THIRD DIVISION accused to due process and to a speedy disposition of
cases.10 Specifically, petitioner invoked the Court's
G.R. Nos. 230950-51, July 23, 2018
ELPIDIO TAGAAN
MAGANTE, Petitioner, v. SANDIGANBAYAN, (THIRD
DIVISION) AND PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
VELASCO JR., J.:
Like the proverbial sharp sword of Damocles, the protracted
pendency of a case hangs overhead by the slenderest single
strand. And as Cicero quipped: "...there can be nothing happy
for the person over whom some fear always looms."
Nature of the Case
For this Court's resolution is the Petition for Certiorari and
Prohibition under Rule 65 of the Rules of Court assailing the
Resolutions dated January 9, 20171 and March 24, 20172 of
herein respondent Sandiganbayan, 3rd Division, in Criminal
Case Nos. SB-16-CRM-0773-0774, denying petitioner Elpidio
Tagaan Magante's Motion to Dismiss the two separate
informations filed against him, and the subsequent Motion for
Reconsideration thereof.
The antecedents, as found by the Sandiganbayan, are as
follows:
In view of the Office of the Ombudsman's Resolution3 dated
April 25, 20164 in OMB-V-C-11-0008-A, two separate
informations for Falsification of Public Documents,5 docketed
as SB-16-CRM-0773,6 and for Splitting of Contracts,7 docketed
as SB-16-CRM-0774,8 were filed against petitioner and his five
(5) co-respondents therein on October 7, 2016 before the
Sandiganbayan.
Thereafter, petitioner filed a Motion to Dismiss9 the cases
against him on the ground that inordinate delay attended the
conduct of the preliminary investigation of his alleged crimes,
in violation of his constitutional right to a speedy disposition of
cases. In concrete, petitioner claimed that it took the
Ombudsman about seven (7) years, reckoned from the
commencement of the fact-finding investigation in 2009 up to
2016, to issue its Resolution directing the filing of two separate
informations against him. Petitioner reckoned the period from
April 21, 2009, the date of the Affidavit and Narrative Audit
Report that was submitted by Delfin P. Aguilar, Regional
Director of the Commission on Audit Regional Office No. VII,
which led to the commencement of a fact-finding investigation
by the Ombudsman.
Petitioner likewise asserted that even if the period were to be
counted from February 15, 2011, which is the date when the
Ombudsman issued an Order directing him and his co-
respondents therein to submit their respective counter-
affidavits, up to the approval of its Resolution, still, there is a
clear inordinate delay of five (5) years and two (2) months in
resolving his case. He even cited several cases wherein this
Court held that the delay of three, five, six, or eight years in the
termination of the preliminary investigation of the case
amounts to a violation of the constitutional rights of the
pronouncements in Tatad v. Sandiganbayan,11Angchangco v.
Ombudsman,12Roque v. Ombudsman,13Coscolluela v.
Sandiganbayan,14 and People v. Sandiganbayan15 to advance
his theory.
In response thereto, the prosecution (herein respondent
People of the Philippines) filed its Comment/Opposition
averring that petitioner's Motion to Dismiss deserved scant
consideration and maintained that the Ombudsman did not
incur inordinate delay in the conduct of the preliminary
investigation.
The prosecution stressed the fact that there was neither hiatus,
inaction, nor any intentional delay on the part of the
Ombudsman from the time that the letter-complaint of Delfin P.
Aguilar16 against petitioner was received by the OMB-Visayas
on September 1, 2009, until the approval of the Final
Evaluation Report dated June 30, 2010 by the then
Ombudsman Merceditas Gutierrez (Gutierrez) on November
18, 2010. The Final Evaluation Report recommended the
upgrading of the fact-finding investigation into a criminal and
administrative case before the Ombudsman. Pursuant thereto,
the Public Assistance and Corruption Prevention Office of the
Deputy Ombudsman for Visayas (PACPO-OMB-Visayas) filed
a formal complaint against petitioner on January 7, 2011.
The Ombudsman had taken proper action in the ordinary
course of things and in accord with its mandate. However, the
Resolution finding probable cause was only promulgated on
April 15, 2016 due to the fact that there were ten (10)
respondents in the complaint and each of them was afforded
the right to explain themselves. The records of the case were
also voluminous that entailed considerable time to study and
analyze.17
The prosecution further claimed that petitioner failed to assert
his right to a speedy disposition of his cases all throughout the
proceedings, and, thus, like any other constitutional right, the
same may be waived. The prosecution likewise disputed the
applicability of the cases cited by petitioner in his Motion to
Dismiss as their factual milieu differs with the present cases.18
Ruling of the Sandiganbayan
On January 9, 2017, the Sandiganbayan rendered its first
assailed Resolution denying the petitioner's Motion to Dismiss
for utter lack of merit. In disposing of the case, the
Sandiganbayan made the following disquisitions:
The Court agrees with the prosecution [herein respondent
People of the Philippines] that the rulings in the cases cited by
[herein petitioner] in his [Motion to Dismiss] are inapplicable to
the cases at bar because of the material differences in their
factual milieu. To stress, the Supreme Court has consistently
held that in the application of the constitutional guarantee of
the right to a speedy disposition of cases, particular regard
must also be taken of the facts and circumstance peculiar to
each case.
xxxx
x x x in Tatad, there were peculiar circumstances attendant to
the three-year delay in terminating the preliminary investigation
1
against him. According to the Supreme Court, ''political
motivations played a vital role in activating and propelling the
prosecutorial process;" and, there was a departure from the
established procedure in conducting the preliminary
investigation and that the issues involved were simple.
Unlike in Tatad, the present cases involve no imputation of any
political motivation in the filing of the
present Informations against the [petitioner].
Likewise in Roque, the High Tribunal declared as violation of
therein petitioner's right to due process and speedy disposition
of cases the delay of six (6) years on the part of the Office of
the Ombudsman in resolving the complaints against the
petitioner. The Supreme Court so ruled because "no
explanation was given why it took almost six years for the
[Ombudsman] to resolve the complaints." Similarly, in People
v. Sandiganbayan (citation omitted), the Supreme Court held
that there was inordinate delay on the part of the Office of the
Ombudsman when it resolved a complaint-affidavit only on
April 15, 2008, notwithstanding the fact that it was filed on
December 23, 2002.
In contrast to the abovementioned cases, the attendant
circumstances in these cases do not show a deliberate
attempt to delay the proceedings. The prosecution
appropriately explained the circumstances surrounding the
drafting of the two (2) Informations against the ten (10)
respondents, all of whom were accorded their constitutional
right to be heard. Based thereon, this Court does not find that
the proceedings before the Office of the Ombudsman were
attended by any vexatious, capricious and oppressive delays.
xxxx
In Achangco, Jr., the Supreme Court x x x held the delay of
more than six (6) years in resolving the complaints x x x
amounted to a violation of the accused's constitutional right to
due process and speedy disposition of cases for two (2)
reasons, namely: [1] the administrative aspect of the case had
already been dismissed; and [2] petitioner's several motions for
early resolution and motion to dismiss remained unacted even
at the time of the petition for mandamus before the Supreme
Court.
The factual circumstances of the abovementioned case differ
substantially from the cases at bar. Here, the [petitioner] did
not file any motion or letter seeking the early resolution of the
case against him and signifying that he was not waiving his
right to its speedy disposition.
Also, [petitioner's] reliance on Coscolluela is misplaced.
In the said case, x x x the circumstances x x x showed that the
petitioners therein were unaware that a preliminary
investigation against them was on-going; hence, the Court
ruled that they could not be faulted for their alleged failure to
assert their right to speedy disposition of cases.
Here, [petitioner] was very much aware that there was a
pending investigation against him, as in fact he filed his
counter-affidavit before the OMB-Visayas on May 6, 2011. He
also later filed a Motion for Reconsideration of an
adverse Resolution of the Office of the Ombudsman on May
31, 2015. Surely he cannot now invoke Coscolluela for he
actively participated in the proceedings before the Office of the
Ombudsman and failed to assert his right to a speedy
disposition of cases.
x x x the [petitioner] must be deemed to have waived said
right for his failure to assert it with reasonable
promptitude. The Supreme Court held in the case
of Philippine Coconut Producers, Inc. v. Republic (citation
omitted), that the right to speedy disposition of cases is lost
unless seasonably invoked x x x19 (Emphasis partly in the
original and partly supplied; italics in the original.)
The petitioner moved for its reconsideration but it was also
denied in the second assailed Resolution dated March 24,
2017 for being pro forma and/or lack of merit.
Hence, this Petition.
The Issue
The sole issue raised in the petition is framed in the following
manner:
WHETHER OR NOT THE SANDIGANBAYAN COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED
RESOLUTIONS WITHOUT REGARD TO THE
CONSTITUTIONAL RIGHT OF THE PETITIONER TO
SPEEDY DISPOSITION OF THE INVESTIGATION OF THE
CASE AS PRESCRIBED IN SECTION 16, ARTICLE III OF
THE 1987 CONSTITUTION AND TO THE VARIOUS
SUPREME COURT DECISIONS UPHOLDING SAID
CONSTITUTIONAL RIGHT.20
Succinctly, petitioner calls upon this Court to guard his
constitutionally enshrined right to speedy disposition of
cases21 against the perceived inordinate delay of the
Ombudsman in conducting the preliminary investigation
pertaining to the pending criminal action.
The Court's Ruling
We find merit in the petition.
The right to speedy
disposition of cases and the
Ombudsman's bounden
duty to observe the same
The constitutional guarantee to speedy disposition of cases
was first introduced in the 1973 Philippine Constitution22 and
was reproduced verbatim in Article III, Sec. 16 of the 1987
version. Presently, the provision pertinently provides:
SECTION 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
The guarantee recognizes the truism that justice delayed can
mean justice denied.23 It expanded the speedy trial guarantee
afforded to the accused in a criminal proceeding, which was
already in place in the 1935 Constitution.24 Though both
concepts are subsumed under the more basic tenet of
procedural due process, the right to speedy disposition of
2
cases, to contrast with the right to speedy trial, sweeps more
broadly as it is not confined with criminal cases; it extends
even to other adversarial proceedings before any judicial,
quasi-judicial, and administrative tribunals. No branch of
government is, therefore, exempt from duly observing the
constitutional safeguard and the right confirms immunity from
arbitrary delay. Hence, under the Constitution, any party to a
case may demand expeditious action on all officials who are
tasked with the administration of justice,25 including the
Ombudsman.
Coincidentally, the seminal case on the speedy disposition of
cases involved the conduct of preliminary investigation by the
Tanodbayan, the predecessor of the OMB. Even though the
right to speedy disposition of cases had been preserved under
the Bill of Rights as early as 1973, the 1989 case of Tatad v.
Sandiganbayan (Tatad)26 was the first to have applied the
provision as a personal right against the conduct of a
proceeding, rather than as a constitutional challenge against a
statute.27
In the said case, a "report" was filed with the Legal Panel of the
Presidential Security Command in October 1974, containing
charges for alleged violations of RA 3019 against then
Secretary of Public Information Francisco S. Tatad (Tatad). No
action was taken on the "report" until it became publicly known
that Tatad had a falling out with then President Ferdinand
Marcos. Following Tatad's resignation from the cabinet, the
1974 complaint was resurrected on December 12, 1979 in the
form of a formal complaint filed with the Tanodbayan. All
affidavits and counter-affidavits were already submitted by
October 25, 1982 and the case was already for disposition by
then. However, it was only on June 5, 1985 when the
Tanodbayan approved the resolution finding probable cause
and ordering the filing of five (5) criminal informations against
Tatad before the Sandiganbayan. Thereafter, Tatad filed a
motion to quash the information on the ground that the
prosecution deprived him of his right to due process of law and
to a speedy disposition of the cases filed against him. The
motion was denied by the anti-graft court, prompting Tatad to
interpose a petition for certiorari before this Court to enforce
his constitutional right.
In granting the petition in Tatad, the Court held that the
trumped up charges against Tatad were politically motivated.
More importantly, the three-year (3-year) delay from the day
the investigation was submitted for resolution up to the date
the informations were filed in Court was found to be a clear
violation of Tatad's right to speedy disposition of cases. The
Court observed there was not even substantial compliance
with Presidential Decree No. (PD) 911 which prescribed a 10-
day period for a prosecutor to resolve a case under preliminary
investigation. And that although the period is merely directory,
it cannot be disregarded with absolute impunity, lest it become
meaningless dead letter. As ratiocinated in the case:
We are not impressed by the attempt of the Sandiganbayan to
sanitize the long delay by indulging in the speculative
assumption that "the delay may be due to a painstaking and
gruelling scrutiny by the Tanodbayan as to whether the
evidence presented during the preliminary investigation
merited prosecution of a former high ranking government
official." In the first place, such a statement suggests a double
standard of treatment, which must be emphatically rejected.
Secondly, three out of the five charges against the petitioner
were for his alleged failure to file his sworn statement of assets
and liabilities required by Republic Act No. 3019, which
certainly did not involve complicated legal and factual issues
necessitating such "painstaking and gruelling scrutiny" as
would justify a delay of almost three years in terminating the
preliminary investigation. The other two charges relating to
alleged bribery and alleged giving of unwarranted benefits to a
relative, while presenting more substantial legal and factual
issues, certainly do not warrant or justify the period of three
years, which it took the Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating theI
preliminary investigation should not be deemed fatal, for even
the complete absence of a preliminary investigation does not
warrant dismissal of the information. True-but the absence of a
preliminary investigation can be corrected by giving the
accused such investigation. But an undue delay in the conduct
of a preliminary investigation can not be corrected, for until
now, man has not yet invented a device for setting back time.
After a careful review of the facts and circumstances of this
case, we are constrained to hold that the inordinate delay in
terminating the preliminary investigation and filing the
information in the instant case is violative of the constitutionally
guaranteed right of the petitioner to due process and to a
speedy disposition of the cases against him.28 x x x
But as later on clarified, more particularly in Dansal v.
Fernandez,29 the right embodied in Article III, Sec. 16 is not
limited to the period from when a matter is submitted for
resolution until the resolution is so approved. Instead, the
broad protection embraces the periods before, during and after
trial. Thus, it can properly be invoked even as early as
preliminary investigation, even before the investigating officer
renders his ruling on the determination of probable cause.
Consistently, no less than the 1987 Constitution expressly puts
the OMB to the task of resolving the cases lodged before it
with dispatch from the moment that a complaint has been filed
therewith. Article XI, Sec. 12 of the Constitution is unequivocal
on this matter:
SECTION 12. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or
employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result thereof.
(emphasis added)
This constitutional command is further amplified by Sec. 13 of
Republic Act No. 6770 (RA 6770), otherwise known as The
Ombudsman Act of 1989, viz:
Section 13. Mandate.— The Ombudsman and his Deputies,
as protectors of the people, shall act promptly on
complaints filed in any form or manner against officers or
employees of the Government, or of any subdivision, agency
or instrumentality thereof, including government owned or
controlled corporations, and enforce their administrative, civil
and criminal liability in every case where the evidence warrants
in order to promote efficient service by the Government to the
people. (emphasis added)
3
To attain this mandate, Sec. 15 and 16 of RA 677030 bestowed
unto the Ombudsman broad and tremendous powers and
functions that are aimed towards enabling the office to be a
more active and effective agent of the people in ensuring
accountability in public office.31 Regardless, the above-quoted
provisions, as couched, do not specify a period for the OMB to
render its ruling in cases or matters before it. Neither did the
mentioned laws enumerate the criteria in determining what
duration of disposition could be considered as "prompt."
The lack of statutory definition on what constitutes "prompt"
action on a complaint opened the gates for judicial
interpretation, which did not draw definite lines, but merely
listed factors to consider in treating petitions invoking the right
to speedy disposition of cases.
Attempts in jurisprudence to
define "inordinate delay"
Prevailing jurisprudence on the speedy disposition of cases is
sourced from the landmark ruling of the United States
Supreme Court in Barker v. Wingo32 (Barker) wherein a
delicate balancing test was crafted to determine whether or not
the right had been violated:
A balancing test necessarily compels courts to approach
speedy trial cases on an ad hoc basis. We can do little more
than identify some of the factors which courts should assess in
determining whether a particular defendant has been deprived
of his right. Though some might express them in different
ways, we identify four such factors: length of delay, the reason
for the delay, the defendant's assertion of his right, and
prejudice to the defendant.
The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance. Nevertheless, because of the
imprecision of the right to speedy trial, the length of delay that
will provoke such an inquiry is necessarily dependent upon the
peculiar circumstances of the case. To take but one example,
the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy
charge.
Closely related to length of delay is the reason the
government assigns to justify the delay. Here, too, different
weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must
rest with the government, rather than with the defendant.
Finally, a valid reason, such as a missing witness, should
serve to justify appropriate delay.
We have already discussed the third factor, the defendant's
responsibility to assert his right. Whether and how a
defendant asserts his right is closely related to the other
factors we have mentioned. The strength of his efforts will be
affected by the length of the delay, to some extent by the
reason for the delay, and most particularly by the personal
prejudice, which is not always readily identifiable, that he
experiences. The more serious the deprivation, the more likely
a defendant is to complain. The defendant's assertion of his
speedy trial right, then, is entitled to strong evidentiary weight
in determining whether the defendant is being deprived of the
right. We emphasize that failure to assert the right will make it
difficult for a defendant to prove that he was denied a speedy
trial.
A fourth factor is prejudice to the defendant. Prejudice, of
course, should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect
his Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system. If witnesses die
or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory,
however, is not always reflected in the record, because what
has been forgotten can rarely be shown. (emphasis added)
We have adopted this norm set forth in Barker in local
jurisprudence to gauge whether or not inordinate delay
attended the conduct of preliminary investigation.
Following Tatad, the right to speedy disposition of cases was
once again invoked, albeit unsuccessfully, in Gonzales v.
Sandiganbayan (Gonzales).33 The denial of the petition therein
was grounded on the finding that the delay was irremissibly
imputable to petitioner's own conduct, barring him from be
benefitting from both the constitutional protection and his
numerous motions that sought affirmative relief. Nevertheless,
recognizing the similarity between the right to speedy
disposition of cases and the right to speedy trial, the Court
imposed the same criteria as in Barker in determining whether
or not there is a violation of the constitutional right:
It must be here emphasized that the right to a speedy
disposition of a case, like the right to speedy trial, is deemed
violated only when the proceeding is attended by
vexatious, capricious and oppressive delays; or
when unjustified postponements of the trial are asked for
and secured, or when without cause or justifiable motive a
long period of time is allowed to elapse without the party
having his case tried. Equally applicable is the balancing
test used to determine whether a defendant has been denied
his right to a speedy trial, or a speedy disposition of a case for
that matter, in which the conduct of both the prosecution and
the defendant are weighed, and such factors as length of the
delay, reason for the delay, the defendant's assertion or
non-assertion of his right, and prejudice to the
defendant resulting from the delay, are considered.
(emphasis added)
This criteria laid down in Barker and Gonzales would be
echoed in Alvizo v. Sandiganbayan (Alvizo).34 Petitioner
therein alleged that the criminal case against him, as in Tatad,
was politically motivated and that the Tanodbayan took almost
twelve (12) years from the commencement of criminal
investigation in 1979 until the filing of information with the
Sandiganbayan in 1990. The Court, however, ruled that
petitioner's thesis was not supported by evidence on record.
On the contrary, the records disclosed that investigation began
in 1989, instead of 1979 as claimed by therein petitioner, and
4
that the determination of probable cause was resolved, and the
corresponding information was filed, in due time within a span
of one (1) year.
Measured against the standard laid down
in Barker and Gonzales, the Court ruled in Alvizo that the one-
year "delay" could not have prejudiced therein petitioner since
the determinative evidence for his case are documentary in
nature and already formed part of the records of the case
before the Sandiganabayan. The Court likewise took notice of
petitioner's insensitivity to the implications and contingencies of
the pending criminal case when he did not take any step
whatsoever to accelerate the disposition of the matter. This
inaction was perceived by the Court as acquiescence to any
unobjected supervening delay. In any event, the delay, if at all,
was justified because of the frequent amendments to
procedural rules and structural reorganizations in the
prosecutorial agencies during the martial law regime.
Factors to consider in
determining inordinate
delay
a. Length of the delay
The Court has never set a threshold period for concluding
preliminary investigation proceedings before the Office of the
Ombudsman premised on the idea that "speedy disposition" is
a relative and flexible concept. It has often been held that a
mere mathematical reckoning of the time involved is not
sufficient in determining whether or not there was inordinate
delay on the part of the investigating officer, and that particular
regard must be taken of the facts and circumstances peculiar
to each case.35 This is diametrically opposed with Sec. 58 of
the 2008 Manual for Prosecutors36 observed by the National
Prosecutorial Service, which states that the investigating
prosecutor must terminate the preliminary investigation
proceeding within sixty (60) days from the date of assignment,
extendible to ninety (90) days for complaints charging a capital
offense. And to further contradistinguish, the Judiciary is
mandated by the Constitution to resolve matters and
controversies within a definite timeline.37 The trial courts are
required to decide cases within sixty (60) days from date of
submission, twelve (12) months for appellate courts, and two
(2) years for the Supreme Court. The prescribed period for the
Judicial branch at least gives the party litigants an idea on
when they could reasonably expect a ruling from the courts,
and at the same time ensures that judges are held to account
for the cases not so timely disposed.
The Court is not unmindful of the duty of the Ombudsman
under the Constitution and Republic Act No. 6770 to act
promptly on complaints brought before him. This imposition,
however, should not be mistaken with a hasty resolution of
cases at the expense of thoroughness and correctness.38 More
importantly, this duty does not license this Court to fix a
specific period for the office to resolve the cases and matters
before it, lest We encroach upon the constitutional prerogative
of the Ombudsman to promulgate its own rules and
procedure.39
Be that as it may, the Court is not precluded from determining
the inclusions and exclusions in determining the period of
delay. For instance, in People v. Sandiganbayan, 40 We have
ruled that the fact-finding investigation should not be deemed
separate from the preliminary investigation conducted by the
Office of the Ombudsman if the aggregate time spent for both
constitutes inordinate and oppressive delay in the disposition
of cases.
In the said case, the Ombudsman, on November 25, 2002,
ordered the Philippine Anti-Graft Commission (PAGC) to
submit documents relevant to the expose on the alleged
involvement of then Secretary of Justice Hernando Perez in
acts of bribery. The following day, then Ombudsman Simeon
Marcelo ordered Cong. Mark Jimenez to submit a complaint-
affidavit on the expose, which directive he complied with on
December 23, 2002. On January 2, 2003, a Special Panel was
created to evaluate and conduct preliminary investigation. The
informations based on the complaint of Cong. Jimenez were all
filed on April 15, 2008.
Upholding the dismissal of the criminal information by the
Sandiganbayan, the court ruled thusly:
The State further argues that the fact-finding investigation
should not be considered a part of the preliminary investigation
because the former was only preparatory in relation to the
latter; and that the period spent in the former should not be
factored in the computation of the period devoted to the
preliminary investigation.
The argument cannot pass fair scrutiny.
The guarantee of speedy disposition under Section 16 of
Article III of the Constitution applies to all cases pending
before all judicial, quasi-judicial or administrative bodies. The
guarantee would be defeated or rendered inutile if the hair-
splitting distinction by the State is accepted. Whether or not the
fact-finding investigation was separate from the preliminary
investigation conducted by the Office of the Ombudsman
should not matter for purposes of determining if the
respondents' right to the speedy disposition of their cases had
been violated.41 (emphasis added)
This ruling necessitates a re-examination.
In Ombudsman v. Jurado,42 we ruled that:
x x x It is undisputed that the FFB of the OMB recommended
that respondent together with other officials of the Bureau of
Customs be criminally charged for violation of Section 3(e) of
R.A. No. 3019 and Section 3601 of the Tariff and Customs
Code. The same bureau also recommended that respondent
be administratively charged. Prior to the fact-finding report of
the FFB of the OMB, respondent was never the subject of any
complaint or investigation relating to the incident surrounding
Magleis non-existent customs bonded warehouse. In fact, in
the original complaint filed by the Bureau of Customs,
respondent was not included as one of the parties charged
with violation of the Tariff and Customs Code. With respect to
respondent, there were no vexatious, capricious, and
oppressive delays because he was not made to undergo
any investigative proceeding prior to the report and
findings of the FFB.
Simply put, prior to the report and recommendation by the FFB
that respondent be criminally and administratively charged,
respondent was neither investigated nor charged. That
respondent was charged only in 1997 while the subject
5
incident occurred in 1992, is not necessarily a violation of his
right to the speedy disposition of his case. The record is clear
that prior to 1997, respondent had no case to speak of he was
not made the subject of any complaint or made to undergo any
investigation. x x x (emphasis added)
We must distinguish between fact-finding investigations
conducted before and after the filing of a formal complaint.
When a formal criminal complaint had been initiated by a
private complainant, the burden is upon such complainant to
substantiate his allegations by appending all the necessary
evidence for establishing probable cause. The fact-finding
investigation conducted by the Ombudsman after the complaint
is filed should then necessarily be included in computing the
aggregate period of the preliminary investigation.
On the other hand, if the fact-finding investigation precedes the
filing of a complaint as in incidents investigated motu
proprio by the Ombudsman, such investigation should be
excluded from the computation. The period utilized for case
build-up will not be counted in determining the attendance of
inordinate delay.
It is only when a formal verified complaint had been filed would
the obligation on the part of the Ombudsman to resolve the
same promptly arise. Prior to the filing of a complaint, the party
involved is not yet subjected to any adverse proceeding and
cannot yet invoke the right to the speedy disposition of a case,
which is correlative to an actual proceeding. In this light, the
doctrine in People v. Sandiganbayan should be revisited.
With respect to investigations relating to anonymous
complaints or motu proprio investigations by the Ombudsman,
the date when the Ombudsman receives the anonymous
complaint or when it started its motu proprio investigations and
the periods of time devoted to said investigations cannot be
considered in determining the period of delay. For the
respondents, the case build up phase of an anonymous
complaint or a motu proprio investigation is not yet exposed to
an adversarial proceeding. The Ombudsman should of course
be aware that a long delay may result in the extinction of
criminal liability by reason of the prescription of the offense.
Even if the person accused of the offense subject of said
anonymous complaint or motu proprio investigations by the
Ombudsman is asked to attend invitations by the Ombudsman
for the fact finding investigations, this directive cannot be
considered in determining inordinate delay. These conferences
or meetings with the persons subject of the anonymous
complaints or motu proprio investigations are simply conducted
as preludes to the filing of a formal complaint if it finds it
proper. This should be distinguished from the exercise by the
Ombudsman of its prosecutory powers which involve
determination of probable cause to file information with the
court resulting from official preliminary investigation. Thus, the
period spent for fact finding investigations of the ombudsman
prior to the filing of the formal complaint by the Field
Investigation Office of the Ombudsman is irrelevant in
determining inordinate delay.
In sum, the reckoning point when delay starts to run is the date
of the filing of a formal complaint by a private complainant or
the filing by the Field Investigation Office with the Ombudsman
of a formal complaint based on an anonymous complaint or as
a result of its motu proprio investigations. The period devoted
to the fact-finding investigations prior to the date of the filing of
the formal complaint with the Ombudsman shall NOT be
considered in determining inordinate delay. After the filing of
the formal complaint, the time devoted to fact finding
investigations shall always be factored in.
b. Reasons for the delay
Valid reasons for the delay identified and accepted by the
Court include, but are not limited to: (1) extraordinary
complications such as the degree of difficulty of the questions
involved, the number of persons charged, the various
pleadings filed, and the voluminous documentary and
testimonial evidence on record; and (2) acts attributable to the
respondent.
The period for re-investigation cannot automatically be taken
against the State. Re-investigations cannot generally be
considered as "vexatious, capricious, and oppressive"
practices proscribed by the constitutional guarantee since
these are performed for the benefit of the accused. As Braza v.
Sandiganbayan43(Braza) instructs:
Indeed, the delay can hardly be considered as "vexatious,
capricious and oppressive." x x x Rather, it appears that Braza
and the other accused were merely afforded sufficient
opportunities to ventilate their respective defenses in the
interest of justice, due process and fair investigation. The re-
investigation may have inadvertently contributed to the further
delay of the proceedings but this process cannot be dispensed
with because it was done for the protection of the rights of the
accused. Albeit the conduct of investigation may hold back the
progress of the case, the same was essential so that the rights
of the accused will not be compromised or sacrificed at the
altar of expediency. (emphasis added) x x x
A survey of jurisprudence reveals that most of the complaints
dismissed for violation of the right to speedy disposition of a
case stems from the Ombudsman's failure to satisfactorily
explain the inordinate delay.44
c. Assertion of Right by the Accused
The Court had ruled in several cases that failure to move for
the early resolution of the preliminary investigation or similar
reliefs before the Ombudsman amounted to a virtual waiver of
the constitutional right. Dela Peña v. Sandiganbayan (Dela
Peña), for example, ruled that the petitioners therein slept on
their rights, amounting to laches, when they did not file nor
send any letter-queries to the Ombudsman during the four-year
(4-year) period the preliminary investigation was conducted.
