkiko: Q What do you mean by projects, leads? Witness Sacaguing: A Projects, cases we could work on. Atty. Ongkiko: Q I see, and what do you mean by teasing?

xxxx Atty. Ongkiko: Q Mr. Sacaguing, after your group teased her because, according to you, she could not give you anymore projects, what was the reaction of Ms. Alfaro, if any? Please look at the judge, please do not look at me. Witness Sacaguing: A She seemed to have been piqued and she said . . . Atty. Ongkiko: Q She seemed to have been what? Witness Sacaguing: A Piqued, yes, "napikon". Atty. Ongkiko: Q I see, piqued. Witness Sacaguing: A Piqued. Atty. Ongkiko: Q Piqued. Ano yun, napikon? Court: p i c q u e d. (underscoring in the original) Atty. Ongkiko: Q And when she was piqued or "napikon", what did she say or what did she do? xxxx Atty. Ongkiko: xxxx Q Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case. Will you tell the Honorable Court?

Witness Sacaguing: A She told me, she knew somebody who . . . Court: Face the Court. Witness Sacaguing: A She told me, Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told us, Your Honor. Atty. Ongkiko: Q And what did you say? Please look at the Court. Witness Sacaguing: A I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. Atty. Ongkiko: Q Did she ever bring to you or to your office this man that, according to her, knew about the Vizconde murder case? xxxx Atty. Ongkiko: Q Atty. Sacaguing, were you able to interview this alleged witness? Witness Sacaguing: A No, sir. Atty. Ongkiko: Q Why not? Witness Sacaguing: A Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not, and the man does not like to testify.

Atty. Ongkiko: Q All right, and what happened after that? Witness Sacaguing: A She told me, "easy lang kayo, Sir", if I may quote, "easy lang, Sir, huwag kayong . . ." Court: Q How was that? Witness Sacaguing: A "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko yan, papapelan ko na lang yan." Atty. Ongkiko: Q And what did you understand by her statement as you quoted it? Witness Sacaguing: A I thought it . . . Prosecutor Zuo: Objection, Your Honor, that is asking for the opinion of this witness, Your Honor. Court: Reform your question. Atty. Ongkiko: Q All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan"? Witness Sacaguing: A I said, "hindi pwede yan, kasi, hindi ka naman eye witness." Atty. Ongkiko: Q And what was the reply of Ms. Alfaro? Witness Sacaguing: A Hindi siya nakakibo, until she went away.

Atty. Ongkiko: Q She what? Witness Sacaguing: A She went away, she went out of my office. Court: You speak clearly, Mr. Witness, I could hardly get you. Witness Sacaguing: A She did not answer anymore, Your Honor. She just went out of the office. x x x x26 (emphasis and underscoring supplied) NBI agent Sacaguing was the special "handler" of Alfaro, an NBI "asset" who regularly provided leads on projects or cases being investigated by the NBI, on which account she received special treatment. From Sacaguings above-quoted testimony, Alfaro came forward with her "knowledge" about the commission of the crimes only after being cajoled by the NBI agents about her lack of productivity and her failure to make good her word that she knew and would bring someone who could "shed light" on the crimes that occurred close to four years earlier. It is thus hard to fathom how her motives for suddenly developing a first hand account of the commission of the crimes could be treated as anything but suspect. Yet, the lower courts, despite the peculiar circumstances related by Sacaguing, were not put on guard from swallowing Alfaros testimony. Significantly, Alfaro never disputed Sacaguings above-quoted testimoy. The trial court credited as satisfactory and plausible Alfaros explanation for her silence from the time she allegedly witnessed the crimes in June 1991 up to "about October 1994" when the numbing effects of drug abuse only began to wear off and she had an earnest desire to reform her life. WITNESS JESSICA ALFARO ON CLARIFICATORY QUESTIONS BY THE COURT Court: Q After that incident, did it not occur to your mind to immediately report the same to the police authorities? Witness Alfaro: A No, Your Honor, I did not. Court: Q Why? Witness Alfaro:

A: Because at first, I was so scared. I just want to my Dad, but I didnt have a chance to tell him. Court: Q: No, after the lapse of a reasonable time, after witnessing that incident, did it not also occur to your mind to finally report it to the proper authorities? Witness Alfaro: A: I did not first have that in mind, only recently when I was out on drugs. Court: Q: When? Witness Alfaro: A: When I got out on drugs. Court: Q When was that? Witness Alfaro: A: About October of 1994. Court: Q What prompted you to finally reveal what you have witnessed? Witness Alfaro: A: Well, when I started having these nightmares about my daughter instead of that Jennifer that I see in my dreams. Its my daughter whom I see crying, and that triggered me, and then I got out from drugs, and then it came to the point when I saw them accidentally, so, thats the thing which triggered me, Your Honor. Court: Q: Any other reason? Witness Alfaro: A: Those are my main reasons. Court: Q: Is that your principal reason?

Witness Alfaro: A: I wanted to change my life already.27 (underscoring supplied) Given Alfaros confession of having for years, after the commission of the crimes, been numbed by the effects of drug abuse, would the ponencia take as gospel truth her what it termed "vivid" and "infallible" recollection of the minutiae surrounding the commission of the crime in June 1991, and point to the accused as the malefactors, particularly Webb, despite evidence, documentary and testimonial, supporting his alibi? The explanation for this feat of wizardry is within arms-length Alfaro appears to be a rehearsed witness. Prior to her decision to surface and claim to tell what she "knew" about the crimes, the crimes had already been played out in the media, both print and broadcast, in every gory detail. It was a raging topic that drew intense discussions in both talk shows and informal gatherings, and all sorts of speculations about it were rife. In fact, prior to the arrest of the accused, members of the Philippine National Police (PNP) arrested some members of an "akyat-bahay" gang who were charged accordingly. These gang members were later released upon orders of the Makati Regional Trial Court after it was discovered that their confessions were fabricated by the PNP to conform to the physical evidence found at the crime scene. It is not thus difficult to believe that Alfaro could have become familiar with the evidentiary details of the crimes, given that she was practically a resident at the offices of the NBI which was actively investigating the crimes, not to mention her being an NBI "star" witness. Sadly, dissenters choose to gloss over the strikingly uncanny similarities between the confessions of the "akyat-bahay" gang members and Alfaros testimony. The nature and extent of the similarities were amplified by Justice Dacudao in his Dissenting Opinion, which is quoted at length: It also bothers me that Ms. Alfaros narration of the events in the case under review was in many points uncannily similar to that set forth in the extrajudicial confessions or sinumpaang salaysay executed by certain members of the so-called "Akyat Bahay Gang" of the Barroso group (the brothers Villardo Datuin Barroso, Jr. and Roberto Datuin Barroso and their several companions Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Boy Kulit, Rey Doe and several other John Does). These persons were earlier charged with two cases of robbery with homicide, and one case of rape with homicide that is now the very subject of the case under review. Indeed, I cannot understand why the three criminal cases that were instituted before the Makati City RTC, Brnach 63, (presided over by Judge Julio R. Logarta,) which recited facts and events that are so strikingly akin to those set forth in the information filed in the case under review, hardly commanded the attention of the trial court. The records of these criminal cases, which were introduced in evidence by the accused-appellants during the trial of the case under review, covered the following: (1) Criminal Case No. 91-7135 filed by then Assistant Chief State Prosecutor Aurelio C. Trampe before the sale of Judge Julio R. Logarta of the Makati City RTC, Branch 63, on November 11, 1991 (for robbery with homicide) against Villardo Barroso y Datuin, Roberto Barroso y Datuin Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Rey Doe and several other John Does still at large. Crim. Case No. 91-7135 That on or about the 30th day of June 1991 at BF Homes Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above named accused conspiring and

confederating together and helping one another did then and there willfully, unlawfully, and feloniously, by the use of force upon things, to wit, by breaking the glass in the left side of the door to open it and from where they entered the house, and once inside, willfully, unlawfully and feloniously and intent to gain and against the consent of the owners thereof, forcibly open cabinet and drawers inside the house, take and carry away therefrom, the following pieces of personal property: P140,000.00 in cash Four (4) necklace Five (5) rings Two (2) bracelets Two (2) pairs of earings belonging to Mr. and Mrs. Lauro Vizconde of the total value of Two Hundred Thousand (P200,000.00) Pesos, Philippine currency to the damage and prejudice of said owners in the said total sum, and that on the occasion of the said Robbery and for the purpose of enabling them to take, steal, and carry away the articles above-mentioned herein accused, in pursuant of their conspiracy, did then and there willfully, unlawfully and feloniously and with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault, stab and use personal violence upon JENNIFER NICOLAS VIZCONDE thereby inflicting upon her multiple stab wounds in different parts of her body thus causing her instantaneous death. Contrary to law. (2) Criminal case No. 91-7136 (for the rape with homicide of Carmela Nicolas Vizconde filed by ACSP Aurelio C. Trampe with the same RTC, Branch 63, on November 11, 1919) also against the same accused. It alleged: Crim. Case No. 91-7136 That on or about the 30th day of June 1991 at BF Homes, Paraaque, Metro Manila, Philippines, and within jurisdiction of this Honorable Court, the above-named accused, armed with knives, by means of violence, force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of CARMELA NICOLAS VIZCONDE (without her) consent, and that on the occasion of the commission of rape, and in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault, stab and use personal violence upon said CARMELA NICOLAS VIZCONDE, thereby inflicting upon her multiple stab wounds in different parts of her body, thus causing her instantaneous death. Contrary to law. (3) Criminal Case No. 91-7137 (for robbery, with homicide wherein the victim was ESTRELLITA NICOLAS VISCONDE) likewise filed against the same accused by ACSP Aurelio C. Trampe. It alleged: Crim. Case No. 91-7137

That on or about the 30th day of June 1991 at BF Homes Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and helping one another did then and there, willfully, unlawfully and feloniously, by the use of force upon things, to wit: by breaking the glass in the left side of the door to open it and from where they entered the house and once inside, willfully, unlawfully and feloniously and with intent to gain and against the consent of the owners thereof, forcibly open cabinets and drawers inside the house, take and carry away therefrom the following pieces of personal property: P140,000.00 in cash Four (4) necklace Five (5) rings Two (2) bracelets Two (2) pairs of earings belonging to Mr. and Mrs. Lauro Vizconde, the total value of which is Two Hundred Thousand (P200,000.00) pesos, Philippine Currency, to the damage and prejudice of said owners in the said total sum; and that on the occasion of the said Robbery and for the purpose of enabling them to take, steal and carry way the articles above-mentioned, herein accused, in pursuance of their conspiracy, did then and there willfully, unlawfully and with evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault, stab and use personal violence upon ESTRELLITA NICOLAS VIZCONDE thereby inflicting upon her multiple stab wounds causing her instantaneous death. Contrary to law. Consider this: In the aforementioned cases, one of the accused therein (Angelito Santos y Bisen) who by his account was bothered by his conscience, surrendered and executed an affidavit or sinumpaang salaysay narrating his participation in the gruesome killing of members of the Vizconde family and the rape-killing of a young Vizconde girl. And based on the extrajudicial confessions of the accused in these cases (specifically Angelito Santos y Bisen, Ernesto L. Cesar, the Barroso brothers Villardo, Jr. and Roberto, and Rolando G. Mendoza) it appears that the group conspired to rob the house of the Vizcondes in W. Vinzons Street inside the BF Subdivision; that they used at least two (2) vehicles in going there (a mint green Toyota Corona, and an owners tinted jeepney); that when they entered the subdivision, one of them motioned to the security guards manning the gate that the other vehicles were with him; that when they reached the Vizconde residence at W. Vinzons Street, BF Homes, one of them (Bienvenido "Ben" Baydo) climbed the fence, and once inside the house opened the gate for the group; that Bienvenido "Ben" Baydo put-out the light in the garage; that using a stone "na binalot sa basahan" Ben Baydo broke the glass in the door and opened it; that a woman who had apparently been roused from sleep (apparently referring to Mrs. Estrellita Nicolas Vizconde) came near the door and shouted "magnanakaw"; that Ben Baydo gagged the woman and dragged her inside the masters bedroom where Ben Baydo, Boy Kulit, Rolando Mendoza and Roberto Barroso stabbed her several times (one knife used in stabbing was described as "isang double blade na mga anim na pulgada ang haba nang talim"); that when a young girl (apparently referring to Jennifer Nicolas Vizconde) inside started to cry and shout, she too was stabbed to death by Rolando Mendoza, Ernesto Cesar, Villardo Barroso, Jr., Ben Baydo and Boy Kulit; that in one of the rooms they found a young woman (apparently referring to Carmela Nicolas Vizconde) who was raped successively by Roberto Barroso, Rolando Mendoza, Ben Baydo, and Ernesto Cesar and later repeatedly stabbed to death; and that they ransacked the house for

valuables and were able to find cash and jewelries which they later on divided among themselves. Some of the pieces of jewelry were pawned by some of the accused at the Tambunting Pawnshop and the La Cebuana Pawnshop at Dart, Paco. Carefully evaluated, it is plain enough that the statements contained in the extrajudicial confessions or sinumpaang salaysay also overlapped or corroborated each other in their material particulars. Stock must be taken of the fact that the detailed extrajudicial confessions or sinumpaang salaysay of the several accused (especially Villardo Barroso y Datuin, Jr., Roberto Barroso y Datuin, his Rolando Mendoza y Gomez, Ernesto Cesar y Lizardo, Angelito Santos y Bisen) in the three criminal cases, were acknowledged and ratified before Judge Roberto L. Makalintal, Atty. Luis Matro, Atty. Francis Tolentino and Atty. Salvador B. Aguas, who affirmed that the said extrajudicial confessions or sinumpaang salaysay were freely and voluntarily given by the affiants, and that no duress violence, intimidation or coercion of any kind was employed against the affiants when the latter gave their statements if they did not want to; and that indeed the affiants were made aware of their constitutional right to have a lawyer of their choice to assist them during the custodial investigation and to remain silent if they wished to. Nevertheless, as seen in the consolidated decision rendered in the three criminal cases, these extrajudicial confessions or sinumpaang salaysay were declared inadmissible by the Makati City RTC, for having been allegedly obtained through duress, threats, or intimidation. The dismissal of these criminal cases nowithstanding, it does not detract from the fact: (1) that said criminal case had indeed been filed in court, (2) that the criminal indictments were erected on the strength of the extrajudicial confessions or sinumpaang salaysay executed by the accused therein, (3) that these extrajudicial confessions or sinumpaang salaysay set forth facts and events that are eerily similar to those which found their way into the information was filed in the case under review; (4) that the victims in the three criminal cases are also the victims in the case under review; and (5) that since the accused therein had been duly arraigned, as indeed, criminal proceedings had been commenced thereon before a competent court, the accused therein were in real danger of being convicted of the felonies charged.28 (emphasis and underscoring supplied) On the questioned inconsistencies between Alfaros April 28, 1995 and May 22, 1995 Affidavits, the dissenters brush them aside as not necessarily affecting her credibility, citing People v. Sanchez29 which held: . . . [W]e advert to that all-too familiar rule that discrepancies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses. Sworn statement/affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits. (underscoring supplied) It bears emphasis that the questioned inconsistencies in Alfaros Affidavits, and indeed they are too glaring to escape attention, arise not from an affidavit and testimony at the witness stand but from two affidavits. And the dissenters forget that the first Affidavit, dated April 28, 1995, was given about two months shy of fouryears from the occurrence of the crime in late June 1991 and, therefore, her mental faculties could not have been in "such a state as [not] to afford [her] a fair opportunity of narrating in full the incident" subject of her tale. The second Affidavit, on the other hand, was executed 24 days after the first Affidavit or on May 22, 1995. Does the ponencia find that Alfaros mental faculties were more refreshed at a date more remote from the occurrence of the crime she claims to have witnessed?

Again, as did the lower courts, the dissenters disregard the glaring inconsistencies between Alfaros two affidavits vis--vis her testimony in open court which undeniably detract from credibility of witness and of testimony. Consider these inconsistencies reflected in the tabulation below: April 28, 1995 Affidavit Alfaros meeting with Carmela She has not met Carmela before the night of the crime May 22, 1995 Affidavit She knew Carmela personally and met her in a party sometime in February 1991 Alfaro and Peter Estrada made three trips to the Vizconde residence. During their second trip, the other accused stayed behind at the Alabang Commercial Center Parking Lot. Peter Estrada and Alfaro went back to the Vizconde residence after about 30 minutes. This time, Carmela asked Jessica to come back after midnight. Testimony in Court She met Carmela in a party sometime inJanuary 1991 and in a disco sometime in February 1991 The entire groupmade three trips to the Vizconde residence. On thesecond trip, Webb and his companions parked and stayed along Aguirre Avenue. Only Alfaro went to the Vizconde residence.

The number of trips There were only two the group made to the trips made. After the Vizconde residence first trip, Alfaro went back to the parking lot. The group was about to leave when she arrived. Ventura signaled her to board the Nissan Patrol to take more drugs and asked her to leave her car, but she refused. Thereafter, she was instructed to join the convoy of vehicles. They went around BF Homes for about 15 minutes before they finally proceeded to Vinzons Street. What Webb said Alfaro did not hear any instructions from Webb or any member of the group.

Before they left the parking lot, Alfarooverheard Webb say, "Pipilahan natin si Carmela, pero ako ang mauuna. After leaving the accused Webb, Lejano and Venturainside the Vizconde residence, Alfaroagain entered the house through the kitchen door; Ventura was coming out as she was about to enter and once inside, curiosity impelled

After Webb said "Pipilahan," Lejano retorted, "Oo pero ako ang susunod."The others responded, "Okay, okay." Before going to the bedroom, Alfaro sawVentura rummaging through the ladies bag on top of the dining table. She proceeded to the bedroom after hearing the sound of static and peeped through the door. She could not see anything so

What Alfaro saw at Alfaro did not see the scene of the crime what transpired insidethe Vizconde residence becauseshe did not go in.

Alfaro to peep through she stepped inside the first door on the where she saw Webb left. Noticing the high pumping Carmela. volume of the TV set inside the room, she saw two bloodied bodies on top of the bed and on the floor, she saw Webb pumping on top of Carmela who was gagged and in tears. Alfaros location in the Vizconde bedroom in relation to what she saw Alfaro did not seewhat transpired inside the Vizconde residence becauseshe did not enter it. Alfaro peeped through the bedroom door and saw two bloodied bodies and Webb pumping Carmela. Alfaro first peeped through the bedroom door and did not see anything. Since she did not see anything, she walked inside the bedroom where she saw the rape of Carmela.

The dissenters approvingly note the trial courts findings that Alfaro had sufficiently explained these discrepancies between her two affidavits as arising from a desire "to protect her former boyfriend Estrada and her relative Gatchalian, the absence of a lawyer during the first taking of her statements by the NBI, her distrust of the first investigators who took her statements and prepared her April 28, 1995 affidavit, and her uncertainty if she could obtain adequate support and security for her own life were she to disclose everything she knows about the Vizconde killings." (underscoring supplied) There was, however, no rational basis for Alfaro to mistrust her "handler" Sacaguing who was present at the execution of the first Affidavit, or the NBI for that matter, she, as stated earlier, having been accorded special treatment precisely because she was one of the more valuable "assets" of the NBI. Sacaguing himself testified that Alfaro was virtually dependent on them . . . "for protection, for sympathy and even for her spiritual needs."30Accused Gatchalians father, Atty. Francisco Gatchalian, denied that his family was in any way related to Alfaro. And the lawyer who is mentioned in the first Affidavit to have assisted her, Atty. Arturo Mercader, Jr., took the witness stand and categorically stated that he was present during the taking of such first Affidavit of Alfaro, he claiming that, inter alia: Atty. Ongkiko: Q And after the typing of the statement was finished by Agent Tamayo, what happened? Witness Mercader: A Well, I received the statement and showed it to Jessica and asked her to read it also. Atty. Ongkiko: Q Did Jessica Alfaro read her statement?

Witness Mercader: A Yes, Your Honor. Atty. Ongkiko: Q How long did it take her to read the statement? Witness Mercvader: A Just for few minutes, Your Honor. Atty. Ongkiko: Q And after she read the statement, what happened next? Witness Mercader: A Well, she signed the statement and afterwards, I also affixed my signature on it, Your Honor. xxxx Atty. Aguirre: Q While assisting Jessica Alfaro, did you notice any action on the part of anybody which pressured Jessica Alfaro to finish her statement? Witness Mercader: A No, Your Honor, none that I have noticed. If I did, I would have objected to.31 xxxx Prosecutor Zuno: Q And that, I believe, to your own perception, at that time she was giving the facts, the answer, in accordance with her recollection? xxxx Witness Mercader: A Your Honor, at that time what I noticed only was the spontaneity of the answers of Jessica. Of course, I could not tell whether from where Jessica was basing it. From the recollection or from a memorize script, I do not know, Your Honor, about that. But definitely, whenever she was asked a question, she answers them readily as if she knows the answer personally.32 (emphasis and underscoring supplied)

The trial courts order preventing the defense from cross-examining Alfaro on the inconsistencies between her two Affidavits was thus correctly SET ASIDE by the Court of Appeals, to which this Court, by Resolution of January 22, 1996, referred for disposition G.R. Nos. 122466 and 122504, the accuseds petitions assailing, among other orders, the trial courts order denying their right to cross examine Alfaro, for purposes of impeachment, on her conflicting Affidavits. Thus, the appellate court, in its Decision33 in CA-G.R. SP Nos. 39839 and 39840 of June 21, 1996, held: xxxx [T]he issue of the right of petitioners to cross-examine Jessica Alfaro on the alleged inconsistencies between her first and second affidavits is too crucial to be simply brushed aside with a perfunctory application of the general rule adverted to in the preceding paragraphs. It may bring about a failure of justice. Consequently, we consider the actuations of respondent judge in this regard to be reviewable by certiorari under rule 65 of the Rules of Court. (Emphasis and underscoring supplied) Under Section 11, Rule 132 of the Rules of Court, an adverse partys witness may be impeached (1) by contradictory evidence; (2) by evidence that his general reputation for truth, honesty, or integrity is bad; (3) by evidence that he has made at other times statement inconsistent with his present testimony; and (4) by producing the record of his conviction of an offense. Insofar as impeachment by evidence of prior inconsistent statements however, under Section 13 of the same Rule 132, a proper foundation must first be laid, in that, the attention of the witness should first be called to such statements, and he should be asked whether or not he made them, and afforded an opportunity for explanation, or affirmance, or denial of the authenticity of the writing. (emphasis and underscoring in the original) A testimony given four years after the occurrence of crime which gives minute details that even contradict tales earlier given is too incredible as to draw dubiety. The lucid observations of Court of Appeals Justice Renato C. Dacudao in his Dissent34 for the acquittal of the accused, and the graphic analysis of Justice Roberto Abad in his ponencia on why Alfaros testimony can not be relied upon are thus well taken. It bears stressing that the defenses earnest assertion that the prosecution failed to rebut the pieces of evidence, highlighted by the defense, that seriously dent its (the prosecutions) case has not been controverted. Respecting Alfaros "eyewitness identification" of Webb as the rapist: As reflected in the tabulations above, she had conflicting claims on whether and where she witnessed the commission of the crime. AT ALL EVENTS, such identification is not as accurate and authoritative as the scientific forms of identification evidence such as Deoxyribonucleic Acid (DNA) testing,35 which testing could not now, in the present case, be carried out in view of the information of the NBI that it no longer has custody of the semen specimen from rape victim Carmelas cadaver, claiming that it had turned it over to the trial court. The NBI did not, however, present any documentary proof of such claim. Parenthetically, it does not appear from the records that the specimen was offered in evidence by any of the parties. To Webbs credit, he had asked for the conduct of DNA evidence on October 6, 1997, during the trial on the merits, when he filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis36 which motion the prosecution opposed.37 The motion was subsequently denied by the trial court by its November 25, 1997 Order,38 citing Lim v. Court of Appeals39 to the effect that DNA, "being a relatively new science, it has not as yet been accorded official recognition by our courts." Besides, the trial court "believed" that no one in the Philippines had as yet the knowledge and expertise to testify on matters involving DNA

testing. What is worse, however, is that it "believed" that DNA testing "will not subserve the ends of justice."40 If the motion had been granted and DNA analysis were carried out, nagging doubts on Webbs culpability for the crimes or lack of it could have been dissipated. FINALLY, even assuming arguendo that the burden of evidence had shifted to the defense, the testimonial and documentary evidence of the defense indubitably establishes that, with respect to accused Webb, he was out of the country when the crime occurred. It is undisputed that accused Webbs travel and immigration documents, which have not been found to be spurious, unquestionably show that he left the Philippines for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992. In rejecting Webbs alibi, the dissenters point out: These dates [March 9, 1991 and October 26, 1992] are so distant from the time of the commission of the crime, June 29, 1991 and June 30, 1991, and it would not have been impossible during the interregnum for Webb to travel back to the country and again fly to the US several times considering that the travel time on board an airline from the Philippines to San Francisco, and from San Francisco to the Philippines takes only about twelve (12) hours to fourteen (14) hours. Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29-30, 1991 and then departed for the US again, and returning to the Philippines in October 1992. There clearly exists, therefore, such possibility of Webbs presence at the scene of the crime at the time of its commission, and its excuse cannot be deemed airtight. (underscoring and italics supplied) It is now the dissenters reasoning which turns highly speculative and conjectural, one borne out of unfounded suspicion. It suspects that the Webb family may have used its "financial resources and political influence" to control all the U.S. and Philippine immigration people, thus allowing Webb to secretly "travel back to the country and again fly to the U.S. several times" between March 9, 1991 and October 26, 1992. It bears noting that the prosecution proffered no evidence to establish that during the interregnum Webb had surreptitiously slipped out of the U.S.A. to the Philippines, and that he subsequently re-entered the U.S.A. by bypassing all immigration controls and protocols in both countries. This is the stuff of which spy novels are made, but not in the real world where the lives of innocent individuals are at stake. Facts decide cases. Conjectures and suspicions are not facts, hence, they have no evidentiary value. They cannot be the bases of conviction as they cannot substitute for the constitutional requirement of proof of guilt beyond reasonable doubt. Suspicions, no matter how strong they are, must never sway judgment.41 At this juncture, given the evidence on record, it is crucial to heed the Courts caveat that when an accused puts up the defense of alibi, "the courts should not at once have a mental prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him."42 While alibi is, indeed, a weak defense because the accused can easily fabricate his story to escape criminal liability,43 in the present case, Webbs alibi could not have been fabricated with ease. His travel and immigration documents showing his departure from the Philippines and arrival in the U.S.A., not to mention the testimonial and documentary evidence on his activities while in the U.S.A. between March 9, 1991 and October 26, 1992, deserve full credit. If half the world away could not even be considered to be "so far removed from the crime scene"44 as to evince the physical impossibility of actual presence, then the defense of alibi can only be appreciated when an accused lands in a different planet.

The dissenters cite People v. Larraaga45 to highlight the weakness of alibi as a defense. That case did not involve foreign and travel immigration documents or even the use of a passport, the accused therein having claimed that he was in Quezon City at the time the crime was committed in Cebu City. Because he was positively identified by several prosecution witnesses whose testimonies, unlike Alfaros, were credible and trustworthy, this Court rejected Larraagas alibi. WHEREFORE, for failure of the prosecution to prove beyond reasonable doubt the guilt of the accused, Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, and Miguel "Ging" Rodriguez, they are ACQUITTED of the crime charged. CONCHITA CARPIO MORALES Associate Justice

Footnotes
1

Salvacion v. Sandiganbayan, G.R. No. L-68633, July 11 1986, 142 SCRA 707, 713.

The cases were (1) Criminal Case No. 91-7135 filed by then Assistant Chief State Prosecutor Aurelio C. Trampe before the sala of Judge Julio R. Logarta of the Makati City RTC, Branch 63, on November 11, 1991 (for robbery with homicide) against Villardo Barroso y Datuin, Roberto Barroso y Datuin Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Rey Doe and several other John Does still at large; (2) Criminal case No. 91-7136 (for the rape with homicide of Carmela Nicolas Vizcondefiled by ACSP Aurelio C. Trampe with the same RTC, Branch 63, on November 11, 1919) also against the same accused and (3) Criminal Case No. 91-7137 (for robbery, with homicide wherein the victim was ESTRELLITA NICOLAS VISCONDE) likewise filed against the same accused by ACSP Aurelio C. Trampe.
3

Records, Vol. I, pp. 1-3. Rollo (G.R. No. 176389), pp. 393-399 and rollo (G.R. No. 176864), pp. 80-104. Decision dated January 4, 2000. CA rollo, Vol. IV, pp. 3478-3479.

Resolution dated January 26, 2007, rollo (G.R. No. 176839), pp. 197-214. The resolution was penned by Justice Rodrigo V. Cosico, with the concurrence of Justices Regalado E. Maambong and Normandie B. Pizarro. Justices Renato C. Dacudao and Lucenito N. Tagle dissented.
8

A.M. 06-11-5-SC effective October 15, 2007. Section 4 states: Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following:

a. A biological sample exists that is relevant to the case; b. The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subject to DNA testing , but the results may require confirmation for good reasons; c. The DNA testing uses a scientifically valid technique; d. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and e. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.
9

People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828. People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207. Siao Tick Chong v. Republic, No. L-22151, March 30,1970, 32 SCRA 253, 258.

10

11

12

37 N.J. Eq. 130, 132. Cited in SALONGA, Philippine Law on Evidence, 774 (1964) and VIII Francisco, The Revised Rules Of Court In The Philippines, 458-459 (1997).
13

January 4, 2000 RTC Decision, p. 74. Vide TSN, October 18, 1995, pp. 105-106. TSN, October 23, 1995, pp. 6-9. Id. at 25-27. Id. at 35-36; TSN, October 10, 1995, pp. 80-96, 156-163. 35 N.Y.U.L. Rev. 259 (1960) Ibid. Vide 98 C.J.S. 348.

14

15

16

17

18

19

20

21

Vide People v. Lewis, 25 Ill. 2d 396, 185 NE 2d 168 where the Supreme Court of Illinois ruled:

The question of whether a witness is a narcotics addict is an important consideration in passing upon the credibility of a witness for, as we have stated, the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars. (citations omitted) In People v. Perkins, 26 Ill 2d 2300, 186 NE 2d 330 (1962) , the Supreme Court of Illinois said: The defendant contends that the trial court erred in finding him guilty on the basis of the uncorroborated testimony of a drug addict who was the only witness to the alleged crime, and further urges that the evidence as a whole does not prove him guilty beyond a reasonable doubt. We have repeatedly held that the fact that a witness is a narcotics addict and a police informer has an important bearing upon his credibility and, while his position is not that of an accomplice, the situation is sufficiently similar to that of an accomplice to warrant a close scrutiny of the testimony of such a witness, recognizing the fact that habitual users of narcotics become notorious liars and that their testimony is likely to be affected thereby. (Citations omitted; emphasis supplied)
22

State v. Fong Loon, 29 Idaho 248, 158 Pac. 233, 236. TSN, August 7, 1997, 35-45 TSN, June 4, 1997, pp. 47-48. Atty. Ongkiko: Q: As an investigator, Governor, will you tell the Honorable Court how did you relate or rather assess the reliability of any information furnished by a drug addict? Witness Velasco: A: Well, I will consider it, Your Honor, not generally reliable. Atty. Ongkiko: Q: Why do you say that? Witness Velasco: A: Well, because, you know, if one is under the influence of drugs or one is considered to be an addict, you could hardly believe his information. Atty. Ongkiko: Q: Why, why so? Witness Velasco: A: Because he is not in his state of mind.