The Court, citing Alvizo, further held therein that:
x x x The matter could have taken a different dimension if
during all those four years, they showed signs of asserting their
right to a speedy disposition of their cases or at least made
some overt acts, like filing a motion for early resolution, to
show that they are not waiving that right. Their silence may,
therefore be interpreted as a waiver of such right. As aptly
stated in Alvizo, the petitioner therein was insensitive to the
implications and contingencies of the projected criminal
prosecution posed against him by not taking any step
whatsoever to accelerate the disposition of the matter, which
inaction conduces to the perception that the supervening delay
6
seems to have been without his objection, [and] hence
impliedly with his acquiescence.
Following Dela Peña, it is the duty of the respondent to bring to
the attention of the investigating officer the perceived
inordinate delay in the proceedings of the formal preliminary
investigation. Failure to do so may be considered a waiver of
his/her right to speedy disposition of cases. If respondent fails
to assert said right, then it may be presumed that he/she is
allowing the delay only to later claim it as a ruse for dismissal.
This could also address the rumored "parking fee" allegedly
being paid by some respondents so that delay can be set up
as a ground for the dismissal of their respective cases.
Needless to say, investigating officers responsible for this kind
of delay should be subjected to administrative sanction.
d. Prejudice to the respondent
The length of the delay and the justification proffered by the
investigating officer therefor would necessarily be
counterbalanced against any prejudice suffered by the
respondent. Indeed, reasonable deferment of the proceedings
may be allowed or tolerated to the end that cases may be
adjudged only after full and free presentation of evidence by all
the parties, especially where the deferment would cause no
substantial prejudice to any party.45 As taught in Coscolluela:
Lest it be misunderstood, the right to speedy disposition of
cases is not merely hinged towards the objective of spurring
dispatch in the administration of justice but also to prevent the
oppression of the citizen by holding a criminal prosecution
suspended over him for an indefinite time. Akin to the right to
speedy trial, its "salutary objective" is to assure that an
innocent person may be free from the anxiety and expense of
litigation or, if, otherwise, of having his guilt determined within
the shortest possible time compatible with the presentation and
consideration of whatsoever legitimate defense he may
interpose. This looming unrest as well as the tactical
disadvantages carried by the passage of time should be
weighed against the State and in favor of the individual.46 x x x
"Prejudice," as a criterion in the speedy disposition of cases,
has been discussed in Corpuz v. Sandiganbayan47 in the
following manner:
x x x Prejudice should be assessed in the light of the interest of
the defendant that the speedy trial was designed to protect,
namely: to prevent oppressive pre-trial incarceration; to
minimize anxiety and concerns of the accused to trial; and to
limit the possibility that his defense will be impaired. Of these,
the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness
of the entire system. There is also prejudice if the defense
witnesses are unable to recall accurately the events of the
distant past. Even if the accused is not imprisoned prior to trial,
he is still disadvantaged by restraints on his liberty and by
living under a cloud of anxiety, suspicion and often, hostility.
His financial resources may be drained, his association is
curtailed, and he is subjected to public obloquy.
In the macro-perspective, though, it is not only the respondent
who stands to suffer prejudice from any delay in the
investigation of his case. For inordinate delays likewise makes
it difficult for the prosecution to perform its bounden duty to
prove the guilt of the accused beyond reasonable doubt when
the case is filed in court:
Delay is a two edge sword. It is the government that bears the
burden of proving its case beyond reasonable doubt. The
passage of time may make it difficult or impossible for the
government to carry its burden. The Constitution and the Rules
do not require impossibilities or extraordinary efforts, diligence
or exertion from courts or the prosecutor, nor contemplate that
such right shall deprive the State of a reasonable opportunity
of fairly prosecuting criminals. As held in Williams v. United
States for the government to sustain its right to try the accused
despite a delay, it must show two things: (a) that the accused
suffered no serious prejudice beyond that which ensued from
the ordinary and inevitable delay; and (b) that there was no
more delay than is reasonably attributable to the ordinary
processes of justice.48
It is for the Courts then to determine who between the two
parties was placed at a greater disadvantage by the delay in
the investigation.
Time frame for resolution of criminal complaint
The Ombudsman has the power to formulate its own rules on
pleading and procedure. It has in fact laid down its rules on
preliminary investigation. All these controversies surrounding
inordinate delay can easily be avoided had it prescribed a rule
on the disposition period for the investigating graft officer to
resolve the preliminary investigation of the formal complaints.
Like the Department of Justice with respect to preliminary
investigations by its prosecutors, it should provide a disposition
period from the date of the filing of the formal complaint within
which the graft prosecutor should determine the existence of
probable cause. This will potentially solve all the motions and
petitions that raise the defense of inordinate delay, putting the
perennial issue to rest. In the meantime, the above-enunciated
criteria shall be considered in determining the presence of
inordinate delay.
Application in the case at bar
After a careful perusal of the records of this case, this Court
finds grave abuse of discretion on the part of the
Sandiganbayan in rendering its questioned Resolutions
denying the petitioner's Motion to Dismiss.
Preliminarily, the Court must first determine the extent of the
delay in the conduct of the preliminary investigation before the
Ombudsman. In line with our earlier disquisitions, We deem
the case against petitioner initiated not on April 21, 2009, the
date of the Affidavit and Narrative Audit Report submitted to
the Ombudsman, nor on September 1, 2009, when the letter
complaint of Delfin P. Aguilar was received by the office, but on
January 7, 2011, when the PACPO-OMB-Visayas filed a
formal complaint against petitioner. The fact-finding
investigation, having preceded the filing of the formal
complaint, is excluded in computing the duration of the delay.
Thus, petitioner's preliminary investigation lasted from January
7, 2011 until April 15, 2016, or about five (5) years and three
(3) months from the date of the filing of the formal complaint,
and five (5) years and (2) months from February 15, 2011
when petitioner was ordered to file his counter-affidavit.
7
Since the duration of the preliminary investigation is excessive,
it is incumbent then on the prosecution to justify the delay.
Unfortunately, no circumstance in this case warranted the
protracted period of investigation.
The prosecution harps on the fact that there were ten (10)
respondents in the complaint file with the OMB and each of
them was afforded the right to explain themselves. Also, the
records of the case were allegedly voluminous that entailed
considerable time to study and analyze. These reasons, to Our
mind, do not sufficiently explain the more than five-year long
preliminary investigation. As per the prosecution:
6. Case records show that on November 18, 2010, then
Ombudsman Merceditas Gutierrez approved the Final
Evaluation Report of Rosanna Ortiz (Ms. Ortiz) recommending
the upgrading of the Fact Finding Investigation docketed as
CPL-V-09-1042 into an Ombudsman Criminal and
Administrative Cases. Thereafter, a Supplemental Complaint-
Affidavit was executed by Ms. Ortiz representing the [PACPO-
OMB-Visayas] against ten respondents namely: 1) Elpidio
Magante [Magante]; 2) Ma. Agnes B. Candug (Candug); 3)
Ambrosio S. Orillos (Orillos); 4) Trinidad T. Castolo (Castolo);
5) Alan Jaum (Jaum); 6) Gaudioso C. Regenado, Jr.
(Renegado Jr.); 7) Lorenzo T. Sarigumba (Sarigumba); 8)
Ernesto Rulida (Rulida); 9) Raymundo T. Appari (Appari); and
10) Rochelle Cababan (Cababan). A case was thereafter
docketed against the said respondents in 2011. In an Order
dated February 25, 2011 the said respondents were directed to
file their respective Counter-Affidavit. The Counter-Affidavits of
Candug, Renegado, Jaum and Castolo were received by the
OMB Visayas on May 3, 2011. As to the Counter-Affidavits of
Magante, Orillos, Sarigumba, Rulida and Appari these were
received by the OMB-Visayas on May 6, 2011. In a Resolution
dated 15 April 2016, the Office of the Ombudsman found
probable cause x x x against Magante, Sarigumba, Orillos,
Jaum, and Cababan.49 x x x
Verily, the Order requiring respondents to file their counter-
affidavits was issued on February 15, 2011. No clarificatory
hearing or further investigation was conducted that could have
added a new dimension to the case. On May 6, 2 011, the
criminal complaint was then already deemed submitted for
resolution. Yet, it would only be on April 15, 2016 when
petitioner would once again hear about the case, through his
receipt of the adverse ruling finding probable cause to charge
him with splitting of contracts and falsification of public
documents. Noticeably, the prosecution did not offer any
acceptable explanation for this gap between February 15, 2011
and April 15, 2016. Contrary to the finding of the
Sandiganbayan, there is a hiatus on the part of the
Ombudsman during this period. Left unsatisfactorily explained,
this amounts to a violation of petitioner's constitutional right to
a speedy disposition of case, corollarily warranting the
dismissal of the criminal case against him.
The Court disagrees with the anti-graft court's ratiocinations for
the denial of the Motion to Dismiss. The plea for dismissal
cannot be premised on the finding that the instant criminal
complaints were not politically-motivated unlike in Tatad. To
recall, Duterte had modified the ruling to the effect that the
Court is now agnostic of whether or not the political strong-arm
is being flexed to prosecute the accused. That the filing of the
criminal complaint is ill-motivated is then not a requisite before
the right to a speedy disposition of a case can be invoked.
Likewise, petitioner's alleged failure to assert his right is not a
veritable ground for the denial of the motion in the absence of
any motion, pleading, or act on his part that contributed to the
delay. It is not for him to ensure that the wheels of justice
continue to turn. Rather, it is for the State to guarantee that the
case is disposed within a reasonable period. Thus, it is of no
moment that petitioner herein, unlike in Angchangco, did not
file any motion before the Ombudsman to expedite the
proceeding. It is sufficient that he raised the constitutional
infraction prior to his arraignment before the Sandiganbayan.
Neither can petitioner be deemed to have waived his right to a
speedy disposition of a case when he filed a motion for
reconsideration against an adverse resolution of the
Ombudsman on May 31, 2015. The filing of this singular
motion cannot by itself be considered as active participation in
the preliminary investigation proceeding that amounted to a
waiver of a constitutional right. At most, this can only be
weighed against herein petitioner in determining whether or not
the delay in his investigation was justified. The ground for the
refusal of the Sandiganbayan to apply Coscoluella is therefore
misplaced.
Lastly, there could have been no grave prejudice suffered by
the State from the delay since the criminal charges for
falsification of public documents and splitting of contracts are
offenses that chiefly rely on the presentation of documentary
evidence that, at this point, has already formed part of the
records of the case. The evidence of the prosecution is then
sufficiently protected and preserved. This weighs heavily
against the State and in favor of petitioner who is at a tactical
disadvantage in going against the well-oiled machinery of the
government and its infinite resources.
WHEREFORE, finding grave abuse of discretion on the part of
the Sandiganbayan in denying the petitioner's Motion to
Dismiss, as well as the subsequent Motion for Reconsideration
thereof, the Court GRANTS the instant Petition
for Certiorari and Prohibition and
hereby REVERSES and SETS ASIDE Sandigabayan
Resolutions dated January 9, 2017 and March 24, 2017 in
Criminal Case Nos. SB-16-CRM-0773-0074. Let a new one be
entered dismissing Criminal Case Nos. SB-16-CRM-0773-
0074 for violating petitioner's constitutional right to a speedy
disposition of his case.
SO ORDERED.
Bersamin, Leonen, Martires, and Gesmundo, JJ., concur.
EN BANC
G.R. No. 145566 March 9, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
DINDO "BEBOT" MOJELLO, appellant.
DECISION
8

YNARES-SANTIAGO, J.:
On automatic review is a decision of the Regional Trial Court
(RTC) of Bogo, Cebu, Branch 61, finding appellant Dindo
"Bebot" Mojello guilty beyond reasonable doubt of the crime of
rape with homicide defined and penalized under Article 335 of
the Revised Penal Code, as amended by Republic Act No.
7659, and sentencing him to the supreme penalty of death.1
Appellant Dindo Mojello, alias "Bebot" was charged with the
crime of rape with homicide in an Information dated May 22,
1997, as follows:2
That on the 15th day of December 1996, at about
11:00 o'clock in the evening, at Sitio Kota, Barangay
Talisay, Municipality of Santa Fe, Province of Cebu,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, moved
by lewd design and by means of force, violence and
intimidation, did then and there willfully, unlawfully
and feloniously succeed in having carnal knowledge
with Lenlen Rayco under twelve (12) years of age and
with mental deficiency, against her will and consent,
and by reason and/or on the occasion thereof,
purposely to conceal the most brutal act and in
pursuance of his criminal design, the above-named
accused, did then and there willfully, unlawfully and
feloniously with intent to kill, treacherously and
employing personal violence, attack, assault and kill
the victim Lenlen Rayco, thereby inflicting upon the
victim wounds on the different parts of her body which
caused her death.
CONTRARY TO LAW.
Appellant was arraigned on July 24, 1997, entering a plea of
"not guilty." Trial followed.
On January 21, 1999, the trial court rendered judgment finding
appellant guilty beyond reasonable doubt of the crime of rape
with homicide, and sentencing him to suffer the death penalty.
From the facts found by the court a quo, it appears that on
December 15, 1996, at or around 9:00 p.m., Rogelio Rayco
was having some drinks with a group which included Roger
Capacito and his wife and the spouses Borah and Arsolin
Illustrismo at the Capacito residence located at Barangay
Talisay, Sta. Fe, Cebu.3
Rogelio Rayco left the group to go home about an hour later.
On his way home, he saw his niece, Lenlen Rayco, with
appellant Dindo Mojello, a nephew of Roger Capacito, walking
together some thirty meters away towards the direction of Sitio
Kota.4 Since he was used to seeing them together on other
occasions, he did not find anything strange about this. He
proceeded to his house.5
On December 16, 1996, between 5:00 to 6:00 a.m., the Rayco
family was informed that the body of Lenlen was found at the
seashore of Sitio Kota. Rogelio Rayco immediately proceeded
to the site and saw the lifeless, naked and bruised body of his
niece. Rogelio was devastated by what he saw. A remorse of
conscience enveloped him for his failure to protect his niece.
He even attempted to take his own life several days after the
incident.6
Appellant was arrested at Bantayan while attempting to board
a motor launch bound for Cadiz City. On an investigation
conducted by SPO2 Wilfredo Giducos, he admitted that he was
the perpetrator of the dastardly deed. Appellant was assisted
by Atty. Isaias Giduquio during his custodial interrogation. His
confession was witnessed by Barangay Captains Wilfredo
Batobalanos and Manolo Landao. Batobalanos testified that
after it was executed, the contents of the document were read
to appellant who later on voluntarily signed it.7 Appellant's
extrajudicial confession was sworn before Judge Cornelio T.
Jaca of the Municipal Circuit Trial Court (MCTC) of Sta. Fe-
Bantayan.8 On December 21, 1996, an autopsy was conducted
on the victim's cadaver by Dr. Nestor Sator of the Medico-
Legal Branch of the PNP Crime Laboratory, Region VII.9
Dr. Sator testified that the swelling of the labia majora and
hymenal lacerations positively indicate that the victim was
raped.10 He observed that froth in the lungs of the victim and
contusions on her neck show that she was strangled and died
of asphyxia.11 He indicated the cause of death as cardio-
respiratory arrest due to asphyxia by strangulation and
physical injuries to the head and the trunk.12
In this automatic review, appellant raises two issues: whether
the extrajudicial confession executed by appellant is
admissible in evidence; and whether appellant is guilty beyond
reasonable doubt of the crime of rape with homicide.
We now resolve.
Appellant alleges that the lower court gravely erred in admitting
in evidence the alleged extrajudicial confession which he
executed on December 23, 1996. In his Brief, appellant avers
that the confession which he executed was not freely,
intelligently and voluntarily entered into.13 He argues that he
was not knowingly and intelligently apprised of his
constitutional rights before the confession was taken from
him.14 Hence, his confession, and admissions made therein,
should be deemed inadmissible in evidence, under the fruit of
the poisonous tree doctrine.
We are not convinced.
At the core of the instant case is the application of the law on
custodial investigation enshrined in Article III, Section 12,
paragraph 1 of the Constitution, which provides:
Any person under investigation for the commission of
an offense shall have the right to be informed of his
right to remain silent and to have competent and
independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.
The above provision in the fundamental Charter embodies
what jurisprudence has termed as "Miranda rights" stemming
from the landmark decision of the United States Supreme
Court, Miranda v. Arizona.15 It has been the linchpin of the
9
modern Bill of Rights, and the ultimate refuge of individuals
against the coercive power of the State.
The Miranda doctrine requires that: (a) any person under
custodial investigation has the right to remain silent; (b)
anything he says can and will be used against him in a court of
law; (c) he has the right to talk to an attorney before being
questioned and to have his counsel present when being
questioned; and (d) if he cannot afford an attorney, one will be
provided before any questioning if he so desires.
In the Philippines, the right to counsel espoused in the Miranda
doctrine was based on the leading case of People v.
Galit16 and Morales, Jr. v. Enrile,17 rulings subsequently
incorporated into the present Constitution.
The Miranda doctrine under the 1987 Charter took on a
modified form where the right to counsel was specifically
qualified to mean competent and independent counsel
preferably of the suspect's own choice. Waiver of the right to
counsel likewise provided for stricter requirements compared
to its American counterpart; it must be done in writing, and in
the presence of counsel.
Verily, it may be observed that the Philippine law on custodial
investigation has evolved to provide for more stringent
standards than what was originally laid out in Miranda v.
Arizona. The purpose of the constitutional limitations on police
interrogation as the process shifts from the investigatory to the
accusatory seems to be to accord even the lowliest and most
despicable criminal suspects a measure of dignity and respect.
The main focus is the suspect, and the underlying mission of
custodial investigation – to elicit a confession.
The extrajudicial confession executed by appellant on
December 23, 1996, applying Art. III, Sec. 12, par. 1 of the
Constitution in relation to Rep. Act No. 7438, Sec. 2 complies
with the strict constitutional requirements on the right to
counsel. In other words, the extrajudicial confession of the
appellant is valid and therefore admissible in evidence.
As correctly pointed out by the Solicitor General, appellant was
undoubtedly apprised of his Miranda rights under the
Constitution.18 The court a quo observed that the confession
itself expressly states that the investigating officers informed
him of such rights.19 As further proof of the same, Atty. Isaias
Giduquio testified that while he was attending a Sangguniang
Bayan session, he was requested by the Chief of Police of Sta.
Fe to assist appellant.20 Appellant manifested on record his
desire to have Atty. Giduquio as his counsel, with the latter
categorically stating that before the investigation was
conducted and appellant's statement taken, he advised
appellant of his constitutional rights. Atty. Giduquio even told
appellant to answer only the questions he understood freely
and not to do so if he was not sure of his answer.21 Atty.
Giduquio represented appellant during the initial stages of the
trial of the present case.
Atty. Giduquio was a competent and independent counsel of
appellant within the contemplation of the Constitution. No
evidence was presented to negate his competence and
independence in representing appellant during the custodial
investigation. Moreover, appellant manifested for the record
that Atty. Giduquio was his choice of counsel during the
custodial proceedings.
The phrase "preferably of his own choice" does not convey the
message that the choice of a lawyer by a person under
investigation is exclusive as to preclude other equally
competent and independent attorneys from handling the
defense; otherwise the tempo of custodial investigation will be
solely in the hands of the accused who can impede, nay,
obstruct the progress of the interrogation by simply selecting a
lawyer who, for one reason or another, is not available to
protect his interest.22
We ruled in People v. Continente23 that while the choice of a
lawyer in cases where the person under custodial interrogation
cannot afford the services of counsel – or where the preferred
lawyer is not available – is naturally lodged in the police
investigators, the suspect has the final choice as he may reject
the counsel chosen for him and ask for another one. A lawyer
provided by the investigators is deemed engaged by the
accused when he does not raise any objection against the
counsel's appointment during the course of the investigation,
and the accused thereafter subscribes to the veracity of the
statement before the swearing officer.24
The right to counsel at all times is intended to preclude the
slightest coercion as would lead the accused to admit
something false. The lawyer, however, should never prevent
an accused from freely and voluntarily telling the truth.
In People v. Dumalahay,25 this Court held:
The sworn confessions of the three accused show
that they were properly apprised of their right to
remain silent and right to counsel, in accordance with
the constitutional guarantee.
At 8:00 in the morning of the next day, the three
accused proceeded to the office of Atty. Rexel
Pacuribot, Clerk of Court of the Regional Trial Court
of Cagayan de Oro City. All of the three accused, still
accompanied by Atty. Ubay-ubay, subscribed and
swore to their respective written confessions. Before
administering the oaths, Atty. Pacuribot reminded the
three accused of their constitutional rights under the
Miranda doctrine and verified that their statements
were voluntarily given. Atty. Pacuribot also translated
the contents of each confession in the Visayan
dialect, to ensure that each accused understood the
same before signing it.
No ill-motive was imputed on these two lawyers to
testify falsely against the accused. Their participation
in these cases merely involved the performance of
their legal duties as officers of the court. Accused-
appellant Dumalahay's allegation to the contrary,
being self-serving, cannot prevail over the testimonies
of these impartial and disinterested witnesses.
More importantly, the confessions are replete with
details which could possibly be supplied only by the
accused, reflecting spontaneity and coherence which
psychologically cannot be associated with a mind to
which violence and torture have been applied. These
factors are clear indicia that the confessions were
voluntarily given.
When the details narrated in an extrajudicial
confession are such that they could not have been
10
 concocted by one who did not take part in the acts
narrated, where the claim of maltreatment in the
extraction of the confession is unsubstantiated and
where abundant evidence exists showing that the
statement was voluntarily executed, the confession is
admissible against the declarant. There is greater
reason for finding a confession to be voluntary where
it is corroborated by evidence aliunde which dovetails
with the essential facts contained in such confession.
The confessions dovetail in all their material respects.
Each of the accused gave the same detailed narration
of the manner by which Layagon and Escalante were
killed. This clearly shows that their confessions could
not have been contrived. Surely, the three accused
could not have given such identical accounts of their
participation and culpability in the crime were it not
the truth.
Concededly, the December 17, 1996 custodial investigation
upon appellant's apprehension by the police authorities
violated the Miranda doctrine on two grounds: (1) no counsel
was present; and (2) improper waiver of the right to counsel as
it was not made in writing and in the presence of counsel.
However, the December 23, 1996 custodial investigation which
elicited the appellant's confession should nevertheless be
upheld for having complied with Art. III, Sec. 12, par. 1. Even
though improper interrogation methods were used at the
outset, there is still a possibility of obtaining a legally valid
confession later on by properly interrogating the subject under
different conditions and circumstances than those which
prevailed originally.26
The records of this case clearly reflect that the appellant freely,
voluntarily and intelligently entered into the extrajudicial
confession in full compliance with the Miranda doctrine under
Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act
No. 7438, Sec. 2. SPO2 Wilfredo Abello Giducos, prior to
conducting his investigation, explained to appellant his
constitutional rights in the Visayan dialect, notably Cebuano,
a language known to the appellant, viz:27
PASIUNA (PRELIMINARY) : Ikaw karon Dindo
Mojello ubos sa usa ka inbestigasyon diin ikaw
gituhon nga adunay kalabutan sa kamatayon ni
LENLEN RAYCO ug nahitabong paglugos kaniya.
Ubos sa atong Batakang Balaod, ikaw adunay
katungod sa pagpakahilom ning maong inbesigasyon
karon kanimo ug aduna usab ikaw ug katungod nga
katabangan ug usa ka abogado nga motabang karon
kanimo ning maong inbestigasyon. Imo ba nasabtan
kining tanan? (DINDO MOJELLO, you are hereby
reminded that you are under investigation in which
you were suspected about the death and raping of
LENLEN RAYCO. Under the Constitution you have
the right to remain silent about this investigation on
you now and you have also the right to have counsel
of your own choice to assist you in this investigation
now. Have you understood everything?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Human ikaw sayri sa
imong katungod ubos sa atong Batakang Balaod sa
pagpakahilom, gusto ba nimo nga ipadayon nato
kining inbestigasyon karon kanimo? (After you have
been apprised of your rights under our Constitution to
remain silent, do you want to proceed this
investigation on you now?)
TUBAG (QUESTION) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Gusto ba usab nimo ug
abogado nga makatabang kanimo ning maong
inbestigasyon? (Do you want counsel to assist you in
this said investigation?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
APPEARANCE : Atty. Isaias Giduquio is appearing as
counsel of the affiant.
PANGUTANA (QUESTION) : Ako usab ikaw
pahinumdoman nga unsa man ang imo isulti karon
dinhi magamit pabor o batok kanimo sa Hukmanan,
nasabtan ba nimo kining tanan mo nga mga katungod
nga walay naghulga, nagpugos o nagdagmal kanimo
o nagsaad ba ug ganti sa kaulihan? (You are also
hereby reminded that all your statements now will be
used as evidence against or in your favor in any court
of justice. Have you understood all your rights with
nobody coercing or forcing you, or mauling or
promising a reward in the end?)
TUBAG (ANSWER) : Oo (Yes.)
PANGUTANA (QUESTION) : Andam ka nga mohatag
ug libre ug boluntaryo nga pamahayag? (Are you now
ready to give your free and voluntary statement?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
xxx xxx xxx
(START OF CUSTODIAL INVESTIGATION)
xxx xxx x x x.
The trial court observed that as to the confession of appellant,
he was fully apprised of his constitutional rights to remain silent
and his right to counsel, as contained in such
confession.28 Appellant was properly assisted by Atty. Isaias
Giduquio. The extrajudicial confession of appellant was
subscribed and sworn to before Judge Cornelio T. Jaca,
Municipal Judge of Medellin-Daanbantayan and acting Judge
of MCTC Sta. Fe-Bantayan and Madredijos. Judge Jaca
declared that he explained to the appellant the contents of the
extrajudicial confession and asked if he understood it. He
subsequently acknowledged that when appellant subscribed to
his statement, Atty. Giduquio, witness Batobalonos and his
Clerk of Court were present as well as other people.29
The extrajudicial confession executed by the appellant followed
the rigid requirements of the Miranda doctrine; consequently, it
is admissible as evidence. The lower court was correct in
giving credence to the extrajudicial confession of the appellant.
On cross-examination, appellant Mojello claimed his life was
threatened, thereby inducing him to execute an extrajudicial
11
confession, yet he neither filed any case against the person
who threatened him, nor he report this to his counsel. He
further claimed that he did not understand the contents of the
confession which was read in the Visayan dialect, yet he
admits that he uses the Visayan dialect in his daily
discourse.
In People v. Pia,30 we held that "where appellants did not
present evidence of compulsion or duress or violence on their
persons; where they failed to complain to officers who
administered the oaths; where they did not institute any
criminal or administrative action against their alleged
maltreatment; where there appears no marks of violence on
their bodies and where they did not have themselves examined
by a reputable physician to buttress their claim, all these
should be considered as factors indicating voluntariness of
confessions." The failure of the appellant to complain to the
swearing officer or to file charges against the persons who
allegedly maltreated him, although he had all the chances to
do so, manifests voluntariness in the execution of his
confessions.31 To hold otherwise is to facilitate the retraction of
his statements at the mere allegation of threat, torture,
coercion, intimidation or inducement, without any proof
whatsoever. People v. Enanoria further declared that another
indicium of voluntariness is the disclosure of details in the
confession which could have been known only to the
declarant.32
The confessant bears the burden of proof that his confession is
tainted with duress, compulsion or coercion by substantiating
his claim with independent evidence other than his own self-
serving claims that the admissions in his affidavit are untrue
and unwillingly executed.33 Bare assertions will certainly not
suffice to overturn the presumption.34
The test for determining whether a confession is voluntary is
whether the defendant's will was overborne at the time he
confessed.35 In cases where the Miranda warnings have been
given, the test of voluntariness should be subsequently applied
in order to determine the probative weight of the confession.
Accordingly, the presumption of voluntariness of appellant's
confession remains unrebutted by his failure to present
independent evidence that the same was coerced.
It cannot be gainsaid that the constitutional duty of law
enforcement officers is to ensure that a suspect has been
properly apprised of his Miranda rights, including the right to
counsel. It is in the paramount public interest that the
foundation of an effective administration of criminal justice
relies on the faithful adherence to the Miranda doctrine.
Compliance with Art. III, Sec. 12, par. 1 by police authorities is
central to the criminal justice system; Miranda rights must in
every case be respected, without exception.
Thus, the confession, having strictly complied with the
constitutional requirements under Art. III, Sec. 12, par. 1, is
deemed admissible in evidence against appellant. It follows
that the admission of culpability made therein is admissible. It
is therefore not "fruit of the poisonous tree" since the tree itself
is not poisonous.
Appellant also alleges that the lower court gravely erred in
holding him guilty beyond reasonable doubt of the crime of
rape with homicide, thereby sentencing him to suffer the death
penalty despite the glaring insufficiency of circumstantial
evidence against him. In his Brief, he argues that the evidence
against him is insufficient to warrant his conviction of rape with
homicide.
The categorical admission of the appellant to the crime of rape,
coupled with the corpus delicti as established by the Medico-
Legal Report and the testimony of Rogelio Rayco, leads us to
no other conclusion than that of appellant's guilt for the rape of
Lenlen Rayco on December 15, 1996. It passes the test of
moral certainty and must therefore be sustained.
However, the records do not adequately show that appellant
admitted to killing the victim. Neither is the circumstantial
evidence sufficient to establish that by reason or on the
occasion of the rape a homicide was committed by the
appellant. The lack of physical evidence further precludes us
from connecting the slaying of the victim to her sexual assault,
given the quantum of proof required by law for conviction. No
estimated time of death was given, which is essential in
making a connection with the appellant's story that he went
home after a night of drinking. The time when he and the victim
were headed towards the seashore at or about 9:00 to 10:00
p.m. of December 15, 1996 until the time when the victim's
lifeless body was found at or about 4:00 a.m. of December 16,
1996 had a time variance of between six to seven hours.
Although the circumstances may point to the appellant as the
most likely perpetrator of the homicide, the same do not
constitute an unbroken chain of events which would lead us to
a reasonable conclusion that appellant was guilty of killing the
victim. In other words, there are gaps in the reconstruction of
facts and inferences surrounding the death of Lenlen.
Appellant only admitted to boxing the victim when she shouted,
then hurriedly ran away. The cause of death of Lenlen was
cardio-respiratory attack due to asphyxiation and physical
injuries; she was strangled to death and left on the seashore
as manifested by the frothing in her lungs. No physical,
scientific or DNA evidence was presented to pinpoint appellant
as the person who killed the victim. Fingerprints, if available,
would have determined who committed the homicide. Thus,
appellant cannot be convicted of rape with homicide
considering the insufficiency of evidence which thereby created
a reasonable doubt as to his guilt for the said special complex
crime.
Appellant should instead be held liable only for the crime of
statutory rape, the victim Lenlen Rayco being then eleven
years old. The sexual assault was necessarily included in the
special complex crime charged in the Information dated May
22, 1997.
The trial court should have awarded damages to the heirs of
the victim. Civil indemnity in the amount of P50,000.00 is
awarded upon the finding of the fact of rape.36 Moral damages
in the amount of P50,000.00 may likewise be given to the heirs
of the victim without need of proof in accordance with current
jurisprudence.37
WHEREFORE, in view of the foregoing, the decision of the
Regional Trial Court of Bogo, Cebu, Branch 61 in Criminal
Case No. B-00224 is AFFIRMED with MODIFICATION.
Appellant Dindo Mojello is found guilty beyond reasonable
doubt of the crime of statutory rape and sentenced to suffer the
penalty of reclusion perpetua. He is also ordered to pay the
12
heirs of the victim, Lenlen Rayco, P50,000.00 as civil indemnity
and P50,000.00 as moral damages.
Costs de oficio.
SO ORDERED
SECOND DIVISION
July 19, 2017
G.R. No. 221424
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
ROBELYN CABANADA y ROSAURO, Accused-Appellant
DECISION
PERALTA, J.:
Before Us for review is the August 29, 2014 Decision1 of the
Court of Appeals (CA) in CA-G.R. CR-HC No. 05585, which
affirmed the Decision2 dated April 24, 2012 of the Regional
Trial Court (RTC), Branch 214, Mandaluyong City in Criminal
Case No. MC-09-12269 finding accused-appellant Robelyn
Cabanada y Rosauro (Cabanada) guilty beyond reasonable
doubt of the crime of Qualified Theft.
The antecedent facts are as follows:
Accused-appellant Cabanada was charged with the crime of
Qualified Theft, the accusatory portion of the Information
reads:
That on or about the 13th day of April 2009, in the City of
Mandaluyong, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, being then
employed as housemaid of complainant Catherine Victoria y
Tulfo, with grave abuse of confidence and taking advantage of
the trust reposed upon her with intent to gain, did then and
there willfully, unlawfully and feloniously take, steal and carry
away the following to wit:
a) cash amounting to [₱]20,000.00;
b) one (1) Pierre Cardin lady's watch worth [₱]l0,000.00;
c) one (1) white gold ring with diamonds and white gold earring
with diamonds worth [₱]90,000.00;
d) one (1) Technomarine lady's watch worth [₱]15,000.00;
e) one (1) Santa Barbara [lady's] watch worth [₱]6,000.00;
f) one (1) Relic lady's watch worth [₱]3,000.00;
g) one (1) pair of white gold with briliantitos earrings worth
[₱]l0,000.00
h) assorted ATM cards
in the aggregate amount of [₱]154,000.00 belonging to one
Catherine Victoria y Tulfo, without her knowledge and consent,
to her damage and prejudice in the aforementioned amount.
Contrary to law."3
Cabanada pleaded not guilty at her arraignment.
Subsequently, the trial on the merits ensued.
The prosecution established that: at about 9:00 a.m. on April
12, 2009, an Easter Sunday, private complainant Catherine
Victoria (Catherine) and her family visited her mother in
Bulacan. Cabanada was left at the house since she was not
feeling well and would rather clean the house. The family
returned at 9:30 p.m. of the same day.4
On April 13, 2009, Catherine asked her husband Victor
Victoria (Victor) for the ₱47,000.00 he was supposed to give
for their household expenses.1âwphi1 Victor went to his
service vehicle to get the money he kept in the glove
compartment, and was surprised that ₱20,000.00 was
missing. When Victor informed her, Catherine checked their
room and discovered that several pieces of her jewelry were
also missing. She immediately called the Mandaluyong Police
Station to report the incident.5
In the course of the interview at the Victoria's residence,
Cabanada admitted to PO2 Maximo Cotoner, Jr. (PO2
Cotoner) that she took the money. She led them to her room
and took a pouch (white envelope) containing ₱16,000.00
cash. She also showed a white leather wallet containing the
missing master key of Victor's vehicle. Thereafter, Cabanada
was brought at the Criminal Investigation Unit (CIU) for further
investigation. Cabanada apologized to Catherine, and admitted
that she still had some of the missing jewelry in her house at
Panatag Compound, Welfareville, Mandaluyong City. The
police went to her house and recovered the Technomarine,
Pierre Cardin, Relic and Santa Barbara watches and a pair of
earrings with diamonds placed in a tool box.6
On the other hand, the defense narrated a different set of
events. At around 9:00 a.m. on April 12, 2009, Cabanada went
to Catherine's house to work as a stay-out housemaid, and left
around 9:00 p.m. upon arrival of the Victoria family. On the
same date, the plantsadora came around 9:00 a.m. and left at
3:00 p.m. In the morning of April 13, 2009, Cabanada returned
to the house to resume her work. She was washing clothes at
around 9:00 a.m. when Catherine called her and asked about
the missing items. She denied any knowledge of the same.
The police came and asked her and her sister Rose to board
the police mobile. For half an hour, Catherine was talking with
the police, while Cabanada and her sister stayed in the mobile.
Thereafter, they were brought to the police station, and while in
a small room, she was asked thrice if she mortgaged the
missing jewelry, to which she denied any knowledge. She was
not assisted by a lawyer at the police station nor was allowed
to call her relatives.
The RTC found Cabanada guilty beyond reasonable doubt of
the crime of qualified theft. It held that the prosecution was
able to establish the continuous series of events which
undoubtedly point to Cabanada as the perpetrator of the crime
charged. The dispositive portion of the decision reads:
13
WHEREFORE, premises considered, the Court finds the
accused Robelyn Cabanada y Rosauro GUILTY beyond
reasonable doubt of the crime of Qualified Theft and is hereby
sentenced to suffer the penalty of Reclusion Perpetua.
SO ORDERED.7
On appeal, the CA affirmed the decision of the RTC. The CA
ruled that Cabanada's admissions were not obtained under
custodial investigation as it was established that she was not
yet arrested at that time. The "uncounselled admissions" were
given freely and spontaneously during a routine inquiry. The
CA considered the testimony of PO2 Cotoner that they
contemplated that Cabanada might have been covering for
someone else. The fallo of the decision states:
WHEREFORE, premises considered, the assailed Decision is
hereby AFFIRMED.
SO ORDERED.8
Hence, the instant appeal was instituted.
The Office of the Solicitor General (OSG), in its
Manifestation,9 informed this Court of its intention not to file a
supplemental brief since its Brief10 dated July 23, 2013 has
exhaustively discussed and refuted the issues in the case. For
her part, Cabanada, through the Public Attorney's Office,
asserted that she adopts all her defenses and arguments in
her Appellant's Brief, and asks for the said Manifestation be
considered as substantial compliance in lieu of supplemental
brief.11
Cabanada alleges that her alleged admissions cannot be
considered as done in an ordinary manner, spontaneously,
fully and voluntarily as it was elicited through the questions of
PO2 Cotoner. She was patently treated as a suspect when she
was being interviewed at the Victoria's residence. Thus, her
uncounselled admissions are inadmissible in evidence for
having been obtained without a valid waiver on her part.12
On the other hand, the OSG argues that although Cabanada's
confession may have been obtained through PO2 Cotoner's
interview, the same was given freely and spontaneously during
a routine inquiry and not while she was under custodial
investigation. She made the said admission in her employer's
residence wherein she was neither deprived of her liberty nor
considered a suspect. The OSG emphasizes that since the
investigation had just begun, it was entirely within the authority
and discretion of the police officers to question any person
within the household who could have related any unusual
events that occurred on the day the Victoria family went to
Bulacan.13
This Court finds the appeal partly meritorious.
Section 12, paragraphs 1and3, Article III (Bill of Rights) of the
1987 Constitution provide that:
SEC. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
xxxx
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against
him.
The above provision in the Constitution embodies what
jurisprudence has termed as "Miranda
rights." The Miranda doctrine requires that: (a) any person
under custodial investigation has the right to remain silent; (b)
anything he says can and will be used against him in a court of
law; (c) he has the right to talk to an attorney before being
questioned and to have his counsel present when being
questioned; and (d) if he cannot afford an attorney, one will be
provided before any questioning if he so desires.14 The said
rights are guaranteed to preclude the slightest use of coercion
by the State as would lead the accused to admit something
false, not to prevent him from freely and voluntarily telling the
truth.15
The "investigation" in Section 12, paragraph 1 of the Bill of
Rights pertains to "custodial investigation." Custodial
investigation commences when a person is taken into custody
and is singled out as a suspect in the commission of a crime
under investigation and the police officers begin to ask
questions on the suspect's participation therein and which tend
to elicit an admission.16
This Court expounded in People v. Marra:17
Custodial investigation involves any questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way. It is only after the investigation ceases to be a
general inquiry into an unsolved crime and begins to focus on
a particular suspect, the suspect is taken into custody, and the
police carries out a process of interrogations that lends itself to
eliciting incriminating statements that the rule begins to
operate.18
Republic Act (R.A.) No. 7438 reinforced the constitutional
mandate and expanded the definition of custodial
investigation.1âwphi1 This means that even those who
voluntarily surrendered before a police officer must be apprised
of their Miranda rights.19 The same pressures of a custodial
setting exist in this scenario. A portion of Section 2 of R.A. No.
7438 reads:
SEC. 2. Rights of Persons Arrested, Detained or under
Custodial Investigation; Duties of Public Officers. -
xxxx
As used in this Act, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is
investigated in connection with an offense he is suspected to
have committed, without prejudice to the liability of the
"inviting" officer for any violation of law.20
Applying the foregoing, Cabanada was not under custodial
investigation when she made the confession, without counsel,
to PO2 Cotoner that she took the missing ₱20,000.00. The
14
prosecution established that the confession was elicited during
the initial interview of the police after Catherine called to report
the missing money and personal effects. The investigation was
still a general inquiry of the crime and has not focused on a
particular suspect. Also, she admitted to the crime while at the
residence of her employer, thus, she was not yet taken into
custody or otherwise deprived of her freedom. As PO2
Cotoner's testified:
Q: Why did you start your interview with accused Robelyn
Cabanada?
A: Because she's only the person left in that house during that
time, ma'am.
Q: You said that you started interview with Robelyn Cabanada,
what was her reaction if you can remember when you started
to interview her?
A: At first she was crying and later she was talking and talking
and admitted that she was the one who took the money,
ma'am.
Q: How according to her were she able to get the money, you
mentioned earlier that private complainant in this case
Catherine Victoria told you that she discovered [₱]20,000 out
of [₱]47,000.00 inside a white envelope which white envelope
was inside her car. How did accused tell you how she got the
money?
A: She said that she also stole the master key of the car prior
to that time she stole the money, ma'am.
Q: When you were interviewing accused Ms. Robelyn
Cabanada, who were present?
A: The complainant, ma' am.
Q: Aside from the complainant who else were present?
A: PO3 Rodel Samaniego, ma'am.
Q: How did complainant react when accused told you or
related information that she knows the stolen master key of the
car, who open the same?
A: The complainant revealed that she lost the key several
months ago, ma'am.
Q: What happened after this information was given to you?
A: Together the complainant the accused led us in her room
and in a cabinet she took from there the white envelope which
consists of [₱]16,000.00 and after that she also get the leather
wallet which contained the master key of the car which she
stole several months ago, ma'am.
x x x21
The records of the case reveal that Cabanada was brought to
the CIU office for further investigation after she admitted the
crime and after Catherine expressed her desire to pursue the
case against her. However, prosecution witness PO2 Cotoner
admitted that Cabanada was not apprised of her constitutional
rights. He insisted that their investigation has not yet concluded
and that the accused was not yet arrested. Thus, in his direct
testimony:
PROSEC. LALUCES:
xxxx
Q: How did the complainant react when the accused actually
presented this [₱]16,000.00 as well as the leather wallet which
the wallet (sic) contained the key of the car?
A: She was so angry and she told us that she would pursue the
case and we brought the accused to our office together with
the complainant, ma'am.
Q: For what purpose?
A: For further investigation, ma'am.
Q: After bringing the accused to the CIU for further
investigation as you said, what happened next?
A: The accused continued talking, talking, crying and
afterwards she told us that there were more pieces of jewelry
in their house at Panatag Compound Welfareville,
Mandaluyong City, ma'am.
Q: Where did she actually tell you this?
A: Inside our office, ma' am.
Q: Which particular part of your office, was she already inside
the detention cell?
A: No, ma'am, office of our chief, ma'am.
x x x x22
Q: The accused practically admitted to you while she was still
in the house of Catherine Victoria who having taken the cash
belonging to the complainant and reported to you by said
Catherine Victoria. Why did you not give her the rights at that
time she made the admission so that she can secure the
services of counsel?
A: Because at that time she was not arrested yet, ma'am.
Q: Why did you not arrest her at that time when she practically
admitted to you of this thing?
A: Because we thought that the accused was covering up for
someone we have not yet finished our investigation, ma'am.
Q: You have not concluded your investigation?
A: Yes, ma'am.
x x x23
This Court elucidated that the Miranda rights are intended to
protect ordinary citizens from the pressure of custodial
setting.24 In the case of Luz v. People25 citing Berkemer v.
McCarty,26 it was explained that:
15
The purposes of the safeguards prescribed by Miranda are to
ensure that the police do not coerce or trick captive suspects
into confessing, to relieve the "inherently compelling
pressures" "generated by the custodial setting itself," "which
work to undermine the individual's will to resist," and as much
as possible to free courts from the task of scrutinizing
individual cases to try to determine, after the fact, whether
particular confessions were voluntary. Those purposes are
implicated as much by in-custody questioning of persons
suspected of misdemeanors as they are by questioning of
persons suspected of felonies.27
The circumstances surrounding Cabanada's appearance
before the police station falls within the definition of custodial
investigation. Despite the claim that she was not considered as
a suspect at that time, the fact remains that she confessed to
having committed the crime and was able to produce the
money from her room. The investigation, therefore, ceased to
be a general inquiry even if they contemplated that she was
covering for someone.
The subsequent confession of Cabanada at the CIU office can
be considered as having been done in a custodial setting
because (1) after admitting the crime, Cabanada was brought
to the police station for further investigation; (2) the alleged
confession happened in the office of the chief; (3) PO2 Cotoner
was present during Cabanada's apology and admission to
Catherine. The compelling pressures of custodial setting were
present when the accused was brought to the police station
along with Catherine.
In People v. Javar,28 it was ruled that any statement obtained
in violation of the constitutional provision, whether exculpatory
or inculpatory, in whole or in part, shall be inadmissible in
evidence. Even if the confession contains a grain of truth, if it
was made without the assistance of counsel, it becomes
inadmissible in evidence, regardless of the absence of
coercion or even if it had been voluntarily given.29 Cabanada's
confession without counsel at the police station, which led to
the recovery of the other items at her house, is inadmissible.
Nevertheless, the inadmissibility of Cabanada's admission
made in CIU does not necessarily entitle her to a verdict of
acquittal. Her admission during the general inquiry is still
admissible.
Theft is qualified under Article 310 of the RPC, when it is,
among others, committed with grave abuse of confidence,
thus:
ART. 310. Qualified Theft. - The crime of theft shall be
punished by the penalties next higher by two degrees than
those respectively specified in the next preceding article, if
committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the
premises of a plantation, fish taken from a fishpond or fishery
or if property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance. (Emphasis supplied.)
The elements of Qualified Theft committed with grave abuse of
confidence are as follows:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner's consent;
5. That it be accomplished without the use of violence or
intimidation against persons, nor of force upon things;
6. That it be done with grave abuse of confidence.30
The following circumstances are established during the trial:
Victor, who had the habit of leaving valuables inside his car,
left ₱47,000.00 in the glove compartment; he hid the car keys
in the filing cabinet; Catherine's car keys were missing since
2005; Cabanada worked as Victoria's housemaid for several
years; she has unrestricted access to all parts of the house
including the master bedroom; on April 12, 2009, she was left
alone at the house when the family went to Bulacan;
the plantsadora, who only reported for work every Sunday, had
no access to the house and the car; Cabanada was alone from
3:00 p.m. until 9:00 p.m. after the plantsadora left at 3:00 p.m.;
the next day, on April 13, 2009, Victor discovered that the
money was missing; and there was no sign of forced entry or
of an intruder entering the house. In addition to the said
circumstances, Cabanada admitted to the police in the
presence of Catherine that she stole the money and led them
to her room where they recovered the ₱l6,0000.00 cash and
white leather wallet containing the master key of Victor's car.
The above circumstances and Cabanada's admission, coupled
with presentation of the money, albeit less than the missing
amount, establish the presence of the element of unlawful
taking. The fact that the money was taken without authority
and consent of Victor and Catherine, and that the taking was
accomplished without the use of violence or intimidation
against persons, nor force upon things, were also proven
during the trial. Intent to gain or animus lucrandi is an internal
act that is presumed from the unlawful taking by the offender of
the thing subject of asportation. Actual gain is irrelevant as the
important consideration is the intent to gain.31 The taking was
also clearly done with grave abuse of confidence. Cabanada
was working as a housemaid of the Victoria family since
2002.32
From the foregoing, a modification is called for as regards the
imposable penalty. Article 310 of the Revised Penal Code
provides that Qualified Theft "shall be punished by the
penalties next higher by two degrees than those respectively
specified in the next preceding article," while Article 309 of the
RPC states:
Art. 309. Penalties. - Any person guilty of theft shall be
punished by:
1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000
pesos but does not exceed 22,000 pesos; but if the value of
the thing stolen exceeds the latter amount, the penalty shall be
the maximum period of the one prescribed in this paragraph,
and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the
accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall
16
be termed prision mayor or reclusion temporal, as the case
may be.
The case of Cruz v. People33 is instructive as to the proper
penalty for qualified theft if the value of the property stolen is
more than ₱12,000.00 but does not exceed ₱22,000.00. Thus:
x x x In this case, the amount stolen was ₱15,000.00. Two
degrees higher than prision mayor minimum and medium
is reclusion temporal in its medium and maximum periods.
Applying the Indeterminate Sentence Law, the minimum shall
be prision mayor in its maximum period to reclusion
temporal in its minimum period or within the range of 10 years
and 1 day to 14 years and 8 months. There being neither
aggravating nor mitigating circumstance in the commission of
the offense, the maximum period of the indeterminate
sentence shall be within the range of 16 years, 5 months and
11 days to 18 years, 2 months and 20 days. The minimum
penalty imposed by the RTC is correct. However, the
maximum period imposed by R TC should be increased to 16
years, 5 months and 11 days.34
In this case, the value of the property stolen is ₱20,000.00.
Applying the above pronouncement, Cabanada should be
sentenced to suffer the penalty often (10) years and one (1)
day of prision mayor, as minimum, to sixteen (16) years, five
(5) months and eleven (11) days of reclusion temporal, as
maximum.
WHEREFORE, the Decision of the Court of Appeals in CA-
G.R. CR-HC No. 05585, affirming the Decision dated April 24,
2012 of the Regional Trial Court, Branch 214, Mandaluyong
City in Criminal Case No. MC-09-12269, which found accused-
appellant Robelyn Cabanada y Rosauro guilty beyond
reasonable doubt of the crime of Qualified Theft, is
hereby AFFIRMED with MODIFICIATION. Cabanada
is SENTENCED to suffer the penalty of Ten (10) years and
One (1) day of prision mayor, as minimum, to Sixteen (16)
years, Five (5) months and Eleven (11) days of reclusion
temporal, as maximum.
SO ORDERED.
DIOSDADO M. PER
THIRD DIVISION
G.R. No. 186403, September 05, 2018
MAYOR "JONG" AMADO CORPUS, JR. AND CARLITO
SAMONTE, Petitioners, v. HON. JUDGE RAMON D.
PAMULAR OF BRANCH 33, GUIMBA, NUEVA ECIJA, MRS.
PRISCILLA ESPINOSA,* AND NUEVA ECIJA PROVINCIAL
PUBLIC PROSECUTOR FLORO FLORENDO, Respondents.
DECISION
LEONEN, J.:
An allegation of conspiracy to add a new accused without
changing the prosecution's theory that the accused willfully
shot the victim is merely a formal amendment.1 However, the
rule provides that only formal amendments not prejudicial to
the rights of the accused are allowed after plea.2 The test of
whether an accused is prejudiced by an amendment is to
determine whether a defense under the original information will
still be available even after the amendment is made and if any
evidence that an accused might have would remain applicable
even in the amended information.3
This Petition for Certiorari4 under Rule 65 of the Rules of Court
assails the February 26, 2009 Order5 and Warrant of
Arrest6 issued by Judge Ramon D. Pamular (Judge Pamular)
of Branch 33, Regional Trial Court, Guimba, Nueva Ecija in
Civil Case No. 2618-G. The assailed Order granted the
prosecution's Motion to Amend the Original Information for
murder filed against Carlito Samonte (Samonte) to include
Mayor Amado "Jong" Corpus (Corpus) as his co-accused in
the crime charged.7 Furthermore, it directed the issuance of a
warrant of arrest against Corpus.8
Angelito Espinosa (Angelito) was shot by Samonte at Corpuz
Street, Cuyapo, Nueva Ecjia on June 4, 2008, causing his
death.9 Samonte was caught in flagrante delicto and thereafter
was arrested.10 After the inquest proceedings, an
Information11 for murder dated June 5, 2008 was filed against
him, thus:12
INFORMATION
Undersigned Inquest Prosecutor accuses CARLITO
SAMONTE y LAPITAN of the crime of Murder, committed as
follows:
That on or about the 4th day of June, 2008 at around 10:30
a.m. at Corpuz St., Dist., in the Municipality/City of Cuyapo,
Province of Nueva Ecija, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then
and there, with malice aforethought and with deliberate intent
to take the life of ANGELITO ESPINOSA, willfully, unlawfully
and feloniously, treacherously and taking advantage of
superior strength attack the latter and shot with an unlicensed
firearm (1 Colt .45 cal. pistol with SN 217815), thereby inflicting
upon him gunshot wounds, which directly caused the death of
said Angelita Espinosa, to the damage and prejudice of his
heirs.
CONTRARY TO LAW.
Cabanatuan City for Guimba, Nueva Ecija
June 5, 2008.13
Upon arraignment, Samonte admitted the killing but pleaded
self-defense. Trial on the merits ensued.14
The wife of the deceased, Mrs. Priscilla Alcantara-Espinosa
(Priscilla), filed a complaint-affidavit captioned as Reply-
Affidavit15 dated September 8, 2008 after the prosecution
presented its second witness.16 She also filed an unsworn but
signed Reply to the Affidavit of Witnesses17 before First
Assistant Provincial Prosecutor and Officer-in-Charge Floro F.
Florendo (Florendo).18 Other affidavits of witnesses were also
filed before the prosecutor's office, which included the
following:
17

a.) Affidavit19 of Mr. John Diego, Vice Mayor of Cuyapo,
Nueva Ecija;
b.) Original Affidavit20 and a supplemental affidavit21 of
witness Alexander Lozano y Jacob; and
c.) Joint Affidavit22 of Victoria A. Miraflex, Ma. Floresmina
S. Sacayanan, Ma. Asuncion L. Silao and Corazon N.
Guerzon.23
Based on the affidavit24 executed by Alexander Lozano
(Lozano) on June 30, 2008, Corpuz was the one who
instructed Samonte to kill Angelito.25
In response to Priscilla's Reply-Affidavit, Corpuz filed a
Rejoinder Affidavit.26 He also filed a Counter-Affidavit27 against
witness Lozano's affidavit.28
In its October 7, 2008 Resolution,29 the Regional Trial Court
dismissed Priscilla's complaint and the attached affidavits of
witnesses.30
Priscilla filed a Motion for Reconsideration,31 which was
opposed by Corpus.32 Florendo reconsidered and set aside the
October 7, 2008 Resolution.33 He also instructed Assistant
Public Prosecutor Edwin S. Bonifacio (Bonifacio) to conduct
the review.34
Bonifacio was not able to comply with the directive to
personally submit his resolution by January 22, 2009,
prompting Florendo to order him to surrender the records of
the case as the latter was taking over the resolution of the case
based on the evidence presented by the parties. This order
was released on January 23, 2009 and was received by
Bonifacio on the same date.35
In his January 26, 2009 Resolution,36 Florendo found probable
cause to indict Corpus for Angelita's murder. He directed the
filing of an amended information before the Regional Trial
Court.37 The amended information provided:
INFORMATION
Undersigned Prosecutor accuses Carlito Samonte y
Lapitan and Amado Corpuz, Jr. y Ramos of the crime of
Murder, committed as follows:
That on or about the 4th day of June, 2008 at around 10:30
a.m. at Corpuz St., Dist., in the Municipality of Cuyapo,
Province of Nueva Ecija, Phillippines (sic), and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together, did then
and there, with malice aforethought and with deliberate intent
to take [the] life of ANGELITO ESPINOSA, willfully, unlawfully
and feloniously, treacherously and taking advantage of
superior strength attack the latter and shot with an unlicensed
firearm (1 Colt .45 cal. Pistol with SN 217815), thereby
inflicting upon him gunshot wounds, which directly caused the
death of said Angelito Espinosa, to the damage and prejudice
of his heirs.
CONTRARY TO LAW.
Cabanatuan City for Guimba, Nueva Ecija, January 26,
2009.38 (Emphasis supplied)
Despite Florendo taking over the case, Bonifacio still issued a
Review Resolution dated January 26, 2009, where he
reinstated the Regional Trial Court October 7, 2008 Resolution
and affirmed the dismissal of the murder complaint against
Corpus.39 The dispositive portion of his Resolution provided:
In view of the foregoing and probable cause, the Resolution of
Assistant Provincial Prosecutor Edison V. Rafanan, dated
October 7, 2008, being in accord with the facts obtaining in this
case and with established rules, procedures and jurisprudence,
is reinstated.
The criminal complaint for murder against respondent Mayor
Amado "Jong" Corpu[s] is DISMISSED.40 (Emphasis in the
original)
Meanwhile, Florendo filed an undated Motion to Amend
Information, praying for the admission of the amended
information.41 Corpus and Samonte opposed this Motion by
filing a Joint Urgent Manifestation/Opposition dated February
2, 2009.42
The prosecution filed a Motion for Reconsideration.43 Samonte
and Corpus opposed this through a Vehement Opposition and
Omnibus Motion dated February 4, 2009.44 They averred that
Judge Pamular's action was premature considering that the
Motion to Amend Information has yet to be scheduled for
hearing.45 Moreover, Samonte was already
arraigned.46 Samonte and Corpus also claimed that the
issuance of a warrant of arrest should be suspended because
the latter intended to appeal through a Petition for Review
before the Department of Justice.47
Samonte and Corpus jointly filed a Petition for Review dated
February 9, 2009 before the Department of Justice.48 They
also filed a Manifestation and Motion dated February 9, 2009
with the Regional Trial Court, asking it to desist from acting
further on the Amended Information in view of the Petition for
Review filed with the Department of Justice.49
However, despite the manifestation, Judge Pamular of Branch
33, Regional Trial Court, Guimba, Nueva Ecija issued the
assailed February 26, 2009 Order, which granted the motion to
amend the information and to admit the attached amended
information. The assailed Order also directed, among others,
the issuance of a warrant of arrest against Corpus.50 The
dispositive portion of the Order read:
WHEREFORE, premises considered, this Court after
personally examining the amended information and its
supporting documents finds probable cause and hereby orders
to:
1. Grant the motion to amend the information;
2. Admit the attached amended information;
3. Issue the Warrant of Arrest for the immediate
apprehension of the respondent-movant
Amado Corpu[s], Jr.; and
18
 4. Deny the motion to defer/suspend
arraignment and further proceedings of this
case.