23

24

Atty. Ongkiko: Q: Well, what about the capacity to lie, Governor? Witness Velasco: A: Well, the capacity to lie may be very great, Your Honor. Atty. Ongkiko: Q: Well, because, you know, for maintaining or for in order to get money, they will lie." (underscoring supplied)
25

Burrus and Marks Testimonial Reliability of Drug Addicts 35 N.Y.U.L. Rev. 259, 262-263, 269-270, 272-273 (1960).
26

TSN, May 28, 1996, pp. 49-50, 77-79. TSN, July 29, 1996, pp. 77-78. Justice Roberto Abad raised the same points, viz: a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house.

27

28

c. It is the same thing with the garage light. The police investigators found that the bulb had been loosed to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house.
29

G.R. Nos. 121039-45, January 25, 1999, 302 SCRA 21. TSN, October 6, 1997, p. 100. Vide TSN, July 31, 1996, pp. 20-21, 44. TSN, August 1, 1996, pp. 10, 15.

30

31

32

33

CA rollo (CA-G.R. SP No. 51173), pp. 209-225, penned by Associate Justice Ricardo P. Galvez, with the concurrence of Associate Justices Antonio M. Martinez and Hilarion L. Aquino.
34

Rollo, pp. 254-285, G.R. No. 176389. People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 586. Records, Vol. 17, pp. 186-196. Webb argued that: xxxx 7. Since the semen specimen is still in the custody and possession of the NBI, accused Webb moves for the submission of the semen evidence to a DNA analysis by a US-government or US government accredited forensic laboratory, preferably the Federal Bureau of Investigation, Washington, D.C. If granted, accused Webb reserves his right to be presented at all stages of the DNA typing process and to have access to the results thereof. xxxx

35

36

37

Id. at 502-529. Records, Vol. 18, pp. 256-259. G.R. No. 112229, March 18, 1997, 270 SCRA 1, 3.

38

39

40

41

People v. Tajada, G.R. No. 147200, December 17, 2002, 394 SCRA 159, 166; Monteverde v. People, G.R. No. 139610, August 12, 2002, 387 SCRA 196, 215.
42

People v. Abellanosa, G.R. No. 121195, November 27, 1996, 264 SCRA 722, 746-747. People v. Peruelo, No. L-50631, June 29, 1981, 105 SCRA 226-238; People v. Domingo, G.R. No. 184958, September 17, 2009. G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.

43

44

45

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION VILLARAMA, JR., J.: With all due respect to my colleagues, I dissent from the majority decision acquitting all the accusedappellants. In the middle part of 1991, the gruesome deaths of 19-year old Carmela Vizconde, her mother Estrellita and 7-year old sister Jennifer in the hands of unknown assailants inside their home in a private subdivision shocked our countrymen and alarmed the authorities of the rise in heinous crimes, particularly those committed by individuals under the influence of drugs. Investigations conducted by the police and other bodies including the Senate, and even the arrest of two (2) sets of suspects ("akyat-bahay" gang and former contractor/workers of the Vizcondes), failed to unravel the truth behind the brutal killings until an alleged eyewitness surfaced four (4) years later. The ensuing courtroom saga involving sons of prominent families had become one (1) of the most controversial cases in recent history as the entire nation awaited its long-delayed closure. The Case Subject of review is the Decision1 dated December 15, 2005 of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 00336 affirming with modifications the Decision dated January 4, 2000 of the Regional Trial Court (RTC) of Paraaque City, Branch 274 finding the accused-appellants Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada and Miguel "Ging" Rodriguez guilty beyond reasonable doubt as principals, and accusedappellant Gerardo Biong as accessory, of the crime of Rape with Homicide. The petition for review on certiorari filed earlier by accused Lejano (G.R. No. 176389) is hereby treated as an appeal, considering that said accused had in fact filed a notice of appeal with the CA.2 In view of the judgment of the CA imposing the penalty of reclusion perpetua, such appeal by notice of appeal is in accord with A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)3 which provides under Rule 124 (c):

(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. Accordingly, G.R. No. 176389 was consolidated with the present appeal by all accused (G.R. No. 176864) except Artemio Ventura and Joey Filart who are still at large.4 Only Webb and Gatchalian filed their respective supplemental briefs in compliance with our April 10, 2007 Resolution.5 The Facts The Information filed on August 10, 1995 reads: That on or about the evening of June 29 up to the early morning of June 30, 1991, in the municipality of Paraaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused Hubert Jeffrey P. Webb conspiring and confederating with accused Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael Gatchalian y Adviento, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez and Joey Filart, mutually helping one another, while armed with bladed instruments, with the use of force and intimidation, with lewd design, with abuse of superior strength, nighttime and with the use of motor vehicle, wilfully, unlawfully and feloniously have carnal knowledge of the person of Carmela Vizconde against her will and consent. That by reason or on the occasion of the aforesaid rape or immediately thereafter, the above-named accused with intent to kill, conspiring and confederating together, mutually helping one another, did then and there, and with evident premeditation, abuse of superior strength, nighttime, with the use of motor vehicle, assault and stab with bladed instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby inflicting upon them numerous stab wounds in different parts of their bodies which caused their instantaneous death. That accused GERARDO BIONG and JOHN DOES having knowledge after the commission of the above-mentioned crime, and without having participated therein as principals or accomplices, took part subsequent to its commission by assisting, with abuse of authority as a police officer, the abovenamed principal accused, to conceal or destroy the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime. CONTRARY TO LAW.6 The RTC and CA concurred in their factual findings based mainly on the testimony of the prosecutions principal witness, Jessica M. Alfaro who is a confessed former drug user, the declarations of four (4) other witnesses and documentary exhibits. Alfaro testified that on June 29, 1991 at around 8:30 in the evening, she drove her Mitsubishi Lancer and, with her then boyfriend Peter Estrada, went to the Ayala Alabang Commercial Center parking lot to get her order of one (1) gram of shabu from Artemio "Dong" Ventura. There she met and was introduced to Venturas friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian and Joey Filart (she had previously seen them in a shabu house located in Paraaque which they frequented as early as January 1991,7 while she had known Ventura since December 19908). After paying for hershabu and while she was smoking it, Webb approached her and requested a favor for her to relay a message to a certain girl who happened to be Carmela, to which she agreed. After the group finished their shabu session, they proceeded to Carmelas place at No. 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. She and Estrada in her car followed the two (2) vehicles: Webb, Lejano, Ventura,

Fernandez and Gatchalian on board a Nissan Patrol car; while Filart and Rodriguez rode a Mazda pick-up.9 Upon reaching the area, Alfaro parked her car along Vinzons St. and approached the gate of the house pointed to by Webb. She pressed the buzzer and when a woman came out, she asked for Carmela. When she was able to talk to Carmela (an acquaintance she had met only twice in January 199110), Alfaro relayed Webbs message that he was around. However, Carmela said she cannot make it as she had just arrived home and told Alfaro to come back after twenty (20) minutes. She relayed the answer of Carmela to Webb who then instructed the group to return to Ayala Alabang Commercial Center.11 At the same parking lot, the group had another shabu session before proceeding again to Carmelas residence in a convoy. Alfaro went to Vinzons St. alone while the Nissan Patrol and Mazda parked somewhere along Aguirre Avenue. Upon seeing Carmela who was at their garden, Alfaro was approached by Carmela saying she was going out for a while. Carmela told Alfaro that they come back before 12:00 midnight and she would just leave the pedestrian gate, as well as the iron grill gate leading to the kitchen door, open and unlocked.12 Carmela further instructed Alfaro to blink her cars headlights twice before reaching the pedestrian gate to signal her arrival. Alfaro returned to her car but waited for Carmelas car to get out of the gate. Carmela drove ahead and Alfaro likewise left Vinzons St. Upon reaching the main road, Aguirre Avenue, she saw Carmela drop off the man who was with her in the car (whom she thought to be her boyfriend13). Alfaro looked for the group and relayed Carmelas instructions to Webb. Thereafter, they all went back to the Ayala Alabang Commercial Center.14 At the parking lot, Alfaro relayed to the group what transpired during her last conversation with Carmela. She also told Webb about Carmelas male companion; this changed his mood for the rest of the evening ("bad trip"already15). Webb then gave out complimentary cocaine and all of them used shabu and/or cocaine.16 After about 40 to 45 minutes, Webb decided it was time to leave, declaring: "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said: "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot and their convoy of three (3) vehicles entered Pitong Daan Subdivision for the third time. They arrived at the Vizconde residence between 11:45 to 11:55 p.m.17 Alfaro parked her car in between the Vizconde house and its adjacent house. While waiting for the rest of the group to alight from their cars, Fernandez approached her suggesting that they blow up the transformer near the pedestrian gate of the Vizconde residence in order to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). She shrugged off the idea and told Fernandez "Malakas lang ang tama mo." When Webb, Lejano and Ventura were already standing infront of the Vizconde residence, Webb repeated to the boys that they will line up for Carmela but he will be the first, and the others said, "O sige, dito lang kami, magbabantay lang kami."18 Alfaro entered first the pedestrian gate which was left open, followed by Webb, Lejano and Ventura. At the garage, Ventura pulled out a chair to get on top of the hood of the Vizcondes Nissan Sentra car and loosened the electric bulb ("para daw walang ilaw"). They proceeded to the iron grill gate which was likewise left open, and passed through the dirty kitchen. It was Carmela who opened the aluminum screen door of the kitchen for them to enter. Carmela and Webb for a moment looked at each other in the eye, and then proceeded towards the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out of the house. Lejano asked where she was going and she told him she will smoke outside. On her way to the screen door, she saw Ventura pulling a drawer in the kitchen. At the garden area, she smoked a cigarette. After about twenty (20) minutes, she was surprised upon hearing a female voice uttered "Sino yan?" and she immediately walked out towards her car. She found the others still outside around her car and Estrada who was inside the car said:

"Okay ba?" After staying in her car for about ten (10) minutes, she returned to the house passing through the same iron grill gate and dirty kitchen. While it was dark inside the house, there was light coming from outside. In the kitchen, she saw Ventura searching a ladys bag on top of the dining table. When she asked Ventura what was it he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what particular key and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door of the house but none of them fitted the lock; she also did not find any car key.19 Unable to open the main door, Alfaro walked back towards the kitchen but upon reaching the spot leading to the dining area, she heard a very loud static sound (like that coming from a television which had signed off). Out of curiosity, she went to the door of the masters bedroom where the sound was coming from and peeped inside. She pushed the slightly ajar door with her fingers and the sound grew even louder. After pushing the door wider, she walked into the room. There she saw a man on top of Carmela who was lying on the floor, two (2) bloodied bodies on top of the bed and Lejano who was at the foot of the bed about to wear his jacket. She turned her eyes on Carmela who was gagged, moaning and in tears while Webb was pumping her, his bare buttocks exposed. Webb gave her a look and she immediately left the room. At the dining area, she met Ventura who told her: "Prepare an escape. Aalis na tayo." Shocked by what she saw, Alfaro rushed out of the house and found the rest of the group outside, in her car and on the sidewalk.20 Alfaro boarded her car and started the engine but did not know where to proceed. She saw Webb, Lejano and Ventura leaving the house already. Webb suddenly picked up a stone and threw it to the main door, breaking its glass frame. When the three (3) were near the pedestrian gate, Webb told Ventura that he left behind his jacket. But Ventura said they cannot make it anymore as the iron grills were already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. Near an old hotel in the Tropical Palace area, Alfaro saw the Nissan Patrol slow down and something thrown out into a cogonal area. They went to a large house with high walls and concrete fence, steel gate and long driveway located at BF Executive Village. They parked their cars inside the compound and gathered in the lawn area where the "blaming session" took place. It was only at this point that Alfaro and the others came to know fully what happened at the Vizconde house. The mother was the first one (1) killed, then Jennifer and the last, Carmela.21 Ventura was blaming Webb telling him: "Bakit naman pati yung bata?" According to Webb, the girl was awakened and upon seeing him molesting Carmela, she jumped on him, bit his shoulders and pulled his hair. Webb got mad and grabbed the girl, pushed her to the wall and stabbed her several times. Lejano excused himself and used the telephone inside the house, while Webb called up someone on his cellular phone. At around 2:00 in the morning, Gerardo Biong arrived and talked to Webb who ordered him to clean up the Vizconde house, and said "Pera lang ang katapat nyan." Biong answered "Okay lang." Webb addressed the group and gave his final instructions: "We dont know each other. We havent seen each other...baka maulit yan." She and Estrada then departed and went to her fathers house.22 Dr. Prospero A. Cabanayan, medico-legal officer of the National Bureau of Investigation (NBI), who conducted the autopsy on the cadavers of the victims, testified on his findings as stated in the autopsy reports he submitted to the court. The bodies were photographed showing their condition before the start of the post-mortem examination.23 Considering that they were almost in complete rigor mortis, the victims must have been dead for twelve (12) hours. Carmelas hands were on her back hogtied with an electric cord and her mouth gagged with a pillow case. She had contusions on her right forearm and thighs, ligature marks on her wrists and nine (9) stab wounds on her chest (five [5] wounds are "connecting" or reaching to the back of the body). Further, specimen taken from her genitalia tested positive for the presence of human spermatozoa, which is indicative

of complete penetration plus ejaculation of the male sex organ into the female sex organ. The contusions on her thighs were probably due to the application of blunt force such as a fist blow.24 Dr. Cabanayan further testified that Estrellita was also hogtied from behind and her wrists bore ligature marks from an electric cord with a plug. She sustained twelve (12) stab wounds, eight (8) of which are "communicating" or perforating (through and through stab wounds) which are fatal since vital organs are involved.25 As to Jennifer, her stab wounds, nineteen (19) in all, had the characteristics of one (1) which is extremely blunt, the other extremely sharp. These wounds are located in different parts of her body, most of which are on the left anterior chest. But unlike Carmela and Estrellita, Jennifer had two (2) stab wounds on her back and incise wounds on her left and right forearms, the latter usually referred to as defense wounds. Seven (7) of the nine (9) stab wounds on her chest were perforating, hence fatal wounds.26 Judging from the characteristics of the stab wounds sustained by the victims, Dr. Cabanayan concluded that they could have been inflicted using sharp-edged, pointed and single-bladed instruments such as a kitchen knife.27 Normal E. White, Jr., one (1) of four (4) security guards assigned at Pitong Daan Subdivision which is part of the United BF Homes, testified that he and Edgar Mendez were the guards on duty on the night of June 29, 1991, starting at 7:00 oclock in the evening until 7:00 oclock in the morning of June 30, 1991. On June 30, 1991, at around 6:00 a.m., a homeowner called his attention on the incident the previous night at the Vizconde house. He immediately proceeded to said house where there were already many people. The housemaids of the Vizcondes led him to the entrance at the kitchen and pointed to the masters bedroom. Upon entering the room, he saw the bloodied bodies of the victims: two (2) were on top of the bed, and one (1) lying down on the floor. He is familiar with Mrs. Vizconde, Carmela and Jennifer because they were kind to the guards and usually greeted them. Mrs. Vizconde was gagged and her hands tied, while Jennifer was also lying on top of the bed. Carmela was lying on her back with one (1) of her legs raised, her dress pulled up and her genitals exposed. He also noticed that the TV was still on with loud sound. He went out to call the police but he met their Security Chief whom he informed about the killings at the Vizconde house. He then proceeded directly to the entrance/guard post of the subdivision and was told by Mendez that there were already policemen who had arrived.28 Having been apprised of the arrival of the police, White, Jr. returned to the Vizconde house to observe what was going on. He saw the policemen already investigating the crime scene and one (1) of them he later came to know as Gerardo Biong. There was also a woman who was with Biong when he was conducting the investigation inside the Vizconde premises at the garage area. The maids were being asked if they were able to hear the breaking of the main doors glass frame, and he saw Biong in the act of further breaking the remaining glass. He recognized other homeowners who were also there, including Michael Gatchalian who passed by infront of the house. Afterwards, he returned to their guard post where their Officer-in-Charge (OIC), Justo Cabanacan, probed him and Mendez on anything they had observed the previous night. He and Mendez told Cabanacan that they did not notice anything unusual except "Mike" (Michael Gatchalian) and his friends entering and exiting the subdivision gate ("labas-masok").29 White, Jr. recounted that Mikes group entered the subdivision on the night of June 29, 1991. Upon approaching the gate, Mikes car slowed down on the hump. He was about to flag down and verify ("sisitahin") but Mike (who was at the right front seat) immediately opened his window to show his face and pointed to two (2) vehicles behind him as his companions. Because of their policy allowing outsiders to enter the subdivision as long as they are accompanied by a homeowner, he and Mendez just let the three (3) vehicles in (Mike was in the first car). That was actually the second time he saw Mike and his "barkada" that night because he had earlier seen them at Vinzons St. near the Gatchalian residence. However, he could no longer remember the precise time he saw the group on these two (2) instances.30

White, Jr. further testified that on the night of June 30, 1991, policemen took him from the Pitong Daan Subdivision Homeowners Association and brought him to the Paraaque Municipal Building. Biong was forcing him to admit that he was one (1) of those who killed the Vizconde women. Biong boxed him insisting he was among the perpetrators and had no mercy for the victims. He and Mendez were later fetched by the Chief of Security of Pitong Daan Subdivision Homeowners Association, Nestor Potenciano Jr., and OIC Justo Cabanacan.31 Biong had also taken their logbook where they list down the names of visitors, plate number of vehicles, name and street of the homeowner they were staying at, etc. However, when presented with the alleged logbook, White, Jr. said it was not the same logbook, he could not recognize its cover and could not categorically confirm the entries supposedly made in his own handwriting.32 Justo Cabanacan, another security guard assigned at the Pitong Daan Subdivision and the one (1) supervising his co-guards White, Jr., Mendez and Tungo, testified that when he reported for duty on June 30, 1991 at about 7:00 oclock in the morning, he was met by Mendez who told him about the killing of a homeowner and her family. When he asked Mendez if he and White, Jr. noticed anything unusual during their tour of duty the previous night, Mendez said everything was alright except for Mike and his friends who had gone in and out of the subdivision ("labas-masok") until the wee hours in the morning of June 30, 1991. White, Jr. also reported to him that on the night of June 29, 1991, while doing his roving duty around the subdivision, he noticed vehicles parked along Vinzons St. near the house of Mr. Almogino where there seemed to be a drinking party, and that Mike was "labas-masok" through the subdivision gate. He confirmed it was indeed their policy that if one (1) is a son/daughter of a homeowner, or accompanied by a homeowner or any relative of homeowner, he/she will no longer be stopped or queried by the guards. In particular, he knows Mike and had seen him visit the house of Lilet Sy, another homeowner. He often goes to Lilet Sys house because of the various complaints of homeowners against her like the presence of too many people at her house until midnight and the vehicles of her visitors running over her neighbors plants. This Lilet Sy is also a suspected drug pusher within the subdivision.33 Cabanacan further testified that around the last week of May or first week of June 1991, he came to know Hubert Webb because he had stopped his car at the subdivision gate as it had no local sticker of Pitong Daan Subdivision. It was around 7:00 oclock in the evening when Webb arrived. He greeted Webb and asked about his destination. Webb replied he was going to see Lilet Sy. When he asked Webb to leave an identification card, Webb pointed to his car sticker saying he is also a BF Homes resident. He explained to Webb that the sticker on his car was for United BF Homes and not the local sticker of Pitong Daan Subdivision. Webb then said: "Taga-diyan lang ako sa Phase III...saka anak ako ni Congressman Webb." He insisted on seeing Webbs ID card and grudgingly Webb obliged and pulled out his wallet. Webb gave him a laminated ID card with Webbs picture and with the name "Hubert Webb" written on it. After seeing the ID card, he returned the same to Webb and allowed him to enter the subdivision. However, he did not anymore record this incident in their logbook because anyway Webb is the son of the Paraaque Congressman, a well-known personality.34 In the morning of June 30, 1991, Cabanacan said he also went to the Vizconde house upon being told by Mendez and White, Jr. of the killings. By afternoon of the same day, he came to meet Biong who was conducting the investigation. Based on the information given by Mendez and White, Jr., he prepared a written report on the incident which he submitted to Nestor Potenciano, Jr. After the incident, Biong frequented their place to investigate and asserting he had no female companion while conducting his investigation at the Vizconde house on June 30, 1991. Aside from taking their logbook, Biong also took his two (2) guards (Mendez and White, Jr.) to the police headquarters on June 30, 1991 at around 7:00 p.m. The said guards also related to him what Biong did to them. They said Biong punched them and forced them to admit having participated in the Vizconde killings.35

Mila Solomon Gaviola, a laundrywoman who worked at the Webb residence located at Aguirre Avenue, BF Homes, Paraaque from January to July 199136 testified that on June 30, 1991 at around 4:00 in the morning, she went to the room of Hubert to get his and his brothers (Jason and Michaels) dirty clothes, using the small "secret door" at the second floor near the servants quarters. She noticed that Michael and Jason were still asleep while Hubert was sitting on the bed wearing only his pants. When she finished collecting dirty clothes including those of Senator Webb, she brought them down to the laundry area. She ate breakfast and rested for a while. Afterwards, she started washing first Senator Webbs clothes and then those of the sons. She washed Huberts white shirt with round neck and found it had fresh blood stains at the stomach area and also splattered blood ("tilamsik lang") on the chest. She had difficulty removing the blood stains and had to use Chlorox. After she finished washing the clothes, she hanged them to dry on the second floor. Returning to the servants quarters, she peeped into Huberts room through the "secret door." She saw Hubert pacing the floor ("di mapakali"); this was about 9:00 a.m. already. She saw Hubert again around 1:00 oclock in the afternoon as he left the house passing through the "secret door"; he was clad in t-shirt and shorts. Hubert was back at the house by 4:00 oclock in the afternoon. She never saw him again until she left in July 1991.37 Gaviola further testified that on June 30, 1991 at around 7:00 oclock in the morning, she saw Senator Webb at the sala reading a newspaper.38 Lolita Carrera Vda. de Birrer, a widow and resident of United Paraaque Subdivision 5, testified that on June 29, 1991 at around 6:00 p.m., Biong who was then her boyfriend, asked her to come to the Paraaque police station to play "mahjong" at Aling Glos canteen located at the back of their office. They started playing at 6:30 in the evening. Between 1:00 and 2:00 in the morning of June 30, 1991, the radio operator at the police station went down to the canteen telling Biong he has a call. She took Biongs place at the game while Biong went to the headquarters. After a while, she followed Biong to ask if he was joining the next bet. Biong was on the telephone talking with someone and visibly irked. She heard Biongs words: "Ano?... Saan?... Mahirap yan ah! O sige, dadating ako... Ano?... Saan?... Dilaw na taxi?" Biong then told her he was leaving and shortly thereafter a taxicab arrived with a man seated at the back seat. Biong bade her good-bye saying he was going to BF Homes. She continued playing "mahjong" until morning. At around 7:00 a.m., Biong came back and went straight to the washing area of the canteen. She followed him and saw him cleaning blood stains on his fingernails. After wiping his face and hands with a handkerchief, he threw it away and when she asked why, Biong said it smelled stinky. Biong was in bad mood ("aburido") and complained, "Putang inang mga batang yon, pinahirapan ako nang husto". Afterwards, Biong took out a knife with aluminum cover from his drawer and put it in his steel cabinet. She invited him for lunch but another policeman, Galvan, came and told Biong to proceed to BF Homes and investigate the three (3) dead persons there. Biong answered, "Oo, susunod na ako" and then proceeded to Capt. Bartolomes office. With Capt. Bartolomes permission, she joined them in going to the Vizconde residence.39 Upon arriving at the Vizconde house, Biong asked that the victims relatives and the homeowners association President be summoned. A certain Mr. Lopez and Ms. Moreno arrived and also a security guard named White, Jr. who pointed to the location of the victims bodies. They entered the masters bedroom and she saw the mother and a small girl on top of the bed, and a young woman sprawled on the floor. After inspecting the bodies, Biong went to the toilet and turned on the faucet; the running water washed out the blood on the flooring of the toilet. Biong searched the drawers using his ballpen. She saw him took a round pendant watch and pocketed it. They went out of the room and on the top of the dining table they saw a shoulder bag and scattered next to it were various items such as Carmelas ATM card, her drivers license and calling cards. Biong proceeded to the main door and removed its chain lock. When they came out towards the garage area, Biong saw a stone by the window. He then asked Capt. Bartolome to go inside the room of the two (2) maids to see for himself if indeed the noise of the breaking glass could not be heard. When Capt.

Bartolome was already inside the middle room, Biong shattered the remaining glass of the main door with the butt of his gun. When Biong asked if he could hear it, Capt. Bartolome answered in the affirmative. Biong next inspected the garage where he saw the footmarks on the cars hood; Biong also found fingerprints on the electric bulb. She was just beside Biong at the time. They followed Biong towards the back of the house but upon seeing another shoe print on the ground just outside the masters bedroom, he directed them not to proceed any further. They left the Vizconde house at around 10:00 a.m. and proceeded to the Paraaque Municipal Building.40 Birrer further testified that on July 1, 1991 at 10:00 oclock in the morning, Biong arrived at her house bringing along with him the two (2) maids of the Vizcondes. He asked her to cook something for the maids to eat. Biong also instructed her to interview the maids on what they know about the killings. She did as told but the maids said they do not know anything as they were asleep. After they had lunch, Biong told her to let the maids rest. While she and the maids were resting at the sala, Biong requested to use her bathroom. Before taking a bath, Biong took out the contents of his pockets which he put on the dining table. She saw Carmelas ATM card and drivers license, bracelet, earrings and the round pendant watch Biong had taken from a jewelry box while they were inside the Vizconde house. When Biong left her house, he brought all said items with him.41 On July 2, 1991 at around 6:00 p.m., Birrer was at the Paraaque Municipal Building inside Biongs office. She saw Biong open his steel cabinet and took out a brown leather jacket which she thought was imported. When she asked him where it came from, Biong initially just said it was given as a gift but when she further queried, he answered: "Natatandaan mo ba yong nirespondehan ko noong gabi sa BF Homes? Doon galing yon." She asked Biong whether those were the youths he had mentioned earlier and he said yes. As to the jewelries taken by Biong from the Vizconde house, she was with Biong when the latter pawned them at a pawnshop near Chow-Chow; Biong got P20,000.00 for the pawned items.42 Birrer further testified that two (2) weeks after they went to the Vizconde residence to investigate, Biong on two (2) occasions brought her along to a certain house. It was only Biong who went inside the said house as she waited in a taxicab. In both instances, Biong came out of the house with an envelope containing an undisclosed amount of money. She remembered this because when she was already staying in Pangasinan on December 7, 1995, she saw flashed on ABS-CBNs TV Patrol News 7:00 p.m. newscast on television, a video footage of the house of Senator Webb. She was certain it was that house where Biong went and came out carrying cash in an envelope.43 Lauro G. Vizconde, husband of Estrellita and father of Carmela and Jennifer, testified on the personal circumstances of the victims. At the time of their deaths, Estrellita was engaged in business (at one [1] time or another she was a garment manufacturer, taxi operator, canteen owner and local employment recruiter), Carmela was a graduating B.S. Psychology student at the University of Santo Tomas, while Jennifer was a Grade I pupil at Bloomfield Academy at BF Resort, Las Pias, Metro Manila. He left the Philippines in November 1989 to work in the United States of America. He had not since returned to the country -- until this unfortunate tragedy befell his family -- but communicated with his wife through telephone once or twice a month.44 Lauro G. Vizconde further testified that his daughter, when she was still alive, was so close to him that she confides her daily activities, dreams, ambitions and plans in life. She intended to pursue further masteral and doctoral degrees in business psychology in the U.S.A. In fact, that was the reason he transferred from one (1) state to another looking for a school where Carmela could enroll. However, he had to come home in July 1991 and bury his wife and daughters whose violent deaths he was informed of only upon arriving in the country and when he saw their bodies with stab wounds at the funeral parlor just before burial. He spent burial expenses in the amount of P289,000.00, plus P103,000.00 incidental expenses, P300,000.00 paid for memorial lots and aroundP100,000.00

for the construction of the mausoleum - with a grand total of P793,950.00. He likewise incurred litigation expenses in the amount of P97,404.50.45 In one (1) of their telephone conversations when he was still in the U.S.A., Lauro Vizconde recounted that Carmela mentioned to him that she had turned down a suitor whom she called "Bagyo," who is a son of politician in Paraaque and comes from an affluent family. He also expressed his mental anguish, wounded feelings, emotional suffering due to the untimely demise of his family. It actually cost him his life, his heart bled all the time and only time can tell when he can fully cope with the situation. He is presently totally displaced and jobless; he misses his family and he now lives an abnormal life with no inspiration and no more challenge to work for. When asked how much compensation he will ask for moral damages, he answered saying he leaves the matter to the sound discretion of the court as in truth, no amount can truly compensate him for the loss of his loved ones. He sought justice for the death of his family and hoped that the culprits, whoever they were, will be punished so that the souls of his departed loved ones may rest in peace.46 Defense Evidence The accused chiefly assailed the credibility of prosecution star witness Alfaro, in particular her execution of two (2) allegedly inconsistent affidavits (one on April 28, 1995 and another on May 22, 1995) and raised alibi and denial as defenses to the charge of rape with homicide attended by conspiracy. During the trial, no less than 95 witnesses47 were presented, and voluminous documentary exhibits were submitted. The testimonies of the principal witnesses for the defense are summarized as follows: Hubert Jeffrey P. Webb testified that at the time of the killings between June 29 and 30, 1991, he was still in Anaheim Hills, California, U.S.A., having departed from the Philippines on March 9, 1991 on board a United Airlines flight bound for San Francisco. He was accompanied by Gloria Webb, whose husband Richard Webb is the eldest brother of his father Senator Freddie Webb. It was the first time he traveled to the US and he returned to the Philippines only on October 25, 1992. On the eve of his departure, he, Rael, Tina and his then girlfriend Milagros Castillo went out and had dinner at Bunchchums. Later that night, they went to Faces Disco at Makati Avenue where his friends Paulo Santos and Jay Ortega followed. They went home at 3:00 oclock in the morning already. After driving around in the city and bringing Milagros home, he arrived at his house at around 5:00 a.m. His parents were already preparing to leave and so they headed to the airport.48 Webbs friend Rafael Jose, Paulo Santos, Senator Webbs security staff Miguel Muoz, Webbs secretary Cristina Magpusao and house girl Victoria Ventoso corroborated Webbs testimony that he departed from the Philippines on March 9, 1991.49 Webb further testified that he stayed at the house of her Auntie Gloria and Uncle Dinky at San Francisco until late April to May 1991. Upon the invitation of her aunt Susan Brottman, sister of his mother, he rode a train and went to Anaheim where he stayed until mid-July 1991. Thereafter, he rented a nearby place but did not complete the one (1) month pre-paid lease period as he proceeded to Longwood, Florida. He stayed at the residence of his Uncle Jack and Sonia Rodriguez for almost a year (August 1991-August 1992). He went back to Anaheim and stayed at the house of his godmother and sister of his mother, Imelda Pagaspas, until October 1992. He met his relatives and other personalities while in the US; visited Lake Tahoe with the Wheelock family; toured Disneyland where Luis Wheelock filmed them and attended a concert with Christopher Esguerra who also took him out to the malls.50 Webb further testified that in the later part of June 1991, his parents joined him in the US. He applied for and was issued a drivers license on June 14, 1991. He also worked at the pest control company

of his cousin-in-law Alex del Toro. Aside from his passport and airline ticket for return flight to the Philippines, Webb presented before the court the logbook of jobs/tasks kept by del Toro, in which he pointed to the entries therein which were actually performed by him; and also his purported pay check ($150 "pay to Cash"), ID and other employment papers. He also identified some handwritten letters he mailed while he was in the US and sent to his friend Jennifer Cabrera in the Philippines; photographs and video tape clips taken during his cousin Marie Manlapits wedding to Alex del Toro which wedding he attended in the US together with his mother; and receipt issued for the mountain bicycle he bought on June 30, 1991 from the Orange Cycle store in Anaheim.51 Webb denied having met Carmela Vizconde and neither does he know Jessica Alfaro. He had been jailed since August 9, 1995. When asked about his co-accused, Webb said the only ones he had met before June 29, 1991 were Fernandez and Rodriguez. He used to play basketball with Fernandez at BF Homes Phase III, during which he also met Rodriguez. While he admitted having gone out on a group with Fernandez to the houses of their basketball buddies, he denied having gone out with Rodriguez at any time.52 He also denied knowing Biong who is neither a driver nor security aide of his father.53 Gloria Webb testified that on March 9, 1991, she traveled with Webb on a United Airlines flight to San Francisco. Webb stayed at her residence at 639 Gellert Boulevard, Daly City, California until May 1991 when he left to be with his mothers sister and relatives in Anaheim. Webb and her grandson attended a "concierto" in the evenings and he also joined and helped her son-in-law with his business. Webb went with them to church, to the malls and in shopping. In April 1991, Webb went on a trip to Lake Tahoe with Mr. Wheelock and family.54 Dorothy Wheelock testified that she became a US citizen in 1974 and has been residing at 877 Las Lomas Drive, Milpitas, California. Webbs mother is her childhood friend and schoolmate. When she heard that Webb was in the US looking for a job, she invited him, and her husband Louis Wheelock picked him up at Daly City in April 1991. To reciprocate the Webbs hospitality while they visited the Philippines in 1990, she and her family took Webb to a trip to Lake Tahoe in Nevada during which they even took a video tape. Senator Freddie and Mrs. Webb also visited and stayed with them for four (4) days in July 1991. They took them to a trip to Yosemite Park, also with video footages taken by her husband.55 Steven Keeler testified that he had been an American citizen since 1982 and resident of 4002 River Street, Newport Beach, California. He met Webb at a dinner in the house of Webbs aunt Susan Brottman in Anaheim Hills around May or June 1991. Brottmans son, Rey Manlapit, was his good friend. They played basketball with Webb, went to bars, shopped and watched TV. He also knew that Webb bought a car and worked for Alex del Toro for Environment First Termite Control. He believed that Webb left for Florida towards the end of summer (July 1991). He could not recall any specific dates he was with Webb.56 Honesto Aragon testified that he went to the US in 1967 and became a US citizen in 1989. On June 28, 1991, he met then Congressman Freddie Webb at the house of the latters sister-in-law, Susan, at Anaheim. Congressman Webb introduced to him his son Hubert Webb. He, Congressman Webb and Hubert went to some stores to go shopping for a bicycle for Hubert. But they only bought bike accessories. He invited them to snack before he brought them to his own house where he introduced to them his son Andrew. The following day, June 29, 1991, they went to Riverside, California to shop for a car for Hubert; though they found a Toyota MR2, they did not buy it because it has questionable ownership. Early morning the next day, he picked up Congressman Webb and they played tennis from 7:00 to 10:00 a.m. He and Congressman Webb were close friends, as both of them were members of a basketball team in Letran. The first time he saw Hubert was when he was still a small kid and the other time on June 28, 1991 at the Brottmans residence in Anaheim.57

Senator Freddie Webb testified that his son Hubert left for the US on March 9, 1991, the first time he had gone out of the country. Hubert stayed with his sister-in-law Gloria. They wanted to show Hubert the value of independence, hard work and perseverance, and for him to learn how to get along and live with other people. Hubert resigned from his job at Saztec before departing for the US. He and his wife also went to the US on June 28, 1991. They stayed at the house of his sister-in-law, Susan Brottman at Anaheim. From San Francisco, they went to Orlando, Florida, then back to Los Angeles and returned to the Philippines on July 21, 1991. Among the places he visited while in the US were the Yosemite Park, Nordstrom, Disneyland, Disneyworld. Upon arriving at Anaheim, he saw his son Hubert and also informed Honesto Aragon regarding their plan to procure a bicycle for Hubert. Hubert was with them again on June 29, 1991 at dinner in the residence of his sister-in-law. On July 1, 1991, they went shopping for some clothes. Together with Aragon, he and Hubert looked for a Toyota MR2 car and paid for it with a check (the car was priced at $6,000-$7,000).58 Senator Webb further testified that he knows Mila Gaviola who used to be their "labandera." She left their house but returned to work for them again about a couple of months after the Mt. Pinatubo eruption. As to Alfaros statements implicating his son Hubert in the Vizconde killings, he said the statements were not accurate because it was physically impossible for Hubert to have participated in the crime as he was abroad at the time.59 Louis Whitaker testified that he left the Philippines and resided in the US since September 1964. He met Jack Rodriguez when the latter fetched him and his wife Sonia at the Los Angeles International Airport on June 28, 1991 upon their arrival from the Philippines. They proceeded to the house of a mutual friend, Salvador Vaca, at Moresbay Street in Lake Forest. They went to see Congressman Webb at a house in Anaheim. That was the first time he met Congressman Webb, Mrs. Webb, the sister-in-law and a Mr. Aragon. On June 29, 1991, he and Rodriguez invited Congressman Webb to see Mr. Vaca perform at La Calesa Restaurant in the City of Testin. When they fetched Congressman Webb at his sister-in-laws house, he met again Mrs. Webb, and also Hubert. He saw Hubert for the second time at Orlando, Florida when he went to the house of Jack Rodriguez there; this was about July or August 1991.60 Sonia H. Rodriguez testified that she was appointed UNESCO Commissioner by then President Fidel V. Ramos. She has known accused Webb since he was a child. On June 28, 1991, she and her husband boarded a plane for Los Angeles, California. They were fetched at the LA airport by oldtime friend Salvador Vaca and proceeded to the latters house in Orange County, California. They had dinner that evening with spouses Freddie and Elizabeth Webb at the house of Susan Brottman. The next day, in the afternoon of June 29, 1991, her husband and Salvador Vaca picked up Senator Webb from the house of Susan Brottman and then came back to fetch her and Mrs. Vaca to go to La Calesa, a restaurant owned by Mario Benitez, also a Filipino. However, she and Mrs. Vaca decided to stay home. On June 30, 1991 at around 8:00 p.m., she and her husband went to the house of Susan Brottman, together with Salvador and Mrs. Vaca and Louis Whitaker. She recalled that Hubert was there at the time. She saw Hubert again on July 4, 1991 when they went on a lakeside picnic with the Webb family, Brottmans and Vacas. After watching the fireworks, they went to Sizzler Restaurant. The next day, she and her husband stayed overnight at San Francisco where they also met Senator and Mrs. Webb. On August August 4, 1991, Hubert arrived in her home in Florida with her son Tony, daughter-in-law Ana, and stayed with them for almost one (1) year. The last time she saw Hubert was when he left Orlando, Florida on January 27, 1992.61 Webb presented other witnesses to buttress his defense of alibi: Victor Yap (who took video shots of Congressman Webb during a boat ride in Disneyland);62 Armando Rodriguez (who testified seeing Hubert in Orlando either August or September 1991);63 performing artist Gary Valenciano (who testified meeting Hubert at a dinner at the Rodriguez residence in Orlando on November 24, 1991, Jack Rodriguez being the father of his high school classmate Antonio Rodriguez;64 and Christopher Paul Legaspi Esguerra (grandson of Gloria Webb who went with Hubert Webb to watch the concert

of the Deelite Band in San Francisco in the later part of April 1991 and saw Hubert Webb for the last time in May 1991).65 Then a practicing lawyer, Atty. Antonio T. Carpio (now an Associate Justice of this Court) testified that on June 29, 1991 between 10:00 and 11:00 oclock in the morning, he had a telephone conversation with former Congressman Webb who said he was calling from Anaheim, U.S.A., where he and his wife went to look for a job for their son Hubert. They also talked about bills to be drafted as his law office had been engaged by Congressman Webb for bill drafting services as well as preparation of his speeches and statements. When asked if he had personal knowledge that Congressman Webb was really in the US at that time, he replied that since Webb had told him he was leaving for the US, he just presumed it was so when Webb said he was then at Anaheim. Neither did he have personal knowledge that Hubert Webb was in the US at the time of his conversation with Congressman Webb.66 Webb submitted the following documentary evidence in connection with his sojourn in the US: 1) Video Tape recording of Disneyland trip on July 3, 1991;67 2) Official Receipt issued by Orange Cycle Center dated June 30, 1991,68 photographs of the bicycle purchased by Webb from said store;69 3) Car plate with the name "Lew Webb";70 4) Passport with Philippine Immigration arrival stamp;71 5) Photographs of Webb with Rodriguez family;72 6) California Drivers License of Webb,73 Original License Card of Webb issued on June 14, 1991;74 7) Statement of Account issued to Environment First Termite Control showing Check No. 0180;75 Bank of America Certification on Check Nos. 0122 and 0180;76 8) Public Records of California Department of Motor Vehicle on sale to Webb of Toyota MR2 car;77 Traffic citations issued to Webb;78 Import documents of said car into the Philippines;79 9) Certification issued by the US Immigration and Naturalization Service and correspondence between US and Philippine Government;80 computer-generated print-out of the US-INS indicating date of Webbs entry in USA as March 9, 1991 and his date of departure as October 26, 1992;81 US-INS Certification dated August 31, 1995 authenticated by the Philippine Department of Foreign Affairs, correcting the earlier August 10, 1995 Certification;82 10) Certification issued by Agnes Tabuena;83 Passenger Manifest of PAL Flight No. 103;84 PAL ticket issued to Webb,85 Arrival in Manila Certification issued by the Philippine Immigration,86 Diplomatic Note of the US Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the USINS stating that the Certification dated August 31, 1995 is a true and accurate statement;87 and Certificate of Authentication of Philippine Consul Herrera-Lim.88

Accused Antonio Lejano and Michael Gatchalian likewise raised the defense of alibi claiming that they spent the night of June 29, 1991 until early morning of June 30, 1991 watching video tapes at the house of Carlos Syap at Ayala Alabang Village. Lejano further testified that with the exception of Miguel "Ging" Rodriguez and Michael "Mike" Gatchalian who are his former schoolmates, he does not know any of his co-accused. They left the house of Syap brothers early morning of June 30, 1991; it was Cas Syap who brought him and Mike home. On July 5, 1991, he and Cas Syap went to the police station where Mike, who was picked up as a suspect by the police on July 4, was detained. When they met Biong there, they told him they are willing to vouch for Mikes innocence and even volunteered to give statements. Biong told them to return the following day. However, when he returned in the morning of July 6, 1991, Biong wanted his fingerprints taken right away but he told Biong he needed to consult someone first. He eventually submitted himself for fingerprinting after his name came out in the media. Lejano pointed out that Alfaro failed to identify him even as she passed by him three (3) times, and was able to do so only when she was coached by the prosecution camp.89 On the part of Michael Gatchalian, he presented nine (9) witnesses: Atty. Porfirio "Perry" Pimentel, RPN 9 broadcast executive who testified that he personally took video footages of Mon Tulfos interviews with some persons in America (including Honesto Aragon and the bicycle shop owner) who attested that Hubert Webb was there at the time of the Vizconde killings, but which segment was edited out in the program he produced (Action 9);90 Mark Anthony So, a former NBI intelligence agent who was tasked to confirm photos of Hubert Webb (his classmate at DLSU St. Benilde) to familiarize Alfaro with his facial features;91 Matthew John Almogino, a childhood friend and neighbor of Gatchalian, who testified that he was among those who went inside the Vizconde house in the morning of June 30, 1991 and Biong even asked him to take pictures; thereupon at around 9:30 a.m., he saw Gatchalian in front of the Vizconde residence telling him that he just woke up and exchanged pleasantries with him; and that as far as he knows, Webb, Fernandez, Lejano and Gatchalian are not "magbabarkada";92 Atty. Leny Mauricio and Ana Marie Pamintuan of The Philippine Star wherein a news article was published stating that Michael Gatchalian had rejected governments offer for him to turn state witness in the Vizconde case;93 Atty. Camilo Murillo who accompanied Gatchalian on July 19, 1991 when he gave his statement to the NBI, testified that Atty. Pete Rivera relayed to Gatchalian the request of then NBI Director Honesto Aragon for him to turn state witness and which offer was refused by Gatchalian and his father;94 and Atty. Manuel Sunga who accompanied Gatchalian to the Department of Justice (DOJ) when he submitted his counter-affidavit (where there were already media people), testified that they were invited to the conference room where State Prosecutor Zuo in the presence of then Secretary Guingona made the offer for Gatchalian to turn state witness but it was rejected.95 Atty. Francisco C. Gatchalian confirmed that the NBI and later the DOJ made offers for his son to turn state witness in this case but they refused for the reason that his son was innocent of the crime charged. Michael had told him that on the night of June 29, 1991 until early morning of June 30, 1991, Michael was with his friends at Ayala Alabang Village in Muntinlupa at the residence of the Syaps. Gatchalian narrated that when he woke up to jog in the morning of June 30, 1991 around 7:00 to 7:30, he passed by the Vizconde house and saw people milling in front. At about 8:30 a.m., he saw the crowd getting bigger and so he instructed Michael who had wakened up, to find out and check what happened to their neighbor. Michael rushed out towards the Vizconde residence and when he came back about 10:00 oclock that same morning, he reported that the house was robbed and people were killed inside the house. Both of them stayed in their house that day. He denied Alfaros claim that she was their distant relative.96 Accused Miguel Rodriguez maintained he was at home when the killings took place. He presented as witness his first cousin Mark Josef Andres Rualo who testified that at around 1:00 in the morning of June 30, 1991, he called up Rodriguez asking why he has not yet proceeded to the birthday party

of Rualo at their house. Rodriguez replied that he could not make it because he was not fetched by his brother Art (who was the one with a car). So he handed the telephone to Art (who had arrived at the party around 9:30 to 10:00 p.m.) for them to talk. From Rodriguezs residence at Pilar Village, it will take about fifteen (15) to twenty (20) minutes by car. It was a big party attended by some eighty (80) guests and which ended by 3:30 to 4:00 a.m. But it was only the first time he had invited Rodriguez to his birthday party. He knows Lejano, Rodriguezs close friend and classmate, because Rodriguez used to bring him along when Rodriguez comes to his house.97 The other witnesses presented by Rodriguez, Col. Charles Calima, Jr. and Michael Rodriguez, testified on the alleged incident of "mistaken identity" wherein Alfaro supposedly pointed to one (1) "Michael Rodriguez," a drug dependent who was pulled out by Col. Calima from the Bicutan Rehabilitation Center on the basis of the description given by NBI agents. They testified that when Alfaro confronted this "Michael Rodriguez," she became very emotional and immediately slapped and kicked him telling him, "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." Contrary to the physical description given by the NBI, the accused Miguel Rodriguez he saw inside the court room had no tattoo on his arm and definitely not the same "Michael Rodriguez" whom Alfaro slapped and kicked at the NBI premises. Michael Rodriguez testified that he was blindfolded and brought to the comfort room by NBI agents and forced to admit that he was Miguel Rodriguez; he identified Alfaro and Atty. Figueras from a collage of photographs shown to him in court.98 Accused Gerardo Biong testified that the last time he handled this case was when General Filart announced the case as solved with the presentation of suspects sometime in October 1991. However, he was subpoenaed by the NBI for the taking of his statement because Lauro Vizconde complained that he had stolen jewelries at the Vizconde house. He had sought the examination of latent fingerprints lifted from the crime scene but the suspects turned out negative when tested. He denied the accusation regarding the destruction of evidence as well as missing items during his investigation at the Vizconde residence. The bloodied bed, mats, pillows and bed sheets were burned by people at the funeral parlor as ordered by Mr. Gatmaitan. Among the suspects he had then were Michael Gatchalian, Tony Boy Lejano and Cas Syap. As to the testimony of Birrer that they played "mahjong" on the night of June 29, 1991, he said it was not true because the place was closed on Saturdays and Sundays. After a surveillance on Birrer, he discovered she had in her possession Carmelas drivers license and was driving a car already. He denied Birrers account that he went to a place after receiving a telephone call at 2:30 in the morning of June 30, 1991. As to Alfaro, he met her for the first time at the NBI on June 23, 1995. His brown jacket was given to him long ago by a couple whose dispute he was able to settle. He only met Webb and Estrada at the NBI. Biong denied the accusations of Birrer, saying that she was angry at him because they separated and he had hit her after he heard about her infidelity. Neither has he seen Alfaro before the filing of this case. He was administratively charged before the Philippine National Police (PNP) for Grave Misconduct due to non-preservation of evidence. He was offered by the NBI to turn state witness but he declined as he found it difficult to involve his co-accused whom he does not really know.99 Biong admitted that Birrer went along with him, Galvan and Capt. Bartolome to the Vizconde residence in the morning of June 30, 1991. Upon arriving at the Vizconde house, he looked for the victims relatives and the homeowners association president; Atty. Lopez and Mrs. Mia came. In going inside the house, they passed through the kitchen door which was open already. On top of the kitchen table, there was a ladys bag with things scattered; he later inspected them but did not think of examining the bag or taking note of the calling cards and other items for possible relevance to the investigation. Upon entering the masters bedroom, he saw the bloodied bodies. Mrs. Vizcondes hands were hogtied from behind and her mouth gagged while Jennifers body was also bloodied. Carmela who was lying on a floor carpet was likewise gagged, her hands hogtied from behind and

her legs spread out, her clothes raised up and a pillow case was placed on top of her private part. He had the bodies photographed and prepared a spot report.100 Biong also admitted that before the pictures were taken, he removed with his bare hands the object, which was like a stocking cloth, that was wrapped around Carmelas mouth and neck. As to the main door glass, it was the upper part which he broke. There was a red jewelry box they saw where a pearl necklace inside could be seen; he remembered he had it photographed but he had not seen those pictures. They left the Vizconde house and brought the cadavers to the funeral parlor. He did not take steps to preserve the bloodied carpet, bed sheets and blankets because they have been previously told by NBI that no evidence can be found on such items. As for the footprint and shoe print found on the hood of the car and at the back of the house, he also could not recall if he had those photographed. It was only the following day that he brought an employee of the Paraaque police to lift fingerprints from the crime scene; he was the one (1) giving instructions at the time. However, no latent fingerprints had been taken; despite attempts, no clear fingerprint had been lifted and he did not any more ask why.101 Biong further admitted that he was so angry with the Vizconde housemaids as he did not believe they did not hear anything despite the loud sound of the breaking of the main door glass. He also admitted mauling Normal E. White, Jr. because he thought he was withholding information during the investigation. Edgar Mendez did not tell him about the entry of a three (3)-vehicle convoy into the subdivision on the night of June 29, 1991. As for Michael Gatchalian, he knows him because on July 3, 1991 at 4:30 a.m., they caught him at Vinzons St. at the entrance of Pitong Daan Subdivision for possession of marijuana. However, he does not know any more what happened to that case he filed against Gatchalian as he was already dismissed from the service.102 He also admitted having mauled Gatchalian while interrogating him for his participation in the Vizconde killings.103 Ruling of the Trial Court On January 4, 2000, the trial court rendered its Decision104 finding all the accused guilty as charged, the dispositive portion of which reads: WHEREFORE, this Court hereby finds all the principal accused GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA. This Court likewise finds the accused Gerardo Biong GUILTY BEYOND REASONABLE DOUBT AS AN ACCESSORY AFTER THE FACT, AND HEREBY SENTENCES HIM TO SUFFER AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY TO TWELVE (12) YEARS. In addition, the Court hereby orders all the accused to jointly and severally pay the victims surviving heir, Mr. Lauro Vizconde, the following sums by way of civil indemnity: 1. The amount of P150,000.00 for wrongful death of the victims; 2. The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde; 3. The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde; 4. The amount of P97,404.55 as attorneys fees; Let an alias warrant of arrest be issued against the accused Artemio "Dong" Ventura and Joey Filart for their eventual apprehension so that they can immediately be brought to trial.

SO ORDERED.105 The trial court found Alfaro as a credible and truthful witness, considering the vast details she disclosed relative to the incident she had witnessed inside the Vizconde house. The trial court noted that Alfaro testified in a categorical, straightforward, spontaneous and frank manner, and has remained consistent in her narration of the events despite a lengthy and grueling cross-examination conducted on her by eight (8) defense lawyers. Neither was her credibility and veracity of her declarations in court affected by the differences and inconsistencies between her April 28, 1995 and May 22, 1995 affidavits, which she had satisfactorily explained during the trial considering the circumstances that she initially desired to protect her former boyfriend Estrada and her relative Gatchalian, the absence of a lawyer during the first taking of her statements by the NBI, her distrust of the first investigators who took her statements and prepared her April 28, 1995 affidavit, and her uncertainty if she could obtain adequate support and security for her own life were she to disclose everything she knows about the Vizconde killings. On the other hand, the trial court ruled that principal accused Webb, Lejano, Rodriguez and Gatchalian failed to establish their defense of alibi, the accused having been positively identified by Alfaro as the group who conspired and assisted one (1) another in plotting and carrying out on the same night the rape of Carmela, on the occasion of which Carmelas mother and sister were also stabbed to death. The trial court held that Alfaro gave a clear, positive and convincing testimony which was sufficiently corroborated on its material points by the testimonies of other witnesses and confirmed by the physical evidence on record. The Court of Appeals Ruling By Decision of December 15, 2005, the CA affirmed with modification the trial courts decision: WHEREFORE, premises considered, the Decision of the Regional Trial Court, Branch 274 of Paraaque City in Criminal Case No. 95-404, finding accused-appellants Hubert "Jeffrey" Webb y Pagaspas, Antonio "Tony Boy" Lejano, Michael Gatchalian y Adviento, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez GUILTY BEYOND REASONABLE DOUBT as principals, and Gerardo Biong as accessory, of the crime of RAPE with HOMICIDE, is AFFIRMED with MODIFICATION, as indicated: 1). We AFFIRM the sentence of accused-appellants Webb. Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez to suffer the penalty of reclusion perpetua and its corresponding accessory penalties under Article 41 of the Revised Penal Code; 2). We MODIFY the penalty of Gerardo Biong who is an accessory to the crime. Accusedappellant Biong is sentenced to an indeterminate prison term of six (6) years of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum, and absolute perpetual disqualification under Article 58 of the Revised Penal Code; and 3). We MODIFY the civil indemnity. Accused-appellants Webb. Lejano, Gatchalian, Fernandez, Estrada and Rodriguez are ORDERED to pay jointly and severally the surviving heir of the victims, Mr. Lauro Vizconde. the amounts of P200,000.00 as civil indemnity, P762,450.00 as actual damages, P2,000,000.00 as moral damages and P97,404.55 as attorney's fees, with the corresponding subsidiary liability against accused-appellant Biong pursuant to Article 110, paragraph 2 of the Revised Penal Code. SO ORDERED.106

The CA upheld the trial court in giving full weight and credence to the eyewitness testimony of Alfaro which was duly corroborated by other prosecution witnesses who had not been shown to have illmotive and malicious intent in revealing what they know about the Vizconde killings. It disagreed with the appellants view that they were victims of an unjust judgment upon their mere allegations that they were tried by publicity, and that the trial judge was biased whose discriminatory and hostile attitude was demonstrated by her rejection of 132 out of 142 exhibits of the defense during the bail hearings and her refusal to issue subpoenas to prospective defense witnesses such as former Secretary Teofisto Guingona and Antonio Calvento. The CA also fully concurred with the trial courts conclusion that all the principal accused failed to establish their defense of alibi after carefully evaluating the voluminous documentary and testimonial evidence presented by the defense. On the issue of conspiracy, the CA found that the prosecution was able to clearly and convincingly establish its presence in the commission of the crime, notwithstanding that appellants Rodriguez, Gatchalian, Estrada and Fernandez did not actually rape Carmela, nor participated in killing her, her mother and sister. On motion for reconsideration filed by the appellants, the CAs Special Division of Five, voting 3-2, affirmed the December 15, 2005 Decision.107 In the Resolution dated January 26, 2007, the majority reiterated that it has fully explained in its Decision why the US-INS Certifications submitted by appellant Webb deserve little weight. It stressed that it is a case of positive identification versus alibi founded on documentary evidence. On the basis of the rule that alibi is accepted only upon the clearest proof that the accused was not and could not have been at the crime scene when it was committed, the CA in resolving the appeal considered the weight of documentary evidence in light of testimonial evidence -- an eyewitness account that the accused was the principal malefactor. As to the issue of apparent inconsistencies between the two (2) affidavits executed by Alfaro, the CA said this is a settled matter, citing the Joint Decision in CA-G.R. SP No. 42285 and CA-G.R. SP No. 42673 entitled "Rodriguez v. Tolentino" and "Webb, et al. v. Tolentino, et al.," which had long become final. Appellants Arguments Appellants Webb and Lejano set forth the following arguments in their Supplemental Appeal Brief as grounds for the reversal of the CA Decision and their acquittal in this case: I THE EVIDENCE ESTABLISHING APPELLANT WEBB'S ABSENCE FROM PHILIPPINE TERRITORY BETWEEN 9 MARCH 1991 AND 27 OCTOBER 1992 ENGENDERS A REASONABLE DOUBT AND PRECLUDES AN ABIDING CONVICTION, TO A MORAL CERTAINTY, OF HIS GUILT OF THE CRIME CHARGED. THUS, AS CORRECTLY APPRECIATED BY JUSTICES TAGLE AND DACUDAO IN THEIR SEPARATE DISSENTING OPINIONS A. THE PASSPORT OF APPELLANT WEBB, AS THE OFFICIAL TRAVEL DOCUMENT ISSUED BY THE PHILIPPINE GOVERNMENT TO HIM, IS STAMPMARKED AND INITIALED WITH THE DEPARTURE DATE OF 9 MARCH 1991 AND ARRIVAL DATE OF 27 OCTOBER 1992, SHOWING THAT HE WAS NOT IN THE PHILIPPINES BUT ABROAD AT THE TIME OF THE COMMISSION OF THE CRIME ON 29 JUNE 1991. B. THE CERTIFICATIONS AND COMPUTER PRINTOUT ISSUED BY THE UNITED STATES INS NON-IMMIGRANT INFORMATION SYSTEM, WHICH INDICATE EXACTLY THE SAME DEPARTURE AND ARRIVAL DATES OF 9 MARCH 1991

AND 27 OCTOBER 1992, CONFIRM THAT IT WAS PHYSICALLY IMPOSSIBLE FOR APPELLANT WEBB TO HAVE COMMITTED THE CRIME. C. THE RULING THAT APPELLANT WEBB WAS "SMUGGLED" INTO AND OUT OF THE PHILIPPINES WITHIN 9 MARCH 1991 AND 27 OCTOBER 1992, WITH THE US INS CERTIFICATIONS BEING THE PROBABLE PRODUCT OF "MONEY, POWER, INFLUENCE, OR CONNECTIONS" IS BASED ON PURE SPECULATION AND BIASED CONJECTURE AND NOT ON A CONCLUSION THAT ANY COURT OF LAW SHOULD MAKE. D. NO LESS THAN THE HONORABLE JUSTICE ANTONIO T. CARPIO TESTIFIED IN OPEN COURT THAT IN THE MORNING OF 29 JUNE 1991, OR BEFORE THE COMMISSION OF THE CRIME, HE HAD AN OVERSEAS CONVERSATION WITH SEN. FREDDIE N. WEBB ON THE LATTERS PRESENCE IN THE UNITED STATES WITH HIS WIFE AND APPELLANT WEBB. II THE DISSENTING JUSTICES CORRECTLY REJECTED JESSICA ALFARO FOR NOT BEING A CREDIBLE WITNESS AND FOR GIVING INCONSISTENT AND UNRELIABLE TESTIMONY. III THE COURT OF APPEALS MANIFESTLY ERRED IN DISCARDING EACH AND EVERY PIECE OF THE ACCUSEDS EVIDENCE AND PRACTICALLY REDUCING THE APPEAL BELOW INTO AN EXERCISE OF FINDING GROUNDS TO DOUBT, SUSPECT AND ACCORDINGLY REJECT THE PROOF OFFERED BY THEM IN THEIR DEFENSE INSTEAD OF GIVING DUE WEIGHT AND CONSIDERATION TO EACH IN ORDER TO THOROUGHLY SATISFY ITSELF OF THE "MORAL CERTAINTY" REQUIREMENT IN CRIMINAL CASES. IV IN LIGHT OF THE BASIC TENETS UNDERLYING OUR CRIMINAL JUSTICE SYSTEM, WHICH ESCHEW A FINDING OF GUILT UNLESS ESTABLISHED BEYOND REASONABLE DOUBT AND ORDAIN THE RESOLUTION OF ALL DOUBTS IN FAVOR OF THE ACCUSED, THE COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE CONVICTION OF APPELLANT WEBB WHEN THE DEFENSE OF ALIBI HE ESTABLISHED BY OVERWHELMING EVIDENCE IS SUFFICIENT TO ENGENDER REASONABLE DOUBT AS TO HIS GUILT OF THE OFFENSE CHARGED. THE SCALES OUGHT TO HAVE BEEN TILTED IN HIS, AND NOT THE PROSECUTIONS, FAVOR.108 Appellant Gatchalian reiterates the arguments he had raised in his appeal brief and motion for reconsideration filed before the CA, as follows: I THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCREDIBLE TESTIMONY OF SUPPOSED EYEWITNESS JESSICA ALFARO AND CORROBORATING WITNESSES NORMAL WHITE AND JUSTO CABANACAN. II