SO ORDERED.51
Hence, a direct recourse before this Court, through a Petition
for Certiorari under Rule 65 with a prayer for an immediate
issuance of a temporary restraining order, was filed by Corpus
and Samonte on March 3, 2009.52 This Petition seeks to enjoin
Judge Pamular from enforcing the February 26, 2009 Order
and the warrant of arrest issued pursuant to the Order, and
from conducting further proceedings in the murder case.
Through its March 9, 2009 Resolution, this Court required
respondents to comment on the Petition.53 It also granted
petitioners' prayer for a temporary restraining order. Judge
Pamular, Florendo, Priscilla, and all other persons acting on
the assailed Regional Trial Court February 26, 2009 Order
were enjoined from implementing it and the warrant of arrest
issued pursuant to it.54
Priscilla filed her comment on April 3, 2009.55 She
cites Oaminal v. Castillo,56 which provided that in filing a
petition for certiorari under Rule 65, Section 1 there should be
"no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law" available.57 Considering that there is
still a remedy available for the accused apart from filing a
petition, the petition shall fail. She claims that petitioners
should have first filed a motion for reconsideration with the
Regional Trial Court before resorting to a petition for certiorari
before this Court.58
She insists that the Regional Trial Court is correct in granting
the motion to admit the amended information because it has no
effect on Samonte's case and reasoned that:
[F]irst, because there would only be an addition of another
accused with prior authority f[ro]m the Honorable Provincial
Prosecutor, second, the amendment will not cause any
prejudice to the rights of the accused and more importantly,
that is what is provided for by the Rules[.]59
She claims that the alleged lack of determination of probable
cause before the issuance of a warrant has no basis since
petitioners failed to present evidence or facts that would prove
their claim.60
Judge Pamular filed his Comment on April 8, 2009.61 He
asserts that he made a careful perusal of the case records in
issuing the assailed order. His independent judgment on the
existence of probable cause was derived from his reading and
evaluation of pertinent documents and evidence. He states that
he had set the case for hearing on February 13, 2009, when
both parties were heard and given the opportunity to
argue.62 He also added:
Yes, indeed, while the undersigned could rely on the findings
of the Honorable Provincial Prosecutor, I am nevertheless not
bound thereby. The termination by the latter of the existence of
probable cause is for a purpose different from that which is to
be made by the herein respondent judge. I have no cogent
reason to question the validity of the findings of the Honorable
Provincial Prosecutor. I have much respect for the latter. Thus,
after giving due course to the arguments of parties and their
respective counsels, I was fully convinced in good faith that,
indeed, there was a reasonable ground to believe in the
existence of probable cause for ... the immediate apprehension
and prosecution of Mayor Amado "Jong" Corpu[s], Jr. Hence,
the issuance of the assailed controversial Order....63
On July 22, 2009, Priscilla filed a Manifestation64 before this
Court. She asserts that this "present petition questioning the
alleged impropriety of the admission of the amended
information as well as the issuance of a warrant of arrest
against Mayor Amado Corpu[s], Jr. has no more legal legs to
stand on."65 She claims66 that Florendo's January 26, 2009
Resolution was upheld by the Department of Justice in its June
26, 2009 Resolution,67 the fallo of which read:
WHEREFORE, premises considered, the petition for review is
hereby dismissed. Accordingly, the Officer-in-Charge
Provincial Prosecutor of Nueva Ecija is directed to file the
appropriate Information against the respondent Mayor
Amado Corpu[s], Jr., and to report the action taken thereon
within ten (10) days from receipt hereof.
SO ORDERED.68 (Emphasis supplied)
Priscilla asserts further that the issue regarding the suspension
of proceedings pending resolution by the Department of
Justice can now be considered moot and academic.69
On July 24, 2009, petitioners filed a Counter
Manifestation.70 They claim that respondent Priscilla's prayer
for the lifting of the temporary restraining order is premature,
thus:71
[Priscilla] should have been more candid. [She] should have
informed the Honorable Court that a motion for reconsideration
with the Department of Justice was filed by the herein
petitioner, and is still pending resolution. And in the event said
motion for reconsideration is denied, and as a part of
petitioner/accused right to due process of law, it being clearly
provided by the rules, he would elevate said resolution to
the Court of Appeals on certiorari – and, certainly, the
aggrieved party would bring the matter before this
Honorable Court - during which interregnum, the appealed
resolution of the Provincial Prosecutor . . . would not have yet
attained finality which is what jurisprudence underscores
before the respondent court should have proceeded with the
amended information.72 (Emphasis supplied, citations omitted)
They further claim that lifting the temporary restraining order
would be a relief "too harsh and preposterous" since Corpus
would be immediately imprisoned and constrained to face trial
due to a flawed amended information.73 In case this Court
resolves to quash the amended information and nullify the
warrant, Corpuz will have already "suffered grave and
irreparable injury—as he would not be able to discharge his
constitutional mandate/duty to his constituents as their duly
elected mayor."74 As to Samonte, he will be allegedly "forced to
face another set of defense—against the theory of conspiracy
in the amended information which, as we have heretofore
stated, after his arraignment and trial half way, could no longer
19
be proper."75
On August 6, 2009, the Office of the Solicitor General filed its
Comment.76 It claims that petitioners should have made a
distinction on the propriety of respondent judge's acts in
granting the admission of the amended information and in
ordering the issuance of a warrant. It posits that these acts are
at par with the court's acquisition of jurisdiction over the subject
matter and the person of the accused. These acts have
nothing to do with the suspension of arraignment provided for
under Rule 116, Section 11 of the Revised Rules of Criminal
Procedure, which ordinarily happens after a trial court has
acquired jurisdiction.77
The Office of the Solicitor General also adds that the insertion
of the phrase "conspiring and confederating together" in the
amended information will not affect Samonte's substantial
rights.78 Thus, the original charge against Samonte of murder
and his deliberate manner of shooting Angelita remain
unaltered:79
Even if one or all of the elements of the crime of murder as
alleged in the original information filed against petitioner
Samonte is not proven, the addition of conspiracy in the
amended information, if duly proven, would not in any way
result in his conviction because conspiracy is not an essential
or qualifying element of the crime of murder.80
The Office of the Solicitor General avers that respondent judge
was well acquainted with the legal and factual circumstances
behind the filing of the original information against Samonte.
The amended information merely added Corpus as a co-
conspirator. Thus, before respondent judge issued the assailed
order, a prior hearing was held on February 13, 2009, when all
the parties were heard.81
The Office of the Solicitor General also asserts that while
respondent judge committed error when he denied petitioners'
motion to suspend proceedings, what the law only requires
under Rule 116, Section 11 is a maximum of 60-day
suspension of the arraignment. In this case, the 60-day period
had already lapsed, rendering the issue raised by petitioners
moot. Hence, there is no longer any hindrance for respondent
judge to continue with Corpus' arraignment.82
Petitioners filed their reply on August 7, 2009.83 They claim that
respondent judge should have suspended action on the
issuance of a warrant considering the pendency of their
Petition for Review before the Department of Justice.84 They
cite Ledesma v. Court of Appeals,85 which stated:
Where the secretary of justice exercises his power of review
only after an information has been filed, trial courts should
defer or suspend arraignment and further proceedings until the
appeal is resolved. Such deferment or suspension, however,
does not signify that the trial court is ipso facto bound by the
resolution of the secretary of justice. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution by the
secretary of justice to withdraw the information or to dismiss
the case.86
Petitioners also cite the dispositive portion of Tolentino v.
Bonifacio,87 which directed the respondent judge in that case to
desist from proceeding with the trial until after the Department
of Justice would have finally resolved a pending petition for
review.88 Thus:
While [w]e have noted from the expediente that the petitioner
has utilized dilatory tactics to bring the case against her to trial,
still she is entitled to the remedy she seeks. The respondent
judge should not be more anxious than the prosecution in
expediting the disposition of the case absent any indication of
collusion between it and the defense. The Ministry of Justice
should not be deprived of its power to review the action of the
City Fiscal by a precipitate trial of the case.
WHEREFORE, the petition is granted. The respondent judge is
hereby ordered not to proceed with the trial of the above-
numbered criminal case until after the Ministry of Justice has
resolved the petition for review filed by Mila P. Tolentino. No
costs.89 (Emphasis supplied)
Petitioners claim that due to the theory of conspiracy in the
amended information, Samonte will have an additional burden
of setting up a new defense particularly on any acts of his co-
accused since "the act of one is the act of all."90
Petitioners also claim that respondent judge failed to comply
with the mandate of making a prior determination of probable
cause before issuing the warrant. They insist that this mandate
"is never excused nor dispensed with by the respondent
[judge]'s self-serving narration of the law (not the required
facts) stated in [his] assailed order."91
On the issue of whether the arraignment of Corpus may
proceed despite the lapse of the 60-day maximum period of
suspension under Rule 116, Section 11(c), petitioners aver that
"[w]hat jurisprudence underscores is not the lapse of the 60-
day period, but the issue of finality of the decision on
appeal."92 The matter should not only cover the suspension of
arraignment but for respondent judge to defer from further
proceedings on the amended information pending the final
resolution of the Department of Justice.93
This Court, through its August 26, 2009 Resolution, required
the parties to submit their respective memoranda.94
Petitioners filed their memorandum on October 15, 2009.95 In
their memorandum, they attached the Department of Justice
September 8, 2009 Resolution,96 which granted their motion for
reconsideration, thus:97
WHEREFORE, the motion for reconsideration of the
respondent is hereby GRANTED. Accordingly, the Resolution
promulgated on June 26, 2009 (Resolution No. 473) is
hereby REVERSED AND SET ASIDE. The Provincial
Prosecutor of Nueva Ecija is hereby directed to cause the
withdrawal of the information for murder against the
respondent, if one has been filed in court, and to report the
action taken thereon within ten (10) days from receipt hereof.
SO ORDERED.98 (Emphasis in the original)
Petitioners assert that Rule 116, Section 11(c) of the Revised
Rules of Criminal Procedure provides that upon motion by the
proper party, the arraignment shall be suspended:99
20
 Rule 116
Arraignment and Plea
Section 11. Suspension of Arraignment. — Upon motion by the
proper party, the arraignment shall be suspended in the
following cases:
....
(c) A petition for review of the resolution of the
prosecutor is pending at either the Department of
Justice, or the Office of the President; provided, that
the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the
reviewing office.
Petitioners add that respondent judge should have refrained
from issuing the assailed warrant of arrest because he was
aware of the fact that the amended information was a result of
the flip-flopping stand of the public prosecutor from his original
stand.100 Thus, they claim that the motive behind the filing of
the amended information that included Corpus as an additional
accused is political.101
They aver that respondent judge failed to personally make his
independent findings of probable cause that will justify the
issuance of the warrant. They insist that the February 26, 2009
Order only consists of three (3) short sentences, which merely
pointed out a certain legal provision, instead of facts, that
would supposedly justify the issuance of the warrant of arrest,
thus:102
Elementary is the rule that the existence of probable cause is
indispensable in the filing of the complaint or information and in
the issuance of warrant of arrest. The legion of jurisprudence
has defined probable cause to be concerned with probability,
not absolute or even moral certainty. The prosecution need not
present at this stage proof beyond reasonable doubt. The
standards of judgment are those of a reasonably prudent man
and not the exacting calibrations of a judge after a full blown
trial. No law or rule states that probable cause requires a
specific kind of evidence. It is determined in the light of
conditions obtaining in a given situation.103
Petitioners also cite Rule 110, Section 14 of the Revised Rules
of Criminal Procedure, which prohibits substantial amendment
of information that is prejudicial to the rights of the accused
after his or her arraignment, thus:
Rule 110
Prosecution of Offenses
Section 14. Amendment or Substitution. — A complaint or
information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his plea.
After the plea and during the trial, a formal amendment may
only be made with leave of court and when it can be done
without causing prejudice to the rights of the
accused.104 (Emphasis in the original)
They cite People v. Montenegro,105 which provided that an
allegation of conspiracy that was not previously included in the
original information constitutes a substantial amendment:106
The allegation of conspiracy among all the private
respondents-accused, which was not previously included
in the original information, is likewise a substantial
amendment saddling the respondents with the need of a
new defense in order to meet a different situation in the
trial court. In People v. Zulueta, it was held that:
Surely the preparations made by herein accused to face the
original charges will have to be radically modified to meet the
new situation. For undoubtedly the allegation of conspiracy
enables the prosecution to attribute and ascribe to the accused
Zulueta all the acts, knowledge, admissions and even
omissions of his co-conspirator Angel Llanes in furtherance of
the conspiracy. The amendment thereby widens the battlefront
to allow the use by the prosecution of newly discovered
weapons, to the evident discomfiture of the opposite camp.
Thus it would seem inequitable to sanction the tactical
movement at this stage of the controversy, bearing in mind that
the accused is only guaranteed two-days' (sic) preparation for
trial. Needless to emphasize, as in criminal cases, the liberty,
even the life, of the accused is at stake, it is always wise and
proper that he be fully apprised of the charges, to avoid any
possible surprise that may lead to injustice. The prosecution
has too many facilities to covet the added advantage of
meeting unprepared adversaries.
To allow at this stage the proposed amendment alleging
conspiracy among all the accused, will make all of the
latter liable not only for their own individual
transgressions or acts but also for the acts of their co-
conspirators.107 (Emphasis in the original)
The Office of the Solicitor General filed its Memorandum on
October 16, 2009, which merely reiterated the arguments and
discussions in its Comment to the Petition.108 Similarly,
respondent Priscilla's Memorandum adopted the arguments
presented by the Office of the Solicitor General in its comment
and memorandum.109
On March 19, 2014, Priscilla filed a Manifestation,110 which
provides that on October 30, 2013, Samonte executed an
affidavit,111 stating that Corpuz ordered him to kill
Angelito.112 Samonte's affidavit provided:
SALAYSAY
Ako si Carlita Samonte kasalukuyang nakakulong sa Provincial
Jail ng Cabanatuan City sa kasong Murder kay Angelita
Espinosa sa utos po ni Mayor Amado R. Corpuz Jr. ay matagal
na pong plano ang pagpatay kay Angelita Espinosa.
Nagsimula po ito sa pagwasak sa aircondition sa magiging
opisina ni Angelita Espinosa at sa motor niyang single, at iyon
ay sa utos ni Mayor Amado R. Corpuz Jr. hanggang umabot sa
puntong sabihan ako na ang tagal-tagal mo namang patayin si
Angelita Espinosa pagalit na sinabi sa akin.
21
At noong June 4, 2008 sa pagitan ng 9:30 AM at 10 AM ng
nasabing oras sinabi sa akin muli na "Ayokong maupo yang si
Angelita Espinosa bilang secretaryo ng Sangguniang Bayan."
Sinabi ni Mayor Amado R. Corpuz Jr. na gumawa ka ng
senaryo para huwag makaupo yan bilang B-SEC
(Sangguniang Bayan Secretary) Bayan at kahit anong klaseng
senaryo patayin mo kung kaya mong patayin at ako na ang
bahala sa lahat. Kunin mo ang baril dito sa opisina ko, iyan po
ang utos sa akin ni Mayor Amado Corpuz Jr.
Kusa po akong gumawa ng sarili kong affidavit at salaysay na
walang nagbayad, pumilit at nanakot sa akin para gawin ang
salaysay at affidavit kong ito, at marami pa po akong
isasalaysay pagharap ko po sa korte.
Gumagalang,
Subscribed and sworn to Carlita Samonte
before me: (signed)
(signed)
Atty. Marcus Marcellinus
S. Gonzales113
On April 14, 2014, this Court received Priscilla's letter dated
April 11, 2014 addressed to the Chief Justice of the Supreme
Court, asking for assistance in the resumption of trial in view of
Samonte's affidavit.114
The issues for this Court's resolution are as follows:
First, whether or not respondent Judge Ramon Pamular
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when he conducted further proceedings
on the Amended Information and consequently issued a
warrant of arrest against petitioner Amado Corpus, Jr. despite
the pendency of his and petitioner Carlito Samonte's Petition
for Review before the Department of Justice;
Second, whether or not the arraignment of petitioner Amado
Corpus, Jr. may proceed after the lapse of the maximum 60-
day period suspension provided for under Rule 116, Section
11(c) of the Revised Rules of Criminal Procedure;
Third, whether or not respondent Judge Ramon Pamular
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when he allegedly admitted the Amended
Information in clear defiance of law and jurisprudence, which
proscribes substantial amendment of information prejudicial to
the right of the accused; and
Finally, whether or not respondent Judge Ramon Pamular has
personally determined, through evaluation of the Prosecutor's
report and supporting documents, the existence of probable
cause for the issuance of a warrant of arrest against petitioner
Amado Corpus, Jr.
The Petition lacks merit.
I have been duly raised and passed upon by the lower court, or
Before this Court delves on the substantive issues in this case,
it first rules on the procedural matter involved.
Respondent Priscilla claims that petitioners should have first
filed a Motion for Reconsideration with the Regional Trial Court
before resorting to this Petition. Failure to do so renders it
dismissible.115
This issue was not addressed by petitioners in their reply or
memorandum. However, petitioners justified their direct
recourse before this Court insisting that their case is anchored
on pure questions of law and impressed with public interest.
Thus, they claim that regardless of the rule on hierarchy of
courts, their filing of a petition is not a matter of choice but
even mandatory.116
Rule 65, Section 1 of the Revised Rules of Civil Procedure
provides:
Section 1. Petition for Certiorari. — When any tribunal, board
or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings
of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require. (Emphasis supplied)
Rivera v. Espiritu117 enumerated the essential requisites for a
petition for certiorari under Rule 65:
(1) [T]he writ is directed against a tribunal, a board, or an
officer exercising judicial or quasi-judicial functions; (2) such
tribunal, board, or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction; and (3) there is no appeal or any
plain, speedy, and adequate remedy in the ordinary course
of law.118 (Emphasis supplied, citation omitted)
The plain and adequate remedy pertained to by the rules is a
motion for reconsideration of the assailed order or
decision.119 Certiorari, therefore, "is not a shield from the
adverse consequences of an omission to file the required
motion for reconsideration."120
It is settled that a motion for reconsideration is a
"condition sine qua non for the filing of a Petition for
Certiorari."121 This enables the court to correct "any actual or
perceived error" through a "re-examination of the legal and
factual circumstances of the case."122 To dispense with this
condition, there must be a "concrete, compelling, and valid
reason."123 However, the following exceptions apply:
(a) where the order is a patent of nullity, as where the court a
quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings
are the same as those raised and passed upon in the lower
court;
22
(c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of
the Government or of the petitioner or the subject matter of the
action is perishable;
(d) where, under the circumstances, a motion for
reconsideration would be useless;
(e) where petitioner was deprived of due process and there is
extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial court is
improbable;
(g) where the proceedings in the lower court are a nullity for
lack of due process;
(h) where the proceedings [were] ex parte or in which the
petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or where public
interest is involved.124
Nothing in the records shows that petitioners filed a motion for
reconsideration with the Regional Trial Court. Apart from bare
conclusion, petitioners failed to present any plausible reason
why they failed to file a motion for reconsideration before filing
a petition before this Court. While this issue was raised by
respondent Priscilla in her Comment, this was not sufficiently
addressed by petitioners either in their Reply or Memorandum.
It must be stressed that the filing of a motion for
reconsideration, as well as filing it on time, is not a mere
procedural technicality.125 These are "jurisdictional and
mandatory requirements which must be strictly complied
with."126 Therefore, petitioners' failure to file a motion for
reconsideration with the Regional Trial Court before filing this
Petition is fatal.
II
Two (2) kinds of determination of probable cause exist:
executive and judicial.127 These two (2) kinds of determination
of probable cause were distinguished in People v.
Castillo.128 Thus,
There are two kinds of determination of probable cause:
executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It
is afimction that properly pertains to the public prosecutor who
is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be held
for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be
filed in court. Whether or not that function has been correctly
discharged by the public prosecutor, i.e., whether or not he has
made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not
and may not be compelled to pass upon.
The judicial determination of probable cause, on the other
hand, is one made by the judge to ascertain whether a warrant
of arrest should be issued against the accused. The judge
must satisfy himself that based on the evidence submitted,
there is necessity for placing the accused under custody in
order not to frustrate the ends of justice. If the judge finds no
probable cause, the judge cannot be forced to issue the arrest
warrant.
[T]he public prosecutor exercises a wide latitude of discretion
in determining whether a criminal case should be filed in court,
and that courts must respect the exercise of such discretion
when the information filed against the person charged is valid
on its face, and that no manifest error or grave abuse of
discretion can be imputed to the public
prosecutor.129 (Emphasis supplied, citations omitted)
Thus, courts do not meddle with the prosecutor's conduct of a
preliminary investigation because it is exclusively within the
prosecutor's discretion.130
However, once the information is already filed in court, the
court has acquired jurisdiction of the case. Any motion to
dismiss or determination of the guilt or innocence of the
accused is within its discretion.131
Crespo v. Mogul 132 provided:
The filing of a complaint or information in Court initiates a
criminal action. The Court thereby acquires jurisdiction over the
case, which is the authority to hear and determine the case.
When after the filing of the complaint or information a warrant
for the arrest of the accused is issued by the trial court and the
accused either voluntarily submitted himself to the Court or
was duly arrested, the Court thereby acquired jurisdiction over
the person of the accused.
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists
warranting the prosecution of the accused is terminated upon
the filing of the information in the proper court. In turn, as
above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While
it is true that the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the
case thereqfter should be addressed for the consideration of
the Court. The only qualification is that the action of the Court
must not impair the substantial rights of the accused or the
right of the People to due process of law.
Whether the accused had been arraigned or not and whether it
was due to a reinvestigation by the fiscal or a review by the
Secretary of Justice whereby a motion to dismiss was
submitted to the Court, the Court in the exercise of its
discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the
case.
However, one may ask, if the trial court refuses to grant the
motion to dismiss filed by the fiscal upon the directive of the
Secretary of Justice will there not be a vacuum in the
23
prosecution? A state prosecutor to handle the case cannot
possibl[y be] designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the
fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as
We all know is to see that justice is done and not necessarily to
secure the conviction of the person accused before the Courts.
Thus, in spite of his opinion to the contrary, it is the duty of the
fiscal to proceed with the presentation of evidence of the
prosecution to the Court to enable the Court to arrive at its own
independent judgment as to whether the accused should be
convicted or acquitted. The fiscal should not shirk from the
responsibility of appearing for the People of the Philippines
even under such circumstances much less should he abandon
the prosecution of the case leaving it to the hands of a private
prosecutor for then the entire proceedings will be null and void.
The least that the fiscal should do is to continue to appear for
the prosecution although he may turn over the presentation of
the evidence to the private prosecutor but still under his
direction and control.
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as [to]
its dismissal or the conviction or acquittal of the accused rests
in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases
even while the case is already in Court he cannot impose his
opinion on the trial court. The Court is the best and sole judge
on what to do with the case before it. The determination of the
case is within its exclusive jurisdiction and competence. A
motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.133 (Emphasis
supplied, citations omitted)
Hence, when a Regional Trial Court has already determined
that probable cause exists for the issuance of a warrant of
arrest, like in this case, jurisdiction is already with the Regional
Trial Court.134 Therefore, it can proceed in conducting further
proceedings on the amended information and on the issuance
of a warrant despite the pendency of a Petition for Review
before the Department of Justice.
III.A
Petitioners insist that respondent judge should have deferred
from conducting further proceedings on the amended
information and on the issuance of a warrant considering the
pendency of their Petition for Review before the Department of
Justice.135 They cite Rule 116, Section 11 (c) of the Revised
Rules of Criminal Procedure, which provides:
RULE 116
Arraignment and Plea
....
Section 11. Suspension of arraignment — Upon motion by the
proper party, the arraignment shall be suspended in the
following cases:
....
(c) A petition for review of the resolution of the prosecutor is
pending at either the Department of Justice, or the Office of the
President; provided, that the period of suspension shall not
exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (Emphasis supplied)
Rule 116, Section 11 of the Revised Rules of Criminal
Procedure pertains to a suspension of an arraignment in case
of a pending petition for review before the Department of
Justice. It does not suspend the execution of a warrant of
arrest for the purpose of acquiring jurisdiction over the person
of an accused.
In the assailed February 26, 2009 Order, Judge Pamular
denied Corpus' motion to defer or suspend arraignment and
further proceedings.136 Petitioners claim that he should have
suspended action on the issuance of a warrant considering the
pendency of their Petition for Review before the Department of
Justice, citing Ledesma v. Court of Appeals137 and Tolentino v.
Bonifacio138 as their bases.139 Furthermore, they also assert
that the assailed Order defies Rule 116, Section 11 of the
Revised Rules of Criminal Procedure.140
Rule 116, Section 11 of the Revised Rules of Criminal
Procedure provides for the grounds for suspension of
arraignment. Upon motion by the proper party, the arraignment
shall be suspended in case of a pending petition for review of
the prosecutor's resolution filed before the Department of
Justice.
Petitioners filed a Manifestation and Motion141 dated February
9, 2009 before the Regional Trial Court, informing it about their
pending Petition for Review of the Prosecutor's January 26,
2009 Resolution before the Department of Justice.142 Thus,
respondent judge committed an error when he denied
petitioners' motion to suspend the arraignment of Corpus
because of the pendency of their Petition for Review before the
Department of Justice.
However, this Court's rule merely requires a maximum 60-day
period of suspension counted from the filing of a petition with
the reviewing office.143 Consequently, therefore, after the
expiration of the 60-day period, "the trial court is bound to
arraign the accused or to deny the motion to defer
arraignment."144
Petitioners jointly filed their Petition for Review145 before the
Department of Justice on February 9, 2009.146 Thus, the 60-
day period has already lapsed since April 10, 2009. Hence,
respondent judge can now continue with the arraignment and
further proceedings with regard to petitioner Corpus.
III.B
A reading of Ledesma v. Court of Appeals147 reveals that the
provided ruling does not mainly tackle the issue presented in
this case.
In Ledesma, a complaint for libel was filed against Rhodora
Ledesma (Ledesma) before the City Prosecutor's Office. Upon
24
finding "sufficient legal and factual basis,"148 the City
Prosecutor's Office filed an information against Ledesma
before the Regional Trial Court. Ledesma then filed a petition
for review before the Department of Justice, which gave due
course to the petition directing the Prosecutor to move for the
deferment of further proceedings and to elevate the records of
the case to it. Conformably, the Prosecutor filed a Motion to
Defer Arraignment before the Regional Trial Court, which
granted the motion and deferred arraignment until termination
of the Department of Justice's petition for review. Without the
trial prosecutor's consent, the counsel for private complainant
filed a motion to lift the order and to set the case for trial or
arraignment. The Regional Trial Court granted the motion then
consequently scheduled Ledesma's arraignment. However, the
Secretary of Justice reversed the prosecutor's findings
directing the trial prosecutor to file before the Regional Trial
Court a motion to withdraw information, which was
subsequently denied. Its denial of the motion was affirmed by
the Court of Appeals.
The main issue in Ledesma was whether the respondent judge
in that case erred in denying the motion to withdraw
information and the consequent motion for reconsideration.
This Court held that the act of the judge was erroneous since
he failed to give his reasons for denying the motions, and to
make any independent assessment of the motion and of the
resolution of the Secretary of Justice. Thus:
In the light of recent holdings in Marcelo and Martinez; and
considering that the issue of the correctness of the justice
secretary's resolution has been amply threshed out in
petitioner's letter, the information, the resolution of the
secretary of justice, the motion to dismiss, and even the
exhaustive discussion in the motion for reconsideration — all of
which were submitted to the court — the trial judge committed
grave abuse of discretion when it denied the motion to
withdraw the information, based solely on his bare and
ambiguous reliance on Crespo. The trial court's order is
inconsistent with our repetitive calls for an independent and
competent assessment of the issue(s) presented in the motion
to dismiss. The trial judge was tasked to evaluate the
secretary's recommendation finding the absence of probable
cause to hold petitioner criminally liable for libel. He failed to do
so. He merely ruled to proceed with the trial without stating his
reasons for disregarding the secretary's recommendation.