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS PROVED THE CONSPIRACY BEYOND REASONABLE DOUBT AND IN CONVICTING HEREIN ACCUSEDAPPELLANT BASED ON SUCH CONSPIRACY. III THE PROCEEDING BELOW WAS ATTENDED BY IRREGULARITIES SHOWING PARTIALITY ON THE PART OF THE TRIAL JUDGE IN VIOLATION OF HEREIN ACCUSED-APPELLANTS RIGHT TO DUE PROCESS. IV THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN ACCUSED-APPELLANT. xxxx I BY ALL STANDARDS OF FAIRNESS AND JUSTICE, THE TESTIMONY OF JESSICA ALFARO CANNOT BE JUDICIALLY RECOGNIZED. II THE CRIMINAL CONNECTION OF MICHAEL GATCHALIAN TO THE GRUESOME VIZCONDE MURDERS HAS NOT EVEN BEEN REMOTELY SHOWN TO SERVE AS A BASIS FOR CONVICTION. III IN THE REQUIRED JUDICIAL EVALUATION PROCESS, THE ENVIRONMENTAL CIRCUMSTANCES IN THE RECORD OF THIS CASE POINT UNERRINGLY TO THE INNOCENCE OF MICHAEL GATCHALIAN. IV THE RULES ON EVIDENCE ON BURDEN OF PROOF AND OF THE STANDING PRESUMPTIONS IN LAW HAVE BEEN GROSSLY VIOLATED. V MICHAEL GATCHALIAN RESPECTFULLY INVOKES HIS CONSTITUTIONAL RIGHT TO DUE PROCESS ON THE GROUNDS OF BIAS AND PREJUDICE, AND FOR ALL THAT IT IS WORTH, HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND A SPEEDY DISPOSITION OF HIS CASE.109 Additionally, Gatchalian assails the denial by the trial court of his motion (and also appellant Webbs) for DNA testing despite a certification from the NBI that the specimen semen remained intact, which Justice Tagle in his dissenting opinion also found as unjust. He further argues that the right to a speedy trial is violated even if the delay was not caused by the prosecution but by events that are not within the control of the prosecution or the courts. Thus, the length of time which took Alfaro to come forward and testify in this case is most conspicuous. Her delay of four (4) years in reporting

the crime has to be taken against her, particularly with the story behind it. She volunteered to come forward only after the arrests of previous accused did not lead anywhere. Moreover, it is clear that she adopted the version previously advanced by an "akyat-bahay" gang, as noted by Justice Dacudao in his dissenting opinion. Gatchalian thus contends that the delay occurred even before a preliminary investigation was conducted and cites cases upholding the right of accused persons to a speedy trial where there was delay in the preliminary investigation.110 Totality of Evidence Established the Guilt of Appelants Beyond Reasonable Doubt Appellants assail the lower courts in giving full faith and credence to the testimonies of the prosecution witnesses, particularly Jessica Alfaro despite inconsistencies and contradictions in her two (2) affidavits, and the alleged "piece by piece discarding" of their voluminous documentary exhibits and testimonies of no less than ninety-five (95) witnesses. They contend that the totality of evidence engenders a reasonable doubt entitling them to acquittal from the grave charge of rape with homicide. After a thorough and conscientious review of the records, I firmly believe that the CA correctly upheld the conviction of appellants. Credibility of Prosecution Witnesses The determination of the competence and credibility of a witness rests primarily with the trial court, because it has the unique position of observing the witness deportment on the stand while testifying.111 It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings.112 When the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.113 Reexamining the testimony of Alfaro, who underwent exhaustive and intense cross-examination by eight (8) defense lawyers, it is to be noted that she revealed such details and observations which only a person who was actually with the perpetrators could have known. More importantly, her testimony was corroborated on its material points by the declarations of other prosecution witnesses, to wit: [1] that their convoy of three (3) vehicles repeatedly entered the Pitong Daan Subdivision on the night of June 29, 1991 was confirmed by the security guard on duty, Normal White, Jr., who also testified that he had seen Gatchalian and his group standing at the vicinity of the Almogino residence located near the end of Vinzons St., which is consistent with Alfaros testimony that on their first trip to the subdivision she parked her car infront of the Vizconde house while appellants parked their respective cars near the dead end of Vinzons St.; [2] that Ventura climbed on the hood of the Nissan Sentra car and loosened the light bulb to turn it off was confirmed by the testimony of Birrer and appellant Biong that they found a shoe print on the hood of the car parked inside the garage of the Vizconde house; even defense witnesses Dennis Almogino (neighbor of the Vizcondes) and SPO2 Reynaldo Carbonnel declared that the garage was totally without light; [3] that a ladys bag was on top of the dining table in the kitchen was likewise confirmed by Birrer and Biong; [4] that a loud static sound coming from the TV set inside the masters bedroom which led Alfaro to the said room, matched with the observations of the Vizconde housemaids, Birrer and Biong that when they went inside the Vizconde house in the morning of June 30, 1991, the TV set inside the masters bedroom was still turned on with a loud sound; [5] the positioning of the dead bodies of Carmela, Estrellita and Jennifer and their physical appearance or condition (hogtied, gagged and bloodied) was correctly described by Alfaro, consistent with the declarations of White, Jr., Birrer and Biong who were among

those who first saw the bodies in the morning of June 30, 1991; [6] that Carmela was raped by Webb and how the three (3) women were killed as Alfaro learned from the conversation of the appellants at the BF Executive Village house, was consistent with the findings of Dr. Cabanayan who conducted the autopsy and post-mortem examination of the cadavers in the morning of June 30, 1991 showing that the victims died of multiple stab wounds, the specimen taken from Carmelas vaginal canal tested positive for spermatozoa and the approximate time of death based on the onset of rigor mortis, which would place it between midnight and 2:00 oclock in the morning of June 30, 1991; [7] that Webb, just before going out of the gate of the Vizconde house, threw a stone which broke the glass frame of the main door, jibed with the testimony of Birrer who likewise saw a stone near the broken glass panel at the living room of the Vizconde house, and Biong himself testified that he even demonstrated to Capt. Bartolome and the housemaids the loud sound by again hitting the glass of the main door;114 and [8] that after Webb made a call on his cellular phone, Biong arrived at around 2:00 oclock in the morning of June 30, 1991 at the BF Executive Village house where she and appellants retreated, was consistent with the testimony of Birrer that Biong left the "mahjong" session to answer a telephone call between 1:00 to 2:00 oclock in the morning of June 30, 1991 and thereafter Birrer asked where he was going, to which Biong replied "BF" and shortly thereafter a taxicab with a man at the backseat fetched Biong. Indeed, Alfaro could not have divulged the foregoing details of the crime if she did not really join the group of Webb in going to the Vizconde residence and witness what happened during the time Webb, Lejano and Ventura were inside the house and when the group retreated to BF Executive Village. Contrary to appellants contention, Alfaros detailed testimony appears clear and convincing, thus giving the Court the impression that she was sincere and credible. She even opened her personal life to public scrutiny by admitting that she was addicted toshabu for sometime and that was how she came to meet Webbs group and got entangled in the plot to gang-rape Carmela. Her being a former drug user in no way taints her credibility as a witness. The fact that a witness is a person of unchaste character or even a drug dependent does not per se affect her credibility.115 Alfaros ability to recollect events that occurred four (4) years ago with her mental condition that night of June 29, 1991 when she admittedly took shabu three (3) times and even sniffed cocaine, was likewise questioned by the appellants. When the question was posed to Alfaro on cross-examination, she positively stated that while indeed she had taken shabu at that time, her perception of persons and events around her was not diminished. Her faculties unimpaired by the drugs she had taken that night, Alfaro was able to vividly recall what transpired the whole time she was with appellants. Alfaro testified that even if she was then a regular shabu user, she had not reached that point of being paranoid ("praning"). It was the first time Alfaro sniffed cocaine and she described its initial effect as being "stoned," but lasting only five (5) to seven (7) minutes. However, she did not fall asleep sinceshabu and "coke" are not downers. Alfaro further explained her indifference and apathy in not dissuading Webb and her group from carrying out their evil plan against Carmela as due to the numbing effect of drugs, which also enabled her to dislodge from her mind the harrowing images of the killings for quite sometime. Eventually, the chance to redeem herself came when she was invited to a Christian fellowship, and with her childs future in mind, her desire to transform her life grew stronger. As she cast off her addiction to drugs, its desensitizing effect began to wear off and her conscience bothered her no end. Under such circumstances, the delay of four (4) years in admitting her involvement in the Vizconde killings cannot be taken against Alfaro. In fact, she had to muster enough courage to finally come out in the open considering that during her last encounter with appellants at a discotheque in 1995, she was threatened by appellant Rodriguez that if she will not keep her mouth shut, she will be killed. He even offered her a plane ticket for her to go abroad. Coming from wealthy and influential families, and capable of barbaric acts she had already seen, appellants instilled such fear in Alfaro that her reluctance to report to the authorities was perfectly understandable.

I find that the circumstances of habitual drug use and delay in reporting a crime did not affect the competence and credibility of prosecution witness Alfaro. It bears stressing that the fact of delay alone does not work against the witnesses. Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained.116 Besides, appellants failed to adduce any evidence to establish any improper motive that may have impelled Alfaro to falsely testify against them, other than their allegation that she regularly associated with NBI agents as one (1) of their informants. The absence of evidence of improper motive on the part of the said witness for the prosecution strongly tends to sustain the conclusion that no such improper motive exists and that her testimony is worthy of full faith and credit.117 Neither had appellants established any ill-motive on the part of the other prosecution witnesses. Inconsistencies and Discrepancies in Alfaros April 28, 1995 and May 22, 1995 Affidavits Appellants, from the start of preliminary investigation, have repeatedly harped on the discrepancies and inconsistencies in Alfaros first and second affidavits. However, this Court has repeatedly ruled that whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight.118 With greater relevance should this rule apply in situations when a subsequent affidavit of the prosecution witness is intended to amplify and correct inconsistencies with the first affidavit, the discrepancies having been adequately explained. We held in People v. Sanchez119 ...we advert to that all-too familiar rule that discrepancies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses. Sworn statements/affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits.120 Alfaro explained the circumstances surrounding her execution of the first Affidavit dated April 28, 1995 which was done without the presence of a lawyer and at the house of agent Mario Garcia where she was brought by Atty. Sacaguing and Moises Tamayo, another agent of task force AntiKidnapping, Hijack and Robbery (AKHAR). The unusual questioning of these men gave her the impression that she was merely being used to boost their career promotion and her distrust was even heightened when they absolutely failed to provide her security. She was aghast upon discovering the completed affidavit which falsely stated that it was made in the presence of her lawyer of choice (Atty. Mercader who was not actually present). Agent Tamayo also incorporated inaccurate or erroneous information indicating that she was a college graduate even if she tried to correct him. Tamayo simply told her to just let it remain in the statement as it would not be noticed anyway.121 Moreover, on account of her urgent concern for her own security and fear of implicating herself in the case, Alfaro admitted down playing her own participation in her narration (including the circumstance that she had previously met Carmela before the incident) and those of her exboyfriend Estrada and her relative, Gatchalian. Prosecution Evidence Sufficient to Convict Appellants This Court has consistently held that the rule on the trial courts appreciation of evidence must bow to the superior rule that the prosecution must prove the guilt of the accused beyond reasonable doubt. The law presumes an accused innocent, and this presumption must prevail unless overturned by competent and credible proof.122Thus, we are tasked to consider two crucial points in sustaining a judgment of conviction: first, the identification of the accused as perpetrator of the crime, taking into

account the credibility of the prosecution witness who made the identification as well as the prosecutions compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.123 There appears to be no question about the fact that a horrible and most unfortunate crime has been committed. It is, in this case, indeed a given fact, but next to it is the pivotal issue of whether or not the prosecution has been able to discharge its equal burden in substantiating the identities of accused-appellants as the perpetrators of the crime. As well said often, conviction must rest on the strength of the prosecutions case and not on the weakness of the defense. Positive Identification of Accused-Appellants Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution.124 Both the RTC and CA found the eyewitness testimony of Alfaro credible and competent proof that appellants Webb, Lejano, Gatchalian, Fernandez, Rodriguez and Estrada were at the scene of the crime and that Webb raped Carmela as the bloodied bodies of her mother and sister lay on top of the bed inside the masters bedroom, and right beside it stood Lejano while Ventura was preparing for their escape. At another house in BF Executive Village where the group retreated after leaving the Vizconde house, Alfaro witnessed the blaming session, particularly between Ventura and Webb, and thereupon learned from their conversation that Carmelas mother and sister were stabbed to death before she herself was killed. Alfaro likewise positively identified appellant Biong, whom somebody from the group described as the driver and bodyguard of the Webb family, as the person ordered by Webb to "clean the Vizconde house." The testimony of Alfaro on its material points was corroborated by Birrer, Dr. Cabanayan, White, Jr., Cabanacan and Gaviola. Appellants presence at the scene of the crime before, during and after its commission was duly established. Their respective participation, acts and declarations were likewise detailed by Alfaro who was shown to be a credible witness. It is axiomatic that a witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on cross-examination is a credible witness.125 A criminal case rises or falls on the strength of the prosecutions case, not on the weakness of the defense. Once the prosecution overcomes the presumption of innocence by proving the elements of the crime and the identity of the accused as perpetrator beyond reasonable doubt, the burden of evidence then shifts to the defense which shall then test the strength of the prosecutions case either by showing that no crime was in fact committed or that the accused could not have committed or did not commit the imputed crime, or at the very least, by casting doubt on the guilt of the accused.126 Appellants Alibi and Denial We have held in a number of cases that alibi is an inherently weak and unreliable defense, for it is easy to fabricate and difficult to disprove.127 To establish alibi, the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime. Physical impossibility "refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places."128 Due to its doubtful nature, alibi must be supported by clear and convincing proof.129 "Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission of the felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the common notion, alibi is in fact a good defense. But, to be valid for purposes of

exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accuseds presence at the crime scene, the alibi will not hold water. 130[emphasis supplied.] The claim of appellant Webb that he could not have committed the crime because he left for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992 was correctly rejected by the RTC and CA. These dates are so distant from the time of the commission of the crime, June 29, 1991 and June 30, 1991, and it would not have been impossible during the interregnum for Webb to travel back to the country and again fly to the US several times considering that the travel time on board an airline from the Philippines to San Francisco, and from San Francisco to the Philippines takes only about twelve (12) to fourteen (14) hours. Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29-30, 1991 and then departed for the US again, and returning to the Philippines in October 1992. There clearly exists, therefore, such possibility of Webbs presence at the scene of the crime at the time of its commission, and his excuse cannot be deemed airtight. This Court in People v. Larraaga131 had similarly rejected the defense of alibi of an accused, involving a shorter travel distance (Quezon City to Cebu) and even shorter period of time showing the least possibility of an accuseds presence at the time of the commission of the crime (a matter of hours) than in the case at bar (March 9, 1991 to June 29, 1991 which is three [3] months). In denying the motion for reconsideration of accused Larraaga, we held that accused Larraaga failed to establish his defense of alibi, which is futile in the face of positive identification: This case presents to us a balance scale whereby perched on one end is appellants alibi supported by witnesses who were either their relatives, friends or classmates, while on the other end is the positive identification of the herein appellants by the prosecution witnesses who were not, in any way, related to the victims. With the above jurisprudence as guide, we are certain that the balance must tilt in favor of the latter. Besides, a thorough examination of the evidence for the prosecution shows that the appellants failed to meet the requirements of alibi, i.e., the requirements of time and place. They failed to establish by clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997. Not even Larraaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the hearing, it was shown that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and evening. Indeed, Larraagas presence in Cebu City on July 16, 1997 was proved to be not only a possibility but a reality. Four (4) witnesses identified Larraaga as one of the two men talking to Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larraaga approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of Jacquelines prior story that he was Marijoys admirer. Shiela confirmed that she knows Larraaga since she had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 oclock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized the two (2) men as Larraaga and Josman, having seen them

several times at Glicos, a game zone, located across her office at the third level of Ayala Center. Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van. And over and above all, Rusia categorically identified Larraaga as one of the participes criminis.132 [emphasis supplied] In the light of relevant precedents, I find no reversible error committed by the RTC in refusing to give credence to appellant Webbs argument that he could not have committed the crime of rape with homicide because he was still in the US on June 29 and 30, 1991. The RTC thus correctly ruled: Granting for the sake of argument that the claim of departure for the United States of the accused Webb on March 9, 1991 and his arrival in the Philippines on October 26, 1992 had been duly established by the defense, it cannot prove that he remained in the United States during the intervening period. During the long span of time between March, 1991 to October, 1992, it was not physically impossible for the accused Webb to have returned to the Philippines, perpetrate the criminal act, and travel back to the United States. It must be noted that the accused Webb is a scion of a rich, influential, and politically powerful family with the financial capacity to travel back and forth from the Philippines to the United States. He could very well afford the price of a plane ticket to free him from all sorts of trouble. Since there are numerous airlines plying the route from Manila to the United States, it cannot be said that there was lack of available means to transport. Moreover, the lapse of more than three (3) months from the time the accused Webb left the Philippines for the United States on March 9, 1991 to June 29 and 30, 1991 when the crime was committed is more than enough time for the accused Webb to have made several trips from the United States to the Philippines and back. The Court takes judicial notice of the fact that it only requires the short period of approximately eighteen (18) hours to reach the Philippines from the United States, with the advent of modern travel. It must likewise be noted that the father of the accused Webb, besides being rich and influential, was at that time in 1991, the Congressman of Paraaque and later became a Senator of the Republic of the Philippines. Thus, the Webb money and connections were at the disposal of the accused Webb, and it is worthy of belief that the accused Webb could have departed and entered the country without any traces whatsoever of his having done so. In fact, defense witness Andrea Domingo, former Commissioner of the Bureau of Immigration and Deportation testified on the practice of "human smuggling" at the Ninoy Aquino International Airport. On this point, the Supreme Court has declared in a case that even the lapse of the short period of one (1) week was sufficient for an accused to go to one place, to go to another place to commit a crime, and then return to his point of origin. The principal factor considered by the Supreme Court in denying the defense of alibi in People vs. Jamero (24 SCRA 206) was the availability to the accused of the means by which to commit a crime elsewhere and then return to his refuge. x x x133 [emphasis supplied] There is likewise no merit in appellant Webbs contention that the CA misappreciated his voluminous documentary evidence and numerous witnesses who testified on his stay in the US. The CA, after a meticulous and painstaking reevaluation of Webbs documentary and testimonial evidence, sustained the RTCs conclusion that these pieces of evidence were either inadmissible, incompetent or irrelevant. I quote with approval the CAs findings which are well-supported by the evidence on record: (a) U.S. INS Certifications

xxxx The Court seriously doubts that evidentiary weight could be ascribed to the August 31, 1995 and October 13, 1995 Certifications of the U.S. INS and computer print-out of the Nonimmigrant Information System (NIIS) which allegedly established Webbs entry to and exit from the United States. This is due to the fallibility demonstrated by the US INS with regard to the certifications which the said office issued regarding the basic information under its direct control and custody. It is to be remembered that as part of his evidence, Webb presented the explanation of one Steven P. Bucher, Acting Chief of Records Services Branch of the U.S. INS, who admitted that the U.S. INS had previously reported on August 10, 1995, erroneously, that it had no record of the arrival and departure of Webb to and from the United States. The said office later on admitted that it failed to exhaustively study all information available to it. We are not convinced with this explanation. It is to be noted that the U.S. INS is an agency well known for its stringent criteria and rigid procedure in handling documents relating to ones travel into and out of its territory. Such being the case, it would therefore be hard to imagine that the said agency would issue a certification that it had no record of a persons entry into and exit from the United States without first conducting an efficient verification of its records. We do not also believe that a second search could give rise to a different conclusion, considering that there is no showing that the records searched were different from those viewed in the first search. The later certifications issued by the U.S. INS modifying its first certification and which was issued only a few weeks earlier, come across as a strained effort by Webb at establishing his presence in the United States in order to reinforce his flimsy alibi. It is not amiss to note that a reading of the first Certificate of Non-existence of Record (Exhibit "212D") subscribed by Debora A. Farmer of the U.S. INS would show that the U.S. INS had made a "diligent" search, and found no record of admission into the United States of Webb. The search allegedly included an inquiry into the automated and non-automated records systems of the U.S. INS. Be it also noted that the basis of the U.S. INS second certification (Exhibit "218") was a printout coming also from automated information systems. As pointed out by the Office of the Solicitor General in its appeal brief, "how it became possible for the U.S. INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on accused-appellant Webb when the said port of entry had no such record was never sufficiently addressed by the defense." It is with this view that the Court recognizes little if not nil probative value in the second certification of the U.S. INS. xxxx (b) Passenger Manifest of United Airlines Flight The purported passenger manifest for the United Airlines flight that allegedly conveyed accusedappellant Webb for the United States, was not identified by the United Airlines personnel who actually prepared and completed the same. Instead, the defense presented Dulcisimo Daluz, the supervisor of customer services of United Airlines in Manila, who had no hand in the actual preparation or safekeeping of the said passenger manifest. It must be stressed that to satisfactorily prove the due execution of a private document, the testimony of the witness with regard to the

execution of the said document must be positive. Such being the case, his testimony thereto is at most hearsay and therefore not worthy of any credit. Likewise, we note that the said passenger manifest produced in court is a mere photocopy and the same did not comply with the strict procedural requirement of the airline company, that is, all the checking agents who were on duty on March 9, 1991 must sign or initial the passenger manifest. This further lessens the credibility of the said document. (c) United Airline Ticket ...the alleged United Airline ticket of accused-appellant Webb offered in evidence is a mere photocopy of an alleged original, which was never presented below. Other than the submission that the original could no longer be produced in evidence, there is no other proof that there ever was an original airline ticket in the name of Webb. This does not satisfy the requirements set forth under Section 5 of Rule 130. x x x we find that the photocopy presented in evidence has little if no probative value. Even assuming there was such an original ticket in existence, the same is hardly of any weight, in the absence of clear proof that the same was indeed used by accused-appellant Webb to go to the United States. (d) Philippine passport The passport of accused-appellant Webb produced in evidence, and the inscriptions appearing thereon, also offer little support of Webbs alibi. Be it noted that what appears on record is only the photocopy of the pages of Webbs passport. The Court therefore can only rely on the appreciation of the trial court as regards the authenticity of the passport and the marks appearing thereon, as it is the trial court that had the exclusive opportunity to view at first hand the original of the document, and determine for itself whether the same is entitled to any weight in evidence. (e) Video footage of accused-appellant Webbs parents in Disneyland and Yosemite Park. The video footage serendipitously taken by Victor Yap allegedly of Senator Webb and his family while on vacation at Disneyland in Anaheim, California on July 3, 1991 does little to support the alibi of accused-appellant Webb for it is quite interesting to note that nowhere did accusedappellant Webb appear in this footage. None of the people shown in the film was identified as the accused-appellant Webb. Moreover, the records disclose that just before the segment of the film that showed Senator Webb, there was a gap or portion of static that appeared which did not appear in any other portion of the footage. We find that this supports the conclusion that the videotape was possibly tampered as an additional support to the alibi of accused-appellant that he was in the United States. xxxx (f) Video footage at Lake Tahoe and the del Toro-Manlapit Wedding ...the video footage showing accused-appellant Webb seemingly on holiday at Lake Tahoe with the Wheelocks, to our mind does not disprove that Webb was in the country at the time of the Vizconde killing. Firstly, the date being shown intermittently in the footage was not the same or near the date of the Vizconde killing. As we have earlier stated, we do not discount the possibility that Webb was in the Philippines during the time he was supposed to have been in the United States, especially, when there are eyewitnesses who testified to the effect that Webb was in the Philippines only a couple of weeks before the killing and who also testified of Webbs participation in the crime. In any case, we take judicial notice that modern electronic and photographic advances could offer a

means to splice or modify recorded images to configure to a desired impression, including the insertion or annotation of numeric figures on a recorded image. Likewise, the videotape and photographs taken on Alex del Toros wedding also fail to convince, as this wasallegedly taken on October 10, 1992 well after the fateful days of June 29 and 30, 1991. (g) Photograph of Webb and Christopher Esguerra before the Dee Lite Concert The photograph of accused-appellant Webb with Esguerra allegedly taken in late April 1991 before they went to a band concert has little probative value. It must be pointed out that the image in the picture itself does not depict the date or place it was taken, or of any Dee Lite concert allegedly attended by Webb. Likewise, we observed that the photograph appears to have been trimmed down from a bigger size, possibly to remove the date printed therein. It is also to be noted that Esguerra admitted that the inscription appearing at the back of the photograph of, "Hubert and I before the Dee Lite Concert, April 1991" was only written by him in 1995, after it was given to him by accused-appellants mother, Elizabeth, before he took the witness stand. The Court cannot therefore but cast suspicion as to its authenticity. (h) Webbs Drivers License We agree with the trial court's observation that the Drivers License allegedly obtained by accused-appellant from the California Department of Motor Vehicle sometime in the first week of June 1991 is unworthy of credit, because of the inconsistencies in Webbs testimony as to how he obtained the same. In one testimony, Webb claimed he did not make an application but just walked in the licensing office and he did not submit any photograph relative to his application. In a later testimony, he claimed that he submitted an ID picture for his drivers license, and that the picture appearing on his drivers license was the very same picture he submitted together with his application for the drivers license. These are two inconsistent testimonies on the same subject matter, which render the said drivers license and the alleged date when the same was obtained, unworthy of credit. (i) Logbook of Alex del Toro and Check Payments of Webbs salary The employment records of accused-appellant, which include the alleged logbook of del Toro in his pest control business, and check payments to Webb were also offered to support the latters alleged presence in the United States on the dates near the day of the Vizconde killings. A review of the logbook shows that the same is unworthy of any evidentiary weight. The entries where the accused Webb were indicated to have performed work for del Toro, showed that the name of Webb ("Hubie"/"U.B.") was merely superimposed on the actual entries and could have been easily fabricated to create the impression that Webb had some participation in the business of del Toro, and therefore, are not reliable proofs of Webbs presence and occupation in the United States around the time of the Vizconde killing. The alleged check payments of Webbs salary are also unreliable. The check dated June 13, 1991 was made payable to "Cash", while the other check which appeared to be payable to "Hubert Webb" was however dated only July 10, 1991. Neither of the said checks squarely placed accusedappellant Webb in the United States at the time of the Vizconde killings. Simply put, neither check is therefore clear proof to support Webbs alibi. (j) Bicycle/Sportscar

The Toyota MR2 sportscar and Cannondale bicycle allegedly purchased by accused-appellant Webb and his father in the United States appear to have been purchased with great haste, and under suspicious circumstances. Consider that immediately after the accused-appellants father, former Senator Freddie Webb, arrived in the United States, the first thing he did was go out with his friend Honesto Aragon and accused-appellant to look for a bicycle and a car to be used by the latter in going to and from work. The car was bought sometime in early July 1991 and the bicycle sometime on June 30, 1991. It is a wonder to this Court that the accused-appellant and his father would buy a bicycle and a sportscar at practically the same time to provide the accused-appellant transportation to his work. Would not just a car or a bicycle do for him? Also, the hurried purchase of the car right after the arrival of Freddie Webb appears at the very least, suspicious, as a prospective car-buyer would understandably want to make a canvas first for the best car to buy, and not just to purchase the first car he sees. Moreover, as aptly observed by the trial court, though it was made clear that the purpose of purchasing the said bicycle and car was for accused-appellants convenience in going to and from his work -- we find, that this contradicts the other evidence presented by accused-appellant because it appears from his evidence that other than his brief stint in del Toros pest control company business and his employment as a gasoline station attendant which incidentally was not sufficiently proven, all that accused-appellant did in the United States was to go sightseeing, shopping and meet with family and friends. Lastly, the fact that the car and the bicycle were allegedly purchased in close proximity to the date of the rape and killing of the Vizconde women does little to dissuade the perception that the car and bicycle were purchased only for the purpose of providing a plausible defense of alibi for Webb. (k) Letters to Jennifer Claire Cabrera Cabrera, a friend and neighbor of accused-appellant in BF Homes, Paraaque, produced four (4) letters allegedly written and sent to her by Webb while he was in the United States, in order to support the accused-appellantsalibi. These were allegedly the only letters sent by Webb to her. The letters were allegedly written and posted at around the same time the Vizconde rape and killing happened, such that, if the letters were to be duly considered, they would place Webb in the United States at the same time the June 30, 1991 killings occurred; thus, bolstering Webbs defense of alibi. However, the said letters, to our mind, are not convincing proof of alibi, inasmuch said letters were produced only in 1995 at the time she gave a statement, and the same time Webb was charged. However, Cabrera admitted that she knew Webb was being involved or accused in the Vizconde killings as early as 1991 and that she was shocked upon learning that he was being implicated therein. The Court finds it incredible that despite being shocked in 1991, about the involvement of her friend, accused-appellant in the Vizconde rape-slay, Cabrera would wait until 1995 to "produce" the letters that could have cleared her friends name. An interregnum of four years before coming out with valuable proof in support of a friend is to our mind, a telling factor on the credibility of the alleged letters. Also, the impression that may be inferred from reading the letters was one of a man who was pining away for his ladylove. Webb was quite expressive with his feelings when he wrote that he missed Cabrera, "a lot," yet after only four letters that was conveniently written sometime in June 1991, he thereafter stopped writing letters to Cabrera as if the whole matter was already forgotten. It is highly

suspicious therefore that the only letters of accused-appellant Webb to Cabrera were written and sent at the exact opportune time that the Vizconde killings occurred which conveniently supplied a basis for his defense of alibi. Moreover, from the contents of the letters, we can deduce that there was some sort of romantic relationship with the accused-appellant Webb and Cabrera. In fact, Webb in his letters referred to Cabrera as his "sweetheart" and "dearest", and confessed to her that all he thinks about was her, and he was hoping he would dream of her at night. It is not improbable, therefore, that Cabrera could have prevaricated herself to save her friend. In sum, accused-appellant tried vainly to establish his defense of alibi with the presentation of not only a substantial volume of documentary evidence but also testimonies of an overwhelming number of witnesses which were comprised mostly of relatives and family friends who obviously wanted him to be exonerated of the crime charged. It is for this reason that we regard their testimonies with an eye of suspicion for it is but natural, although morally unfair, for a close relative or friend to give weight to blood ties and close relationship in times of dire needs especially when a criminal case is involved.134 [emphasis supplied] The rule is well-entrenched in this jurisdiction that in determining the value and credibility of evidence, witnesses are to be weighed, not numbered. The testimony of only one witness, if credible and positive, is sufficient to convict.135 As to appellant Webbs voluminous documentary evidence, both the RTC and CA judiciously examined each exhibit and concluded that these do not pass the test of admissibility and materiality insofar as proving the physical impossibility of his presence at the Vizconde residence on June 29, 1991 until the early morning of June 30, 1991. Appellant Webb cites the opposite view taken by Justices Tagle and Dacudao in their dissenting opinions and urges this Court to accord the US INS certification and other documents relative to his arrival and departure in the US on the dates March 9, 1991 and October 26, 1992, respectively, the presumption of regularity being official documents issued by US authorities. Justices Tagle and Dacudao concurred in stating that the conclusion of their three (3) colleagues (majority) that the US INS certifications did not exclude the possibility of Webb traveling back to the Philippines and again departing for the US between March 9, 1991 and October 26, 1992 -- is nothing but speculation and conjecture. Webb further mentions that since a Justice of this Court "confirmed appellant Webbs alibi of being in the United States on 29 June 1991[,] [a]t the very least, such exculpatory testimony coupled with the plethora of appellant Webbs other documentary and testimonial evidence on his presence in the United States on 29 June 1991 raises reasonable doubt as to appellant Webbs guilt of the crime charged."136 I find the contentions bereft of merit. In the first place, let it be emphasized that Justice Carpios testimony before the trial court confirmed merely the fact that his conversation with then Congressman Webb took place on June 29, 1991 and what the latter relayed to him about his location at the time such telephone call was made, who was with him in the US (his wife and appellant Webb) and the purpose of their US trip (to find a job for appellant Webb). Said witness even admitted that he had no personal knowledge that appellant Webb was in fact in the United States at the time of his telephone conversation with Congressman Webb.137 As to the travel documents consisting of his US passport, US INS certifications and other evidence presented by appellant Webb in support of his alibi, while it is true that such presentation of passport, plane ticket and other travel documents can serve as proof that he was indeed out of the country at the time of the Vizconde killings,138it must still be shown that the evidence is clear and

convincing, and the totality of such evidence constitutes an airtight excuse as to exclude the least possibility of his presence at the crime scene. However, appellant Webb failed in this regard and the RTC and CA did not err in giving scant weight to his arsenal of evidence, particularly so on the strength of the positive identification of appellant Webb as Carmelas rapist and one of those who actually took part in the brutal killing of Carmela, her mother and sister between midnight of June 29, 1991 and early morning of June 30, 1991. Indeed, alibi cannot be sustained where it is not only without credible corroboration, but also where it does not, on its face, demonstrate the physical impossibility of the accuseds presence at the place and time of the commission of the crime.139 Against positive evidence, alibi becomes most unsatisfactory. Alibi cannot prevail over the positive identification of a credible witness.140 Appellant Webb was placed at the crime scene by Alfaro who positively identified him as the one (1) who plotted and committed the rape of Carmela, and later fatally stabbed her, her mother and sister, aided by or in concert with Lejano and Ventura. Gaviola and Cabanacan gave corroborating testimonies that appellant Webb was here in the country, as he was just in his house at BF Homes Subdivision Phase III, at least a few weeks prior to and on June 29 to 30, 1991. Verily, it is only when the identification of the accused as the author of the crime charged is inconclusive or unreliable that alibi assumes importance. Such is not the situation in the case at bar where the identification of the perpetrators by a lone eyewitness satisfied the moral certainty standard. It is the prosecutions burden to prove the guilt of the accused beyond reasonable doubt. Definitely, "reasonable doubt" is not mere guesswork whether or not the accused is guilty, but such uncertainty that "a reasonable man may entertain after a fair review and consideration of the evidence." Reasonable doubt is present when -after the entire comparison and consideration of all the evidences, leaves the minds of the [judges] in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.141 That reasonable doubt is not engendered by the presentation of certifications of entry into and exit from the US, passport with stamp marks of departure and declarations of witnesses who are mostly relatives and friends of appellant Webb, can be gleaned from the fact that passports and plane tickets indicating dates of arrival and departure do not necessarily prove that the very same person actually took the flight. This Court takes judicial notice of reported irregularities and tampering of passports in the years prior to the recent issuance by the DFA of machine-readable passports. In fact, the proliferation of photo-substituted passports, fake immigration stamps, assumed identity and double passports, among others, have been cited as grounds to justify the necessity of amending the Philippine Passport Act of 1996 (R.A. No. 8239) as proposed in the Senate, "x x x to rally for the issuance of passports using tamper proof and the latest data encryption technology; and provide stiffer penalties against proliferators of fake passports."142 It is worthy of note I note that the original of Webb's passport was not offered in evidence and made part of the records, which only gives credence to the prosecutions allegation that it bore signs of tampering and irregularities. And as earlier mentioned, the much vaunted US-INS second certification dated August 31, 1995 based on a mere computer print-out from the Non-immigrant Information System (Exhibit "213-1-D") retrieved from the US- INS Archives in Washington, and the accompanying certifications, have little probative value, the truth of their contents had not been testified to by the persons who issued the same. Moreover, the issuance of this certification only a

couple of weeks after the August 10, 1995 US-INS Office in San Francisco was issued, only raised questions as to its accuracy. Said earlier certification through Debora A. Farmer stated that: [a]fter diligent search no record is found to exist in the records of the Immigration and Naturalization Service. The search included a review of the Service automated and nonautomated records system; there is no evidence of any lawful admission to the United States as an immigrant, or as a nonimmigrant, relating to Hubert P. Webb, born November 7, 1968, in the Philippines. The records searched are current as of July 1, 1995 for the immigrants and nonimmigrants.143 [emphasis supplied] The above finding was relayed by Thomas Schiltgen, District Director of the Immigration and Naturalization Service, San Francisco to Ms. Teresita V. Marzan, Consul General of the Philippines: SUBJECT: WEBB, HUBERT RE: Hubert Jeffrey Webb Dear Requester: YOUR REQUEST WAS RECEIVED BY THIS OFFICE ON 07/10/95. WE HAVE COMPLETED OUR SEARCH FOR RECORDS RESPONSIVE TO YOUR REQUEST BUT DID NOT LOCATE ANY. IF YOU STILL BELIEVE THAT WE HAVE RECORDS WITHIN THE SCOPE OF YOUR REQUEST, AND CAN PROVIDE US WITH ADDITIONAL INFORMATION, WE WILL CONDUCT ANOTHER SEARCH. IF YOU ELECT TO REQUEST ANOTHER SEARCH, WE RECOMMEND THAT YOU NOT FOLLOW THE APPEALS PROCEDURE DESCRIBED BELOW UNTIL WE HAVE COMPLETED THAT SEARCH. YOU MAY APPEAL THE FINDING IN THIS MATTER BY WRITING TO THE OFFICE OF INFORMATION AND PRIVACY, UNITED STATES DEPARTMENT OF JUSTICE, SUITE 570, 1310 G. STREET, N.W., FLAG BUILDING, WASHINGTON D.C., 20530 WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS LETTER. YOUR LETTER SHOULD REFERENCE THE INS CONTROL NUMBER ABOVE AND THE LETTER AND THE ENVELOPE SHOULD BE CLEARLY MARKED FOIA/PA APPEAL. SINCERELY, (SGD.) DISTRICT DIRECTOR144 [emphasis supplied] To show that the August 10, 1995 US-INS Certification was erroneous, appellant Webb presented the Memorandum addressed to Secretary Domingo L. Siazon signed by Consul Leo M. Herrera-Lim, the Diplomatic Note dated October 30, 1995 and the letter of Debora Farmer stating that the San Francisco certification was erroneous.145 The prosecution, however, presented another document which indicated that an appeal to the U.S. Department of Justice, Office of Information and Privacy yielded a negative result on any record on file that one (1) Hubert Webb arrived in the United States on March 9, 1991, and further that Richard L. Huff, Co-Director of the Office of Information and Privacy had in effect sustained as correct the US-INS San Francisco report that there is no such data on Hubert Webb in the San Francisco database so that the Philippine Embassy in Washington, D.C. should instead ask the assistance of other U.S. government agencies in their search for data on appellant Webb.146

The defense endeavored to explain why the US-INS Archives in Washington could have made the "mistake" of stating that it had no data or information on the alleged entry of appellant Webb on March 9, 1991 and his exit on October 26, 1992. However, it had not satisfactorily addressed the nagging question of how it became possible for the US-INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on appellant Webb when the said port of entry had no such record. Considering that many visitors (nonimmigrants) are admittedly not entered into the NIIS database, and that diligent search already yielded a negative response on appellant Webbs entry into the US on March 9, 1991 as per the August 10, 1995 Certification, as to what US government agency the alleged computergenerated print-out in the August 31, 1995 certification actually came from remains unclear. Appellant Webbs reliance on the presumption of regularity of official functions, stressing the fact that the US-INS certifications are official documents, is misplaced. The presumption leaned on is disputable and can be overcome by evidence to the contrary.147 In this case, the existence of an earlier negative report on the NIIS record on file concerning the entry of appellant Webb into and his exit from the US on March 9, 1991 and October 26, 1992, respectively, had raised serious doubt on the veracity and accuracy of the subsequently issued second certification dated August 31, 1995 which is based merely on a computer print-out of his alleged entry on March 9, 1991 and departure on October 26, 1992. As to the testimony of former Foreign Affairs Secretary Domingo L. Siazon, the same cannot be given due credence since he is incompetent to testify on the contents of the August 31, 1995 USINS Certification, having merely received the said document in his capacity as the head of the Department of Foreign Affairs of the Philippines. Consul Leo M. Herrera-Lims testimony likewise did not carry much weight considering that its significance is confined to the fact that the document from the US-INS was transmitted and received by the DFA. It is to be noted that the certification issued by the Philippine Embassy with respect to the US-INS Certifications contained a disclaimer, specifically stating that the Embassy assumed no responsibility for the contents of the annexed document.148 The same observations regarding the "consularized certifications" was reflected in the Decision dated April 16, 1998 in CA-G.R. SP No. 42285 ("Miguel Rodriguez v. Amelita Tolentino") and CA-G.R. SP No. 42673 ("Hubert P. Webb v. Amelita Tolentino").149 Appellant Webbs travel documents and other supposed paper trail of his stay in the US are unreliable proof of his absence in the Philippines at the time of the commission of the crime charged. The non-submission in evidence of his original passport, which was not formally offered and made part of the records, had deprived the RTC, CA and this Court the opportunity to examine the same. Such original is a crucial piece of evidence which unfortunately was placed beyond judicial scrutiny. IWe quote the following observations made by the prosecution on Webbs passport from the appeal brief of the OSG: In tandem with the presentation of the various U.S. INS certifications to bolster appellant Webbs story of a U.S. sojourn before, during and after the commission of the offense charged, he further anchors his defense on his passport (Exh. AAAAAA and 294) ostensibly to show, among others, that the grant by the United States government granted him a visa effective from April 6, 1989 to April 6, 1994 and the U.S. Immigration in San Francisco stampmarked it on March 9, 1991 (Exh. AAAAAA6) on page 30 thereof (Exh. AAAAAA-2 and 294-D). On its face, what the entries in the passport plainly suggest is that appellant Webb violated U.S. immigration laws by "overstaying" beyond the usual six-(6) month period allowed for tourists. However, he being the son of a Senator would not unnecessarily violate U.S. immigration laws. It would be quite easy for him to apply for and secure an extension of his authorized stay in the U.S., if

only he requested. But why did not he or his parents secure the extension? Why was there no evidence to show that he ever requested an extension? Did he really overstay in the U.S. or could he simply enter and leave the U.S. and the Philippines without marking his passport? These raise serious questions on the integrity of the passport. Is appellant Webb really untouchable that even U.S. authorities in various states would let him get "off the hook" without much of a fuss after his alleged brushes with the law (TSN - Hubert Webb dated September 10, 1997, p. 82)? This is especially incredible considering that he was allegedly apprehended in the United States near the U.S. border (Ibid., pp. 82-83) where authorities are always on the look out for illegal aliens. The questions involving appellant Webbs passport are not limited to the stamp marks (or lack of stamp marks) therein. There are unusual things about his passport which he has been unable to explain satisfactorily. The passport of her mother, Elizabeth Webb, for example, appears to be well preserved despite having been usedmore frequently than that of appellant Webb who supposedly used it in only one trip abroad. Not only do some of the pages appear smudged or untidy, but more significantly, the perforations on the passport pages indicating the serial number of appellant Webbs passport no longer fit exactly on the pages -- that is, they are no longer aligned. The perforations are intended not only to indicate the serial number of the passport but more importantly to countercheck intercalations and tampering. The "non-alignment" of the perforations is thus significant. In addition to the over-all shabby appearance of appellant Webbs passport, what is evident is the torn plastic portion of the dorsal page thereof near the holders signature. There is also the matter of the marked difference in the signatures of appellant Webb as appearing on the dorsal side of the passport (Exh. AAAAAA-3 and 294-A-1) as compared with that appearing on his laminated photograph (Exh. AAAAAA-5 and 294-C-1). Of course, he tried to offer an explanation on the variance in the two (2) signatures. All he could reason out, however, was that he wrote his name using his normal penmanship when in a lazy mood (TSN -- Hubert Webb dated August 14, 1997, p. 27), implying that the signature appearing on his laminated photograph is his real signature. A review of his other documentary evidence supposedly bearing his signature shows that what appears therein is his name written in his "normal penmanship," and that it is only in the laminated picture (Exh. AAAAAA-5 and 294-C) that such "real signature" appears. Following appellant Webbs explanation, it means that he was in a lazy mood all the time! 150 Two (2) more documents presented by appellant Webb deserve a close look -- his US Drivers License supposedly issued on June 14, 1991, and the Passenger Manifest. The RTCs evaluation of said documents revealed their lack of probative value, thus: On August 14, 1997, [Webb] testified that he did not make any application since the procedure in California provides for a walk-in system, that he did not submit any photograph relative to his application for a Californian Drivers License, inasmuch as a photograph of him was taken, and that, his drivers license was issued sometime on the first week of June, 1991. On the other hand, on September 1, 1997, the accused suddenly and completely changed his testimony while still on direct examination. He claims that the picture appearing on the drivers license was the very same he submitted together with his application for the drivers license. Thus, the discrepancy as to the source of the photograph (Exhibit "334-E") between the testimony given on August 14, 1997 where the accused Webb said that the California Department of Motor Vehicle took his picture, and the testimony given on September 1, 1997 where he said that he submitted it to the California DMV as an attachment to his supposed drivers license application renders the accused Webbs testimony as unbelievable and unworthy of credence.

It is beyond belief that the same picture submitted by the accused Webb became the picture in the drivers license allegedly issued on June 14, 1991. Moreover, it is contrary to human nature and experience, aside from the fact that it is likewise contrary to the procedure described by the accused Webb in obtaining a drivers license in the State of California. Since a drivers license is one of the principal means of identification in the United States as well as in the Philippines, to allow the applicants to produce their own pictures would surely defeat the purpose in requiring them to appear before the Department of Motor Vehicle, that is, to ensure the integrity and genuineness of the drivers license. The Court takes note that the accused Webb, in his fervent desire to exculpate himself from criminal liability, earlier offered in evidence the letter dated January 10, 1992 of Mr. Robert L. Heafner, Legal Attache of the Embassy of the United States to the then Director of the National Bureau of Investigation, Alfredo S. Lim, (Exhibit "61") which stated in very clear terms that the accused Webbs California Drivers License Number A8818707 was issued on August 9, 1991. Furthermore, the said letter states the listed address of the accused Webb at the time of the issuance of the drivers license was 532 So. Avenida Faro Ave., Anaheim, California 92807. The said listed address of the accused Webb at the time his drivers license was issued has demolished the testimony of the defense witness Sonia Rodriguez that the accused Webb was supposed to be already living with the Rodriguez family in Longwood, Florida by the first week of August, 1991. The accused Webb likewise offered in evidence the official communication coming from the Federal Bureau of Investigation dated December 31, 1991 (Exhibit "MMM" and submarkings; Exhibit "66-C" and submarkings) which likewise gave the information that the accused Webb was issued California Drivers License No. 8818707 on August 9, 1991, and that as of August 9, 1991, the address of the accused Webb was 532 South Avenida Faro, Anaheim, California 92807. The fact that the alleged Drivers License No. A8818707 was issued on two (2) different dates (August 9, 1991 and June 14, 1991) casts a serious doubt on its provenance and authenticity. xxxx In order to establish that the accused Hubert Webb departed from the Philippines on 09 March 1991 on board UA flight 808 the defense also presented witness Dulcisimo Daluz, Station Manager of United Airlines for Manila who in turn presented a document purporting to be the Passenger Manifest for the flight departing on 09 March 1991 (Exhibits "233-A" to "233-N"). This document merits outright rejection considering that the defense witness Daluz confirmed that the same was prepared by the UA departure area personnel and not by himself. Thus, this document is merely hearsay and is devoid of any merit whatsoever. In respect of the plane ticket of the accused Hubert Webb, what was likewise offered as part of the testimony of Daluz was a mere photo copy, wherein Daluz also admitted not having any direct participation in its preparation. The spurious nature of the document was observed by the witness Daluz himself who admitted that there wereirregularities in the Passenger Manifest presented by the defense. According to Daluz, it is a strict procedural requirement that all the checking agents who were on duty on March 9, 1991 were supposed to initial the Passenger Manifest, However, he admitted that Exhibits "223" and "223-N" did not contain the initials of the checking agents who were supposed to initial the same.

The defense presented Agnes Tabuena, Vice-President for Finance and Administration of the Philippine Airlines for the purpose of establishing that Hubert Webb arrived in the Philippines only on 26 October 1992. Like witnesses Daluz and Nolasco, Tabuenas statements on the witness stand and the Certification was based exclusively on the Passenger Manifest of PALs PR 103. Unfortunately for the defense, the said testimony is of no probative value and of doubtful veracity considering that the witness did not prepare the same, nor did the witness identify the persons who prepared the same other than that they were "airport staff", nor did she had any idea when the document was transmitted to her office. In fact, the witness could not even interpret the contents of the said Passenger Manifest, much more testify as to the due execution and genuineness thereof. In view of the vital necessity to the other accused of establishing accused Webbs alibi, it is important to note that Atty. Francisco Gatchalian, father of the accused Michael Gatchalian was then a high ranking PAL Official and a colleague of Tabuena. This makes the source of the document, even ignoring the fact of its inadmissibility, suspicious.151 [emphasis supplied.] The alibi of appellants Gatchalian and Lejano, who claimed they were at the Syap residence at Ayala Alabang Village watching video tapes the whole night of June 29, 1991 until early morning of June 30, 1991, was even less plausible considering the distance of that place from Pitong Daan Subdivision, which is just a few minutes ride away. The RTC noted the manifestation of the defense on Andrew Syaps refusal to testify on Gatchalian and Lejanos whereabouts during the night in question, despite their efforts to convince him to do so. It further noted the testimony of Assistant NBI Director Pedro Rivera that Carlos Syap upon seeing Gatchalian with their group even berated Gatchalian for dragging him into his (Gatchalians) own problem. Aside from Alfaro, security guard Normal White, Jr. also testified that the presence of Gatchalian (son of a homeowner), who pointed to the other appellants in the two (2) cars behind him as his companions, was the reason they allowed his friends to enter the subdivision on the night of June 29, 1991. White, Jr. also categorically declared he had, earlier that same night, seen Gatchalian with his friends standing at Vinzons St. Thus, other than the hearsay declaration of his father who merely testified on what his son told him about spending the night watching video tapes at the Syap residence on June 29, 1991, Gatchalian presented no corroborative evidence of his alibi. As to appellant Lejano, he was positively identified by Alfaro as the first to express approval of Webbs plan to gang-rape Carmela by saying, "Ako ang susunod." Lejano was also with Alfaro, Webb and Ventura in going inside the Vizconde house, and whom she later saw inside the masters bedroom, at the foot of the bed where the bloodied bodies of Estrellita and Jennifer lay, and just standing there about to wear his jacket while Webb was pumping the hogtied and gagged Carmela on the floor. His alibi is likewise feeble, as he could have easily gone to the Vizconde house within a few minutes from the Syap residence where he and Gatchalian allegedly watched video tapes. Appellant Fernandez, on his part, insisted that Alfaros story was simply fabricated by her "hidden mentors" who considered the sworn statement of Roberto D. Barroso taken on November 4, 1991. Barroso was one (1) of the members of the "Akyat Bahay" gang who were earlier charged before the Makati City RTC in Criminal Case Nos. 91-7135-37 for Rape with Homicide and for Robbery with Homicide in connection with the Vizconde killings. There is an uncanny congruence in the details of the incident as testified to by Alfaro, with the sworn statement of Barroso particularly pertaining to the manner by which the garage light of the Vizconde house was put out, the smashing of the glass panel of the main door, and the appearance of a woman who opened the main door saying "Sino kayo?"152

Such submissions are inane, in view of the dismissal of those cases filed against the first set of suspects based on lack of evidence. Contrary to Fernandezs insinuation of a fabricated eyewitness account, Alfaro gave much more minute details than the limited narration given by Barroso. More important, Alfaros testimony was sufficiently corroborated on its material points, not only by the physical evidence, but also by the testimonies of four (4) disinterested witnesses for the prosecution: White, Jr., Cabanacan, Gaviola and Birrer. Fernandez also cited as among the reasons why Alfaros declarations were far from positive, the non-recovery of the fatal weapons used in the killings. He contended that a crucial link in the prosecutions physical evidence was thus missing, as Alfaro could not even say what was the "object" or "thing" which she saw thrown out of the Nissan Patrol while the group was on their way to the BF Executive Village. Hence, her suggestion that what she saw Ventura took from the kitchen drawer may have been kitchen knives used to kill the victims must fail.153 Such proposition fails to persuade. The failure to present the murder weapon will not exculpate the accused from criminal liability. The presentation and identification of the weapon used are not indispensable to prove the guilt of the accused, much more so where the perpetrator has been positively identified by a credible witness.154 Appellant Rodriguez denies being a conspirator with Webbs group in the commission of the crime, asserting that his presence and participation in the Vizconde killings, from the time of its inception up to its consummation, was not established beyond reasonable doubt. He cites the failure of Alfaro to mention his name as part of the "group" twice in her testimony. These instances refer to Alfaros direct examination when she was asked to name the persons riding the convoy of three (3) vehicles when they left Ayala Alabang Commercial Center parking lot to proceed to the Vizconde residence at Pitong Daan Subdivision,155 and the second time when she was asked to enumerate the members of the "group" who were waiting along Aguirre Avenue during their second trip to the Vizconde residence.156 Thus, when Alfaro testified that the rest of the group acted as lookouts while she, Webb, Lejano and Ventura went inside the Vizconde house, it must be understood as limited only to those she had previously enumerated, which definitely did not include Rodriguez.157 The argument is untenable. The mere fact that Alfaro missed out naming Rodriguez in two (2) instances during her direct examination does not give rise to the conclusion that he was not positively identified by Alfaro as among those present and participated prior to, during and after the commission of the crime as lookouts along with the rest of the group. Contrary to Rodriguezs claim, the first time that Alfaro referred to and enumerated the members of the "group" which she had unexpectedly joined that night, was at the beginning of her narration on how she met Venturas friends when she got her order of shabu at the Ayala Alabang Commercial Center parking lot. Q. And you said that Dong Ventura introduced you to this group, will you name the group that was introduced to you by Dong Ventura? A. First, he introduced me to Hubert Webb, then Fyke Fernandez, Miguel Rodriguez, and then Tonyboy Lejano, Michael Gatchalian.158 Alfaro was again asked to enumerate the members of the "group" when the prosecution asked her to name the members of the group, in the later part of her direct examination during the same hearing.159 She also testified that after everyone, including Rodriguez, took part in a shabu session, they left the parking lot.160 It thus logically follows that whenever Alfaro made reference to the "group" in her entire narration, it necessarily included those she had enumerated she had met and had a shabu session with at the Ayala Alabang Commercial Center parking lot. This same group was with her from their first trip to the Vizconde residence until the time they left Pitong Daan Subdivision

and retreated to a house at BF Executive Village early morning of June 30, 1991. Alfaro had specifically mentioned Rodriguez when asked by Prosecutor Zuo to describe their relative positions at the lawn area of the BF Executive Village house, thus establishing his presence during the "blaming session": A. x x x kalat kami, sir, pero hindi kami magkakalayo x x x xxxx Q. How about Miguel Rodriguez, how far was he from Hubert? A. Two meters away. xxxx A. Mike is very very near Ging Rodriguez.161 It must be stressed that Alfaro categorically declared it was Rodriguez who approached her at Faces Disco on March 30, 1995 and told her to shut up or she would be killed. Aside from making that threat, Rodriguez also offered Alfaro a plane ticket so she could leave the country.162 Rodriguezs bare denial cannot be given any evidentiary weight. We have ruled that denial is a self-serving negative evidence that cannot be given greater weight than the declaration of a credible witness who testified on affirmative matters.163 Rodriguezs attempt to set up an alibi through the testimony of his cousin Mark Rualo was equally frail. Even assuming as true Rualos testimony that he had indeed invited Rodriguez to attend his birthday party on June 29, 1991 but Rodriguez opted to stay in his house and even talked to him on the phone when he called Rodriguez to ask why he was not yet at the party, it cannot serve as proof of Rodriguezs whereabouts at the time of the commission of the crime. It did not rule out the actual presence of Rodriguez at the crime scene. Appellant Estrada, just like Rodriguez and Fernandez, did not take the witness stand and simply relied on the alibidefense of his co-accused, principally that of Webb. Alfaro testified that it was Estrada, then her boyfriend, who was together with her in her car throughout the night of June 29, 1991 until early morning of June 30, 1991. Estrada was among those who acted as lookouts outside the Vizconde house after they all concurred in the plan of Webb to gang-rape Carmela while they were still at the parking lot of the Ayala Alabang Commercial Center. Conspiracy among appellants duly proven The existence of conspiracy between appellants Webb, Ventura, Lejano, Gatchalian, Fernandez, Rodriguez and Filart was satisfactorily proven by the prosecution. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to actually pursue it. It may be proved by direct or circumstantial evidence.164 Although only one (1) rape was actually proven by the prosecution, as conspirators who mutually agreed to commit the crime and assisted one (1) another in its commission, on the occasion of which the rape victim Carmela, her mother Estrellita and sister Jennifer, were killed, each of the accused-appellants shall be criminally liable for rape with homicide.