Had he complied with his judicial obligation, he would have
discovered that there was, in fact, sufficient ground to grant the
motion to withdraw the information. The documents before the
trial court judge clearly showed that there was no probable
cause to warrant a criminal prosecution for libel.149 (Emphasis
supplied)
This was reiterated in the ratio of that case, which read:
When confronted with a motion to withdraw an information on
the ground of lack of probable cause based on a resolution of
the secretary of justice, the bounden duty of the trial court is to
make an independent assessment of the merits of such
motion. Having acquired jurisdiction over the case, the trial
court is not bound by such resolution but is required to
evaluate it before proceeding further with the trial. While the
secretary's ruling is persuasive, it is not binding on courts. A
trial court, however, commits reversible error or even grave
abuse of discretion if it refuses/neglects to evaluate such
recommendation and simply insists on proceeding with the trial
on the mere pretext of having already acquired jurisdiction over
the criminal action.150 (Emphasis supplied)
Petitioners in this case hinge their claim on Ledesma in
arguing that respondent Judge Pamular should have
suspended action on the issuance of a warrant considering the
pendency of their Petition for Review before the Department of
Justice, which stated:151
Where the secretary of justice exercises his power of review
only after an information has been filed, trial courts should
defer or suspend arraignment and further proceedings until the
appeal is resolved. Such deferment or suspension, however,
does not signify that the trial court is ipso facto bound by the
resolution of the secretary of justice. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution by the
secretary of justice to withdraw the information or to dismiss
the case.152
While the quoted portion relates to the issue on suspending
arraignment pending the review of the Department of Justice,
there is nothing in Ledesma that speaks of suspending the
issuance of a warrant of arrest. Although there is an error on
the part of Judge Pamular in denying petitioners' motion to
suspend the arraignment of Corpus, he can validly issue a
warrant of arrest upon finding probable cause to acquire
jurisdiction over Corpus. Hence, this was strengthened in the
cited case of Ledesma, stating that "[j]urisdiction, once
acquired by the trial court, is not lost despite a resolution by the
secretary of justice to withdraw the information or to dismiss
the case."153
They also cited the dispositive portion of Tolentino, which
directed the respondent judge in that case to desist from
proceeding with the trial until after the Department of Justice
would have finally resolved the pending petition for review:154
While We have noted from the expediente that the petitioner
has utilized dilatory tactics to bring the case against her to trial,
still she is entitled to the remedy she seeks. The respondent
judge should not be more anxious than the prosecution in
expediting the disposition of the case absent any indication of
collusion between it and the defense. The Ministry of Justice
should not be deprived of its power to review the action of the
City Fiscal by a precipitate trial of the case.
WHEREFORE, the petition is granted. The respondent judge is
hereby ordered not to proceed with the trial of the above-
numbered criminal case until after the Ministry of Justice has
resolved the petition for review filed by Mila P. Tolentino. No
costs.155
Tolentino involved a petition for certiorari that sought to annul
the order of the respondent judge in that case to proceed with
the trial of the case premised on grave abuse of
discretion.156 In that case, petitioners Mila Tolentino (Mila) and
Roberto Tolentino were accused of falsification of public
documents before the Regional Trial Court of Tagaytay. Prior
to Mila's arraignment, she asked for the suspension of the
proceedings due to the pendency of a petition for review before
the Ministry of Justice. The respondent judge in that case
25
required the fiscal to comment. In the comment, the fiscal
interposed no objection on the motion. However, respondent
judge denied the motion stating that the city fiscal had already
reinvestigated the case and speedy trial should also be
afforded to the prosecution. Hence, this Court ruled that
respondent judge should not proceed to trial pending the
review before the Ministry of Justice.
However, the factual milieu of Tolentino is different from the
present case. It does not involve the issuance of a warrant of
arrest necessary for acquiring jurisdiction over the person of
the accused.
IV.A
Petitioners question the inclusion of Corpus and the insertion
of the phrase "conspiring and confederating together" in the
amended information. They contend that Rule 110, Section 14
of the Revised Rules of Criminal Procedure prohibits
substantial amendment of information that is prejudicial to the
rights of the accused after his or her arraignment.157 To
buttress their point, they cited People v. Montenegro,158 which
provided that an allegation of conspiracy which was not
previously included in the original information, cqnstitutes a
substantial amendment.159
Rule 110, Section 14 of the Revised Rules of Criminal
Procedure provides:
Rule 110
Prosecution of Offenses
Section 14. Amendment or substitution. — A complaint or
information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his
plea. After the plea and during the trial, a formal amendment
may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused. ...
(Emphasis supplied)
Before an accused enters his or her plea, either formal or
substantial amendment of the complaint or information may be
made without leave of court. After an entry of plea, only a
formal amendment can be made provided it is with leave of
court and it does not prejudice the rights of the
accused.160 After arraignment, there can be no substantial
amendment except if it is beneficial to the accused.161
Since only petitioner Samonte has been arraigned, only he can
invoke this rule. Petitioner Corpus cannot invoke this argument
because he has not yet been arraigned.
Once an accused is arraigned and enters his or her plea,
Section 14 prohibits any substantial amendment especially
those that may prejudice his or her rights. One of these rights
includes the constitutional right of the accused to be infonned
of the nature and cause of the accusations against him or her,
which is given life during arraignment.162
Arraignment is necessary to bring an accused in court and in
notifying him or her of the cause and accusations against him
or her.163 "Procedural due process requires that the accused
be arraigned so that he [or she] may be informed of the reason
for his [or her] indictment, the specific charges he [or she] is
bound to face, and the corresponding penalty that could be
possibly meted against him [or her]."164
It is during arraignment that an accused is given the chance to
know the particular charge against him or her for the first
time.165 There can be no substantial amendment after plea
because it is expected that the accused will collate his or her
defenses based on the contents of the information. "The theory
in law is that since the accused officially begins to prepare his
[or her] defense against the accusation on the basis of the
recitals in the information read to him [or her] during
arraignment, then the prosecution must establish its case on
the basis ofthe same information."166 Aside from violating the
accused's right to due process, any substantial amendment in
the information will burden the accused in preparing for his or
her defense.
In a criminal case, due process entails, among others, that the
accusation must be in due form and that the accused is given
the opportunity to answer the charges against him or
her.167 There is a need for the accused to be supplied with the
necessary information as to "why he [or she] is being
proceeded against and not be left in the unenviable state of
speculating why he [or she] is made the object of a
prosecution, it being the fact that, in criminal cases, the liberty,
even the life, of the accused is at stake."168
IV.B
Apart from violating the right of the accused to be informed of
the nature and cause of his or her accusation, substantial
amendments to the information after plea is prohibited to
prevent having the accused put twice in jeopardy.
Article III,169 Section 21 of the 1987 Constitution provides:
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
The Constitutional provision on double jeopardy guarantees
the invocation of the law not only against the danger of a
second punishment or a second trial for the same offense, "but
also against being prosecuted twice for the same act where
that act is punishable by . . . law and an ordinance."170 When a
person is charged with an offense and the case against him or
her is terminated either by acquittal or conviction or in any
other way without his or her consent, he or she cannot be
charged again with a similar offense.171 Thus, "[t]his principle is
founded upon the law of reason, justice and conscience."172
The constitutionally mandated right against double jeopardy is
procedurally bolstered by Rule 117, Section 7 of the Revised
Rules of Criminal Procedure,173 which reads:
RULE 117
Motion to Quash
....
Section 7. Former Conviction or Acquittal; Double Jeopardy. —
When an accused has been convicted or acquitted, or the case
against him dismissed or otherwise terminated without his
26
express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient
in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal
of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.
....
In substantiating a claim for double jeopardy, the following
requisites should be present:
(1) a first jeopardy must have attached prior to the second; (2)
the first jeopardy must have been validly terminated; and (3)
the second jeopardy must be for the same offense as in the
first.174
With regard the first requisite, the first jeopardy only attaches:
(a) after a valid indictment; (b) before a competent court; (c)
after arraignment; (d) when a valid plea has been entered; and
(e) when the accused was acquitted or convicted, or the case
was dismissed or otherwise terminated without his express
consent.175
The test for the third requisite is "whether one offense is
identical with the other or is an attempt to commit it or a
frustration thereof; or whether the second offense includes or is
necessarily included in the offense charged in the first
information."176
Also known as "res judicata in prison grey," the mandate
against double jeopardy forbids the "prosecution of a person
for a crime of which he [or she] has been previously acquitted
or convicted."177 This is to "set the effects of the first
prosecution forever at rest, assuring the accused that he [or
she] shall not thereafter be subjected to the danger and anxiety
of a second charge against him [or her] for the same
offense."178
People v. Dela Torre179 underscored the protection given under
the prohibition against double jeopardy:
Double jeopardy provides three related protections: (1) against
a second prosecution for the same offense after acquittal, (2)
against a second prosecution for the same offense after
conviction, and (3) against multiple punishments for the same
offense.
....
The ban on double jeopardy is deeply rooted in jurisprudence.
The doctrine has several avowed purposes. Primarily, it
prevents the State from using its criminal processes as an
instrument of harassment to wear out the accused by a
multitude of cases with accumulated trials. It also serves
the additional purpose of precluding the State, following an
acquittal, from successively retrying the defendant in the hope
of securing a conviction. And finally, it prevents the State,
following conviction, from retrying the defendant again in the
hope of securing a greater penalty.180 (Emphasis supplied,
citations omitted)
Double jeopardy is a fundamental constitutional concept which
guarantees that an accused may not be harassed with
constant charges or revisions of the same charge arising out of
the same facts constituting a single offense. When an accused
traverses the allegations in the information by entering a plea
during the arraignment, he or she is already put in jeopardy of
conviction. Having understood the charges, the accused after
entering a plea prepares for his or her defense based on the
possible evidence that may be presented by the prosecution.
The protection given to the accused by the double jeopardy
rule does not attach only after an acquittal or a conviction. It
also attaches after the entry of plea and when there is a prior
dismissal for violation of speedy trial.
An arraignment, held under the manner required by the rules,
grants the accused an opportunity to know the precise charge
against him or her for the first time.181 It is called for so that he
or she is "made fully aware of possible loss of freedom, even
of his [or her] life, depending on the nature of the crime
imputed to him [or her]. At the very least then, he [or she] must
be fully informed of why the prosecuting arm of the state is
mobilized against him [or her]."182 Thereafter, the accused is
no longer in the dark and can enter his or her plea knowing its
consequences.183 It is at this stage that issues are joined, and
without this, further proceedings cannot be held without being
void.184 Thus, the expanded concept of double jeopardy
presupposes that since an accused can be in danger of
conviction after his or her plea, the constitutional guarantee
against double jeopardy should already apply.
IV.C
Any amendment to an information which only states with
precision something which has already been included in the
original information, and therefore, adds nothing crucial for
conviction of the crime charged is only a formal amendment
that can be made at anytime.185 It does not alter the nature of
the crime, affect the essence of the offense, surprise, or divest
the accused of an opportunity to meet the new
accusation.186 Thus, the following are mere formal
amendments:
(1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction;
(2) an amendment which does not charge another offense
different or distinct from that charged in the original one; (3)
additional allegations which do not alter the prosecution's
theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; and (4) an
amendment which does not adversely affect any substantial
right of the accused, such as his right to invoke
prescription.187 (Citations omitted)
On the other hand, "[a] substantial amendment consists of the
recital of facts constituting the offense charged and
determinative of the jurisdiction of the court."188
The facts alleged in the accusatory part of the amended
information are similar to that of the original information except
27
as to the inclusion of Corpus as Samonte's co-accused and the
insertion of the phrase "conspiring and confederating together."
The allegation of conspiracy does not alter the basic theory of
the prosecution that Samonte willfully and intentionally shot
Angelita. Hence, the amendment is merely formal. As correctly
pointed out by the Office of the Solicitor General:
Even if one or all of the elements of the crime of murder as
alleged in the original information filed against petitioner
Samonte is not proven, the addition of conspiracy in the
amended information, if duly proven, would not in any way
result to his conviction because conspiracy is not an essential
or qualifying element of the crime of murder. The addition of
conspiracy would only affect petitioner Corpuz, if together with
the crime of murder leveled against petitioner Samonte, both
circumstances are duly proven by the
prosecution.189 (Emphasis supplied)
In People of the Philippines v. Court of Appeals,190 this Court
held that an allegation of conspiracy which does not change
the prosecution's theory that the accused willfully shot the
victim is merely a formal amendment.
In that case, two (2) informations for frustrated homicide were
filed against accused Sixto Ruiz (Ruiz), who pleaded not guilty
to both charges. A reinvestigation of these two (2) cases
ensued in the Department of Justice, where the State
Prosecutor filed a motion for leave of court to amend the
information on the ground that the evidence revealed a prima
facie case against Luis Padilla (Padilla) and Magsikap
Ongchenco (Ongchenco) who acted in conspiracy with Ruiz.
The trial judge denied the motion and reasoned that the
allegation of conspiracy constitutes a substantial amendment.
Consequently, the State Prosecutor filed two (2) new
informations for frustrated homicide against Padilla and
Ongchenco, which included the alleged conspiracy with Ruiz.
Padilla and Ongchenco moved to quash the two (2) new
informations, which was denied by the Court of First Instance
of Rizal. Ruiz also filed a motion to permit to quash and/or
strike out the allegation of conspiracy in the two (2) new
informations. The trial judge ordered that the motions be
stricken out from the records and explained that "the allegation
of conspiracy in those cases does not alter the theory of the
case, nor does it introduce innovation nor does it present
alternative imputation nor is it inconsistent with the original
allegations."191 This prompted Ruiz, Padilla, and Ongchenco to
file before the Court of Appeals a petition for certiorari with
preliminary injunction, which was subsequently granted.
However, this Court ruled:
There is merit in this special civil action. The trial Judge should
have allowed the amendment ... considering that
the amendments sought were only formal. As aptly stated by
the Solicitor General in his memorandum, "[T]here was no
change in the prosecution's theory that respondent Ruiz
wilfully[,] unlawfully and feloniously attacked, assaulted and
shot with a gun Ernesto and Rogelio Bello ... The amendments
would not have been prejudicial to him because his
participation as principal in the crime charged with respondent
Ruiz in the original informations, could not be prejudiced by the
proposed amendments."192 (Emphasis supplied)
In that case, the amended information was impelled by a
disclosure implicating Padilla and Ongchenco. Thus,
Otherwise stated, the amendments ... would not have
prejudiced Ruiz whose participation as principal in the crimes
charged did not change. When the incident was investigated
by the fiscal's office, the respondents were Ruiz, Padilla and
Ongchenco. The fiscal did not include Padilla and Ongchenco
in the two informations because of "insufficiency of
evidence." It was only later when Francisco Pagcalinawan
testified at the reinvestigation that the participation of Padilla
and Ongchenco surfaced and, as a consequence, there was
the need for the amendment of the informations or the filing of
new ones against the two.193 (Emphasis supplied)
The records of this present case show that the original
information for murder against Samonte was dated June 5,
2008.194 Based on Lozano's affidavit dated on June 30,
2008,195 Corpus was implicated as the one who instructed
Samonte to kill Angelito.196 This prompted the prosecution to
conduct a reinvestigation, which resulted in the filing of the
amended information.197
IV.D
Petitioners quote the portion of People v. Montenegro198 that
cited the case of People v. Zulueta199 as their basis for
asserting that the allegation of conspiracy is a substantial
amendment because it warrants a new defense for the
accused:200
Surely the preparations made by herein accused to face the
original charges will have to be radically modified to meet the
new situation. For undoubtedly the allegation of conspiracy
enables the prosecution to attribute and ascribe to the accused
Zulueta all the acts, knowledge, admissions and even
omissions of his co-conspirator Angel Llanes in furtherance of
the conspiracy. The amendment thereby widens the battlefront
to allow the use by the prosecution of newly discovered
weapons, to the evident discomfiture of the opposite camp.
Thus it would seem inequitable to sanction the tactical
movement at this stage of the controversy, bearing in mind that
the accused is only guaranteed two-days' preparation for trial.
Needless to emphasize, as in criminal cases, the liberty, even
the life, of the accused is at stake, it is always wise and proper
that he be fully apprised of the charges, to avoid any possible
surprise that may lead to injustice. The prosecution has too
many facilities to covet the added advantage of meeting
unprepared adversaries.201
Zulueta is inapplicable. In that case, this Court declined the
admission of the amended information because it would
change the nature of the crime as well as the prosecution's
theory:
Indeed, contrasting the two informations one will perceive that
whereas in the first the accused is charged with
misappropriation of public property because: (1) he deceived
Angel Llanes into approving the bargain sale of nails to Beatriz
Poblete or (2) at least, by his abandonment he permitted that
woman to obtain the articles at very cheap prices, in the
amended information a third ground of responsibility is
28
inserted, namely, that he connived and conspired with Angel
Llanes to consummate the give-away transaction.
Again it will be observed that the third ground of action in
effect contradicts the original theory of the information: if the
accused conspired with Llanes, he did not deceive the latter,
and did not by mere negligence permit the sale.202 (Emphasis
supplied)
Additionally, Montenegro is also inapplicable in this case
because the amendment to the information in that case was
considered as substantial due to the effect of changing the
original crime charged from Robbery under Article 209 to
Robbery in an Uninhabited Place under Article 302 of the
Revised Penal Code. With this, the accused were exposed to a
charge with a higher imposable penalty than that of the original
charge to which they pleaded "not guilty."203 Furthermore:
[T]he change in the items, articles and jewelries allegedly
stolen into entirely different articles from those originally
complained of, affects the essence of the imputed crime, and
would deprive the accused of the opportunity to meet all the
allegations in the amended information, in the preparation of
their defenses to the charge filed against them. It will be
observed that private respondents were accused as
accessories-after-the-fact of the minor Ricardo Cabaloza who
had already been convicted of robbery of the items listed in
the original information. To charge them now as accessories-
after-the-fact for a crime different from that committed by the
principal, would be manifestly incongruous as to be allowed by
the Court.204 (Emphasis supplied)
The case cited by petitioners in this case rendered the addition
of conspiracy in the amended information substantial because
it either alters the defense of the accused or alters the nature
of the crime to which the accused pleaded. However, the
factual incidents of the cited cases are different from this
present case because the allegation of conspiracy in the
amended information did not change the prosecution's basic
theory that Samonte willfully and intentionally shot Angelito.
IV.E
Rule 110, Section 14 similarly provides that in permitting formal
amendments when the accused has already entered his or her
plea, it is important that the amendments made should not
prejudice the rights of the accused.205 In People v.
Casey,206 this Court laid down the test in determining whether
an accused is prejudiced by an amendment. Thus,
The test as to whether a defendant is prejudiced by the
amendment of an information has been said to be whether a
defense under the information as it originally stood would
be available after the amendment is made, and whether
any evidence defendant might have would be equally
applicable to the information in the one form as in the
other. A look into Our jurisprudence on the matter shows that
an amendment to an information introduced after the accused
has pleaded not guilty thereto, which does not change the
nature of the crime alleged therein, does not expose the
accused to a charge which could call for a higher penalty, does
not affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of
substance — not prejudicial to the accused and, therefore, not
prohibited by Section 13, Rule 110 of the Revised Rules of
Court.207 (Emphasis supplied, citations omitted)
It is undisputed that upon arraignment under the original
information, Samonte admitted the killing but pleaded self-
defense.208 While conspiracy is merely a formal amendment,
Samonte will be prejudiced if the amendment will be allowed
after his plea. Applying the test, his defense and corresponding
evidence will not be compatible with the allegation of
conspiracy in the new information. Therefore, such formal
amendment after plea is not allowed.
V.A
Petitioners claim that the assailed warrant of arrest was made
in utter disregard of the constitutional mandate which directs
judges to personally conduct an independent examination,
under oath or affirmation, of the complainant and the witnesses
he or she may produce.209 They further assert that the assailed
February 26, 2009 Order only consists of three (3) short
sentences that merely contain a certain legal provision, instead
of facts that will supposedly substantiate the issuance of a
warrant of arrest.210
Article III, Section 2 of the Constitution reads:
Article III
Bill of Rights
....
Section 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized. (Emphasis supplied)
In Soliven v. Makasiar,211 the issue raised by the petitioner in
that case called for the interpretation of Article III, Section 2 of
the Constitution. It is apparent that the inclusion of the word
"personally" after the word "determined" and the removal of the
grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law" has
persuaded the petitioner to believe that what the Constitution
now requires is for the "judge to personally examine the
complainant and his witnesses"212 in determining probable
cause for the issuance of a warrant. However, this Court ruled
that this is not an accurate interpretation.
In that case, this Court underscored that the Constitution gives
emphasis on the "exclusive and personal responsibility of the
issuing judge to satisfy himself the existence of probable
cause."213 In convincing himself or herself on the presence of
probable cause for the issuance of a warrant, the issuing judge
"is not required to personally examine the complainant and his
witnesses."214 "Sound policy dictates this procedure, otherwise
29
judges would be unduly laden with the preliminary examination
and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their
courts."215
In the 1987 Constitution, the judge is required
to "personally" determine the existence of probable
cause.216 This requirement, however, does not appear in the
corresponding provisions found in our previous
Constitutions.217 This gives prominence to the framers' intent of
placing "greater degree of responsibility upon trial judges than
that imposed under previous Constitutions."218
Probable cause cannot be merely established by showing that
a trial judge subjectively believes that he or she has good
grounds for his or her action.219 Thus, good faith does not
suffice because if "subjective good faith alone were the test,
the constitutional protection would be demeaned and the
people would be 'secure in their persons, houses, papers and
effects' only in the fallible discretion of the judge."220 Before
issuing a warrant of arrest, the judge must satisfy himself or
herself that based on the evidence presented, a crime has
been committed and the person to be arrested is probably
guilty of it.221
In Lim v. Felix,222 the ruling in Soliven was reiterated. The main
issue raised in Lim is whether a judge may issue a warrant of
arrest without bail "by simply relying on the prosecution's
certification and recommendation that a probable cause
exists."223 In that case, the preliminary investigation records
conducted by the Municipal Court of Masbate were still in
Masbate. However, the Regional Trial Court Judge of Makati
still issued a warrant of arrest against the petitioners. This
Court ruled that the respondent judge "committed a grave error
when he relied solely on the Prosecutor's certification and
issued the questioned Order ... without having before him any
other basis for his personal determination of the existence of a
probable cause"224 and reasoned that:
At the same time, the Judge cannot ignore the clear words of
the 1987 Constitution which requires "... probable cause to
be personally determined by the judge ..." not by any other
officer or person.
If a Judge relies solely on the certification of the Prosecutor as
in this case where all the records of the investigation are in
Masbate, he or she has not personally determined probable
cause. The determination is made by the Provincial
Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.
The records of the preliminary investigation conducted by the
Municipal Court of Masbate and reviewed by the respondent
Fiscal were still in Masbate when the respondent Fiscal issued
the warrants of arrest against the petitioners. There was no
basis for the respondent Judge to make his own personal
determination regarding the existence of a probable cause for
the issuance of a warrant of arrest as mandated by the
Constitution. He could not possibly have known what
transpired in Masbate as he had nothing but a
certification. Significantly, the respondent Judge denied the
petitioners' motion for the transmittal of the records on the
ground that the mere certification and recommendation of the
respondent Fiscal that a probable cause exists is sufficient for
him to issue a warrant of arrest.
We reiterate the ruling in Soliven v. Makasiar that the Judge
does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as
a commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the
Fiscal's bare certification. All of these should be before the
Judge.
The extent of the Judge's personal examination of the report
and its annexes depends on the circumstances of each case.
We cannot determine beforehand how cursory or exhaustive
the Judge's examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is
vested in the Judge by the Constitution. It can be as brief or as
detailed as the circumstances of each case require. To be
sure, the Judge must go beyond the Prosecutor's certification
and investigation report whenever necessary. He should call
for the complainant and witnesses themselves to answer the
court's probing questions when the circumstances of the case
so require.
....
We reiterate that in making the required personal
determination, a Judge is not precluded from relying on the
evidence earlier gathered by responsible officers. The extent of
the reliance depends on the circumstances of each case and is
subject to the Judge's sound discretion. However, the Judge
abuses that discretion when having no evidence before him, he
issues a warrant of arrest.225 (Emphasis supplied)
Soliven provided that as dictated by sound policy, an issuing
judge is not required to personally examine the complainant
and his witnesses as long as he or she has satisfied himself or
herself of the existence of probable cause.226 To rule otherwise
would unduly burden judges with preliminary examination of
criminal complaints instead of attending to more important
matters. However, due to recent developments in the legal
system which include the judicial affidavit rule, the evil sought
to be prevented in Soliven does not exist anymore. To
minimize the time required for completing testimonies of
witnesses in litigated cases, this Court approved the use of
judicial affidavits in lieu of witnesses' direct
testimonies.227 Thus, this is more in tune with the Constitutional
mandate by lessening the burden imposed upon judges by
expediting litigation of cases for them to attend to their
exclusive and personal responsibility of satisfying themselves
with the existence of probable cause when issuing a warrant.
V.B
Rule 112, Section 6 of the Revised Rules of Criminal
Procedure provides:
RULE 112
Preliminary Investigation
....
Section 6. When Warrant of Arrest May Issue. — (a) By the
Regional Trial Court. — Within ten (10) days from the filing of
the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the
evidence on record clearly fails to establish probable cause. If
30
he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested
pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information
was filed pursuant to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days
from notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint or information.
(Emphasis supplied)
Pursuant to the provision, the issuing judge has the following
options upon the filing of an Information:
(1) dismiss the case if the evidence on record clearly failed to
establish probable cause; (2) if he or she finds probable cause,
issue a warrant of arrest; and (3) in case of doubt as to the
existence of probable cause, order the prosecutor to present
additional evidence within five days from notice, the issue to be
resolved by the court within thirty days from the filing of the
information.228 (Citation omitted)
It is required for the judge to "personally evaluate the
resolution of the prosecutor and its supporting evidence."229 In
case the evidence on record fails to substantiate probable
cause, the trial judge may instantly dismiss the case.230
The records of this case reveal that the February 26, 2009
Order presented a discussion showing both the factual and
legal circumstances of the case from the filing of the original
information until the filing of the Motion to Amend Information.
Respondent Judge Pamular, therefore, is familiar with the
incidents of this case, which were his basis for issuing the
warrant. Thus, before he issued the assailed Order and
warrant, a hearing was conducted on February 13, 2009
regarding the motions and manifestations filed in the case:231
On February 13, 2009, a hearing was held wherein the parties
presented their arguments. On the issue regarding the undated
motion to amend information without notice of hearing and the
motion for reconsideration filed by the prosecution, the court
ruled that the same is moot and academic due to the conduct
of the said hearing.232
Furthermore, respondent Judge Pamular has a working
knowledge of the circumstances regarding the amended
information that constrained him to find probable cause in
issuing the warrant. The pertinent portion of the Order
provided:
Elementary is the rule that the existence of probable cause is
indispensable in the filing of complaint or information and in the
issuance of warrant of arrest. The legion of jurisprudence has
defined probable cause to be concerned with probability, not
absolute or even moral certainty. The prosecution need not
present at this stage proof beyond reasonable doubt. The
standards of judgment are those of a reasonably prudent man
and not the exacting calibrations of a judge after a full blown
trial. No law or rule states that probable cause requires a
specific kind of evidence. It is determined in the light of
conditions obtaining in a given situation.233
In respondent Judge Pamular's Comment, he claimed that:
Be that as it may, still, the undersigned respondent judge made
a careful perusal of the records of the case. Sufficient copies
of supporting documents and/or evidence were read and
evaluated upon wlticll, independent judgment as to the
existence of probable cause was based. But, then again,
still not satisfied, the undersigned even went beyond the face
of the resolution and evidences (sic) presented before this
Court. On 13 February 2009, Criminal Case No. 2618-G was
set for hearing. The prosecution and the defense were given
the chance to argue on the matter and ample opportunity to be
heard.234 (Emphasis supplied)
Apart from respondent judge's personal examination of the
amended information and supporting documents, the hearing
conducted on February 13, 2009 enabled him to find probable
cause prompting him to issue the warrant of arrest.235
VI
On March 19, 2014, Priscilla filed a Manifestation,236 which
provides that on October 30, 2013, Samonte executed an
affidavit237 stating that Corpus ordered him to kill Angelito.238
Settled is the rule that this Court is not a trier of facts.239 These
matters are left to the lower courts, which have "more
opportunity and facilities to examine these matters."240 This
Court is not a trier of facts and cannot receive new evidence
that would aid in the speedy resolution of this case.241 It is not
this Court's function to "analyze and weigh the evidence all
over again."242
Therefore, based on the foregoing, this Court remands this
case to the Regional Trial Court for it to pass upon this factual
issue raised by petitioner Samonte based on his October 30,
2013 affidavit.
WHEREFORE, premises considered, the Petition for Certiorari
is PARTIALLY GRANTED. The case is remanded to the
Regional Trial Court of Guimba, Nueva Ecija for its preliminary
examination of probable cause for the issuance of a warrant of
arrest and thereafter proceed to the arraignment of petitioner
Amado Corpus, Jr.
SO ORDERED.
Peralta, (Chairperson), A. Reyes, Jr., Gesmundo, and J.
Reyes, Jr., JJ., concur.
Endnotes:
SECOND DIVISION
G.R. No. 214300, July 26, 2017
PEOPLE OF THE PHILIPPINES, Petitioner, v. MANUEL
ESCOBAR, Respondent.