Indeed, appellants by their individual acts, taken as a whole, showed that they were acting in unison and cooperation to achieve the same unlawful objective, even if it was only Webb, Ventura and Lejano who actually went inside the Vizconde house while Estrada, Fernandez, Rodriguez, Gatchalian and Filart stood as lookouts outside the house. Under these premises, it is not even necessary to pinpoint the precise participation of each of the accused-appellants, the act of one being the act of all.165 One who participates in the material execution of the crime by standing guard or lending moral support to the actual perpetrators thereof is criminally responsible to the same extent as the latter. There being conspiracy among the accused-appellants, they are liable as co-principals regardless of the manner and extent of their participation.166 Biong guilty as accessory after the fact Appellant Biong contends that he cannot be convicted as accessory to the crime of rape with homicide because the acts imputed to him did not result in the hiding of the case. There was no evidence that such indeed was his intent or motive. He points out that the bodies of the victims were found at their respective places where they were assaulted and there was no evidence that they had been moved an inch from where they breathed their last. He asserts that non-preservation of the evidence is not an accessory crime under the Revised Penal Code.167 The contentions have no merit. The Revised Penal Code in Article 19 defines an accessory as one who has knowledge of the commission of the crime, yet did not take part in its commission as principal or accomplice, but took part in it subsequent to its commission by any of three modes: (1) profiting himself or assisting the offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or instruments thereof in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.168 Under paragraph 3 of Article 19 of the Revised Penal Code, as amended, there are two (2) classes of accessories, one of which is a public officer who harbors, conceals or assists in the escape of the principal. Such public officer must have acted with abuse of his public functions, and the crime committed by the principal is any crime, provided it is not a light felony. Appellant Biong is one (1) such public officer, and he abused his public function when, instead of immediately arresting the perpetrators of the crime, he acceded to the bidding of appellant Webb to "clean the Vizconde house," which means he must help hide any possible trace or sign linking them to the crime, and not necessarily to prevent the discovery of the bodies in such actual condition upon their deaths. Hence, such "cleaning" would include obliterating fingerprints and other identifying marks which appellants Webb, Lejano and Ventura might have left at the scene of the crime. Contrary to Biongs assertion, his failure to preserve evidence at the crime scene such as fingerprints on the doors and objects inside the masters bedroom where the bodies were found, the bloodied floor of the toilet, the actual material used in gagging Carmela and Estrellita, the bloodied blankets and bed sheets, the original condition of the broken glass panel of the main door, the shoe print and foot prints on the car hood and at the back of the house, fingerprints on the light bulb at the garage -- was a form of assistance to help the perpetrators evade apprehension by confusing the investigators in determining initially what happened and the possible suspects. Consequently, Biongs unlawful taking of the jewelries and Carmelas ATM card and drivers license, his act of breaking the larger portion of the main door glass, the washing out of the

blood on the toilet floor and permitting the relatives to burn the bloodied bed sheets and blankets -had in fact misled the authorities in identifying potential suspects. Thus, the police had a difficult time figuring out whether it was robbers who entered the Vizconde house and perpetrated the rape-slay, or drug-crazed addicts on the loose, or other persons having motive against the Vizconde family had exacted revenge, or a brutal sexual assault on Carmela by men who were not strangers to her which also led to the killings. On the basis of strong evidence of appellant Biongs effort to destroy crucial physical evidence at the crime scene, I hold that the RTC did not err in convicting him as an accessory to the crime of rape with homicide. Penalty The CA was correct in affirming the sentence imposed by the RTC upon each of the accusedappellants Webb, Lejano, Gatchalian, Rodriguez, Fernandez and Estrada. The proper penalty is reclusion perpetua because the imposition of the death penalty under the Revised Penal Code (in Article 335 thereof, as amended by R.A. No. 2632 and R.A. No. 4111, when by reason or on the occasion of rape, a homicide is committed), was prohibited by the Constitution at the time the offense was committed.169 At any rate, the subsequent passage of R.A. No. 9346 entitled "An Act Prohibiting the Imposition of the Death Penalty in the Philippines," which was signed into law on June 24, 2006, would have mandated the imposition on accused-appellants the same penalty of reclusion perpetua. As to the penalty imposed by the CA on appellant Biong as accessory after the fact to the crime of rape with homicide, we find the same proper and in order. DNA Testing Appellant Gatchalian reiterates his and appellant Webbs motion for DNA testing of the semen specimen taken from the vaginal cavity of Carmela during the autopsy conducted by Dr. Cabanayan, which motion was denied by the RTC for lack of available scientific expertise and technology at the time. With the great advances in forensic science and under pertinent state laws, American courts allow post-conviction DNA testing when its application has strong indications that the result could potentially exonerate the convict. Indeed, even a convicted felon has the right to avail of new technology not available during his trial. On October 2, 2007, this Court approved the Rule on DNA Evidence170 which took effect on October 15, 2007. Pursuant to Section 4 of the Rule, the court may at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing after due notice and hearing. Such order shall issue upon showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.171 By Resolution dated April 20, 2010, this Court granted appellant Webbs request to submit for DNA analysis the semen specimen taken from the cadaver of Carmela Vizconde under the custody of the National Bureau of Investigation (NBI). We ordered (1) the NBI to assist the parties in facilitating the submission of the said specimen to the UP-Natural Science and Research Institute (UP-NSRI), Diliman, Quezon City; and (2) the NBI and UP-NSRI to report to this Court within fifteen (15) days from notice regarding compliance with and implementation of the said resolution. In his Compliance and Manifestation dated April 27, 2010, Atty. Reynaldo O. Esmeralda, NBI Deputy Director for Technical Services, informed this Court that the semen specimen/vaginal smear taken from the cadaver of Carmela Vizconde and all original documents (autopsy and laboratory reports, and photographs) are no longer in the custody of the NBI as these were submitted as evidence to the Regional Trial Court (RTC) of Paraaque City, Branch 274 by then NBI Medico-Legal Chief, Prospero A. Cabanayan, M.D., when the latter testified on direct and cross-examination on January 30, 31, February 1, 5, 6 and 7, 1996. Attached thereto are certified true copies of Laboratory Report No. SN-91-17 (stating positive result for the presence of human spermatozoa), Autopsy Report No. N-91-1665 (with remarks: "Smear for presence of spermatozoa"), copy of the sworn statement of Dr. Cabanayan and certified true copy of the envelope bearing his signed handwritten notation that all original photographs have been submitted as evidence during the aforementioned hearing dates.172 On May 11, 2010, the Office of the Solicitor General (OSG) filed a Motion for Reconsideration of our Resolution dated April 20, 2010 on grounds that (a) the DNA testing order was issued in disregard of Section 4 of the Rule on DNA Evidence which requires prior hearing and notice; (b) a determination of propriety of DNA testing at this stage under the present Rule, separate from that filed by Webb before the trial court on October 6, 1997, is necessary as there was no opportunity back then to establish the requisites for a DNA testing order under the Rule which took effect only in 2007; (c) the result of the DNA testing will constitute new evidence, which cannot be received and appreciated for the first time on appeal; and (d) this Court failed to elucidate an exceptional circumstance to justify its decision to consider a question of fact, as this Court itself acknowledged in its April 20, 2010 Resolution that the result of DNA testing is not crucial or indispensable in the determination of appellant Webbs guilt for the crime charged.173 On May 21, 2010, Atty. Roberto Makalintal, Jr., Branch Clerk of RTC Paraaque City, Branch 274, submitted his Comment on The Compliance and Manifestation Dated April 27, 2010 of the NBI stating that: (a) There is no showing of actual receipt by RTC Branch 274 of the specimen/vaginal smear mentioned in Dr. Cabanayans affidavit dated April 27, 2010; (b) Based on available records such as the TSN of January 31, 1996 and February 7, 1996 during which Dr. Cabanayan testified, no such specimen/vaginal smear was submitted to RTC Branch 274; (c) The TSN of January 31, 1996 on pages 57, 58 and 69 suggest that marked in evidence as Exhibits "S", "T" and "U" by then Chief State Prosecutor Jovencito Zuo were only the photographs of the three slides containing the semen specimen; (c) In the hearing of February 7, 1996, Dr. Cabanayans last testimony before RTC Branch 274 in this case, he testified that the last time he saw those slides was when he had the photographs thereof taken in 1995 (the first time was when he examined them in 1991), and as far as he knows between 1991 and 1995, those slides were kept in the Pathology Laboratory of the NBI;

and (d) The entire records of the cases were already forwarded to this Court a long time ago, including the evidence formally offered by the prosecution and the accused.174 Under our Resolution of June 15, 2010, we required the NBI to (a) show proof of the release of the semen specimen to the RTC of Paraaque City, Branch 274 in 1996; and (b) comment on the alleged conflicting representations in its Compliance and Manifestation dated April 27, 2010, both within ten days from notice. However, the NBI has not complied with said directive. In his Comment on the OSGs motion for reconsideration, appellant Fernandez argued that when this Court, in the higher interest of justice, relaxed the Rule on DNA Evidence to afford Webb the fullest extent of his constitutional rights, the prosecution was not thereby denied its equally important right to due process. Contrary to the OSGs claim that this Court immediately granted DNA testing without observing the requisites under Section 4 of the Rule on DNA Evidence, and without due notice and hearing, appellant asserts that the Resolution dated April 20, 2010 clearly defines the parameters of the DNA analysis to be conducted by the UP-NSRI assisted by the NBI. Indeed, there are ample safeguards in the Rule to assure the reliability and acceptability of the results of the DNA testing. Fernandez, however, objected to the statement of the OSG that "in the light of positive identification" of appellant Webb by the principal witness for the prosecution, Jessica Alfaro, the existing circumstances more than warrant the affirmation of Webbs guilt. Alfaros cross-examination exposed her as an "out-and-out perjurer, a bold and intentional liar under oath" and a "fake witness" whose account of the incident is "shot-through with fatal omissions, self-contradictions, inconsistencies and inherent improbabilities."175 Appellant Lejano likewise filed his comment, pointing out that the trial court denied Webbs motion to direct the NBI to submit semen specimen for DNA analysis on November 25, 1997 only after lengthy exchange of pleadings between the defense and prosecution, the latter having properly opposed said motion. Hence, the People cannot now rightfully claim that there was no notice or hearing on the issue of submitting the semen specimen for DNA analysis. Citing Brady v. Maryland,176 Lejano contended that the suppression of exculpatory evidence or evidence that will show reasonable probability that the verdict would have been different had the evidence been disclosed grossly violates an accuseds right to due process. In this case, the evidence needs only to be subjected to DNA analysis to establish the innocence of appellant Webb, as well as of petitioner and appellant Lejano. It was further asserted that the semen specimen was already existing at the time of the trial, and hence can hardly be considered as "new evidence" and that DNA testing of said semen specimen taken from the victim Carmela Vizconde "has the scientific potential to produce new information that is relevant to the proper resolution of the case" (Sec. 4 (d), Rule on DNA Evidence).177 On his part, appellant Webb stressed that there are exceptional circumstances that justify this Courts order to immediately conduct the DNA analysis. He has been behind bars for more than fifteen (15) years. He has filed a motion for DNA analysis as early as 1997 or thirteen (13) years ago. The result of such test could yield evidence that could acquit him while no damage will be suffered by the prosecution considering that this Court emphasized in its Resolution of April 20, 2010 that the prosecutions evidences and concerns regarding the proper preservation of evidence in the custody of the NBI would have to be addressed in the light of the requirements laid down by the Rule on DNA Evidence. As to the prosecutions argument that this Court cannot receive and appreciate "new evidence," Section 4 of the Rule states that "the appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing"; DNA testing is even available post-conviction (Ibid, Sec. 6). This Court in accordance with proper procedure thus decided to receive DNA evidence in order not to further delay the case, appellants after all, were convicted more than ten (10) years ago in 2000 and have been incarcerated for fifteen (15) years now.

Webb further underscored that where the evidence has not been offered, it is the prosecution who should have the legal custody and responsibility over it.178 The NBIs letter dated April 23, 1997 confirmed that the semen specimen was in its custody. The NBIs repudiation of such fact is belied by the records; the Prosecutions Formal Offer of Evidence shows that Exhibits "S", "T" and "U" were merely photographs of the slides containing the vaginal smear. Also, nowhere in the transcript of stenographic notes taken during Dr. Cabanayans testimony was it shown that he turned over the actual slides to the trial court. On the contrary, when Dr. Cabanayan was asked on February 6, 1996 to produce the slides, which he had promised to bring during the previous hearing, he admitted that he "forgot all about it" when he came to the hearing. Thus, it appears from the record that from the time the semen specimen was taken from Carmela Vizcondes cadaver, it has always been in the custody of the NBI.179 Evidently, the NBI could no longer produce the semen specimen/vaginal smear taken from the cadaver of Carmela Vizconde and consequently DNA analysis of said physical evidence can no longer be done. Hence, this Court set aside the April 20, 2010 resolution and forthwith proceeded to resolve the present appeal on the basis of existing evidence which have been formally offered by the parties and/or made part of the records. Appellant Webbs Urgent Motion To Acquit With the recall of the order for DNA testing, appellant Webb moved for his acquittal on the ground of violation of his constitutional right to due process by reason of the States failure to produce the semen specimen, either through negligence or willful suppression. Webb argues that the loss or suppression by the prosecution of the semen specimen denied him the right to avail of the latest DNA technology and prove his innocence. Citing American jurisprudence (Matter of Dabbs v. Vergari,180 California v. Trombetta181 and Brady v. Maryland182), Webb contends that in disallowing the DNA examination he had requested, the RTC denied him from presenting a "complete defense" through that "singular piece of evidence that could have definitively established his innocence," the trial court relying instead on the identification of Jessica Alfaro, a "perjured witness." The constitutional duty of the prosecution to turn over exculpatory evidence to the accused includes the duty to preserve such evidence. Webb maintains that the semen specimen extracted from the cadaver of Carmela had exculpatory value, as even NBIs Dr. Cabanayan testified during the hearing of February 7, 1996, that it was still possible to subject the same to DNA analysis to identify the person to whom the sperm belonged. Thus, a DNA analysis of said semen specimen excluding appellant Webb as the source thereof would disprove the prosecutions evidence against him. Further, Webb points out that the prosecution considered the presence of spermatozoa on the body of Carmela as evidence that she was raped, offering the photographs of the glass slides containing the sperm cells as proof that she was in fact raped on or about the late evening of June 29, 1991 or early morning of June 30, 1991. But the only evidence of the prosecution that it was Webb who raped Carmela was the testimony of Alfaro which was given full credit by the RTC and CA despite all its inconsistencies, and despite all documentary and testimonial evidence presented by the defense proving that Webb was at the United States at the time the crime was committed. On the matter of preserving DNA evidence, Webb cites Section 12 of the Rule on DNA Evidence which authorizes the court to order the appropriate government agency to preserve the DNA evidence during trial and even when the accused is already serving sentence, until such time the decision of the court has become final and executory. While this Court has given Webb the best opportunity to prove his innocence in the order granting DNA analysis of the sperm specimen taken

from Carmelas cadaver, such potentially exculpatory evidence could not be produced by the State. Webb now claims that as a result of the destruction or loss of evidence under the NBIs custody, he was effectively deprived of his right to present a complete defense, in violation of his constitutional right to due process, thus entitling him to an acquittal. Loss of Semen Specimen Not Ground For Acquittal of Webb Webbs argument that under the facts of this case and applying the cited rulings from American jurisprudence, he is entitled to acquittal on the ground of violation of his constitutional right to due process,is without merit. In Brady v. Maryland183 it was held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In said case, the petitioner was convicted of murder committed in the course of robbery and sentenced to death. He later learned that the prosecution suppressed an extrajudicial confession made by his accomplice who admitted he did the actual killing. The US Supreme Court granted a new trial and remanded the case but only on the question of punishment. In Matter of Dabbs v. Vergari,184 the court ordered DNA testing of specimen taken from a rape victim after the sexual assault and from the accused who was convicted, DNA testing being unavailable at the time of the trial. Accused therein was identified by the victim as her attacker. The court found the factual circumstances clearly showed that the semen specimen could have come only from the accused. It noted that the witness testified that accused acted alone, had ejaculated and she did not have sexual intercourse with any other person within 24 hours prior to the sexual assault. DNA testing ultimately revealed that petitioners DNA composition did not match with that found on the victims underwear. Consequently, the court granted petitioners subsequent motions to vacate the judgment of conviction. In California v. Trombetta,185 a case involving the prosecution for drunk driving, the US Supreme Court ruled that the Due Process Clause of the Constitution does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial. Given our precedents in this area, we cannot agree with the California Court of Appeal that the States failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting "in good faith and in accord with their normal practice." x x x The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence. More importantly, Californias policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspects defense. To meet this standard of constitutional materiality, x x x evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case. [italics supplied.]

From the above cases, it is clear that what is crucial is the requirement of materiality of the semen specimen sought for DNA testing. Appellant Webb must be able to demonstrate a reasonable probability that the DNA sample would prove his innocence. Evidence is material where "there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."186 In People v. Yatar,187 decided before the promulgation of the Rule on DNA Evidence, the Court expounded on the nature of DNA evidence and the factors to be considered in assessing its probative value in the context of scientific and legal developments. The proper judicial approach is founded on the concurrence of relevancy and reliability. Most important, forensic identification though useful does not preclude independent evidence of identification. DNA is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons 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. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. 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. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault. 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. 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. 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. Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. 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 victims vaginal canal. 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 unchartered 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, 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. 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 appellants semen found in the victims 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, appellants 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 of 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 victims vagina (Exhibits "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, Exhibits "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.188 [emphasis supplied.] Indeed, in other jurisdictions it has been recognized that DNA test results are not always exculpatory. Postconviction test results are not always exculpatory. In addition, exculpatory test results will not necessarily free the convicted individual. If the evidence does exclude the petitioner, the court must weigh the significance of the exclusion in relation to all the other evidence. Convicted offenders often believe that if crime scene evidence does not contain their DNA they will automatically be exonerated. Not finding the petitioners DNA does not automatically indicate the case should be overturned, however. In a rape case, for example, the perpetrator may have worn a condom, or not

ejaculated. In some cases, the absence of evidence is not necessarily evidence of the defendants absence or lack of involvement in the crime.189 We hold that the source of the semen extracted from the vaginal cavity of the deceased victim is immaterial in determining Webbs guilt. From the totality of the evidence presented by both the prosecution and the defense, Webb was positively identified as Carmelas rapist. As the records bear out, the positive identification of appellant Webb as Carmelas rapist satisfied the test of moral certainty, and the prosecution had equally established beyond reasonable doubt the fact of rape and the unlawful killing of Carmela, Estrellita and Jennifer on the occasion thereof. Even assuming that the DNA analysis of the semen specimen taken from Carmelas body hours after her death excludes Webb as the source thereof, it will not exonerate him from the crime charged. Alfaro did not testify that Webb had ejaculated or did not use a condom while raping Carmela. She testified that she saw Webb rape Carmela and it was only him she had witnessed to have committed the rape inside the Vizconde residence between late evening of June 29, 1991 and early morning of June 30, 1991. Moreover, she did not testify that Carmela had no sexual relations with any other man at least 24 hours prior to that time. On the other hand, a positive result of DNA examination of the semen specimen extracted by Dr. Cabanayan from Carmelas cadaver would merely serve as corroborative evidence. As to the loss of the semen specimen in the custody of the NBI, appellant Webbs contention that this would entitle him to an acquittal on the basis of Brady v. Maryland is misplaced. In Arizona v. Youngblood,190 a 10-year old boy was molested and sodomized by the accused, a middle-aged man, for 1 hours. After the assault, the boy was examined in a hospital where the physician used swab to collect specimen from the boys rectum and mouth, but did not examine them at anytime. These samples were refrigerated but the boys clothing was not. Accused was identified by the victim in a photographic lineup and was convicted of child molestation, sexual assault and kidnapping. During the trial, expert witnesses had testified that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated the accused. The Court held: There is no question but that the State complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and the clothing, and the boys examination at the hospital. The State provided respondents expert with the laboratory reports and notes prepared by the police criminologist, and respondents expert had access to the swab and to the clothing. xxxx The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. x x x We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the polices obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

In this case, the police collected the rectal swab and clothing on the night of the crime: respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence such as it was was made available to respondents expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion and we agreethat there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause. [emphasis supplied.] In this case, there is no showing of bad faith on the part of the police investigators, specifically the NBI, for the non-production of the vaginal swab and glass slide containing the semen specimen, during the trial and upon our recent order for DNA testing. The prosecution did not conceal at anytime the existence of those vaginal swab and glass slide containing the vaginal smear. Curiously, despite Dr. Cabanayans admission during the hearing that it was still possible to subject the semen specimen to DNA analysis, the defense never raised the issue thereafter and resurrected the matter only in October 1997 when Webbs counsel filed his motion. It bears to stress that the vaginal smear itself was not formally offered by the prosecution, but only the photographs of the glass slide containing the semen specimen for the purpose only of proving that Carmela was in fact raped and not that Webb was the source of the sperm/semen. As noted by the RTC when it denied Webbs motion for DNA on November 25, 1997, prevailing jurisprudence stated that DNA being a relatively new science then, has not yet been accorded official recognition by our courts. The RTC also considered the more than six (6) years that have elapsed since the commission of the crime in June 1991, thus the possibility of the specimen having been tampered with or contaminated. Acting on reasonable belief that the proposed DNA examination will not serve the ends of justice but instead lead to complication and confusion of the issues of the case, the trial court properly denied Webbs request for DNA testing. We thus reiterate that the vaginal smear confirming the presence of spermatozoa merely corroborated Alfaros testimony that Carmela was raped before she was killed. Indeed, the presence or absence of spermatozoa is immaterial in a prosecution for rape. The important consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ.191 On the other hand, a negative result of DNA examination of the semen specimen could not have exonerated Webb of the crime charged as his identity as a principal in the rape-slay of Carmela was satisfactorily established by the totality of the evidence. A finding that the semen specimen did not match Webbs DNA does not necessarily negate his presence at the locus criminis. Civil Liability of Appellants The Court sustains the award of P100,000.00 as civil indemnity, pursuant to current jurisprudence that in cases of rape with homicide, civil indemnity in the amount of P100,000.00 should be awarded to the heirs of the victim.192Civil indemnity is mandatory and granted to the heirs of the victims without need of proof other than the commission of the crime. For the deaths of Estrellita and Jennifer, the award of civil indemnity ex delicto to their heirs, was likewise in order, in the amount of P50,000.00 each.193 Following People v. Dela Cruz,194 P75,000.00 civil indemnity and P75,000 moral damages in rape cases are awarded only if they are classified as heinous.195As the rape-slay of Carmela took place in 1991, R.A. No. 7659 entitled "AN ACT TO IMPOSE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES," which was approved on December 13, 1993 and was to become effective fifteen (15) days after its publication in two national newspapers of general circulation, was not yet effective.196

As to moral damages, recent jurisprudence allows the amount of P75,000.00 to be awarded in cases of rape with homicide.197 We find the amount of P2,000,000.00 as moral damages awarded by the RTC as affirmed by the CA, rather excessive. While courts have a wide latitude in ascertaining the proper award for moral damages, the award should not be to such an extent that it inflicts injustice on the accused.198 The award of P2,000,000.00 as moral damages to the heir of the victims should accordingly be reduced to P500,000.00. The rest of the awards given by the trial court are affirmed. In view of the foregoing, I respectfully vote that the appeals in the above-entitled cases be DISMISSED and the Decision dated December 15, 2005 of the Court of Appeals in CA-G.R. CR H.C. No. 00336 be AFFIRMED with MODIFICATION only as to the award of damages. MARTIN S. VILLARAMA, JR. Associate Justice

Footnotes
1

Penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Regalado E. Maambong and Lucenito N. Tagle (dissented in the resolution of appellants motion for reconsideration).
2

Rollo (G.R. No. 176389), p. 13. Effective October 15, 2004. Rollo (G.R. No. 176389), pp. 393-399 and rollo (G.R. No. 176864), pp. 80-104. Rollo ( G.R. No. 176864), pp. 263-499, 525-550. Records, Vol. 1, pp. 1-3.

TSN, October 19, 1995, pp. 3-6 (Records, Vol. 5, pp. 37-40); TSN, October 23, 1995, pp. 10-24 (Records, Vol. 5, pp. 258-272).
8

TSN, October 23, 1995, pp. 6-10 (Records, Vol. 5, pp. 254-258). TSN, October 10, 1995, pp. 79-81 and 93-99 (Records, Vol. 4, pp. 253-255, 267-273).

10

TSN, October 18, 1995, pp. 18-19, 27-40, 54 and 62-63 (Records, Vol. 4, pp. 943-944, 953-966, 980 and 988-989); TSN, October 30, 1995, pp. 27-29 (Records, Vols. 5 & 6, pp. 900-902); TSN, November 8, 1995, pp. 91, 114, 117-118 (Records, Vol. 6, pp. 395, 418 and 421-422); TSN, October 16, 1995, pp. 142-143 (Records, Vol. 4, pp. 694-695); Exhibit "A", Records, Vol. 8, p. 508.
11

TSN, October 10, 1995, pp. 99-103 (Records, Vol. 4, pp. 273-278). Pictures of the Vizconde house at Records, Vol. 1, pp. 82-87.

12

13

TSN, February 26, 1996, pp. 77-82. TSN, October 10, 1995, pp. 104-121 and 155 (Records, Vol. 4, pp. 278-295 and 329). TSN, March 4, 1996, p. 28. TSN, October 10, 1995, pp. 156-164 (Records, Vol. 4, pp. 330-338).

14

15

16

17

Id., at p. 165 (339); TSN, October 16, 1995, pp. 33-35 (Records, Vol. 4, pp. 586-588); TSN, October 24, 1995, pp. 98-100 (Records, Vols. 5, 6 & 7, pp. 528-530); TSN, February 29, 1996, pp. 42-64.
18

TSN, October 10, 1995, pp. 36-53 (Records, Vol. 4, pp. 589-607).

19

Id., at pp. 40-72, 75-76 (Id., at pp. 593-625, 628 to 628-A); TSN, January 25, 1996, pp. 1415; TSN, February 26, 1996, pp. 104-106.
20

TSN, October 10, 1995, pp. 76-97 (Records, Vol. 4, pp. 628-A to 649); May 22, 1995 Affidavit, Records, Vol. l, p. 96.
21

Id., at pp. 97-104 (Id. at pp. 649-656); TSN, February 19, 1996, pp. 6-39; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.
22

Id., at pp. 111-112, 121-142 (Id. at pp. 663-664, 673-694); TSN, February 27, 1996, pp. 38, 50-51; TSN, February 8, 1996, pp. 50, 55, 60-81; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.
23

Exhibits "G" to "G-2", "Q" to "R", "V", "W" and "X", Records, Vol. 8, pp. 308-310, 323-324, 328-330.
24

Exhibits "H" to "K", Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp. 64, 67-91; TSN, January 31, 1996, pp. 7-8.
25

Exhibit "Y" to "BB", Records, Vol. 8, pp. 456-459; TSN, January 31, 1996, pp. 59-75. Exhibits "M" to "U", Records, Vol. 8, pp. 319-322; TSN, January 31, 1996, pp. 8-10, 13-20. TSN, January 31, 1996, pp. 7, 17-18 and 74. TSN, March 25, 1996, pp. 8-14, 17-34. Id., at pp. 21-22, 34-55; TSN, May 2, 1996, pp. 63-64. TSN, March 25, 1996, pp. 57-69. Id., at pp. 70-79. Id., at pp. 79-109.

26

27

28

29

30

31

32

33

TSN, March 14, 1996, pp. 12, 15-25, 41-45, 48, 51-54, 63-64; TSN, March 18, 1996, pp. 88-97.
34

TSN, March 14, 1996, pp. 79-89, 103-104. Id., at pp. 104-106; TSN, March 18, 1996, pp. 20-22. Employment Contract of Gaviola, Exhibit "C", Records, Vol. 8, p. 304. TSN, December 5, 1995, pp. 21-65. TSN, December 6, 1995, p. 19; TSN, December 13, 1995, pp. 88-89. TSN, April 16, 1996, pp. 18-38, 79. Id., at pp. 38-56. Id., at pp. 55-66; TSN, April 23, 1996, pp. 12-13. TSN, April 16, 1996, pp. 66-86. Id., at pp. 96-104. TSN, February 11, 1997, pp. 14-19, 24-28, 31.

35

36

37

38

39

40

41

42

43

44

45

Id., at pp. 48-49, 53-72, 82-102; Exhibits "SSSS" and "TTTT", Records, Vol. 12, pp. 790795.
46

Id., at pp. 80-82, 103-105. See page 4 of CA Decision, rollo (G.R. No. 176389), p. 121. TSN, August 14, 1997, pp. 11-19.

47

48

49

TSN, July 8, 1997, pp. 15-23, 61-62; TSN, June 9, 1997, pp. 9-10, 20-26; TSN, July 3, 1997, pp. 9-19; TSN, June 19, 1997, pp. 9-12, 29-36, 53-54; TSN, July 1, 1997, pp. 25-27.
50

Id., at pp. 28-73.

51

TSN, September 1, 1997, pp. 5-79; Exhibits "223" to "295", Records, Vol. 21, pp. 11-25, 26, 31, 203, 207; Exhibits "79", "319", "331", "234", "295", "346", "305", "306", "307" and "244" to "246".
52

Id., at pp. 81-86. Id., at pp. 90-91. TSN, April 30, 1997, pp. 73-74. TSN, April 23, 1997, pp. 128-129, 134-148.

53

54

55

56

TSN, June 2, 1997, pp. 51-64, 75-78. TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84. TSN, July 16, 1997, pp. 37-42, 46-51, 58-62. Id., at pp. 65-70. TSN, June 26, 1997, pp. 13-28. TSN, May 9, 1996, pp. 26-32, 37, 44-57. TSN, July 29, 1997, pp. 54-58. TSN, July 7, 1997, pp. 19-35. TSN, July 2, 1997, pp 33-37. TSN, June 3, 1997, pp. 14-33. TSN, August 12, 1997, pp. 9-12, 28-30. Exhibit "331". Exhibit "337-B". Exhibit "349", Records, Vol. 21, p. 116 (Vol. 3), 29-32 (Vol. 4). Exhibit "348". Exhibit "319-A". Exhibits "323", "325", "326". Exhibit "344". Exhibit "346". Exhibit "309", "309-A" and submarkings. Exhibit "347" and submarkings. Exhibit "338". Exhibits "341" and "342", Records, Vol. 21, pp. 6-9, 40, 63-65, 112, 140, 141-145 (Vol. 3). Exhibits "369" and "364", Records, Vol. 21, pp. 24, 104-142 (Vol. 4). Exhibits "207" to"219".

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

Exhibit "207-B". Exhibit "212-D", Records, Vol. 21, p. 265 (Vol. 1). Exhibit "260". Exhibit "261". Exhibit "262".

82

83

84

85

86

Exhibit "192", Records, Vol. 21, pp. 253-279 (Vol. 1), 1-7, 157, 158, 169 (Vol. 2), 194 (Vol. 1).
87

Exhibit "215" "215-B" "215-C", Records, Vol. 21, pp. 254-256, 272-274 (Vol. 1). Exhibit "216"; TSN, April 15-17, 1997. TSN, October 9, 1997, pp. 39-64. TSN, February 4, 1998, pp. 6-7, 17-30. TSN, February 9, 1998, pp. 18-19, 21-62. TSN, January 21, 1998, pp. 14, 39-56. TSN, February 16, 1998 and February 19, 1998. TSN, January 22, 1998, pp. 18-21, 40-44. TSN, January 26, 1998, pp. 91-92, 104-121. TSN, February 3, 1998, pp. 10-11, 29-42. TSN, January 14, 1998, pp. 6-7, 9-26, 38-41, 43-47.

88

89

90

91

92

93

94

95

96

97

98

TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits "274" and "275".
99

TSN, November 12, 1997, pp. 7-8, 17-19, 38-43, 55-72. TSN, November 17, 1997, pp. 43-73. Id., at pp. 78-125. TSN, November 12, 1997, pp. 37-39, 51-52, 91-94. TSN, November 18, 1997, pp. 37-44.

100

101

102

103

104

Records, Vol. 25, pp. 1-171. Penned by Judge Amelita G. Tolentino (now an Associate Justice of the Court of Appeals).

105

Records, Vol. 25, pp. 170-171. CA rollo, Vol. IV, pp. 3478-3479.

106

107

Justices Renato C. Dacudao and Lucenito N. Tagle dissented. See Dissenting Opinion, CA rollo Vol. IV.
108

Rollo (G.R. No. 176864), pp. 266-267. Id., at pp. 356-358. Id., at pp. 402-404. People v. Comanda, G.R. No. 175880, July 6, 2007, 526 SCRA 689. People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828. People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207. See photographs, Exhibits "GGGG-1" and "GGGG-4", Records, Vol. 12, pp. 742-746.

109

110

111

112

113

114

115

People v. Comiling, G.R. No. 140405, March 4, 1004, 424 SCRA 698, 719, citing Francisco, Evidence, Vol. VII, 1990 ed., p. 743.
116

People v. Simon, G.R. No. 130531, May 27, 2004, 429 SCRA 330, 352, citing People v. Rostata, G.R. No. 91482, February 9, 1993, 218 SCRA 657.
117

People v. Zinampan, G.R. No. 126781, September 13, 2000, 340 SCRA 189, 200. Fukuzume v. People, G.R. No. 143647, November 11, 2005, 474 SCRA 570. G.R. No. 121039-45, January 25, 1999, 302 SCRA 21. Id., at p. 50.

118

119

120

121

TSN, October 17, 1995, pp.12-15, 23, 40-41, 139, 152, 161; TSN, October 18, 1995, p. 180; TSN, July 2, 1996 , pp. 74, 82-86; TSN, July 11, 1996, pp. 43-52.
122

People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478, 495, citing People v. Quima, No. L-74669, 14 April 1988, 159 SCRA 613 citing People v. Alto, 135 Phil. 136 (1968).
123

People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 597.

124

People v. Meneses, G.R. No. 11742, March 26, 1998, 288 SCRA 95, 97, citing People v. Teehankee, Jr., 319 Phil. 128, 179 (1995).
125

People v. Magallanes, G.R. No. 136299, August 29, 2003, 410 SCRA 183, 197. People v. Rodrigo, supra at p. 596.

126

127

People v. Mosquerra, G.R. No. 129209, August 9, 2001, 362 SCRA 441, 450, citing People v. Batidor,G.R. No. 126027, February 18, 1999, 303 SCRA 335, 350; People v. Realin, G.R. No. 126051, January 21, 1999, 301 SCRA 495, 512; People v. Tulop, G.R. No. 124829, November 21, 1998, 289 SCRA 316, 333.
128

Id., at p. 450, citing People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46; People v. Reduca, G.R. Nos. 126094-95, January 21, 1999, 301 SCRA 516, 534; and People v. De Labajan, G.R. Nos. 129968-69, October 27, 1999, 317 SCRA 566, 575.
129

Id., at p. 451, citing People v. Hillado, G.R. No. 122838, May 24, 1999, 307 SCRA 535, 553 and People v. Balmoria, G.R. Nos. 120620-21, March 20, 1998, 287 SCRA 687, 708.
130

People v. Florentino Bracamonte, G.R. No. 95939, June 17, 1996, as cited in People v.

Aonuevo, G.R. No. 112989, September 18, 1996, 262 SCRA 22, 36.
131

G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530. En Banc Resolution, July 21, 2005, 463 SCRA 654, 662-664. Records, Vol. 25, pp. 122-124. CA rollo, Vol. IV, pp. 3455-3463.

132

133

134

135

Bastian v. Court of Appeals, G.R. No. 160811, April 14, 2008, citing People v. Benito, G.R. No. 128072, February 19, 1999, 303 SCRA 468; People v. Canada, No. L63728, September 15, 1986, 144 SCRA 121;People v. Luces, G.R. No. L-60744, November 25, 1983, 125 SCRA 813; People v. Demeterio, No. L-48255, September 10, 1983, 124 SCRA 914; People v. Romero, No. L-38786, December 15, 1982, 119 SCRA 234; and People v. Zabala, 86 Phil. 251 (1950).
136

Rollo (G.R. No. 176864), pp. 288-299. TSN, August 12, 1997, pp. 9-12, 28-30. Vide: People v. Tagun, G.R. No. 137745, February 15, 2002, 377 SCRA 154, 169.

137

138

139

People v. Malones, G.R. No. 124388-90, March 11, 2004, 425 SCRA 318, 339-340, citing People v. Aliposa, G.R. No. 97935, October 23, 1996, 263 SCRA 471.
140

Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 605.

141

Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007, 531 SCRA 1, 31, citing People v. Balacano,G.R. No, 127156, July 31, 2000, 336 SCRA 615, 621.
142

Sourced from Internet -- http://www.pinoymoneytalk.com/forum/index.php?topic=5848.0; See also "Passport-reading Machine Uncovers Fake Documents" by Tina Santos, Philippine Daily Inquirer, first posted 03:29:00 06/15/2008 at website -http://newsinfo.inquirer.net/breakingnews/nation/view/20080615-142790/Passport-readingmachine-uncovers-fake-documents; "DFA-RP Passport Exposes Filipinos to Discrimination" by Venorica Uy, inquirer.net, Last Updated 07-05pm (Mla time) 03/13/2007 sourced fromhttp://www.pinoymoneytalk.com/forum/index.php?topic=5848.0

143

Exhibits "YY", "DDD" and "213-1-D", Records, Vol. 9, pp. 1142, 1147 and Records, Vol. 26, p. 270.
144

Exhibits "XX" and "LLL", Records, Vol. 9, pp. 1141 and 1157. Exhibits "30", "33" and "34", Records, Vol. 9, pp. 708, 711-713. Cited by reference in Exhibit III, Records, Vol. 9, p. 1154. You were informed by the San Francisco District Office of the Immigration and Naturalization Service that no records responsive to you request could be located in its file. It has been determined that this response is correct. For your information, the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants. A notation concerning the entry of a visitor may be made in the Nonimmigrant Information System (NIIS), but many visitors are not entered into this system. The NIIS was searched, and no records pertaining to Mr. Webb are found. I am informed by the San Francisco District Office that this matter is still pending in that office and that a formal response to your request will be issued shortly. It is possible that either the State Department or the United States Customs Service might have information concerning Mr. Webbs entry into the country. I suggest you write to those agencies to request the information you seek.

145

146

147

Vide: Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 604. Exhibit "42-M", Records, Vol. 9, p. 440. Records, Vols. 24 & 25, pp. 98-109. CA rollo, Vol. IV, pp. 2684-2687. Records, Vol. 25, pp. 143-153. CA rollo, Vol. IV, pp. 3564-3566. Id., at p. 3564.

148

149

150

151

152

153

154

People v. Ortiz, G.R. No. 133814, July 17, 2001, 361 SCRA 274, citing People v. Sumaoy, G.R. No. 105961, October 22, 1996, 263 SCRA 460 and People v. Padao, G.R. No. 104400, January 28, 1997, 267 SCRA 64.
155

TSN, October 10, 1995, pp. 97-98 Id., at pp. 129-131. CA rollo, Vol. IV, pp. 3542-3550. TSN, October 10, 1995, p. 81.

156

157

158

159

Id., at p. 88. Id., at p. 97. TSN, October 16, 1995, pp. 117-119. TSN, October 17, 1995, pp. 72-79, 95. People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324, 335.

160

161

162

163

164

Article 8, The Revised Penal Code, as amended; People v. Amodia, G.R. No. 173791, April 7, 2009, 584 SCRA 518, citing People v. Pelopero, G.R. No. 126119, October 15, 2003, 413 SCRA 397, 410.
165

People v. Lagarto, G.R. Nos. 118828 & 119371, February 29, 2000, 326 SCRA 693, 748, citing People v. Layno, G.R. No. 110833, November 21, 1996, 264 SCRA 558; People v. Sumalpong, G.R. No. 124705, January 20, 1998, 284 SCRA 229; People v. Obello, G.R. No. 108772, January 14, 1998, 284 SCRA 79;People v. Pulusan, G.R. No. 10037, May 21, 1998, 290 SCRA 353; People v. Medina, G.R. No. 127157, July 10, 1998, 292 SCRA 436; and People v. Chua, G.R. No. 121792, October 7, 1998, 297 SCRA 229.
166

People v. Sicad, G.R. No. 133833, October 15, 2002, 391 SCRA 19, 34, citing People v. Diaz, G.R. No. 110829, April 18, 1997, 271 SCRA 504, 515 and People v. Abordo, G.R. No. 107245, December 17, 1999,321 SCRA 23, 39 .
167

CA rollo, Vol. IV, p. 3081.

168

People v. Antonio, G.R. No. 128900, July 14, 2000, 335 SCRA 646, 677, citing People v. Malvenda, G.R. No. 115351, March 27, 1998, 288 SCRA 225.
169

People v. Magana, G.R. No. 105673, July 26, 1996, 259 SCRA 381, 402. A.M. No. 06-11-5-SC. Id., Sec. 4. Rollo (G.R. No. 176389), pp. 531-542. Id., at pp. 543-554. Id., at pp. 560-563. Id., at pp. 580-585. 373 U.S. 83 (1963). Rollo (G.R. No. 176389), pp. 586-592.

170

171

172

173

174

175

176

177

178

See City Prosecution Office of General Santos City v. Bersales, A.M. No. MTJ-04-1552, June 9, 2004, 431 SCRA 430, 436.

179

Id., pp. 149 Misc. 2d 844, 570 N.Y.S. 2d 765 (Sup. Ct. Westchester Co. 1990). 467 U.S. 479 (1984). 373 U.S. 83 (1963). Id. Supra note 180. Supra note 181, Matter of Dabbs v. Vergari, supra. G.R. No. 150224, May 19, 2004, 428 SCRA 504. Id., at pp. 514-517.

180

181

182

183

184

185

186

187

188

A Litigators Guide to DNA From the Laboratory to the Courtroom by Ron C. Michaelis, Robert G. Flanders, Jr. and Paula H. Wulff, 2008 published by Elsevier Inc., p. 370.
189 190

488 U.S. 51 (1988), 102 L Ed 281, 109 S Ct 333.

191

People v. Bato, G.R. No. 134939, February 16, 2000, 325 SCRA 671, 678, citing People v. Juntilla, G.R. No. 130604, September 16, 1999, 314 SCRA 568, 583; People v. Sacapao, G.R. No. 130525, September 3, 1999, 313 SCRA 650, 659; and People v. Manuel, G.R. No. 121539, October 21, 1998, 298 SCRA 184.
192

People v. Pascual, G.R. No. 172326, January 19, 2009, 576 SCRA 242, 260, citing People v. Sevilleno,G.R. No. 152954, March 10, 2004, 425 SCRA 247, 257.
193

Nueva Espaa v. People, G.R. No. 163351, June 21, 2005, 460 SCRA 547, 555-556, citing People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.
194

G.R. No. 166723, August 2, 2007, 529 SCRA 109, 118. People v. Arellano, G.R. No. 176640, August 22, 2008, 563 SCRA 181, 189. Id. People v. Pascual, supra at 260-261. Nueva Espaa v. People, supra at 558.

195

196

197

198

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION SERENO, J.: The duty of the prosecution is not merely to secure a conviction, but to secure a just conviction. This highly publicized case became the center of the nations attention owing to the public outrage over the atrocious nature of the crime committed in what was then thought to be a relatively secure neighborhood. Worse, it brought inconsolable grief to a husband and father who lost his entire family to senseless violence while he was working overseas. Events soon after the occurrence of the crime on 30 June 1991 would only help fuel civic indignation. Just two days thereafter, or on 2 July 1991, La Salle Engineering student Eldon Maguan was gunned down in cold blood by businessman Rolito Go over a parking skirmish in San Juan.1 After the lapse of only 11 days, young Maureen Hultman and Roland John Chapman were fatally shot by Claudio Teehankee, Jr. in Dasmarinas Village after a minor scuffle.2 The vehement outcry to find and punish those responsible for the Vizconde horror initially led, four months after, to the arrest and eventual filing by the prosecution of Information for two counts of robbery with homicide and one count of robbery with rape against six named and an undetermined number of unnamed persons touted as members of the Akyat Bahay gang. In view of the illegal arrests of the accused and noncompliance with the requirements for conducting custodial investigation, including evidence of torture in extracting confessions from the accused, the trial court in its 1993 Decision3 pronounced the accused not guilty of the charges. During the same year (1993), another set of suspects (apparently former contractors/workers of the Vizcondes) was identified, only to be released later on due to insufficiency of evidence.4 Almost four years after the crime was committed, self-confessed drug user Jessica Alfaro (Alfaro) named young men from wealthy and powerful families as perpetrators of the crime, which she claimed to have witnessed, thereby tantalizing a sympathetic public with ideal visions of justice of morally depraved offenders finally caught and no longer able to wreck random havoc on the lives of law-abiding citizens; of privileged perpetrators subjected to the rule of law no matter how high and mighty; of bereaved families brought a measure of comfort for the vindication of wasted young lives. However, there was little objective forensic evidence obtained from the crime scene due to deplorable missteps taken by the investigating police officers. Consequently, Senior Police Officer 1 Gerardo Biong and some John Does were charged as accessories to the crime for "conceal[ing] and destroy[ing] the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime."5 A review of the proceedings during preliminary investigation and trial showed that the prosecution did not fare much better, for it committed acts of prosecutorial misconduct that effectively deprived the accused of their constitutionally guaranteed right to due process. At the outset, it cannot be overemphasized that the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain

from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."6 In the words of Richard Refshauge: "The adversarial system is rooted in the notion of a contest with winners and losers, yet the prosecutor is ethically forbidden from embracing that notion. The question then, is not what will make the prospect of a conviction more certain, but what is fair and what will contribute to justice."7 Thus, a criminal trial is not about personal redress for the victims, but about determining the guilt and the just punishment of the accused.8 What is in truth referred to when expanding on the concept of "fair trial" is that the rights of the accused are protected, to the extent necessary to ensure fairness for him. Rights of the victim are not ignored, but they are respected only to the extent that they are consistent with the fairness of the trial for the accused.9 In Allado V. Diokno,10 we also elucidated this delicate balancing of interests in the following manner: The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners. The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community. Indeed, at the core of our criminal justice system is the presumption of innocence of the accused until proven guilty. Lip service to this ideal is not enough, as our people are well acquainted with the painful reality that the rights of the accused to a fair trial were violated with impunity by an unchecked authority in our not so distant history. In response, the rights of the accused were enshrined in no less than the 1987 Constitution, particularly Article III thereof. They are further

bolstered by the Rules of Court, related legislation, general rules on evidence, and rules on ethical conduct. The said rights of the accused come with the corresponding duties, nay, guarantees on the part of the State, the prosecution in particular. The prosecutions disregard of these standards amounts to prosecutorial misconduct. Some examples of prosecutorial misconduct would be the intimidation of defense witnesses, the obstruction of defense lawyers access to prosecution witnesses, the coercion of confession from the accused, the issuance of prejudicial comments about the accused, the mishandling and/or withholding of evidence, and the failure to preserve evidence.11 Issuance of Prejudicial Comments About the Accused Section 14(2), Article III of the 1987 Constitution emphatically mandates: Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied.) The presumption of innocence of the accused is at the center of our criminal justice system the cornerstone, as it were, of all the other rights accorded to the accused, including the right to due process of law. In pronouncing the presumption of innocence of the accused and their right to due process, the Constitution declares that the risk of letting the guilty walk free would be error on the side of justice. This outcome is infinitely better than imprisoning an innocent person. Because the accused must be presumed innocent, and because they are entitled to due process of law, it is the duty of the prosecution not to issue prejudicial statements about them while the trial is being conducted. This standard applies with even more force to the trial judge who must at all times not only be impartial, but also appear to be so.12 Allegations of issuance of prejudicial comments about the accused in this case pertained to the acts of the trial judge, and not the prosecution. When allegations of instances of the trial judges bias were first brought to this Court, it was understandable that the Court would accord the judge the presumption of regularity in the performance of her duties. Her subsequent acts, however, as well as her Decision taken together showed a pattern now recognizable in retrospect as bias against the accused, amounting to denial of due process. In Webb, et al. v. People,13 the accused assailed the Court of Appeals for denying their Petition for the inhibition from the case of Judge Amelita Tolentino, the presiding judge of Branch 274 of the Regional Trial Court of Paranaque. Webbs first Motion for the disqualification of Judge Tolentino, filed prior to their arraignment, was anchored on the ground that the said judge had allegedly told the media that "failure of the accused to surrender following the issuance of the warrant of arrest is an indication of guilt." This motion was

denied by Judge Tolentino. Two days later, Webb filed a second motion to disqualify her. Allegedly, she had further told the media that the accused "should not expect the comforts of home," pending the resolution of his Motion to be committed to the custody of the Philippine National Police at Camp Ricardo Papa, Bicutan, Paranaque. The judge again denied the Motion. Gerardo Biong also filed a motion to disqualify her on the ground of bias and partiality, but this Motion was also denied. Thereafter, at the hearing for the accuseds Petitions for bail during which the prosecution presented Jessica Alfaro, Judge Tolentino issued an Order. The judge ruled that Alfaro could not be crossexamined on the contents of the latters April 28 Affidavit. The affidavit was held to be inadmissible in evidence, as it was allegedly not executed in the presence of a counsel. Alfaro was asked about her brother Patrick Alfaro and her uncle Robert Alfaro. She admitted that her brother was a drug addict and had been arrested by the National Bureau of Investigation (NBI) for illegal drug possession. She further claimed that her brother was now in the United States. The prosecution objected to further questions regarding the arrest and departure of Alfaros brother on the ground that it was irrelevant, immaterial and impertinent for cross-examination. Despite the defense counsels explanation that the questions were for the purpose of establishing Alfaros bias and motive for testifying against the accused, the trial court sustained the objection. Similar objections on the ground of irrelevance, immateriality and impertinence were sustained by the trial court when the defense counsel cross-examined Alfaro on her educational attainment. Prior to the cross-examination, Alfaro was shown her transcript of records indicating her completion of only one academic year, thus earning nine units of college. Accused then filed a Motion to disqualify Judge Tolentino or inhibit herself from the case due to bias and prejudice, but she denied the Motion. The accused thus assailed before this Court [1] the Order of judge Tolentino denying Webbs motion for hospitalization; and [2] the Order of Judge Tolentino disallowing the defense to cross-examine Alfaro on the contents of her April 28 affidavit. Accused later filed with this Court a Supplemental Petition to set aside Judge Tolentinos Order denying their Motion for inhibition. This Court resolved to refer the petitions to the Court of Appeals for proper disposition. In the meantime, the hearing on the accuseds Petitions for bail continued, with petitioner Webb filing a motion for deposition of witnesses residing in the United States, who would testify on his presence in that country on the date of the commission of the crime. This Petition was denied by Judge Tolentino on the ground that petitioner failed to allege that the witnesses did not have the means to go to the place of the trial. Petitioner Webb filed another Supplemental Petition to the Court of Appeals challenging the said Order. The defense made their Formal Offer of Evidence upon conclusion of the hearings on the Petitions for bail. The prosecution filed its Comment/Objection to the Formal Offer of Evidence. Judge Tolentino ruled on the accuseds formal offer of evidence, admitting only ten [10] out of the one hundred forty-two [142] exhibits offered by the defense. Subsequently, the judge denied the accuseds Petitions for bail. The Court of Appeals rendered its Decision on the various Petitions and Supplemental Petitions, reversing Judge Tolentinos refusal to admit Alfaros April 28 Affidavit. The appellate court, however, denied all the other reliefs prayed for. The accused thus elevated the matter to this Court.

They subsequently filed a Supplemental Petition, alleging, among others, that during the trial on the merits, Judge Tolentino had allowed prosecution witness Atty. Pedro Rivera to testify on the character of the accused, although the defense had not put his character in issue; that the judge disallowed the defense to impeach the credibility of Atty. Rivera by the presentation of an earlier statement executed by him, on the ground that his statement was immaterial; and that, after ruling that the proffer of oral evidence made by defense counsel Atty. Vitaliano Aguirre was improper on cross-examination, Judge Tolentino struck the proffer from the record. We affirmed the Court of Appeals disposition, explaining as follows: A critical component of due process is a hearing before an impartial and disinterested tribunal [and] every litigant is entitled to nothing less than the cold neutrality of an impartial judge for all the other elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.[However, t]his right must be weighed with the duty of a judge to decide cases without fear of repression. Hence, to disqualify a judge on the ground of bias and prejudice the movant must prove the same by clear and convincing evidence. As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on grounds of bias and prejudice. Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judges integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge. The only exception to the rule is when the error is so gross and patent as to produce an ineluctable inference of bad faith or malice. A perusal of the records will reveal that petitioners failed to adduce any extrinsic evidence to prove that respondent judge was motivated by malice or bad faith in issuing the assailed rulings. Petitioners simply lean on the alleged series of adverse rulings of the respondent judge which they characterized as palpable errors. This is not enough. We note that respondent judges rulings resolving the various motions filed by petitioners were all made after considering the arguments raised by all the parties. It is true that the respondent judge erred in some of her rulings such as her rejection of petitioners one hundred thirty two pieces of evidence. It appears, however, that respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that "the defects in [their] admissibility have been cured through the introduction of additional evidence during the trial on the merits." This correction diminishes the strength of petitioners charge that respondent judge is hopelessly biased against them. There is still another reason why we should observe caution in disqualifying respondent judge. The trial of the petitioners is about to end and to assign a new judge to determine the guilt or innocence of petitioners will not be for the best interest of justice. The records of the case at bar run into volumes. These voluminous records cannot capture in print the complete credibility of witnesses when they testified in court. As the respondent judge observed the demeanor of witnesses while in the witness chair, she is in the best position to calibrate their credibility. The task of evaluating the credibility of witnesses includes interpreting their body language and their meaningful nuances are not expressed in the transcripts of their testimonies. We hasten to stress that a party aggrieved by erroneous interlocutory rulings in the course of a trial is not without remedy. The range of remedy is provided in our Rules of Court and we need not make an elongated discourse on the subject. But certainly, the remedy for erroneous rulings, absent any extrinsic evidence of malice or bad faith, is not the outright disqualification of the judge. For there is

yet to come a judge with the omniscience to issue rulings that are always infallible. The courts will close shop if we disqualify judges who err for we all err. Mishandling and/or Withholding of Evidence The rights of the accused to have compulsory process to secure the production of evidence on their behalf is a right enshrined in no less than our Constitution, particularly Article III, Section 14 thereof, to wit: Section 14: (1)No person shall be held to answer for a criminal offense without due process of law. (2)In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, andshall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, andto have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. Xxx (Underscoring supplied.) This right is echoed and further fleshed out in the Rules of Criminal Procedure. Rule 115, Section 1 thereof, provides: SECTION 1. Rights of accused at the trial.In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his tail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law. (Underscoring supplied.) Section 10, Rule 116 of the Rules of Criminal Procedure, in fact further mandates: SEC. 10. Production or inspection of material evidence in possession of prosecution.Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing ofany written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in possession or under the control of the prosecution, police, or other law investigating agencies. (Underscoring supplied.) Thus, the accuseds right of access to evidence requires the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. Applying this standard to the present case, it is notable that during preliminary investigation, the NBI presented to the Department of Justice (DOJ) Panel, among others, the Sworn Statement of their principal witness, Alfaro, dated 22 May 1995. Before submitting his Counter-Affidavit, Webb filed with the DOJ Panel a Motion for Production and Examination of Evidence and Documents for the NBI to produce, among others, any other written statements of Alfaro. The DOJ Panel granted the Motion, and the NBI submitted a mere photocopy of an earlier Sworn Statement of Alfaro dated 28 April 1995. The Statement did not appear to be signed by Alfaros counsel of choice, named as Atty. Arturo Mercader, Jr.. in the same document. In this earlier Sworn Statement, Alfaro declared that she had never met Carmela before that fateful night; that she did not know why the accused wanted to enter the Vizconde house, except that they were after Carmela; that the accused entered the premises by jumping over the fence; that she did not know how the accused were able to enter the house, as she was about ten (10) meters away from the kitchen door; that she did not know who opened that door for the accused, but hinted that one of the maids must have done it since Estrellita and Carmela were tied; and that she had no idea what transpired in the house until they left the area. This Statement contradicted salient points in Alfaros 22 May 1995 Sworn Statement, which was the basis of the NBIs complaint. In her 22 May 1995 Sworn Statement, Alfaro claimed to have known Carmela since February 1991; that the group decided to rape Carmela when Alfaro informed Webb that Carmela had dropped off a man who appeared to be her boyfriend; that Carmela left open the gate through which they entered the premises freely; that Alfaro led the group in entering the kitchen door; that she witnessed the rape of Carmela by Webb and also saw the bodies of Estrellita and Jennifer piled up on the bed. The NBI explained that they produced a mere photocopy of the 28 April 1995 Sworn Statement, because the original was lost. When the DOJ Panel refused to issue a subpoena duces tecum to Atty. Mercader, the accused filed a case with the Regional Trial Court of Makati, Branch 63, to obtain the original of the first Sworn Statement. Atty. Mercader then appeared and produced before the trial

court the original Sworn Statement of Alfaro dated 28 April 1995, which also contained his signature. Webb retained a certified true copy of the first Sworn Statement (certified by Assistant State Prosecutor Jovencito Zuno), while the duplicate original copy thereof was submitted to the DOJ Panel. The DOJ Panel still found probable cause to charge the accused and on 10 August 1995, an Information for Rape with Homicide was filed with the Regional Trial Court of Paranaque against Webb, et al. It was raffled to Branch 274, presided by Judge Amelita Tolentino, who thereupon issued warrants for their arrest. Webb et al. came to this Court to assail the DOJ Panels finding and the trial courts issuance of warrants for their arrest. We upheld the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor: Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspects life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in Section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . . ."

In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan which laid down the proposition that a prosecutors intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutors duty to disclose to the defense exculpatory evidence in its possession. The rationale is well put by Justice Brennan in Brady "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. (Citations omitted.) Nevertheless, we ruled that with the production of the first Sworn Statement, "(p)etitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion." It appeared, however, that the prosecution would continue to suppress Alfaros first Sworn Statement. When bail hearings commenced on 9 October 1995, the prosecution started with a presentation of the testimony of Alfaro. On 16 October 1995, Alfaro was allowed by the trial court to testify on the circumstances surrounding the execution of the two Sworn Statements, notwithstanding that said statements were not presented for proper identification and marking. On cross-examination, Alfaro admitted that in the first Sworn Statement were answers that were not hers, but were only supplied by the NBI agents then present during the statement-taking. For instance, she stated that the answer to question number 8 is not true, because she only finished second year and was not actually a college graduate. On the third day of Alfaros cross-examination, the prosecution objected to questions referring to the first Sworn Statement on the ground that it was made without the assistance of counsel. The trial court sustained the objection.14 The accuseds counsel orally sought reconsideration, but this was denied.15 When counsel moved for reconsideration, the trial court denied the motion "with finality."16 The accuseds counsel then showed the trial court their copy of the first Sworn Statement containing Atty. Mercaders signature and certified as a true copy by Asst. Prosecutor Zuno. In turn, Assitant Prosecutor Atty. Zuno, who had the duplicate original thereof, failed or refused to produce the statement despite repeated requests from the accused Webb. (It was produced only on 24 October 1995.) Alfaros cross-examination continued, with no question pertaining to the first Sworn Statement allowed. On 8 November 1995, the trial court issued its Order dated 30 October 199517 in open court. The Court rejected the admissibility of the first Sworn Statement and barred its use for the purpose of impeaching Alfaros credibility or for refuting her subsequent statements. All previous questions and answers connected with the said Sworn Statement were also ordered expunged from the records. The trial court reasoned that the said Sworn Statement was an "illegally obtained evidence, and therefore, cannot be used either directly or indirectly against Alfaro." Citing Section 12, Article III of the Constitution, the trial court concluded that "Alfaro could not be cross-examined by the defense on the contents of the said affidavit in order to discredit her statement dated May 22, 1995 and her testimony in open court."18

This Order led accused Webb et al. to seek Judge Tolentinos inhibition and to incorporate the above instance as part of their proof of the trial judges bias. The Court of Appeals denied the Petition, and we affirmed the denial in the manner laid out in the preceding discussion. Failure to Preserve Evidence As discussed in the preceding section, the accuseds right to access to evidence necessitates in the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. When the prosecution is called upon not to suppress or alter evidence in its possession that may benefit the accused, it is also necessarily obliged to preserve the said evidence. To hold otherwise would be to render illusory the existence of such right. The advent of DNA technology prompted this Courts promulgation of the New Rules for DNA Evidence.19 As DNA evidence provides objective proof of identification and may be obtained from evidence left in the scene of the crime or in the victims person, it also gives new meaning to the above duty of the prosecution. The prosecution did not fare well when measured against this standard. Alfaro testified that the group had earlier agreed that Webb would be the first to rape Carmela. When Alfaro said she saw Webb pumping Carmela, while two bloodied bodies were on top of the bed, the former was so shocked that she "stepped back and turned around to go outside." On her way out, she met Ventura near the door. He said, "Prepare escape." Things had apparently gone awry, so they left the place. The NBI proclaimed that the semen samples they had collected from Carmela were preserved in slides and remained intact. Thus, in order for the prosecutions theory to be consistent, pursuant to the quantum required in criminal cases, the DNA evidence in the slides must positively match that from accused Webb. Based on the foregoing circumstances, the defense counsel accordingly filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during the course of the trial. Several exchanges of pleadings on the matter were filed before the trial court, and at no time was the timeliness of the filing of the Motion at issue. It could not have been, considering that the Motion was timely filed during the course of the trial. While the Motion was filed six years after the crime was committed, the trial of the accused herein did not start until more than four years after the commission of the crime. The trial court denied the Motion on 25 November 1997, holding that since more than six (6) years had lapsed since the commission of the crime, there was no assurance that the semen specimen remained uncontaminated. Also, the trial court held that Webb was not able to show that the proper procedure for the extraction and preservation of the semen sample had been complied with. Finally, the trial court held that a DNA test would only lead to confusion of the issues. However, as correctly held by Justice Lucenito Tagle in his Dissenting Opinion, the trial judges objections to the DNA testing were based on mere conjectures that ran against the presumption of regularity in the performance of official duty. Meanwhile, the idea that a negative DNA test result would not have necessarily exculpated Webb, because previous sexual congress by Carmela with another man prior to the crime could not be discounted, would unrealistically raise the bar of evidence and for the wrong party, i.e., for the part of the defense, instead of for the prosecution. If a negative DNA test result could not be considered as providing certainty that Webb did not commit the crime, would it not have at least cast a reasonable doubt that he committed it?

Moreover, the argument against the relevance of the semen sample that the presence of semen was not necessary to prove that rape was committed is not in point. What the defense was after when it sought DNA testing was neither to prove nor to disprove the commission of rape, but to pinpoint the identity of the assailant. In this case, semen with spermatozoa was in fact obtained, and it did possess exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals,20 we held that "courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Hence, it is the constitutional duty of the trial judge to afford all possible means to both the NBI and the counsel for accused, in order that such evidence may be scrutinized in open court. The Court held in People v. Yatar: 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. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, o saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding or furniture could also be transferred to the victims body during the assault. 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.21 Thus, when the present case reached this Court and a similar Motion was filed, we resolved to grant22 petitioners motion to allow DNA testing of the semen sample collected from the victim in order to compare it with Webbs DNA. Unfortunately, said semen sample appears to have been lost by the NBI, which had custody thereof. Does the prosecutions loss of this potentially exculpatory evidence result in a fundamentally unfair trial of the accused that entitles him to a judgment of acquittal? In resolving this question in the negative, the Dissent cites Youngblood v. Arizona,23 a United States Supreme Court Decision, which held that the prosecutions failure to keep intact a piece of potentially exculpatory evidence does not result in a due process violation, unless the accused is able to show that the prosecution acted in bad faith. However, reliance on Youngblood is ill-advised. First, Youngblood was promulgated more than two decades ago, in 1988, when DNA testing was still in its infancy. Since then, the technology has grown by leaps and bounds.24 In the United States, there are now only eight (8) states that have not adopted statutes allowing post-conviction DNA testing25, with some requiring the correlative duty to preserve DNA evidence. So far, 261 convicts in the United States have been exonerated as a result of post-conviction DNA testing.26 Second, Youngblood was not a product of a unanimous Decision. The majority opinion in Youngblood was penned by Justice Rehnquist and concurred in by Justices White, OConnor, Scalia and Kennedy, with Justice Stevens concurring with the result and writing a Separate Opinion. Justice Blackmun wrote a strong Dissent, which was joined in by Justices Brennan and Marshall.