DECISION
31
 LEONEN, J.:
This Rule 45 Petition assails the Court of Appeals Decision to
grant the accused's second petition for bail. Res
judicata applies only in a final judgment in a civil case,1 not in
an interlocutory order in a criminal case.2 An order disposing a
petition for bail is interlocutory.3 This order does not attain
finality when a new matter warrants a second look on the
application for bail.
Respondent Manuel Escobar (Escobar) filed a petition for bail
(First Bail Petition), which was denied by the Regional Trial
Court in the Order4 dated October 6, 2008 and by the Court of
Appeals in the Decision5 dated March 8, 2011. A subsequent
development in the accused's case6 compelled him to file a
second petition for bail (Second Bail Petition). On April 26,
2012, the Regional Trial Court denied7 this on the ground
of res judicata. In the Decision8 dated March 24, 2014, the
Court of Appeals overturned the Regional Trial Court Order
and granted the Second Bail Petition.
Escobar was suspected of conspiring in the kidnap for ransom
of Mary Grace Cheng-Rosagas (Mary Grace), daughter of
Filipino-Chinese businessman Robert G. Cheng (Robert), and
two (2) other victims.9 Robert was the owner of Uratex Foam,
Philippines,10 a manufacturing company of foams and
mattresses.11
On June 18, 2001 at 7:40 a.m., Mary Grace, her bodyguard
Valentin B. Torres (Torres), and her driver Dionisio F. Burca
(Burca) were passing by the front of Malcolm Hall, University of
the Philippines, Diliman, Quezon City when a vehicle blocked
their way.12 Another group of suspects helped as lookouts.13
Clad in police uniform, four (4) armed men forced Mary Grace,
Burca, and Torres inside the vehicle.14 The incident happened
in broad daylight.
Alleged group leader Rolando Villaver (Villaver) and some of
the suspects then travelled and detained Mary Grace, Burca,
and Torres in an undisclosed location in
Batangas.15 Afterwards, the group headed to Club Solvento, a
resort16 in Calamba, Laguna owned by Escobar,17 who
personally served them food.18
Some of the accused19 stayed in Club Solvento to rest or sleep
while the others, namely, Villaver, Cesar Olimpiada, a certain
Cholo, and Biboy Lugnasin, left to negotiate the price for the
victims' release.20 Cheng paid the ransom of P15,000,000.00.21
At 7:00 p.m. on the same day, Villaver's group returned to Club
Solvento,22 followed by co-accused brothers Rolando and
Harold Fajardo (the Fajardo brothers), who were alleged
advisers of Villaver.23 The group then locked themselves in a
room where Villaver partitioned the ransom money.24 Cancio
Cubillas (Cubillas), the group's driver,25 confessed to have
received a total of P1,250,000.00 for the kidnapping
operation.26
At 10:30 p.m. on the same day, Mary Grace, Burca, and Torres
were finally released.27 They were freed somewhere in
Alaminos, Laguna, more than 12 hours since they were
abducted.28
Cubillas became a state witness.29 On June 3, 2002, he
executed an extrajudicial confession and implicated
respondent Escobar as an adviser for Villaver.30 Cubillas
believed that Escobar was involved after he saw Escobar talk
to Villaver while they were in Club Solvento.31 In his
extrajudicial confession, Cubillas also claimed that Escobar
received a portion of the ransom money from Villaver.32
On February 17, 2004, an Amended Information was filed
before the Regional Trial Court charging Escobar as a co-
conspirator33 in the kidnapping for ransom.34 The charging
portion stated:
That on or about June 18, 2001 at around 7:40 in the morning,
at Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another and grouping
themselves together, with others not present during the actual
kidnapping but performing some other peculiarly contributory
roles, did, then and there, by force and intimidation, with the
use of long firearms and clad in police uniform, willfully,
unlawfully and feloniously take, carry away and thereafter
detain at some undisclosed place, after having blocked their
car in front of Malcolm Hall, Osmena Avenue, UP Campus,
Diliman, Quezon City, MARY GRACE CHENG-ROSAGAS, her
driver DIONISIO F. BURCA and her bodyguard VALENTIN B.
TORRES, against their will and consent thereby depriving
them of their liberty for more than twelve (12) hours for the
purpose of extorting ransom for their release in the amount of
FIFTEEN MILLION PESOS (P15,000,000.00), and which
amount was in fact paid by Mary Grace's father, Mr. Robert
Cheng, owner of Uratex Foam, Philippines, and have the same
delivered at E. Rodriguez Compound, Calamba, Laguna
thereby resulting to the release of the kidnap victims
somewhere in Alaminos, Laguna at about 10:30 p.m. of the
same day all to the damage and prejudice of the three (3)
victims and their families in such amount as may be awarded
to them and their families under the provisions of the Civil
Code.
CONTRARY TO LAW.35
Escobar was arrested on February 14, 2008.36
On June 3, 2008, Escobar filed the First Bail Petition before the
Regional Trial Court.37 During the hearing on Escobar's bail
application, Cubillas testified that Escobar and the Fajardo
brothers were Villaver's advisers.38
In the Order dated October 6, 2008, the Regional Trial Court
denied39 Escobar's First Bail Petition. The dispositive portion
read:chanRoblesvirtualLawlibrary
The Petition for Bail filed by accused Manny Escobar is denied
for lack of merit considering that state witness Cancio Cubillas
positively identified said accused as the owner of Club
Solvento located in Calamba, Laguna; that he was the one
who served food to the group of Rolando Villaver, Jun Jun
Villaver, Ning Ning Villaver, Danny Velasquez, Cholo, Cesar
Olimpiada, Mike, Alan Celebre, Biboy Lugnasin and witness
himself, Cancio Cubillas; that it was also in said Club Solvento
where Cancio Cubillas, Jun Jun Villaver, Ning Ning Villaver,
Danny Velasquez, Mike and Alan Celebre rested and slept
after Rolando Villaver, Cholo, Biboy Lugnasin and Cesar
Olimpiada left to negotiate for the ransom of kidnap victim
Mary Grace Cheng Rosagas, and that on the night of June 18,
2001, Cubillas saw accused Rolando Villaver gave part of the
ransom money to him.
32

SO ORDERED.40
Escobar appealed before the Court of Appeals.41 On March 8,
2011, the Court of Appeals affirmed42 the denial of the First
Bail Petition. It recognized that Cubillas' extrajudicial
confession was generally incompetent evidence against his co-
accused and was admissible against himself only43 for being
hearsay and for violating the res inter alios
acta rule.44 Nevertheless, the Court of Appeals invoked an
exception to this rule and held that the Regional Trial Court
"did not rely solely on the extrajudicial confession of Cubillas";
rather, the trial court also relied on Cubillas' testimony during
the bail hearing.45
Escobar moved to reconsider the Court of Appeals March 8,
2011 Decision.46
Pending the proceedings on Escobar's case, the police
arrested one (1) of the co-accused Fajardo brothers, Rolando
Fajardo (Rolando),47 who applied for bail before the Regional
Trial Court.48 As in Escobar's bail hearing, the prosecution
relied solely on Cubillas' statements to establish the strength of
Fajardo's guilt.49 In an Order dated September 13, 2011, the
Regional Trial Court denied Rolando's petition for bail.50
However, in an Order dated October 14, 2011, the Regional
Trial Court reversed its previous order and granted Rolando's
bail application.51 The Regional Trial Court
stated:chanRoblesvirtualLawlibrary
To summarize, the evidence for the prosecution
does not establish that accused Rolando Fajardo participated
during the actual abduction of Rosagas, Burca and Torres or
that during the actual abduction, accused Rolando Fajardo
gave advice or instruction to the other accused herein. The
evidence for the prosecution likewise does not establish that
accused Rolando Fajardo acted as adviser to accused
Rolando Villaver and his group in connection with the
kidnapping of the victims herein. There is no testimony as to
what advice or instructions were made by accused Rolando
Fajardo in connection with the kidnapping of the victims
herein. There is thus a paucity of evidence establishing the
participation of accused Rolando Fajardo in the kidnapping of
Rosagas, Burca and Torres.52 (Emphasis supplied)
The reversal came about after the trial court considered that,
according to Cubillas, "[Rolando] was not present before,
during and after the kidnapping."53 There was paucity of
evidence on Rolando's alleged participation.54
Meanwhile, on October 27, 2011, the Court of Appeals denied
Escobar's motion for reconsideration.55 He no longer appealed
before this Court.56
By January 2012, only Escobar was left in detention pending
the final judgment on the merits of the case as all the other
accused who had active participation in the kidnapping had
been granted bail.57 Escobar saw Rolando's release on bail as
a new "development which warrant[ed] a different view" on his
own bail application.58
Thus, on January 27, 2012, Escobar filed another petition for
bail (Second Bail Petition) before the Regional Trial Court.59 He
noted that Cubillas could not explain how either Rolando or
Escobar advised Villaver and that both Rolando and Escobar
were absent before, during, and after the kidnapping.60 Hence,
if Rolando's petition for bail was granted based on the
unreliability of Cubillas' testimony, Escobar reasoned that the
trial court should likewise grant him provisional release.61
On April 26, 2012, the Regional Trial Court denied62 Escobar's
Second Bail Petition on the ground of res judicata,63 reasoning
thus: "[i]n deference to the Decision of the Court of Appeals
which has already attained finality, accused's Petition for Bail
which is actually a second petition for bail[,] must be
necessarily denied."64
Escobar moved for reconsideration but this was denied by the
Regional Trial Court.65 On January 14, 2013, he appealed
before the Court of Appeals via Rule 65, arguing that the trial
court committed grave abuse of discretion in denying his
Second Bail Petition.66
In the Decision dated March 24, 2014, the Court of Appeals
granted67 the petition for certiorari and ordered the Regional
Trial Court to determine the appropriate bail for Escobar's
provisional liberty. The dispositive portion
read:chanRoblesvirtualLawlibrary
WHEREFORE, the petition is GRANTED. The April 26, 2012,
September 14, 2012, September 17, 2012 and November 6,
2012 Orders, are SET ASIDE. The trial court is directed to
determine the appropriate bail for the provisional liberty of the
petitioner, Manuel Escobar, with dispatch.
SO ORDERED.68
The Court of Appeals denied the prosecution's Motion for
Reconsideration.69 According to the Court of Appeals,
Escobar's Second Bail Petition was not barred by res judicata,
which applies only if the former judgment is a final order or
judgment and not an interlocutory order.70 An order denying a
petition for bail is interlocutory in nature.71
On April 4, 2014, the Regional Trial Court fixed72 Escobar's bail
at P300,000.00. The dispositive portion
read:chanRoblesvirtualLawlibrary
In view of the Decision rendered by the Court of Appeals on 24
March 2014, the bail for the provisional liberty of accused
Manuel Escobar is hereby fixed at Three Hundred Thousand
Pesos (Php300,000.00).
SO ORDERED.73
In the Resolution dated September 11, 2014, the Court of
Appeals denied74 the prosecution's Motion for Reconsideration.
On November 6, 2014, the prosecution, through the Office of
the Solicitor General, filed a Petition for Review75 via Rule 45
before this Court. In its Petition, the prosecution does not pray
for the issuance of a temporary restraining order of the Court of
Appeals Decision;76 rather, in assailing the grant of Escobar's
Second Bail Petition, the prosecution avers that the doctrine
of res judicata must be respected.77
On October 19, 2015, Escobar filed his Comment,78 arguing
that res judicata did not apply here,79 that there was no strong
evidence of his guilt,80 and that the Court of Appeals could
rectify errors of judgment in the greater interest of
justice.81 According to Escobar:chanRoblesvirtualLawlibrary
13. Due to this sudden development of the grant of bail to his
co-accused, [Rolando], and considering that both [Rolando]
and [Escobar]'s alleged participation in the crime are based on
the same court-declared unreliable "speculations" of the state
witness Cubillas, who even admitted he was lying when
33
questioned during [Escobar]'s own bail hearings, it was in the
interest of justice and fairness to re-open the matter of bail with
respect to [Escobar] and thereby grant the same. And the
Honorable Court of Appeals agreed.82
This Court's program to decongest holding jails led City Jail
Warden Randel H. Latoza (City Jail Warden Latoza) to review
Escobar's case.83 In his manifestation dated August 18, 2016,
City Jail Warden Latoza informed this Court that there was no
temporary restraining order against the Regional Trial Court
April 4, 2014 Order, which fixed Escobar's provisional liberty at
P300,000.00. He also acknowledged the Court of Appeals
March 24, 2014 Decision granting Escobar the right to
bail.84 He mentioned that Escobar had posted the P300,000.00
bail, as ordered by the trial court.85 Thus, he moved to allow
Escobar's provisional release on bail.86
City Jail Warden Latoza alleged that Escobar had paid the
necessary surety bond87 and attached a copy of Traveller's
Insurance Surety Corporation's surety bond undertaking to his
manifestation.88 However, the attached surety bond
undertaking was neither notarized nor approved by the
Regional Trial Court judge.89
In a Letter dated May 15, 2017, the Commission on Human
Rights wrote to Associate Justice Antonio T. Carpio to ask for
the speedy resolution of the case as Escobar was already 78
years old.90
For resolution are the following issues:
First, whether Manuel Escobar's second petition for bail is
barred by res judicata; and
Finally, whether respondent should be granted bail.
I of res judicata is set forth in Section 47 of Rule 39"106 of the
Bail is the security given for the temporary release of a person
who has been arrested and detained but "whose guilt
has not yet been proven" in court beyond reasonable
doubt.91 The right to bail is cognate to the fundamental right to
be presumed innocent. In People v. Fitzgerald:92
The right to bail emanates from the [accused's constitutional]
right to be presumed innocent. It is accorded to a person in the
custody of the law who may, by reason of the presumption of
innocence he [or she] enjoys, be allowed provisional liberty
upon filing of a security to guarantee his [or her] appearance
before any court, as required under specified
conditions.93 (Citations omitted)
Bail may be a matter of right or judicial discretion. The accused
has the right to bail if the offense charged is "not punishable by
death, reclusion perpetua or life imprisonment" before
conviction by the Regional Trial Court.94 However, if the
accused is charged with an offense the penalty of which is
death, reclusion perpetua, or life imprisonment—"regardless of
the stage of the criminal prosecution"—and when evidence of
one's guilt is not strong, then the accused's prayer for bail is
subject to the discretion of the trial court.95
In this case, the imposable penalty for kidnapping for ransom is
death,96 reduced to reclusion perpetua.97 Escobar's bail is,
thus, a matter of judicial discretion, provided that the evidence
of his guilt is not strong.98
Rule 114 of the Revised Rules on Criminal Procedure
states:chanRoblesvirtualLawlibrary
Section 4. Bail, a matter of right; exception. - All persons in
custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognizance as prescribed
by law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities, or Municipal Circuit Trial Court, and (b) before
conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment.
....
Section 7. Capital offense or an offense punishable by
reclusion perpetua or life imprisonment, not bailable. - No
person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of
the stage of the criminal prosecution.
The Regional Trial Court denied99 Escobar's Second Bail
Petition on the ground of res judicata. The Court of Appeals
overturned100 this and correctly ruled that his Second Bail
Petition was not barred by res judicata.
In its literal meaning, res judicata refers to "a matter
adjudged."101 This doctrine bars the re-litigation of the same
claim between the parties, also known as claim preclusion or
bar by former judgment.102 It likewise bars the re-litigation of
the same issue on a different claim between the same parties,
also known as issue preclusion or conclusiveness of
judgement.103 It "exists as an obvious rule of reason, justice,
fairness, expediency, practical necessity, and public
tranquillity."104
Degayo v. Magbanua-Dinglasan105 held that "[t]he doctrine
Revised Rules of Civil Procedure,
thus:chanRoblesvirtualLawlibrary
Sec. 47. Effect of Judgments or Final Orders. — The effect of a
judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order,
may be as follows:
....
(b) [T]he judgment or final order is, with respect to the matter
directly adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between the parties
and their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating
for the same thing and under the same title and in the same
capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto.
Escobar's Second Bail Petition is not barred by res judicata as
this doctrine is not recognized in criminal proceedings.107
Expressly applicable in civil cases, res judicata settles with
finality the dispute between the parties or their successors-in-
interest.108Trinidad v. Marcelo109 declares that res judicata, as
found in Rule 39 of the Rules of Civil Procedure, is a principle
34
in civil law and "has no bearing on criminal
proceedings."110 Rule 124, Section 18 of the Rules of Criminal
Procedure states:chanRoblesvirtualLawlibrary
Section 18. Application of certain rules in civil procedure to
criminal cases. - The provisions of Rules 42, 44 to 46 and 48 to
56 relating to procedure in the Court of Appeals and in the
Supreme Court in original and appealed civil cases shall be
applied to criminal cases insofar as they are applicable and not
inconsistent with the provisions of this Rule.
Indeed, while certain provisions of the Rules of Civil Procedure
may be applied in criminal cases,111 Rule 39 of the Rules of
Civil Procedure is excluded from the enumeration under Rule
124 of the Rules of Criminal Procedure. In Trinidad:112
Petitioner's arguments — that res judicata applies since the
Office of the Ombudsman twice found no sufficient basis to
indict him in similar cases earlier filed against him, and that
the Agan cases cannot be a supervening event or evidence
per se to warrant a reinvestigation on the same set of facts and
circumstances — do not lie.
Res judicata is a doctrine of civil law and thus has no
bearing on criminal proceedings.
But even if petitioner's arguments] were to be expanded to
contemplate "res judicata in prison grey" or the criminal law
concept of double jeopardy, this Court still finds it inapplicable
to bar the reinvestigation conducted by the Office of the
Ombudsman.113 (Emphasis supplied, citations omitted).
An interlocutory order denying an application for bail, in this
case being criminal in nature, does not give rise to res judicata.
As in Trinidad, even if we are to expand the argument of the
prosecution in this case to contemplate "res judicata in prison
grey" or double jeopardy, the same will still not
apply.114 Double jeopardy requires that the accused has been
convicted or acquitted or that the case against him or her has
been dismissed or terminated without his express
consent.115 Here, while there was an initial ruling on Escobar's
First Bail Petition, Escobar has not been convicted, acquitted,
or has had his case dismissed or terminated.
Even assuming that this case allows for res judicata as applied
in civil cases, Escobar's Second Bail Petition cannot be barred
as there is no final judgment on the merits.
Res judicata requires the concurrence of the following
elements:chanRoblesvirtualLawlibrary
1. The judgment sought to bar the new action
must be final;
2. The decision must have been rendered by a
court having jurisdiction over the parties and
the subject matter;
3. The disposition of the case must be
a judgment on the merits; and
4. There must be between the first and second
actions, identity of parties, of subject matter,
and of causes of action.116
In deciding on a matter before it, a court issues either a final
judgment or an interlocutory order. A final judgment "leaves
nothing else to be done" because the period to appeal has
expired or the highest tribunal has already ruled on the
case.117 In contrast, an order is considered interlocutory if,
between the beginning and the termination of a case, the court
decides on a point or matter that is not yet a final judgment on
the entire controversy.118
An interlocutory order "settles only some incidental, subsidiary
or collateral matter arising in an action";119 in other words,
something else still needs to be done in the primary case—the
rendition of the final judgment.120Res judicata applies only
when there is a final judgment on the merits of a case; it
cannot be availed of in an interlocutory order even if this order
is not appealed.121 In Macahilig v. Heirs of Magalit:122
Citing Section 49 of Rule 39, Rules of Court, petitioner insists
that the September 17, 1997 [interlocutory] Order of the trial
court in Civil Case No. 3517 bars it from rehearing questions
on the ownership of Lot 4417. She insists that said Order has
become final and executory, because Dr. Magalit did not
appeal it.
We disagree. Final, in the phrase judgments or final
orders found in Section 49 of Rule 39, has two accepted
interpretations. In the first sense, it is an order that one can no
longer appeal because the period to do so has expired, or
because the order has been affirmed by the highest possible
tribunal involved. The second sense connotes that it is an
order that leaves nothing else to be done, as distinguished
from one that is interlocutory. The phrase refers to a. final
determination as opposed to a judgment or an order that
settles only some incidental, subsidiary or collateral matter
arising in an action; for example, an order postponing a trial,
denying a motion to dismiss or allowing intervention. Orders
that give rise to res judicata and conclusiveness of judgment
apply only to those falling under the second category.
....
For example, an Order overruling a motion to dismiss does not
give rise to res adjudicata [sic] that will bar a subsequent
action, because such order is merely interlocutory and is
subject to amendments until the rendition of the final
judgment.123 (Emphasis supplied, citations omitted)
A decision denying a petition for bail settles only a collateral
matter124—whether accused is entitled to provisional liberty—
and is not a final judgment on accused's guilt or innocence.
Unlike in a full-blown trial, a hearing for bail is summary in
nature: it deliberately "avoid[s] unnecessary thoroughness" and
does not try the merits of the
case.125 Thus:chanRoblesvirtualLawlibrary
Summary hearing means such brief and speedy method of
receiving and considering the evidence of guilt as is practicable
and consistent with the purpose of the hearing which is merely
to determine the weight of the evidence for purposes of bail.
The course of the inquiry may be left to the discretion of the
court which may confine itself to receiving such evidence as
has reference to substantial matters avoiding unnecessary
thoroughness in the examination and cross-examination of
witnesses and reducing to a reasonable minimum the amount
of corroboration particularly on details that are not essential to
the purpose of the hearing.126 (Emphasis in the original)
Here, the prosecution itself has acknowledged that "the first
order denying bail is an interlocutory order."127 The merits of
the case for kidnapping must still be threshed out in a full-
blown proceeding.
Being an interlocutory order, the March 8, 2011 Court of
35
Appeals Decision denying Escobar's First Bail Petition did not
have the effect of res judicata. The kidnapping case itself has
not attained finality. Since res judicata has not attached to the
March 8, 2011 Court of Appeals Decision, the Regional Trial
Court should have taken cognizance of Escobar's Second Bail
Petition and weighed the strength of the evidence of guilt
against him.
In any case, the Court of Appeals may still reverse its Decision,
notwithstanding its denial of the First Bail Petition on March 8,
2011.
Rules of procedure should not be interpreted as to
disadvantage a party and deprive him or her of fundamental
rights and liberties. A judgment or order may be modified
where executing it in its present form is impossible or unjust in
view of intervening facts or circumstances:128
[W]here facts and circumstances transpire which render [the]
execution [of a judgment] impossible or unjust and it therefore
becomes necessary, "in the interest of justice, to direct its
modification in order to harmonize the disposition with the
prevailing circumstances."129 (Emphasis supplied, citation
omitted)
Appellate courts may correct "errors of judgment if blind and
stubborn adherence to the doctrine of immutability of final
judgments would involve the sacrifice of justice for
technicality."130 Thus, an accused may file a second petition for
bail, particularly if there are sudden developments or a "new
matter or fact which warrants a different view."131
Rolando's release on bail is a new development in Escobar's
case.132 The Court of Appeals has pointed out that the other
alleged co-conspirators are already out on bail: Rolando, in
particular, was granted bail because Cubillas' testimony
against him was weak.133 "[Escobar] and [Rolando] participated
in the same way, but [Escobar]'s bail was denied."134 Escobar's
fundamental rights and liberty are being deprived in the
meantime.
Article III, Section 13 of the 1987 Constitution
states:chanRoblesvirtualLawlibrary
Section 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable . . . (Emphasis
supplied)
The same evidence used by the trial court to grant bail to
Rolando was not used similarly in Escobar's favor. As the
Court of Appeals found:135
We cannot ignore the allegation of conspiracy and that the
other accused were all granted bail except him. Specifically,
[Rolando] was granted bail due to the weakness of Cubillas'
testimony against him.136
In light of the circumstances after the denial of Escobar's First
Bail Petition, his Second Bail Petition should have been given
due course. It should not be denied on the technical ground
of res judicata.
II
The Court of Appeals already approved Escobar's bail petition.
Meanwhile, City Jail Warden Latoza has informed this Court of
the absence of any temporary restraining order against the
Court of Appeals Decision granting the Second Bail Petition, as
well as the Regional Trial Court Order fixing his bail at
P300,000.00.137 Thus, the Court of Appeals March 24, 2014
Decision granting Escobar's provisional liberty can be
executed upon the approval of his bail bond, if he has indeed
paid the surety bond.
In closing, no part of this Decision should prejudice the
submission of additional evidence for the prosecution to prove
Escobar's guilt in the main case. "[A] grant of bail does not
prevent the trier of facts . . . from making a final assessment of
the evidence after full trial on the merits."138 As the Court of
Appeals correctly ruled:chanRoblesvirtualLawlibrary
[T]his determination is only for the purpose of bail[;] it is without
prejudice for the prosecution to submit additional evidence to
prove [Escobar]'s guilt in the course of the proceedings in the
primary case.139
WHEREFORE, the Petition is DENIED. The Court of Appeals
Decision dated March 24, 2014 in CA-G.R. SP No. 128189
is AFFIRMED.
Escobar may be provisionally released if he indeed has paid
the surety bond that must be contained in a public document
and approved by the Regional Trial Court judge. Otherwise, he
is directed to post bail.
SO ORDERED.
G.R. No. 200630, June 04, 2018
KIM LIONG, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
The right to confront and cross-examine an adverse witness is
a basic fundamental constitutional right. However, this is
personal to the accused, who can waive the right.
This resolves the Petition for Review on Certiorari1 assailing
the October 7, 2011 Decision2 and February 20, 2012
Resolution3 of the Court of Appeals in CA-G.R. SP No.
113152. The Court of Appeals found no grave abuse of
discretion in the issuance of the Orders dated August 27,
20094 and February 9, 20105 of Branch 44, Regional Trial
Court, Manila declaring Kim Liong (Liong) to have waived his
right to cross-examine prosecution witness Antonio Dela Rama
(Dela Rama).
In an Information6 dated January 28, 2002, Liong was charged
with estafa for allegedly failing to return to Equitable PCI Bank,
despite demand, a total of US$50,955.70, which was
erroneously deposited in his dollar account. The accusatory
portion of this Information read:
That on or about March 16, 2000, and for sometime
subsequent thereto, in the City of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and feloniously
defraud the EQUITABLE PCI BANK, Roxas Blvd. Branch, this
City, a banking institution duly organized and existing under
and by virtue of the Philippine laws, with place of business
located at the corner of Padre Faura and Roxas Boulevard,
36
Ermita, this City, represented by its Branch
Manager, ERMELINDA V. CONTRERAS, in the following
manner, to wit: the said accused, being then a depositor of the
said bank, with Dollar Savings Account Deposit No. 5265-
00761-9, well knowing that a mistake has been inadvertently
committed by the said bank in posting and crediting to his said
account the following amounts in U.S. dollars, to wit:
$ 11,989.70
14,565.30
8,610.40
15,790.30
or all in the total amount of US$50,955.70 which amount
should have been instead credited and posted to the account
of WALLEN (sic) MARITIME SERVICES, INC. under Account
No. 5265-00431-8, and by reason of said misposting and
crediting of the said amount to the accused's account, his
dollar deposit balance with the said bank had increased by
US$50,955.70 of which, accused is under obligation to inform
the said bank as regards to the excess amount unduly posted
and/or credited in his said account but instead of doing so, did
then and there make and/or cause the series of withdrawals
until the full amount of said US$50,955.70 was withdrawn from
the said bank, and once in possession of the same, in serious
breach of his legal obligation to return the said amount of
US$50,955.70, failed and refused and still fails and refuses to
do so despite repeated demands made upon him, and instead,
with intent to defraud, with unfaithfulness and grave abuse of
trust and confidence, misappropriated, misapplied and
converted the said amount of US$50,955.70 to his own
personal use and benefit, to the damage and prejudice of the
said EQUITABLE PCI BANK, Roxas Blvd. Branch, in the
aforesaid amount of US$50,955.70, or its equivalent in
Philippine Currency.
Contrary to law.7
Liong was arraigned on January 20, 2003, pleading not guilty
to the charge.8 The pre-trial conference was terminated on July
13, 2004.9
The initial presentation of the prosecution's evidence was set
on December 19, 2005. However, on that day, private
prosecutor Atty. Aceray Pacheco (Atty. Pacheco) requested a
resetting, which was granted by the trial court. The December
19, 2005 hearing was reset to January 26, 2006.10
On January 26, 2006, the hearing was again reset to March
30, 2006. The March 30, 2006 hearing was likewise reset, this
time, on the instance of a certain Atty. Villaflor, also one of the
private prosecutors. The initial presentation of the
prosecution's evidence was, thus, moved to June 8, 2006.11
The first prosecution witness, Antonio Dela Rama (Dela
Rama), was finally presented as scheduled on June 8, 2006.
His direct examination was terminated on January 25, 2007,
and the initial date for his cross-examination was set on March
15, 2007. On March 15, 2007, Atty. Danilo Banares (Atty.