A critique27 of the Youngblood decision points out that there are two competing due process interests therein. On the one hand is adjudicative fairness, which "seeks to ensure that the accused receives meaningful protection in court, in other words, reliable fact finding and a fair trial. [and which] manifests itself in an assessment of the materiality of evidence and prejudice to the accused [as] paramount in determining whether a due process violation has occurred." On the other hand is instrumentalism, which seeks "to impose restraints on the state. [by] punishing the state for police and prosecutorial misconduct. to deter future misconduct and to create a prophylactic effect. In measuring the misconduct, one examines the subjective intent of the officer and whether the officer acted in good faith or bad faith. Under this approach, the focus is on the state, not the individual. Moreover, the focus on the state and on deterring official misconduct invites an examination of the costs of providing additional process." The majority opinion in Youngblood focused on the state of mind of the police officer rather than on materiality and fairness to the accused. However, in his Separate Opinion wherein he registered his reservation to the bad faith standard being laid out by the majority, Justice Stevens recognized that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." While the earlier case Brady v. Maryland28 held that due process violation could be committed even without bad faith,29 the majority distinguished Youngblood from Brady by holding that the evidence in Brady was clearly favorable to the accused, while that in Youngblood was only potentially exculpatory. Justice Blackmun opined, though, that it was impossible for the accused to prove that a particular piece of evidence was exculpatory when, precisely, it was no longer in existence. Justice Blackmun also disapproved of the bad-faith standard, because "(a)part from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between good faith and bad faith is anything but bright, and the majoritys formulation may well create more questions than it answers." Justice Blackmun proposed the following alternative to the bad-faith standard: Rather than allow a States ineptitude to saddle a defendant with an impossible burden, a court should focus on the type of evidence, the possibility it might prove exculpatory, and the existence of other evidence going to the same point of contention in determining whether the failure to preserve the evidence in question violated due process. To put it succinctly, where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime. Justice Blackmun then gave his opinion on how to balance the defendants rights and the duty imposed upon the law enforcement to preserve evidence: Due process must also take into account the burdens that the preservation of evidence places on the police. Law enforcement officers must be provided the option, as is implicit in Trombetta, of performing the proper tests on physical evidence and then discarding it. Once a suspect has been arrested, the police, after a reasonable time, may inform defense counsel of plans to discard the evidence. When the defense has been informed of the existence of the evidence, after a reasonable time, the burden of preservation may shift to the defense. There should also be flexibility to deal with evidence that is unusually dangerous or difficult to store.

Third, it is not amiss to note that in the year 2000, the injustice of the Youngblood decision was brought into sharp relief when more sophisticated DNA technology was used on the degraded evidence. The technology yielded a DNA profile that (1) exonerated Larry Youngblood of the crime charged (child molestation, sexual assault and kidnapping) and (2) enabled the police to find the real offender. Excerpts from the website of The Innocence Project, an organization advocating the use of DNA evidence, are as follows: Larry Youngblood was convicted in 1985 of child molestation, sexual assault, and kidnapping. He was sentenced to ten years and six months in prison. In October 1983, a ten year old boy was abducted from a carnival in Pima County, Arizona, and molested and sodomized repeatedly for over an hour by a middle aged man. The victim was taken to a hospital, where the staff collected semen samples from his rectum as well as the clothing he was wearing at the time of the assault. Based on the boys description of the assailant as a man with one disfigured eye, Youngblood was charged with the crime. He maintained his innocence at trial, but the jury convicted him, based largely on the eyewitness identification of the victim. No serological tests were conducted before trial, as the police improperly stored the evidence and it had degraded. Expert witnesses at trial stated that, had the evidence been stored correctly, test results might have demonstrated conclusively Youngbloods innocence. Larry Youngblood appealed his conviction, claiming the destruction of potentially exculpatory evidence violated his due process rights, and the Arizona Court of Appeals set aside his conviction. He was released from prison, three years into his sentence, but in 1988, the Supreme Court reversed the lower courts ruling, and his conviction was reinstated (Arizona v. Youngblood, 488 U.S. 51). Youngblood remained free as the case made its way through the Arizona appellate court system a second time, but returned to prison in 1993, when the Arizona Supreme Court reinstated his conviction. In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorneys office dismissed the charges against Larry Youngblood that year. Shortly thereafter, the DNA profile from the evidence was entered into the national convicted offender databases. In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to twenty-four years in prison.30 In view of all the foregoing salient objections to Youngblood, it should not be adopted in this jurisdiction. While it is a laudable objective to inquire into the state of mind of the prosecution and punish it when it has committed prosecutorial misconduct, there are times when, undoubtedly, whether through malice or plain ineptitude, its act or omission results in plain injustice to the accused. In our various decisions relating to interlucotory orders and incidents pertaining to this case, this courts adherence to instrumentalism has led to our finding in each instance that there was no due process violation committed against petitioner, because bad faith was not shown by the prosecution or the trial judge.

However, since "the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side,"31 the measure of whether the accused herein has been deprived of due process of law should not be limited to the state of mind of the prosecution, but should include fundamental principles of fair play. Hence, as we write finis to this case, it is time we evaluate the total picture that the prosecutions acts or omissions have wrought upon the accuseds rights with each seemingly innocuous stroke, whatever its intention may have been. The various violations of the accuseds rights have resulted in his failure to secure a just trial. As such, the judgment of conviction cannot stand. MARIA LOURDES P. A. SERENO Associate Justice

Footnotes
1

Go v. Court of Appeals, G.R. No. 101837, 11 February 1992, 206 SCRA 138. People v. Teehankee, Jr., G.R. Nos. 111206-08, 6 October 1995, 319 Phil.128 (1995).

Decision dated 13 September 1993 issued by the Regional Trial Court of Makati, Branch 63 in Criminal Case Nos. 91-7135 to 37.
4

Lejano v. People, G.R. Nos. 176389 and 176864, 20 April 2010. Information, Regional Trial Court rollo, vol. 1, p. 34.

Tan v. Gallardo, G.R. Nos. L-41213-14 October 5, 1976, 73 SCRA 306, citing Suarez v. Platon, et al., 69 Phil. 556 (1940).
7

The Prosecution Role in Upholding the Right to a Fair Trial and Responding to Victims/ Witnesses, The Prosecutor Papers, November 2005 at 10.
8

R v. Boucher, (1954) S.C.R. 16. Stuart, Don, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW, 2001.p.7. G.R. No. 113630, 5 May 1994, 232 SCRA 192.

10

11

Cramm, Paul, D. The Perils of Prosecutorial Misconduct, http://www.247pressrelease.com/press-release/theperils-of-prosecutorial-misconduct102380.php accessed on 10 December 2010.
12

Montemayor v. Bermejo, Jr., A.M. No. MTJ-04-1535, 12 March 2004, 425 SCRA 403. G.R. No.127262, 24 July 1997, 276 SCRA 243, 342 Phil. 206.

13

14

TSN, 19 October 1995, pp. 23-24. Id., pp. 25-33. Id., pp. 33-45. Order, Regional Trial Court rollo, vol. 1, pp. 852-860. Id. at pp. 7-8. A.M. No. 06-11-5-SC effective 15 October 2007. G.R. No. 125901, 8 March 2001, 406 Phil. 449. G.R. No. 150224, 19 May 2004, 428 SCRA 504. Resolution dated 20 April 2010. 488 U.S. 51 (1988).

15

16

17

18

19

20

21

22

23

24

In his Article, OLD BLOOD, BAD BLOOD, AND YOUNGBLOOD: DUE PROCESS, LOST EVIDENCE, AND THE LIMITS OF BAD FAITH, 86 Wash. U. L. Rev. 241, Norman C. Bay reported (pp. 282-283): Forensic DNA typing was not developed until 1985, when Dr. Alec Jeffreys, an English scientist, used the technique to exonerate one suspect in the sexual assault and murder of two young girls and to inculpate another. Three years later, in 1988, the same year Youngblood was decided, the FBI began testing DNA. That same year, for the first time, a state appellate court upheld the admission of DNA evidence in a criminal case. The crime at issue in Youngblood occurred well before the advent of DNA testing, and the Supreme Court decided the case when DNA testing was in its infancy, still embroiled in litigation over its reliability and admissibility. In the two decades since it was first used, forensic DNA typing has continued to progress. At this point, scientists have developed three generations of tests. The current, dominant generation of technology is the polymerase chain reaction (PCR). This approach analyzes DNA taken from the nucleus of a cell. PCR allows the DNA in a biological sample to be replicated; only a minute amount of DNA is needed and the sample from which it comes can be highly degraded. Only a few cells are required for reliable results. Usable DNA can be recovered from a myriad of items, including computer keyboards, hats, bandannas, eyeglasses, facial tissue, cotton swabs, dirty laundry, toothpicks, chewing gum, cigarette butts, envelope seals, the mouths of bottles, the rims of glasses, or urine stains. PCR is usually followed by short tandem repeat (STR) testing, which compares thirteen specific regions, or loci, found on nuclear DNA. The odds that two unrelated individuals will share the same thirteen-loci DNA profile can be as high as one in a billion or more. Thus, PCR-STR analysis is both highly sensitive and discriminating. It is sensitive in that small amounts of biological material can be tested. It is discriminating in that the results of a thirteen-loci comparison generate unique DNA

profiles that can establish guilt or innocence to a practical certainty in certain types of cases. Yet another powerful forensic DNA tool has emerged: mitochondrial DNA (mtDNA) testing. Unlike STR analysis, this technique examines the DNA contained in the mitochondria of a cell, not its nucleus. This is important because some biological material, including hair shafts, bones, and teeth, lack nuclei, but possess mitochondria. In some cases, especially those involving decomposed tissue, only teeth or bones may remain. Mitochondrial DNA testing allows for the study and comparison of DNA in such material. One drawback to mtDNA is that it is not as discriminating as STR. Mitochondrial DNA is passed maternally; consequently, siblings and maternal relatives have the same mtDNA, and the test cannot distinguish among them. Nonetheless, mtDNA provides a powerful supplement to STR and may allow for analysis when none is otherwise available. Among other things, mtDNA has identified one of the unknown soldiers in the Tomb of the Unknown Soldier in Arlington National Cemetery, the remains of Czar Nicholas II and his family, and the likely offspring of Thomas Jefferson and Sally Heming. Since 1985, the field of forensic DNA typing has continued to progress. Emerging Ychromosome analysis focuses on variations in male genetic material; it may prove to be helpful in sexual assault cases involving multiple male perpetrators. Hand-held or portable devices with "labs-on-a-chip" may be developed that allow for rapid DNA testing at a crime scene. Robotic systems are already being used to help process DNA samples. Similarly, computer software compares and interprets STR data. In short, forensic DNA typing will continue to become increasingly automated, faster, cheaper, and more accurate. This, in turn, ought to affect the due process calculus when the state loses or destroys potentially exculpatory evidence. The context in which such problems arise today is entirely different than when Youngblood was decided." (Citations omitted.)
25

98 J. Crim. L. & Criminology 329

26

The Innocence Project. <http://www.innocenceproject.org> accessed on 12 December 2010.

27

86 Wash. U. L. Rev. 241. 373 U.S. 83 (1963).

28

29

The Court in Brady held: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The Innocence Project Know the Cases: Browse Profiles: Larry Youngblood, <http://www.innocenceproject.org/Content/Larry_Youngblood.php> accessed on 12/13/2010
30 31

Tan v. People, G.R. No. 173637, 21 April 2009, 586 SCRA 139.

The Lawphil Project - Arellano Law Foundation

SUPPLEMENTAL OPINION BRION, J.: In addition to my vote and independently of the merits of the present case, I write this opinion to point out the growing disregard and non-observance of the sub judice rule, to the detriment of the rights of the accused, the integrity of the courts, and, ultimately, the administration of justice. I seize this opportunity fully aware that the present case dubbed in the news media as the Vizconde Massacre is one of the most sensational criminal cases in Philippine history in terms of the mode of commission of the crime and the personalities involved. From the time the charges were filed, the case has captured the publics interest that an unusual amount of air time and print space have been devoted to it. Of late, with the publics renewed interest after the case was submitted for decision, key personalities have again been unabashedly publicizing their opinions and commenting even on the merits of the case before various forms of media. A Senior Justice of this Court, who was a witness in the case (while he was in private law practice) and who consequently inhibited himself from participation, was even publicly maligned in the print and broadcast media through unsupported speculations about his intervention in the case. That was how bad and how low comments about the case had been. In essence, the sub judice rule restricts comments and disclosures pertaining to pending judicial proceedings. The restriction applies not only to participants in the pending case, i.e., to members of the bar and bench, and to litigants and witnesses, but also to the public in general, which necessarily includes the media. Although the Rules of Court does not contain a specific provision imposing the sub judice rule, it supports the observance of the restriction by punishing its violation as indirect contempt under Section 3(d) of Rule 71: Section 3. Indirect contempt to be punished after charge and hearing. x x x a person guilty of any of the following acts may be punished for indirect contempt: xxxx (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice[.] Persons facing charges for indirect contempt for violation of the sub judice rule often invoke as defense their right to free speech and claim that the citation for contempt constitutes a form of impermissible subsequent punishment. We have long recognized in this jurisdiction that the freedom of speech under Section 4, Article III of the Constitution is not absolute. A very literal construction of the provision, as espoused by US Supreme Court Justice Hugo Black,1 may lead to the disregard of other equally compelling constitutional rights and principles. In Vicente v. Majaducon,2 this Court declared that "[the freedom of speech] needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests such as the maintenance of the integrity of courts and orderly functioning of the administration of justice." Courts, both within and outside this jurisdiction, have long grappled with the dilemma of balancing the publics right to free speech and the governments duty to administer fair and impartial justice. While the sub judice rule may be considered as a curtailment of the right to free speech, it is "necessary to ensure the proper administration of justice and the right of an accused to a fair trial."3 Both these latter concerns are equally paramount and cannot lightly be disregarded.

Before proceeding with this line of thought, however, let me clarify that the sub judice rule is not imposed on all forms of speech. In so far as criminal proceedings are concerned, two classes of publicized speech made during the pendency of the proceedings can be considered as contemptuous: first, comments on the merits of the case, and second, intemperate and unreasonable comments on the conduct of the courts with respect to the case. Publicized speech should be understood to be limited to those aired or printed in the various forms of media such as television, radio, newspapers, magazines, and internet, and excludes discussions, in public or in private, between and among ordinary citizens. The Constitution simply gives the citizens the right to speech, not the right to unrestricted publicized speech. Comments on the merits of the case may refer to the credibility of witnesses, the character of the accused, the soundness of the alibis offered, the relevance of the evidence presented, and generally any other comment bearing on the guilt or innocence of the accused.4 The danger posed by this class of speech is the undue influence it may directly exert on the court in the resolution of the criminal case, or indirectly through the public opinion it may generate against the accused and the adverse impact this public opinion may have during the trial. The significance of the sub judice rule is highlighted in criminal cases, as the possibility of undue influence prejudices the accuseds right to a fair trial. "The principal purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence."5 Public opinion has no place in a criminal trial. We ruled that it is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.6 The right to a fair trial is an adjunct of the accuseds right to due process which "guarantees [him] a presumption of innocence until the contrary is proved in a trial x x x where the conclusions reached are induced not by any outside force or influence but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded."7 In foreign jurisdictions, the courts do not hesitate to exercise their power to punish for contempt where necessary to dispose of judicial business unhampered by publications that tend to impair the impartiality of verdicts.8 If the media publish prejudicial material, they can appear to urge, or may in fact be urging, a particular finding: the media can "wage a campaign" against one of the parties to proceedings. If the jury decides in accordance with an outcome promoted by the media, it will appear as if the jurors were swayed by the media. By the same token, if the jurys decision does not accord with media opinion, it may appear as if they were deliberately reacting against it. Either way, it may appear that the jurys decision was not impartial and based on the evidence presented in court, even if it was.9 The accused must be assured of a fair trial notwithstanding the prejudicial publicity;10 he has a constitutional right to have his cause tried fairly by an impartial tribunal, uninfluenced by publication or public clamor.11 "The sub judice doctrine protects against the appearance of decisions having been influenced by published material."12 As may be observed from the cited material, the sub judice rule is used by foreign courts to insulate members of the jury from being influenced by prejudicial publicity. But the fact that the jury system is not adopted in this jurisdiction is not an argument against our observance of the sub judice rule; justices and judges are no different from members of the jury, they are not immune from the pervasive effects of media. "It might be farcical to build around them an impregnable armor against

the influence of the most powerful media of public opinion."13 As I said in another case, in a slightly different context, even those who are determined, in their conscious minds, to avoid bias may be affected.14 Also, it is not necessary that the publicity actually influenced the courts disposition of the case; "the actual impact of prejudicial publicity is not relevant to liability for sub judice contempt."15 In several cases, the Court has noted the enormous effect of media in stirring public sentience x x x Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on [witnesses and judges] directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.16 Comment on the conduct of the courts with respect to the case becomes subject to a contempt proceeding when it is intemperate, is contumacious, and unduly impairs upon the dignity of the court. A comment that impairs of the dignity of the court "excites in the mind of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them[.]"17 If the speech tends to undermine the confidence of the people in the honesty and integrity of the court and its members, and lowers or degrades the administration of justice, then the speech constitutes contempt.18 "Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein."19 Without the sub judice rule and the contempt power, the courts will be powerless to protect their integrity and independence that are essential in the orderly and effective dispensation and administration of justice. This, of course, is not meant to stifle all forms of criticism against the court. As the third branch of the government, the courts remain accountable to the people. The peoples freedom to criticize the government includes the right to criticize the courts, their proceedings and decisions. This is the principle of open justice, which is fundamental to our democratic society and ensures that (a) there is a safeguard against judicial arbitrariness or idiosyncrasy, and that (b) the publics confidence in the administration of justice is maintained.20 The criticism must, however, be fair, made in good faith, and "not spill over the walls of decency and propriety."21 And to enhance the open court principle and allow the people to make fair and reasoned criticism of the courts, the sub judice rule excludes from its coverage fair and accurate reports (without comment) of what have actually taken place in open court. In sum, the court, in a pending litigation, must be shielded from embarrassment or influence in its allimportant duty of deciding the case.22 Any publication pending a suit, reflecting upon the court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. The resulting (but temporary) curtailment of speech because of the sub judice rule is necessary and justified by the more compelling interests to uphold the rights of the accused and promote the fair and orderly administration of justice. If we do not apply at all the sub judice rule to the present case, the reason is obvious to those who have followed the case in the media both parties are in pari delicto as both have apparently gone to the media to campaign for the merits of their respective causes. Thus, the egregious action of one has been cancelled by a similar action by the other. It is in this sense that this Supplemental Opinion is independent of the merits of the case. Their common action, however, cannot have their

prejudicial effects on both; whatever the results may be, doubts will linger about the real merits of the case due to the inordinate media campaign that transpired. Lest we be misunderstood, our application of the sub judice rule to this case cannot serve as a precedent for similar future violations. Precisely, this Supplemental Opinion is a signal to all that this Court has not forgotten, and is in fact keenly aware of, the limits of what can be publicly ventilated on the merits of a case while sub judice, and on the comments on the conduct of the courts with respect to the case. This Court will not standby idly and helplessly as its integrity as an institution and its processes are shamelessly brought to disrepute.

Footnotes See Justice Blacks concurring opinion in Smith v. California, 361 U.S. 147 (1959), part of which reads:
1

Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge. No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are "more important interests." The contrary notion is, in my judgment, court-made, not Constitution-made. (361 U.S. 147, 157-159).
2

A.M. No. RTJ-02-1698, June 23, 2005, 461 SCRA 12, 24-25, citing Choa v. Chiongson, A.M. No. MTJ-95-1063, August 9, 1996, 260 SCRA 477, 484-485. Law Reform Commission New South Wales, Discussion Paper 43 (2000) Contempt by Publication,http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43chp02, last visited December 9, 2010.
3 4

Ibid.; the Discussion Paper 43 (2000) of the Law Reform Commission of New South Wales has identified some "high-risk publications" against which the sub judice rule applies. These include: a. A photograph of the accused where identity is likely to be an issue; b. Suggestions that the accused has previous criminal convictions, has been previously charged for committing an offense and/or previously acquitted, or has been involved in other criminal activity; c. Suggestions that the accused has confessed to committing the crime in question; d. Suggestions that the accused has confessed to committing the crime in question;

e. Suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused; and f. Comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution, or which make favorable or unfavorable references to the character or credibility of the accused or a witness.
5

Ibid. Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154 SCRA 542, 546.

Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, 360 SCRA 248, 259-260.
8

People v. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64, 81, citing U.S. v. Sullen, 36 F. 2d 220.
9

Supra note 3. See Wayne Overbeck, Major Principles in Media Law, p. 298. Supra note 6, at 546. Supra note 3. Supra note 7, at 260.

10

11

12

13

14

Separate Opinion of the author in Louis "Barok" C. Biraogo v. The Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, part of which reads: Where the government simply wants to tell its story, already labeled as true, well ahead of any court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion that news of government scandals generate, it does not require a leap of faith to conclude that an accused brought to court against overwhelming public opinion starts his case with less than equal chance of acquittal. The presumption of innocence notwithstanding, the playing field cannot but be uneven in a criminal trial when the accused enters trial with a government-sponsored badge of guilty on his forehead. The presumption of innocence in law cannot serve an accused in a biased atmosphere pointing to guilt in fact because the government and public opinion have spoken against the accused. [Citations omitted]
15

Supra note 3. Supra note 7, at 259-260.

16

Supra note 8, at 82, citing J. Perfectos dissenting opinion in In re Francisco Brillantes, 42 O.G. 59.
17 18

Id. at 94.

19

In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 448, citing Roxas v. Zuzuarregui, G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.
20

Id.at 434.

21

Tiongco v. Savillo, A.M. No. RTJ-02-1719, March 31, 2006, 486 SCRA 48, 64, citing In re Almacen, infra note 22.
22

In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562.

G.R. No. 190259

June 7, 2011

DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALIGENERALE Petitioners, vs. HON. RONALDO PUNO, in his capacity as Secretary of the Department of Interior and Local Government and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and on behalf of the President of the Philippines, ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units operating in the Autonomous Region in Muslim Mindanao (ARMM), and PHILIPPINE NATIONAL POLICE, or any of their units operating in ARMM, Respondents. DECISION ABAD, J.: On November 24, 2009, the day after the gruesome massacre of 57 men and women, including some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation 1946,1 placing "the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency." She directed the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) "to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence" in the named places. Three days later or on November 27, President Arroyo also issued Administrative Order 273 (AO 273)2"transferring" supervision of the Autonomous Region of Muslim Mindanao (ARMM) from the Office of the President to the Department of Interior and Local Government (DILG). But, due to issues raised over the terminology used in AO 273, the President issued Administrative Order 273-A (AO 273-A) amending the former, by "delegating" instead of "transferring" supervision of the ARMM to the DILG.3 Claiming that the Presidents issuances encroached on the ARMMs autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials,4 filed this petition for prohibition under Rule 65. They alleged that the proclamation and the orders empowered the DILG Secretary to take over ARMMs operations and seize the regional governments powers, in violation of the principle of local autonomy under Republic Act 9054 (also known as the Expanded ARMM Act) and the Constitution. The President gave the DILG Secretary the power to exercise, not merely administrative supervision, but control over the ARMM since the latter could suspend ARMM officials and replace them.5

Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where no critical violent incidents occurred. The deployment of troops and the taking over of the ARMM constitutes an invalid exercise of the Presidents emergency powers.6 Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional and that respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing them. In its comment for the respondents,7 the Office of the Solicitor General (OSG) insisted that the President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to restore peace and order in subject places.8She issued the proclamation pursuant to her "calling out" power9 as Commander-in-Chief under the first sentence of Section 18, Article VII of the Constitution. The determination of the need to exercise this power rests solely on her wisdom.10 She must use her judgment based on intelligence reports and such best information as are available to her to call out the armed forces to suppress and prevent lawless violence wherever and whenever these reared their ugly heads. On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory powers over the ARMM to the DILG Secretary who was her alter ego any way. These orders did not authorize a take over of the ARMM. They did not give him blanket authority to suspend or replace ARMM officials.11 The delegation was necessary to facilitate the investigation of the mass killings.12 Further, the assailed proclamation and administrative orders did not provide for the exercise of emergency powers.13 Although normalcy has in the meantime returned to the places subject of this petition, it might be relevant to rule on the issues raised in this petition since some acts done pursuant to Proclamation 1946 and AOs 273 and 273-A could impact on the administrative and criminal cases that the government subsequently filed against those believed affected by such proclamation and orders. The Issues Presented The issues presented in this case are: 1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy under Section 16, Article X of the Constitution, and Section 1, Article V of the Expanded ARMM Organic Act; 2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City; and 3. Whether or not the President had factual bases for her actions. The Rulings of the Court We dismiss the petition. One. The claim of petitioners that the subject proclamation and administrative orders violate the principle of local autonomy is anchored on the allegation that, through them, the President authorized the DILG Secretary to take over the operations of the ARMM and assume direct governmental powers over the region.

But, in the first place, the DILG Secretary did not take over control of the powers of the ARMM. After law enforcement agents took respondent Governor of ARMM into custody for alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule on succession found in Article VII, Section 12,14 of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor.15 In short, the DILG Secretary did not take over the administration or operations of the ARMM. Two. Petitioners contend that the President unlawfully exercised emergency powers when she ordered the deployment of AFP and PNP personnel in the places mentioned in the proclamation.16 But such deployment is not by itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the Constitution, which provides: SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The President did not proclaim a national emergency, only a state of emergency in the three places mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary powers. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. She did not need a congressional authority to exercise the same. Three. The Presidents call on the armed forces to prevent or suppress lawless violence springs from the power vested in her under Section 18, Article VII of the Constitution, which provides.17 SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. x x x While it is true that the Court may inquire into the factual bases for the Presidents exercise of the above power,18it would generally defer to her judgment on the matter. As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,19 it is clearly to the President that the Constitution entrusts the determination of the need for calling out the armed forces to prevent and suppress lawless violence. Unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the Presidents judgment. Thus, the Court said: If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in

emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. x x x.20 Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the Presidents exercise of the "calling out" power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed under a state of emergency, it follows that the take over of the entire ARMM by the DILG Secretary had no basis too.21 But, apart from the fact that there was no such take over to begin with, the OSG also clearly explained the factual bases for the Presidents decision to call out the armed forces, as follows: The Ampatuan and Mangudadatu clans are prominent families engaged in the political control of Maguindanao. It is also a known fact that both families have an arsenal of armed followers who hold elective positions in various parts of the ARMM and the rest of Mindanao. Considering the fact that the principal victims of the brutal bloodshed are members of the Mangudadatu family and the main perpetrators of the brutal killings are members and followers of the Ampatuan family, both the military and police had to prepare for and prevent reported retaliatory actions from the Mangudadatu clan and additional offensive measures from the Ampatuan clan. xxxx The Ampatuan forces are estimated to be approximately two thousand four hundred (2,400) persons, equipped with about two thousand (2,000) firearms, about four hundred (400) of which have been accounted for. x x x As for the Mangudadatus, they have an estimated one thousand eight hundred (1,800) personnel, with about two hundred (200) firearms. x x x Apart from their own personal forces, both clans have Special Civilian Auxiliary Army (SCAA) personnel who support them: about five hundred (500) for the Ampatuans and three hundred (300) for the Mangudadatus. What could be worse than the armed clash of two warring clans and their armed supporters, especially in light of intelligence reports on the potential involvement of rebel armed groups (RAGs). One RAG was reported to have planned an attack on the forces of Datu Andal Ampatuan, Sr. to show support and sympathy for the victims. The said attack shall worsen the age-old territorial dispute between the said RAG and the Ampatuan family. xxxx On the other hand, RAG faction which is based in Sultan Kudarat was reported to have received three million pesos (P3,000,000.00) from Datu Andal Ampatuan, Sr. for the procurement of ammunition. The said faction is a force to reckon with because the group is well capable of launching a series of violent activities to divert the attention of the people and the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the Mangudadatu family. The Cotabatobased faction has the strength of about five hundred (500) persons and three hundred seventy-two (372) firearms while the Sultan Kudarat-based faction has the strength of about four hundred (400) persons and three hundred (300) firearms and was reported to be moving towards Maguindanao to support the Mangudadatu clan in its armed fight against the Ampatuans.22 In other words, the imminence of violence and anarchy at the time the President issued Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places mentioned. Progress reports also indicated that there was movement in these places of both high-powered firearms and armed men sympathetic to the two clans.23 Thus, to pacify the peoples fears and stabilize the situation, the President had to take preventive action. She called out the armed forces to control the proliferation of loose firearms and dismantle the armed groups that continuously threatened the peace and security in the affected places. Notably, the present administration of President Benigno Aquino III has not withdrawn the declaration of a state of emergency under Proclamation 1946. It has been reported24 that the declaration would not be lifted soon because there is still a need to disband private armies and confiscate loose firearms. Apparently, the presence of troops in those places is still necessary to ease fear and tension among the citizenry and prevent and suppress any violence that may still erupt, despite the passage of more than a year from the time of the Maguindanao massacre. Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the Presidents actions. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. ROBERTO A. ABAD Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. RENATO C. CORONA Chief Justice

Footnotes
1

Rollo, p. 34. Id. at 36. Id. at 80.

Ampatuan, Adiong and Sahali-Generale were, respectively, the Governor, Vice-Governor and Speaker of the Legislative Assembly of the ARMM at that time.
5

Rollo, pp. 14-17. Id. at 20-22. Id. at 63. Id. at 85, 87, 95. Id. at 98. Id. at 76. Id. at 95. Id. at 78.

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Id. at 110.

SEC. 12. Succession to Regional Governorship in Cases of Temporary Incapacity. In case of temporary incapacity of the regional Governor to perform his duties on account of physical or legal causes, or when he is on official leave of absence or on travel outside the territorial jurisdiction of the Republic of the Philippines, the Regional Vice-Governor, or if there be none or in case of his permanent or temporary incapacity or refusal to assume office, the Speaker of the Regional Assembly shall exercise the powers, duties and functions of the Regional Governor as prescribed by law enacted by the Regional Assembly or in the absence thereof, by the pertinent provisions of Republic Act 7160 or the Local Government Code of 1991.
14 15

http://services.inquirer.net/print/print.php?article_id=20100707-279759. Rollo, p. 22. See SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 509-510 (2004). Lacson v. Sec. Perez, 410 Phil. 78, 93 (2001). 392 Phil. 618, 635 (2000). Id. at 643-644. Rollo, pp. 20-21. Id. at 101-105. Id. at 105.

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http://www.abs-cbnnews.com/video/nation/regions/11/23/10/state-emergencymaguindanao-stays; http://www.sunstar.com.ph/manila/local-news/aquino-state-emergencymaguindanao-stays; http://www.bomboradyo.com/index.php/news/top-stories/29331-state-of-emergencysa-c-mindanao-mananatili; http://www.zambotimes.com/archives/26011-State-ofemergency-in-Maguindanao-remains.html