Banares) appeared as collaborating counsel of Atty. Jovit
Ponon (Atty. Ponon), Liong's counsel of record. Atty. Banares
then moved for the resetting of the hearing to Apri119, 2007.12
On April 19, 2007, the hearing was again reset on the instance
of Liong because Atty. Ponon was allegedly a fraternity brother
of the private prosecutor, Atty. Pacheco. Thus, Liong
terminated the services of Atty. Ponon and the hearing was
reset to June 28, 2007.13
On July 31, 2008, the hearing was again reset to October 16,
2008 because Dela Rama had suffered a stroke.14
On February 5, 2009, Atty. Banares failed to appear in court.
Liong subsequently filed a Motion to Suspend Proceedings
and, eventually, a Motion to Dismiss.15 The hearing was reset
to May 7, 2009, which seems to have been cancelled again.16
On August 27, 2009, Atty. Banares again failed to appear in
court. Thus, private prosecutor Atty. Ma. Julpha Maningas
moved that Liong be declared to have waived his right to
cross-examine Dela Rama.17 The Motion was granted by the
trial court in its August 27, 2009 Order,18 hereby reproduced
below, thus:
ORDER
When this case was called for hearing, accused Kim Liong
appeared. However, his counsel, Atty. Dan Banares, failed to
appear.
Private prosecutor, Atty. Ma. Julpha Maningas, is present in
court. She moved that the right of the accused to cross-
examine prosecution's witness, Antonio dela Rama, be
deemed waived considering that his testimony was given way
back November 2006 and up to now he has not yet been
cross-examined by the defense. The same is granted.
Meanwhile, set the continuation of the presentation of
prosecution's evidence on October 29, 2009 at 8:30 in the
morning.
Notify Atty. Banares.
SO ORDERED.19
Liang, through a new counsel, Atty. Arnold Burigsay, filed an
Entry of Appearance with Motion for Reconsideration.20 Liang
argued that his former counsel, Atty. Banares, was grossly
negligent in handling his case as he repeatedly failed to attend
hearings, including the August 27, 2009 hearing where Liang
was declared to have waived his right to cross-examine Dela
Rama. He did not even file a motion for reconsideration of the
August 27, 2009 Order. According to Liang, Del a Rama was a
vital witness, and to allow his testimony to remain on record
without Liang having to cross-examine him would be extremely
damaging to the defense. Thus, Liong prayed that the trial
court reconsider its August 27, 2009 Order and grant him
another chance to cross-examine Dela Rama.21
The trial court, however, found that Liang's abuse of his right
by changing his counsels repeatedly was a tactic to delay the
proceedings. Thus, it denied Liang's Motion for
Reconsideration in its February 9, 2010 Order,22 which stated:
ORDER
Accused thru his new counsel, Atty. Arnold M. Burigsay filed
on October 26, 2009 an Entry of Appearance with Motion for
Reconsideration of the order of this court dated August 27,
37
2009 declaring the accused to have waived his right to cross
examine prosecution witness, Antonio dela Rama.
Accused admitted that the failure to cross examine prosecution
witness was due to the negligence of his counsel who failed to
appear and perform his task as counsel for the accused.
Accused should not be punished for the negligence of his
counsel.
In opposition to the motion, the private prosecutor thru Atty.
Ma. Julpha P. Maningas averred that the cross examination of
witness Antonio dela Rama had been reset a number of times
due to the fault of the accused who kept on changing his
counsel; that accused was given more than sufficient
opportunities to cross examine the said witness but simply
delayed the proceedings of this case until it lapsed two (2)
years.
The records will show that this case has been filed on February
12, 2002. Accused was arraigned on January 20, 2003. Pre-
trial was terminated on July 13, 2004. The first witness for the
prosecution in the person of Antonio dela Rama was presented
on June 8, 2006, August 3, 2006, November 9, 2006 and
January 25, 2007. Because of the lengthy testimony of the
witness on direct examination, the cross examination was
deferred and reset to March 15, 2007. The cross examination
was reset several times upon motion of the accused who
engaged the services of the new counsel (March 15, 2007 and
April 19, 2007).
On January 31, 2008[,] witness Antonio dela Rama was
hospitalized. Accused also got sick on April 17, 2008. On
February 5, 2009[,] accused['s] counsel, Atty. Banares[,] failed
to appear. Accused likewise filed several motions, Motion to
Suspend Proceedings on February 5, 2009 and Motion to
Dismiss on July 30, 2009. Again[,] on August 27, 2009[,]
counsel for the accused failed to appear. No motion has been
filed for his non-appearance, hence, the court upon motion of
private prosecutor, Atty. Maningas[,] in conformity of
Prosecutor Meneses, declared accused to have waived his
right to cross examine the witness Antonio dela Rama.
The direct examination of said witness was concluded on
January 25, 2007. The delay in the cross examination of the
witness was due to the fault of the accused and counsel. The
court has noted the ploy employed by the accused like the
tiling of baseless motions and the changing of his counsel to
delay the proceedings of this case. More than two (2) years
has lapsed and still accused has not started his cross
examination. Witness has been coming to court despite his
condition (after his hospitalization) only to be reset due to the
unpreparedness of accused['s] counsel or his non-appearance.
The court has to put end to this unreasonable delay.
WHEREFORE, in view of the foregoing considerations, the
Motion for Reconsideration is hereby denied due course.
SO ORDERED.23
Alleging grave abuse of discretion on the part of Presiding
Judge Jose P. Morallos (Presiding Judge Morallos) in declaring
him to have waived his right to cross-examine Dela Rama,
Liong filed a Petition for Certiorari before the Court of
Appeals.24
The Court of Appeals agreed with the trial court judge and
denied Liang's Petition. It held that what is essential is for an
accused to be granted the opportunity to confront and cross-
examine the witnesses against him, not to actually cross-
examine them. In other words, when an accused fails to avail
himself or herself of this right, he or she is deemed to have
waived it.25
The Court of Appeals found that Liong repeatedly delayed his
cross examination of Dela Rama specifically on March 15,
2007, April 19, 2007, February 5, 2009, and August 27, 2009.
On those dates, Liong's counsel was either unprepared or
absent. While there were hearings that were reset on the
instance of witness Dela Rama, those were caused by his then
hospitalization due to stroke. The Court of Appeals likewise
said that Liong could not use in his favor the cancelled
hearings on June 28, 2007, September 30, 2007, November
22, 2007, and October 16, 2008. The allegations that the
hearings on these dates were cancelled due to the absence of
the public prosecutor or the trial court judge were not
substantiated.26
On Liong's claim that his former counsel was grossly negligent,
the Court of Appeals nevertheless said that the negligence of
counsel binds the client and, in this case, Liong was not
blameless. The Court of Appeals cited an Order dated October
8, 2003 of the former presiding judge trying the case, Presiding
Judge Edelwina Catubig Pastoral (Judge Pastoral), where
Liong was admonished because he frequently changed
counsels.27
The dispositive portion of the Court of Appeals October 7, 2011
Decision28 read:
WHEREFORE, premises considered, the present petition
is DENIED. Accordingly, the assailed Orders of the Regional
Trial Court dated August 27, 2009 and February 9, 2010 are
hereby AFFIRMED.
SO ORDERED.29
Liong filed a Motion for Reconsideration, which the Court of
Appeals denied in its February 20, 2012 Resolution,30 thus:
An assiduous evaluation of the said Motion for Reconsideration
led US to conclude that there exists no compelling and
justifiable reason for US to veer away from OUR earlier
pronouncement. The arguments presented by petitioner had
already been traversed and ruled upon by US. There is no
need to belabor the issues one more time.
WHEREFORE, on account of the foregoing, WE deny the said
Motion for Reconsideration.
SO ORDERED.31
On March 26, 2012, Liong tiled his Petition for Review on
Certiorari32 before this Court. The Office of the Solicitor
General, on behalf of the People of the Philippines, filed a
Comment33 to which petitioner filed his Reply.34
Petitioner alleges that the cross-examination of Dela Rama
was reset 13 times. However, out of those 13 resettings, only
four (4) are attributable to him while the rest are due to reasons
beyond his control, such as witness Dela Rama's stroke and
38
the absence of the public prosecutor.35 He adds that the order
of waiver was made in open court and at a time when his
counsel was absent; thus, he was not able to oppose the
declaration.36 Therefore, he argues that the trial court judge,
Presiding Judge Morallos, gravely abused his discretion in
depriving him of the rights to confront and cross-examine
prosecution witness Dela Rama.37
Respondent People of the Philippines counters that petitioner
raises a question of fact, specifically on which of the resettings
are not attributable to him. It contends that questions of facts
are not allowed in a Rule 45 Petition, and therefore, this Court
is "not duty-bound to analyze again and weigh the evidence
introduced in and considered by the [trial court and the Court of
Appeals]."38
On the supposed negligence of petitioner's former counsel,
respondent argues that this was not gross so as to discharge
petitioner from any liability. Respondent alleges that petitioner
benefited from the absences of his former counsel and his
other dilatory tactics such as frequently changing
counsels.39 For these reasons, the trial court judge, Presiding
Judge Morallos, correctly deemed petitioner's right to cross-
examine Dela Rama as waived.
The issues for this Court's resolution are:
First, whether or not this Petition for Review on Certiorari
should be denied for raising factual issues; and
Second, whether or not the trial court gravely abused its
discretion in declaring as waived petitioner Kim Liong's right to
cross-examine prosecution witness Antonio Dela Rama.
This Petition must be denied.
I will be no violation of the right of confrontation.
The fundamental rights of the accused are provided in Article
III, Section 14 of the Constitution:
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)
"To meet the witnesses face to face" is the right of
confrontation. Subsumed in this right to confront is the right of
an accused to cross-examine the witnesses against him or her,
i.e., to propound questions on matters stated during direct
examination, or connected with it.40 The cross-examination
may be done "with sufficient fullness and freedom to test [the
witness'] accuracy and truthfulness and freedom from interest
or bias, or the reverse, and to elicit all important facts bearing
upon the issue."41
Rule 115 of the Rules of Court with its lone section is devoted
entirely to the rights of the accused during trial. Rule 115,
Section 1(f) on the right to cross-examine provides:
Section 1. Rights of accused at the trial. — In all criminal
prosecutions, the accused shall be entitled to the following
rights:
....
(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.
Denying an accused the right to cross-examine will render the
testimony of the witness incomplete and inadmissible in
evidence. "[W]hen cross-examination is not and cannot be
done or completed due to causes attributable to the party
offering the witness, the uncompleted testimony is thereby
rendered incompetent."42
However, like any right, the right to cross-examine may be
waived.43 It "is a personal one which may be waived expressly
or impliedly by conduct amounting to a renunciation of the right
of cross-examination."44 When an accused is given the
opportunity to cross-examine a witness but fails to avail of it,
the accused shall be deemed to have waived this right.45 The
witness' testimony given during direct examination will remain
on record.46 If this testimony is used against the accused, there
In People v. Narca,47 the trial court deferred to another date the
cross examination of the prosecution witness on the instance
of the accused. However, in the interim, the prosecution
witness was murdered. Thus, the accused moved that the
testimony of the prosecution witness be stricken off the record
for lack of cross-examination. This Court rejected the
argument, finding that the accused waived their right to cross-
examine the prosecution witness when they moved for
postponement. It said that "mere opportunity and not
actual cross-examination is the essence of the right to cross-
examine."48
In Gimenez v. Nazareno,49 the accused, after arraignment but
before trial, escaped from his detention center. Trial ensued
despite his absence and the accused was subsequently
convicted of murder. On appeal, the accused contended that
the testimonies against him should be stricken off the record
because he failed to exercise his right to cross-examine the
witnesses against him. Rejecting this contention, this Court
held that an escapee who has been tried in absentia does not
retain the rights to confront and cross-examine the witnesses
against him. These rights are personal and "by his failure to
appear during the trial of which he had notice," this Court said
that the accused "virtually waived these rights."50
II
39
Petitioner maintains that he did not waive his right to cross-
March 15,
examine witness Dela Rama, attributing the successive Atty. Banares appeared as collaborating
2007
cancellation of hearings on the absence either of the witness, counsel for accused's counsel of record,
the public prosecutor, or the trial court judge. He adds that his Atty. Ponon.
counsel was grossly negligent in handling the case.
April 19,
However, as pointed out by respondent, the matters raised in 2007 Petitioner terminated the services of
this Petition are questions of fact not proper in a Rule 45 Atty. Ponon. who was allegedly a
petition. This Court is not a trier of facts,51 and rightfully so. fraternity brother of private prosecutor,
This Court, as the court of last resort, should focus more on Atty. Pacheco.
performing "the functions assigned to it by the fundamental
charter and immemorial tradition."52 The rule, therefore, is that
June 28,
petitions for review on certiorari may only raise questions of No reason indicated.
2007
law. Rule 45, Section 1 of the Rules of Court provides:
September
Section 1. Filing of petition with Supreme Court. — A party 30, 2007 No reason indicated.
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the
November
Court of Tax Appeals, the Regional Trial Court or other courts, Public prosecutor was absent.
22, 2007
whenever authorized by law, may file with the Supreme Court
a verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or January 31,
2008 Witness Dela Rama was absent.
other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek
the same provisional remedies by verified motion filed in the April 17,
2008 Petitioner was indisposed, and
same action or proceeding at any time during its pendency. therefore absent.

It is true that this rule is subject to exceptions. This Court may

review factual issues if any of the following is present: June 26,
2008 Witness Dela Rama was absent.

(1) [W]hen the findings are grounded entirely on speculation,

July 31,
surmises or conjectures; (2) when the inference made is Witness Dela Rama was absent
2008
manifestly mistaken, absurd or impossible; (3) when there is because he suffered a stroke.
grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the Court of Appeals October 16,
2008 Presiding Judge Morallos was on leave.
went beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee; (7)
when the findings are contrary to the trial court; (8) when the February 5,
2009 Petitioner's counsel was absent.
findings 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 petitioner's main and reply briefs are May 7, 2009
No reason indicated.
not disputed by the respondent; (10) when the findings of fact
are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the August 27,
2009 Petitioner's counsel was absent and, on
Court of Appeals manifestly overlooked certain relevant facts motion by the private prosecutor,
not disputed by the parties, which, if properly considered, Presiding Judge Morallos deemed
would justify a different conclusion.53 petitioner's right to cross-examine
witness Dela Rama as waived.
Nevertheless, this Court finds that none of the exceptions
applies in this case. Even if this Court considers the facts as
The table shows that petitioner was given more than enough
alleged by petitioner, it will still arrive at the conclusion that the
opportunity to cross-examine witness Dela Rama. Contrary to
trial court judge did not gravely abuse his discretion in deeming
his allegation, five (5) of the cancellations are attributable to
petitioner's right to cross-examination as waived. Therefore,
him. For instance, the March 15, 2007 hearing was cancelled
the Court of Appeals did not err in denying petitioner's Petition
on petitioner's motion because Atty. Banares appeared as
for Certiorari.
collaborating counsel for his counsel of record, Atty. Ponon.
The next hearing set on April 19, 2007 was again cancelled
The table below is a summary of the hearing dates set for the because petitioner terminated the services of Atty. Ponon who
cross-examination of Dela Rama and the reasons for their was allegedly a fraternity brother of one of the private
cancellation. It is based on the dates as alleged in the prosecutors, Atty. Pacheco. On April 17, 2008, petitioner was
Petition.54 allegedly indisposed and did not attend the hearing. On
February 5, 2009, petitioner had no counsel. Finally, on August
Hearing 27, 2009, petitioner again had no counsel and Presiding Judge
Reasons for Cancellation Morallos deemed petitioner's right to cross-examine Dela
Dates
Rama as waived.
40
Of course, there were cancellations due to the absence of
either the prosecutor or witness Dela Rama himself. There was
even one hearing, which was cancelled because Presiding
Judge Morallos was on leave. However, even after Dela Rama
suffered a stroke, he attended the hearings on February 5,
2009 and August 27, 2009, with the hearings only to be
cancelled because petitioner did not have his counsel with him.
These show that petitioner failed to aggressively exercise his
rights to confront and cross-examine witness Dela Rama. The
absence of counsel during the February 5, 2009 and August
27, 2009 hearings was never explained.
Petitioner had the habit of frequently changing counsels. In an
Order issued as early as October 8, 2003, former Presiding
Judge Pastoral admonished petitioner for "again" changing his
counsel during pre-trial, thus, delaying the proceedings:
The accused again has engaged another lawyer and he asked
for a resetting.
Atty. Ponon is the new counsel for the accused and he asked
for a last resetting.
The court warned the accused not to hire another lawyer only
for the purpose of delaying this case.
For the last time[,] reset the pre-trial to December 11[,] 2003, at
8:30 o'clock in the morning.
Notify the bonding company and the accused is duly notified in
open court of the resetting.
SO ORDERED.55
No gross negligence is attributable to petitioner's counsel.
Ordinary diligence and prudence could have prevented the
cancellation of the hearings. If there is any negligence in this
case, it is that of petitioner himself. For failure to avail himself
of the several opportunities given to him, he is deemed to have
waived his right to confront and cross-examine witness Dela
Rama.
The right to confront and cross-examine witnesses is a basic,
fundamental human right vested inalienably to an accused.
This right ensures that courts can confidently ferret out the
facts on the basis of which they can determine whether a crime
occurred and the level of culpability of the accused. It is a basic
requirement of criminal justice.
However, this right does not exist in isolation. The State,
representing the people that may have been wronged by a
crime, also has the right to due process. This means that the
prosecution must not be denied unreasonably of its ability to be
able to prove its case through machinations by the accused.
When the accused abuses its option to choose his counsel as
in this case, he can be deemed to have waived his right to
confrontation and cross-examination. The pattern of
postponements and changes of counsel in this case is so
obvious and patent. Petitioner should have been dissuaded by
any of the lawyers, unless they, too, connived in such an
amateurish strategy, which wastes the time and resources of
our judicial system.
All told, Presiding Judge Morallos did not gravely abuse his
discretion in deeming as waived petitioner's right to cross-
examine prosecution witness Dela Rama. The Court of
Appeals correctly denied petitioner's Petition for Certiorari.
Dela Rama's testimony given during direct examination shall
remain on record. We sustain both courts.
WHEREFORE, the Petition for Review on Certiorari
is DENIED. The October 7, 2011 Decision and February 20,
2012 Resolutions of the Court of Appeals in CA-G.R. SP No.
113152 are AFFIRMED.
SO ORDERED.
Velasco, Jr., (Chairperson), Bersamin, Martires,
and Gesmundo, JJ., concur.
third DIVISION
OCTOBER 4, 2017
G.R. No. 209342
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
CRISENTE PEPAÑO NUÑEZ, Accused-Appellant
DECISION
LEONEN, J.:
To convict an accused, it is not sufficient for the prosecution to
present a positive identification by a witness during trial due to
the frailty of human memory. It must also show that the
identified person matches the original description made by that
witness when initially reporting the crime. The unbiased
character of the process of identification by witnesses must
likewise be shown.
Criminal prosecution may result in the severe consequences of
deprivation of liberty, property, and, where capital punishment
is imposed, life. Prosecution that relies solely on eyewitness
identification must be approached meticulously, cognizant of
the inherent frailty of human memory. Eyewitnesses who have
previously made admissions that they could not identify the
perpetrators of a crime but, years later and after a highly
suggestive process of presenting suspects, contradict
themselves and claim that they can identify the perpetrator with
certainty are grossly wanting in credibility. Prosecution that
relies solely on these eyewitnesses' testimonies fails to
discharge its burden of proving an accused's guilt beyond
reasonable doubt.
This resolves an appeal from the assailed June 26, 2013
Decision1 of the Court of Appeals in CA-G.R. CR HC No.
04474, which affirmed with modification the February 24, 2010
Decision2 of Branch 67, Regional Trial Court, Binangonan,
Rizal. This Regional Trial Court Decision found accused-
appellant Crisente Pepaño Nuñez (Nuñez) guilty beyond
reasonable doubt of robbery with homicide.
41
In an Information, George Marciales (Marciales), Orly Nabia
(Nabia), Paul Pobre (Pobre), and a certain alias "Jun'' (Jun)
were charged with robbery with homicide, under Article 294(1)
of the Revised Penal Code,3 as follows:
That on or about the 22nd of June 2000, in the Municipality of
Binangonan, Province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping and aiding one
another, armed with handguns, by means of violence against
or intimidation of the persons of Felix V. Regencia, Alexander
C. Diaz and Byron G. Dimatulac, with intent to gain, did then
and there, willfully, unlawfully and feloniously take and carry
away the money amounting to ₱5,000.00 belonging to the
Caltex gasoline station owned by the family of Felix V.
Regencia to their damage and prejudice; that on the occasion
of the said robbery and to insure their purpose, the said
accused, conspiring, confederating and mutually helping and
aiding one another, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and shoot
said Felix V. Regencia, Alexander C. Diaz and Byron G.
Dimatulac on the different parts of their bodies, thereby
inflicting gunshot wounds which directly caused their deaths.4
At first, only Marciales and Nabia were arrested, arraigned,
and tried. In its December 9, 2005 Decision,5 the Regional Trial
Court found the offense of robbery with homicide as alleged in
the Information, along with Marciales and Nabia's conspiracy
with Pobre and Jun to commit this offense, to have been
established. Thus, it pronounced Marciales and Nabia guilty
beyond reasonable doubt and sentenced them to death.6 The
case against Pobrn and Jun was archived subject to revival
upon their apprehension.7
On July 2, 2006, accused-appellant Nunez was apprehended
by the Philippine National Police Regional Intelligence Office
on the premise that he was the same ''Paul Pobre" identified in
the Inforn1ation. Upon arraigru11ent, Nuñez moved that the
case against him be dismissed as he was not the "Paul Pobre"
charged in the Information. However, prosecution witnesses
identified him as one (1) of the alleged robbers and his motion
to dismiss was denied. The information was then atnended to
state Nuñez's name in lieu of "Paul Pobre."8
During trial, the prosecution manifested that it would be
adopting the evidence already presented in the course of
Marciales and Nabia's trial. Apart from this, it also recalled
prosecution witnesses Ronalyn Cruz (Cruz) and Relen Perez
(Perez). In their testimonies, they both positively identified
Nunez as among the perpetrators of the crime.9
Cruz's testimony recounted that in the evening of June 22,
2000, she was working as an attendant at the Caltex gasoline
station mentioned in the Infonnation. She was then sitting near
the g1;1,soline pumps with her co-employees, the deceased
Byron G. Dimatulac (Dimatulac) and prosecution witness
Pierez. They noticed that the station's office was being held up.
There were two (2) persons poking guns at and asking for
money from the deceased Alex Diaz (Diaz) and Felix Regencia
(Regencia). Regencia hancied money to one (1) of the robbers
while the other robber reached for a can of oil. Regencia
considered this as enough of a distraction to put up a fight.
Regencia and Diaz grappled with the robbers. In the scuffle,
Diaz shouted. At the sound of this, two (2) men ran to the
office. The first was identified to be Marciales and the second,
according to Cruz, was Nunez. Dimatulac also ran to the office
to assist Regencia and Oiaz. Marciales then shot Dimatulac
while Nunez shot Diaz. Cruz and Perez sought refuge in a
computer shop. About 10 to 15 minutes later, they returned to
the gasoline station where they found Diaz already dead,
Dimatulac gasping for breath, and Regencia wounded and
crawling. By then, the robbers were rushing towards the
highway.10
Perez's testimony recounted that in the evening of June 22,
2000, she was working as a sales clerk in the Caltex gasoline
station adverted to in the Information. While seated with Cruz
near the gasoline pumps, she saw Nuñez, who was pointing a
gun at Diaz, and another man who was pointing a gun at
Regencia, inside the gasoline station's office. Diaz shouted
that they were being robbed. Another man then rushed to the
gasoline station's office, as did her co-employee Dimatulac. A
commotion ensued where the robber identified as Marciales
shot Dimatulac, Diaz, and Regencia. They then ran to their
employer's house.11
Nunez testified in his own defense and recalled the
circumstances of his apprehension. He stated that when he
was apprehended on July 2, 2006, he was on his way to his
aunt's fish store where he was helping since 1999 when a man
approached him. He was then dragged and mauled. With his
face covered, he was boarded on a vehicle and brought to
Camp Vicente Lim in Laguna. He further claimed that on June
22, 2000, he was in Muzon, Taytay, Rizal with his aunt at her
fish store until about 5:00 p.m. before going home. At home,
his aunt's son fetched him to get pails from the store and bring
them to his aunt's house.12
On February 24, 2010, the Regional Trial Court rendered a
Decision13 finding Nunez guilty beyond reasonable doubt of
robbery with homicide. This four (4)-page Decision
incorporated the original Regional Trial Court December 9,
2005 Decision and added the following singular paragraph in
explaining Nunez's supposed complicity:
To convict Nunez of robbery with homicide requires proof
beyond reasonable doubt that he: (1) took personal property
which belongs to another; (2) the taking is unlawful; (3) the
taking is done with intent to gain; and (4) the taking was
accomplished with the use of violence against or intimidation of
persons or by using force upon things. Article 294(1) of the
Revised Penal Code and (5) when by reason or on occasion of
the robbery, the crime of homicide shall have been
committed[.] The facts are simple. Nuñez along with Marciales
and Nabia robbed the Tayuman Caltex gas station of
₱5,000.00 and some cans of oil. For such booty, he[,] along
with his fellow thieves[,] shot and killed Felix Regencia,
Alexander C. Diaz and Byron G. Dimatulac. He was positively
and unequivocally identified by Renel Cruz and Ronalyn Perez
as [one] of the perpetrators even as he tried to hide behind
another name and was arrested later. He ran but could not
hide as the long arm of the law finally caught up with him. As a
defense, he can only offer his weak alibi which cannot offset
the positive identification of the prosecution witnesses. His guilt
was proven beyond reasonable doubt.14
The Regional Trial Court rendered judgment, as follows:
Based on the foregoing, we find accused Crisente Pepaño
Nuñez
42
GUILTY beyond reasonable doubt of the crime of Robbery with
Homicide under Article 294 (1) of the Revised Penal Code and
sentences (sic) him to suffer the penalty of Reclusion
Perpetua and order him to pay:
1. The heirs of Felix Regencia Php. 151,630.00 expenses for
the wake, burial lot and funeral service; Php. 75,000.00 death
indemnity; Php. 5,000.00 money stolen from the victim;
exemplary damages of Php. 50,000.00; and Php. 2,214,000.00
unearned income;
2. The heirs of Alexander Diaz Php. 20,000.00 expenses for
funeral service; Php. 75,000.00 death indemnity; Php.
50,000.00 exemplary damages; and Php. 1,774,080.00
unearned income;
3. The heirs of Byron Dimatulac Php. 18,000.00 for funeral
service; Php. 75,000.00 death indemnity; Php. 50,000.00
exemplary damages; and Php. 966,240.00 unearned income[;]
and
4. The costs.
Let the case against alias "Jun" who remains at large be
archived.
SO ORDERED.15
On March 5, 2010, Nuñez fifed his Notice of Appeal.16
On June 26, 2013, the Court of Appeals rendered its assailed
Decision17 affirming Nunez's conviction, with modification to
the awards of moral and exemplary damages, as follows:
WHEREFORE, in view of the foregoing, the appeal is hereby
DISMISSED for lack of merit. The Decision dated February 24,
2010 of the Regional Trial Court of Binangonan, Rizal, Branch
67, in Criminal Case No. 00-473 is hereby AFFIRMED with
MODIFICATION. Accused-appellant Crisente Pepaño Nuñez is
ordered to pay ₱75,000.00 as moral damages and
₱30,000.00 as exemplary damages each to the heirs of Felix
Regencia, the heirs of Alexander Diaz and the heirs of Byron
Dimatulac.
SO ORDERED.18
Nuñez then filed his Notice of Appeal.19
The Court of Appeals elevated the records of this case to this
Court on October 22, 2013 pursuant to its Resolution dated
July 23, 2013. The Resolution gave due course to Nuñez's
Notice of Appeal.20
In its Resolution21 dated December 4, 2013, this Court noted
the records forwarded by the Court of Appeals and informed
the parties that they may file their supplemental briefs.
However, both parties manifested that they would no longer do
so.22
The occurrence of the robbery occasioned by the killing of
Regencia, Diaz, and Dimatulac is no longer in issue as it has
been established in the original proceedings which resulted in
the conviction of Marciales and Nabia.
All that remains in issue for this Court's resolution is whether or
not accused-appellant Crisente Pepaño Nuñez is the same
person, earlier identified as Paul Pobre, who acted in
conspiracy with Marciales and Nabia.
Contrary to the conclusions of the Court of Appeals and
Regional Trial Court, this Court finds that it has not been
established beyond reasonable doubt that accused-appellant
Crisente Pepaño Nuñez is thy same person identified as Paul
Pobre. Thus, this Court reverses the courts a quo and acquits
accused-appellant Crisente Pepano Nunez.
The prosecution's case rises and falls on the testimonies of
eyewitnesses Cruz and Perez. The necessity of their
identification of Nunez is so manifest that the prosecution saw
it fit to recall them to the stand, even as it merely adopted the
evidence already presented in the trial of Marciales and Nabia.
Cruz's and Perez's testimonies centered on their supposed
certainty as to how it was Nuñez himself, excluding any other
person, who participated in the robbery and homicide.
This Court finds this supposed certainty and the premium
placed on it by the Court of Appeals and the Regional Trial
Court to be misplaced.
I
There are two (2) principal witnesses who allegedly identified
accused-appellant as the same Pobre who participated in the
robbery holdup. When Cruz, the first witness, was initially put
on the witness stand, she asserted that she could not recall
any of the features of Pobre. After many years, with the police
presenting her with accused-appellant, she positively identified
him as the missing perpetrator. The second principal witness'
testimony on the alleged participation of accused-appellant is
so fundamentally at variance with that of the other principal
witness. The prosecution did not account for the details of the
presentation of accused· appellant to the two (2) witnesses
after he was arrested. Finally, these witnesses' alleged positive
identification occurred almost eight (8) years, for the first
witness, and almost nine (9) years, for the second witness,
from the time of the commission of the offense.
The frailty of human memory is a scientific fact. The danger of
inordinate reliance on human memory in criminal proceedings,
where conviction results in the possible deprivation of liberty,
property, and even life, is equally established.
Human memory does not record events like a video recorder.
In the first place, human memory is more selective than a
video camera. The sensory environment contains a vast
amount of information, but the memory process perceives and
accurately records only a very small percentage of that
information. Second, because the act of remembering is
reconstructive, akin to putting puzzle pieces together, human
memory can change in dramatic and unexpected ways
because of the passage of time or subsequent events, such as
exposure to "postevent" information like conversations with
other witnesses or media reports. Third, memory can also be
altered through the reconstruction process. Questioning a
witness about what he or she perceived and requiring the
witness to reconstruct the experience can cause the witness
memory to change by unconsciously blending the actual
fragments of memory of the event with information provided
during the memory retrieval process.23
43
Eyewitness identification, or what our jurisprudence
commendably refers to as "positive identification," is the
bedrock of many pronouncements of guilt. However,
eyewitness identification is but a product of flawed human
memory. In an expansive examination of 250 cases of wrongful
convictions where convicts were subsequently exonerated by
DNA testing, Professor Brandon Garett (Professor Garett)
noted that as much as 190 or 76% of these Wrongful
convictions were occasioned by flawed eyewitness
identifications.24 Another observer has more starkly
characterized eyewitness identifications as ''the leading cause
of wrongful convictions."25
Yet, even Professor Garrett's findings are not novel. The
fallibility of eyewitness identification has been recognized and
has been the subject of concerted scientific study for more
than a century:
This seemingly staggering rate of involvement of eyewitness
errors in wrongful convictions is, unfortunately, no surprise.
Previous studies have likewise found eyewitness errors to be
implicated in the majority of cases of wrongful conviction. But
Garrett's analysis went farther than these previous studies. He
not only documented that eyewitness errors occurred in his
cases. He also tried to determine why they occurred - an issue
eyewitness science has investigated for over 100 years.26
The dangers of the misplaced primacy of eyewitness
identification are two (2)-pronged: on one level, eyewitness
identifications are inherently prone to error; on another level,
the appreciation by observers, such as jurors, judges, and law
enforcement officers of how an eyewitness identifies supposed
culprits is just as prone to error:
The problem of eyewitness reliability could not be more clearly
documented. The painstaking work of the Innocence Project,
Brandon Garrett, and others who have documented wrongful
convictions, participated in the exonerations of the victims, and
documented the role of flawed evidence of all sorts has clearly
and repeatedly revealed the two-pronged problem of
unreliability for eyewitness evidence: (1) eyewitness
identifications are subject to substantial error, and (2) observer
judgments of witness accuracy are likewise subject to
substantial error.27
The bifurcated difficulty of misplaced reliance on eyewitness
identification is borne not only by the intrinsic limitations of
human memory as the basic apparatus on which the entire
exercise of identification operates. It is as much the result of
and is exacerbated by extrinsic factors such as environmental
factors, flawed procedures, or the mere passage of time:
More than 100 years of eyewitness science has supported
other conclusions as well. First, the ability to match faces to
photographs (even when the target is present while the witness
inspects the lineup or comparison photo) is poor and peaks at
levels far below what might be considered reasonable doubt.
Second, eyewitness accuracy is further degraded by pervasive
environmental characteristics typical · of many criminal cases
such as: suboptimal lighting; distance; angle of view; disguise;
witness distress; and many other encoding conditions. Third,
memory is subject to distortion due to a variety of influences
not under the control of law enforcement that occur between
the criminal event and identification procedures and during
such procedures. Fourth, the ability of those who must assess
the accuracy of eyewitness testimony is poor for a variety of
reasons. Witnesses' ability to report on many issues affecting
or reflecting accuracy is flawed and subject to distortion (e.g.,
reports of duration of observation. distance, attention,
confidence, and others). thereby providing a flawed basis for
others' judgments of accuracy.28
Likewise, decision-makers such as jurists and judges, who are
experts in law, procedure, and logic, may simply not know
better than what their backgrounds and acquired inclinations
permit:
Additionally, the limits and determinants of performance for
facial recognition are beyond the knowledge of attorneys,
judges, and jurors. The traditional safeguards such as cross-
examination are not effective and cannot be effective in the
absence of accurate knowledge of the limits and determinants
of witness performance among both the cross-examiners and
the jurors who must judge the witness. Likewise, cross-
examination cannot be effective if the witness reports elicited
by cross-examination are flawed: for example, with respect to
factors such as original witnessing conditions (e.g., duration of
exposure), post-event influences (e.g., conversations with co-
witnesses), or police suggestion (e.g., repo1is of police
comments or behaviors during identification procedures).29
II
Legal traditions in various jurisdictions have been responsive
to the scientific reality of the frailty of eyewitness identification.
In the United States, the Supreme Court "ruled for the first time
that the Constitution requires suppression of some
identification evidence"30 in three (3) of its decisions, all
rendered on June 12, 1967-United States v. Wade,31 Gilbert v.
California, 32 and Stovall v. Denno.33 Stovall emphasized that
such suppression, when appropriate, was "a matter of due
process."34
Until the latter half of the twentieth century, the general rule in
the United States was that any problems with the quality of
eyewitness identification evidence went to the weight, not the
admissibility, of that evidence and that the jury bore the
ultimate responsibility for assessing the credibility and reliability
of an eyewitness's identification. In a trilogy of landmark cases
released on the same day in 1967, however, the Supreme
Court ruled for the first time that the Constitution requires
suppression of some identification evidence. In United
States v. Wade and Gilbert v. California, the Court held that a
post-indictment lineup is a critical stage in a criminal
prosecution, and, unless the defendant waives his Sixth
Amendment rights, defense counsel's absence from such a
procedure requires suppression of evidence from the lineup.
The court also ruled, however, that even when the lineup
evidence itself must be suppressed, a witness would be
permitted to identify the defendant in court if the prosecution
could prove the witness had an independent source for his
identification ...
….
In Stovall v. Denno, the Court held that, regardless of whether
a defendant's Sixth Amendment rights were in1plicated or
violated, some identification procedures are "so unnecessarily
suggestive and conducive to irreparable mistaken
44
identification" that eyewitness evidence must be suppressed
as a matter of due process.35 (Citations omitted)
In Wade, the United States Supreme Court noted that the
factors judges should evaluate in deciding the independent
source question include:
[T]he prior opportunity to observe the alleged criminal act, the
existence of any discrepancy between any pre-lineup
description and the defendant's actual description, any
identification prior to lineup of another person, the identification
by picture of the defendant prior to the lineup, failure to identify
the defendant on a prior occasion, and the lapse of time
between the alleged act and the lineup identification."36
Nine (9) months later, in Simmons v. United States, the United
States Supreme Court calibrated its approach by "focusing in
that case on the overall reliability of the identification evidence
rather than merely the flaws in the identification procedure."
Ultimately, the Court concluded there was no due process
violation in admitting the evidence because there was little
doubt that the witnesses were actually correct in their
identification of Simmons. Scholars have frequently
characterized Simmons as the beginning of the Court's
unraveling of the robust protection it had offered
in Stovall; while Stovall provided a per se rule of exclusion for
evidence derived from flawed procedures, Simmons rejected
this categorical approach in favor of a reliability analysis that
would often allow admission of eyewitness evidence even
when an identification procedure was unnecessarily
suggestive.37
In more recent Supreme Court decisions, the United States
has "reaffirmed its shift toward a reliability analysis, as
opposed to a focus merely on problematic identification
procedures" beginning in 1972 through Neil v. Biggers:38
The Biggers Court stated that, at least in a case in which the
confrontation and trial had taken place
before Stovall, identification evidence would be admissible,
even if there had been an unnecessarily suggestive procedure,
so long as the evidence was reliable under the totality of the
circumstances. To inform its reliability analysis,
the Biggers Court articulated five factors it considered relevant
to the inquiry:
[(l)] the opportunity of the witness to view the criminal at the
time of the crime, [(2)] the witness' degree of attention, [(3)] the
accuracy of the witness' prior description of the criminal, [(4)]
the level of certainty demonstrated by the witness at the
confrontation, and [(5)] the length of time between the crime
and the confrontation.
The Biggers Court clearly proclaimed that the "likelihood of
misidentification," rather than a suggestive procedure in and of
itself, is what violates a defendant's due process rights.
However, the Biggers Court left open the possibility that per se
exclusion of evidence derived from unnecessarily suggestive
confrontations might be available to defendants whose
confrontations and trials took place after Stovall.39
The Biggers standard was further affirmed in 1977 in Manson
v. Brathwaite; 40
The Manson Court made clear that the standard
from Biggers would govern all due process challenges to
eyewitness evidence, stating that judges should weigh the five
factors against the "corrupting effect of the suggestive
identification." Ultimately, the Court affirmed that "reliability is
the linchpin in determining the admissibility of identification
testimony." In rejecting the per se exclusionary rule, the Court
acknowledged that such a rule would promote greater
deterrence against the use of suggestive procedures, and it
noted a "surprising unanimity among scholars" that the per se
approach was "essential to avoid serious risk of miscarriage of
justice." However, the Court concluded the cost to society of
not being able to use reliable evidence of guilt in criminal
prosecutions would be too high. The Manson Court also made
clear that its new stm1dard would apply to both pre-trial and in-
court identification evidence, thus resulting in a unified analysis
of all identification evidence in the wake of suggestive
procedures. In contrast, the Stovall Court had not specified
whether unnecessarily suggestive procedures would require
per se exclusion of both pre-trial identification evidence and
any in-court identification, or alternatively, whether witnesses
who had viewed unnecessarily suggestive procedures might
nonetheless be allowed to identify defendants in court after an
independent source determination.41
A 2016 article notes that Manson "remains the federal
constitutional standard."42 It' also notes that "[t]he vast majority
of states have also followed Manson in interpreting the
requirements of their own constitutions."43
The United Kingdom has adopted the Code of Practice for the
Identification of Persons by Police Officers.44 It "concerns the
principal methods used by police to identify people in
connection with the investigation of offences and the keeping
of accurate and reliable criminal records" and covers
eyewitness identifications. This Code puts in place measures
advanced by the corpus of research in enhancing the reliability
of eyewitness identification, specifically by impairing the
suggestive tendencies of conventional procedures. Notable
measures include having a parade of at least nine (9) people,
when one (1) suspect is included, to at least 14 people, when
two (2) suspects are included45 and forewarning the witness
that he or she may or may not actually see the suspect in the
lineup.46 Additionally, there should be a careful recording of the
witness' pre-identification description of the perpetrator47 and
explicit instructions for police officers to not "direct the witness'
attention to any individual."48
III
Domestic jurisprudence recognizes that eyewitness
identification is affected by "normal human fallibilities and
suggestive influences."49 People v. Teehankee,
Jr. 50 introduced in this jurisdiction the totality of circumstances
test, which relies on factors already identified by the United
States Supreme Court in Neil v. Biggers:51
(1) the witness' opportunity to view the criminal at the time of
the crime;
(2) the witness' degree of attention at that time; (3) the
accuracy of any prior description given by the witness; (4) the
level of certainty demonstrated by the witness at the
identification; (5) the length of time between the crime and the
45
identification; and, (6) the suggestiveness of the identification
procedure.52
A witness' credibility is ascertained by considering the first two
factors, i.e., the witness' opportunity to view the malefactor at
the time of the crime and the witness' degree of attention at
that time, based on conditions of visibility and the extent of
time, little and fleeting as it may have been, for the witness to
be exposed to the perpetrators, peruse their features, and
ascertain their identity.53 In People v. Pavillare: 54
Both witnesses had ample opportunity to observe the
kidnappers and to remember their faces. The complainant had
close contact with the kidnappers when he was abducted and
beaten up, and later when the kidnappers haggled on the
amount of the ransom money. His cousin met Pavillare face to
face and actually dealt with him when he paid the ransom
money. The two-hour period that the complainant was in close
contact with his abductors was sufficient for him to have a
recollection of their physical appearance. Complainant
admitted in court that he would recognize his abductors if he
s[aw] them again and upon seeing Pavillare he immediately
recognized him as one of the malefactors as he remember[ed]
him as the one who blocked his way, beat him up, haggled with
the complainant's cousin and received the ransom money. As
an indicium of candor the private complainant admitted that he
d[id] not recognize the co-accused, Sotero Santos for which
reason the case was dismissed against him.55
Apart from extent or degree of exposure, this Court has also
appreciated a witness' specialized skills or extraordinary
capabilities.56 People v. Sanchez57 concerned the theft of an
armored car. The witness, a trained guard, was taken by this
Court as being particularly alert about his surroundings during
the attack.
The degree of a witness' attentiveness is the result of many
factors, among others: exposure time, frequency of exposure,
the criminal incident's degree of violence, the witness' stress
levels and expectations, and the witness' activity during the
commission of the crime.58
The degree of the crime's violence affects a witness' stress
levels. A focal point of psychological studies has been the
effect of the presence of a weapon on a witness' attentiveness.
Since the 1970s, it has been hypothesized that the presence of
a weapon captures a witness' attention, thereby reducing his or
her attentiveness to other details such as the perpetrator's
facial and other identifying features.59 Research on this has
involved an enactme1'1t model involving two (2) groups: first,
an enactment with a gun; and second, an enactment of the
same incident using an implement like a pencil or a syringe as
substitute for an actual gun. Both groups are then asked to
identify the culprit in a lineup. Results reveal a statistically
significant difference in the accuracy of eyewitness
identification between the two (2) groups:60
[T]he influence of [a weapon focus] variable on an
eyewitness's performance can only be estimated post hoc. Yet
the data here do offer a rather strong statement: To not
consider a weapon's effect on eyewitness performance is to
ignore relevant information. The weapon effect does reliably
occur, particularly in crin1es of short duration in which a
threatening wea.pon is visible. Identification accuracy and
feature accuracy of eyewitnesses are likely to be affected,
although, as previous research has noted ... there is not
necessarily a concordance between the two.61
Our jurisprudence has yet to give due appreciation to scientific;
data on weapon focus. Instead, what is prevalent is the
contrary view which empirical studies discredit.62 For instance,
in People v. Sartagoda:
[T]he most natural reaction for victims of criminal violence [is]
to strive to see the looks a..11d faces of their assailants and
observe the manner in which the crime was committed. Most
often the face of the assailant and body movements thereof,
create a lasting impression which cannot easily be erased from
their memory.63
Rather than a sweeping approbation of a supposed natural
propensity for remembering the faces of assailants, this Court
now emphasizes the need for courts to appreciate the totality
of circumstances in the identification of perpetrators of crimes.
Apart from the witness' opportunity to view the perpetrator
during the commission of the Grime and the witness' degree of
attention at that time, the accuracy of any prior description
given by the witness is equally vital. Logically, a witness'
credibility is enhanced by the extent to which his or her initial
description of the perpetrator matches the actual appearance
of the person ultimately prosecuted for the offense.
Nevertheless, discrepancies, when properly accounted for,
should not be fatal to the prosecution's case, For instance,
in Lumanog v. People,64 this Court recognized that age
estimates cannot be made accurately:
Though his estimate of Joel's age was not precise, it was not
that far from his true age, especially if we consider that being a
tricycle driver who was exposed daily to sunlight, Joel's looks
may give a first impression that he is older than his actual age.
Moreover Alejo's description of Lumanog as dark-skinned was
made two (2) months prior to the dates of the trial when he was
again asked to identify him in court. When defense counsel
posed the question of the discrepancy in Alejo's description of
Lumanog who was then prese11ted as having a fair
complexion and was 40 years old, the private prosecutor
manifested the possible effect of Lumanog's incarceration for
such length of time as to make his appearance different at the
time of trial.65
The totality of circumstances test also requires a consideration
of the degree of certainty demonstrated by the witness at the
moment of identification. What is most critical here is the initial
identification made by the witness during investigation and
case build-up, not identification during trial.66
A witness' certainty is tested in court during cross-examination.
In several instances, this Court has considered a witness'
straight and candid recollection of the incident, undiminished
by the rigors of cross-examination as an indicator of
credibility.67
Still, certainty on the witness stand is by no means conclusive.
By the time a witness takes the stand, he or she shall have
likely made narrations to investigators, to responding police or
barangay officers, to the public prosecutor, to any possible
private prosecutors, to the families of the victims, other
sympathizers, and even to the media. The witness, then, may
46
have established certainty, not because of a foolproof cognitive
perception and recollection of events but because of consistent
reinforcement borne by becoming an experienced narrator.
Repeated narrations before different audiences may also
prepare a witness for the same kind of scrutiny that he or she
will encounter during cross-examination. Again, what is more
crucial is certainty at the onset or on initial identification, not in
a relatively belated stage of criminal proceedings.
The totality of circumstances test also requires a consideration
of the length of time between the crime and the identification
made by the witness. "It is by now a well established fact that
people are less accurate and complete in their eyewitness
accounts after a long retention interval than after a short
one."68 Ideally then, a prosecution witness must identify the
suspect immediately after the incident. This Court has
considered acceptable an identification made two (2) days
after the commission of a crime,69 not so one that had an
interval of five and a half (5 1/2) months.70
The passage of time is not the only factor that diminishes
memory. Equally jeopardizing is a witness' interactions with
other individuals involved in the event.71 As noted by cognitive
psychologist Elizabeth F. Loftus, "[p]ost[-]event information can
not only enhance existing memories but also change a
witness's memory and even cause nonexistent details to
become incorporated into a previously acquired memory."72
Thus, the totality of circumstances test also requires a
consideration of the suggestiveness of the identification
procedure undergone by a witness. Both verbal and non-verbal
information might become inappropriate cues or suggestions to
a witness:
A police officer may tell a witness that a suspect has been
caught and the witness should look at some photographs or
come to view a lineup and make an identification. Even if the
policeman does not explicitly mention a suspect, it is likely that
the witness will believe he is being asked to identify a good
suspect who will be one of the members of the lineup or set of
photos ... If the officer should unintentionally stare a bit longer
at the suspect, or change his tone of voice when he says, "Tell
us whether you think it is number one, two, THREE, four, five,
or six," the witness's opinion might be swayed.73
In appraising the suggestiveness of identification procedures,
this Court has previously considered prior or
contemporaneous74 actions of law enforcers, prosecutors,
media, or even fellow witnesses.
In People v. Baconguis,75 this Court acquitted the accused,
whose identification was tainted by an improper
suggestion.76 There, the witness was made to identify the
suspect inside a detention cell which contained only the
suspect.77
People v. Escordiaz78 involved robbery with rape. Throughout
their ordeal, the victim and her companions were
blindfolded.79 The victim, however, felt a "rough
projection''80 on the back of the perpetrator. The perpetrator
also spoke, thereby familiarizing the victim with his
voice.81 Escordial recounted the investigative process which
resulted in bringing the alleged perpetrator into custody. After
several individuals were interviewed, the investigating officer
had an inkling of who to look for. He "found accused-appellant
[in a] basketball court and 'invited' him to go to the police
station for questioning."82 When the suspect was brought to the
police station, the rape victim was already there. Upon seeing
the suspect enter, the rape victim requested to see the
suspect's back. The suspect removed his shirt. When the
victim saw a "rough projection" on the suspect's back, she
spoke to the police and stated that the suspect was the
perpetrator. The police then brought in the other witnesses to
identify the suspect. Four (4) witnesses were taken to the cell
containing the accused and they consistently pointed to the
suspect even as four (4) other individuals were with him in the
cell.83
This Court found the show-up, with respect to the rape victim,
and the lineup, with respect to the four (4) other witnesses, to
have been tainted with irregularities. It also noted that the out-
of-court identification could have been the subject of objections
to its admissibility as evidence although these objections were
never raised during trial.84
Although these objections were not timely raised, this Court
found that the prosecution failed to establish the accused's
guilt beyond reasonable doubt and acquitted the accused.85 It
noted that the victim was blindfolded throughout her ordeal.
Her identification was rendered unreliable by her own
admission that she could only recognize her perpetrator
through his eyes and his voice. It reasoned that, given the
limited exposure of the rape victim to the perpetrator, it was
difficult for her to immediately identify the perpetrator. It found
the improper suggestion made by the police officer as having
possibly aided in the identification of the suspect.86 The Court
cited with approval the following excerpt from an academic
journal:
Social psychological influences.Various social psychological
factors also increase the danger of suggestibility in a lh1eup
confrontation. Witnesses, like other people, are motivated by a
desire to be correct and to avoid looking foolish. By arranging a
lineup, the police have evidenced their belief that they have
caught the criminal; witnesses, realizing this, probably will feel
foolish if they cannot identify anyone and therefore1 may
choose someone despite residual uncertainly. Moreover, the
need to reduce psychological discomfort often motivates the
victim of a crime to find a likely target for feelings of hostility.
Finally, witnesses are highly motivated to behave like those
around them. This desire to conform produces an increased
need to identify someone in order to show the police that they,
too, feel that the criminal is in the lineup, and makes the
witnesses particularly vulnerable to any clues conveyed by the
police or other witnesses as to whom they suspect of the
crime.87 (Emphasis in the original)
People v. Pineda, 88 involved six (6) perpetrators committing
robbery with homicide aboard a passenger bus.89 A passenger
recalled that one (1) of the perpetrators was referred to as
"Totie" by his companions. The police previously knew that a
certain Totie Jacob belonged to the robbery gang of Rolando
Pineda (Pineda). At that time also, Pineda and another
companion were in detention for another robbery. The police
presented photographs of Pineda and his companion to the
witness, who positively identified the two (2) as among the
perpetrators.90
47
This Court found the identification procedure unacceptable.91 It
then articulated two (2) rules for out-of-court identifications
through photographs:
The first rule in proper photographic identification procedure is
that a series of photographs must be shown, and not merely
that of the suspect. The second rule directs that when a
witness is shown a group of pictures, their arrangement and
display should in no way suggest which one of the pictures
pertains to the suspect.92
Non-compliance with these rules suggests that any
subsequent corporeal identification made by a witness may not
actually be the result of a reliable recollection of the criminal
incident. Instead, it will simply confirm false confidence induced
by the suggestive presentation of photographs to a witness.
Pineda further identified 12 danger signals that might indicate
erroneous identification. Its list is by no means exhaustive, but
it identifies benchmarks which may complement the application
of the totality of circumstances rule. These danger signals are:
(1) the witness originally stated that he could not identify
anyone;
(2) the identifying witness knew the accused before the crime,
but made no accusation against him when questioned by the
police;
(3) a serious discrepancy exists between the identifying
witness' original description and the actual description of the
accused;
(4) before identifying the accused at the trial, the witness
erroneously identified some other person;
(5) other witnesses to the crime fail to identify the accused;
(6) before trial, the witness sees the accused but fails to
identify him;
(7) before the commission of the crime, the witness had limited
opportunity to see the accused;
(8) the witness and the person identified are of different racial
groups;
(9) during his original observation of the perpetrator of the
crime, the witness was unaware that a crime was involved;
(10) a considerable time elapsed between the witness' view of
the criminal and his identification of the accused;
(11) several persons committed the crime; and
(12) the witness fails to make a positive trial identification.93
Pineda underscored that "[t]he more important duty of the
prosecution is to prove the identity of the perpetrator and not to
establish the existence of the crime."94 Establishing the identity
of perpetrators is a difficult task because of this jurisdiction's
tendency to rely more on testimonial evidence rather than on
physical evidence. Unlike the latter, testimonial evidence can
be swayed by improper suggestions. Legal scholar Patrick M.
Wall notes that improper suggestion "probably accounts for
more miscarriages of justice than any other single
factor[.]"95 Marshall Houts, who served the Federal Bureau of
Investigation and the American judiciary, concurs and
considers eyewitness identification as "the most unreliable
form of evidence[.]"96
People v. Rodrigo97 involved the same circumstances
as Pineda. The police presented a singular photograph for the
eyewitness to identify the person responsible for a robbery with
homicide. The witness identified the person in the photograph
as among the perpetrators. This Court stated that, even as the
witness subsequently identified the suspect in court, such
identification only followed an impermissible suggestion in the
course of the photographic identification. This Court specifically
stated that a suggestive identification violates the right of the
accused to due process, denying him or her of a fair trial:98
The greatest care should be taken in considering the
identification of the accused especially, when this identification
is made by a sole witness and the judgment in the case totally
depends on the reliability of the identification. This level of care
and circumspection applies with greater vigor when, as in the
present case, the issue goes beyond pure credibility into
constitutional dimensions arising from the due process rights of
the accused.
….
The initial photographic identification in this case carries
serious constitutional law implications in terms of the possible
violation of the due process rights of the accused as it may
deny him his rights to a fair trial to the extent that his in-court
identification proceeded from and was influenced by
impermissible suggestions in the earlier photographic
identification. In the context of this case, the investigators
might not have been fair to Rodrigo if they themselves,
purposely or unwittingly, fixed in the mind of Rosita, or at least
actively prepared her mind to, the thought that Rodrigo was
one of the robbers. Effectively, this act is no different from
coercing a witness in identifying an accused, varying only with
respect to the means used. Either way, the police investigators
a.re the real actors in the identification of the accused;
evidence of identification is effectively created when none
really exists.99 (Emphasis supplied)
IV
Applying these standards, this Court finds the identification
made by prosecution witnesses Cruz and Perez unreliable.
Despite their identification, there remains reasonable doubt if
accused-appellant Nuñez is the same Pobre who supposedly
committed the robbery with homicide along with Marciales and
Nabia.
The prosecution banks on the following portion of Cruz's
testimony.100 The Court of Appeals heavily relies on the same
portion, reproducing parts of it in its Decision:101
Q: Madam Witness, where were you on June 22, 2000 in the
afternoon?
A: I was on duty at Tayuman Caltex station, Ma'am.
Q: And while you were on duty, what happened if any?
48
A: While we were on duty there was a pick-up which was
getting gas and a person was in front and we were joking baka
kami mahold-up yun pala, hinoholdup na kami sa opisina.
Q: You mentioned that there was already hold-up happening?
A: Yes, Ma'am.
Q: What time was that when you noticed that holdup?
A: Around 8:00p.m.
Q: Where was the hold-up going on?
A: In the office, Ma'am.
Q: And how far is that office from where you were at that time,
how many meters?
A: From here to the wall of the court.
Court:
Anyway, I have the reference.
Prosecutor Aragones:
Q: What happened after you saw that there was [a] hold[-up]
going on inside the office of the Caltex Station?
A: After that me and my companions ran to the computer shop
which is beside the office.
Q: By the way, why were you at the Caltex gasoline station?
A: I was an attendant, Ma'am.
Q: You mentioned that you proceeded to the computer shop
which is beside the office?
A: Yes, Ma'am.
Q: Where did you run, inside or outside the computer shop?
A: Inside, Ma'am.
Q: Before you went inside, what did you witness after you saw
that there was hold-up inside the office?
A: I saw that one of our companions, a gun was pointed to him
and also to our employer.
Q: Who was your companion you saw who was pointed with a
gun?
A: Alex Diaz, and Kuya Alex my employer.
Q: Who were those persons who pointed guns to your co-
worker and to your employer?
A: The two accused who were first arrested.
Q: Aside from the two accused, do they have other
companions?
A: Yes, Ma'am.
Q: Who was that person who was also with the two accused?
A: Paul Pobre.
Q: By the way, who were those two accused you are referring
to according to you were arrested?
A: George Marciales and I cannot remember the other one.
Q: You mentioned of the name Paul Pobre, kindly look around
if there is any Paul Pobre in court?
A: Yes, Ma'am, he is here.
Q: Can you point to him?
A: He is that one (pointing)
INTERPRETER;
Witness is pointing to a person wearing yellow shirt who when
asked gave his name as Crisanto Pepafio.
PROSECUTOR ARAGONES:
Q: Who told you that the name of that person is Paul Pobre?
A: Kuya Rommel
Q: Who is Kuya Rommel?
A: Brother of my employer Kuya Alex.
Q: Who was apprehended in Laguna?
A: He is the one, Paul Pobre.
Q: What was the participation of that person you pointed to as
being the companion of accused George Marciales and the
other one?
A: He was the one who entered last and who shot.
COURT:
Q: Who did he shoot?
A: Kuya Alex.102
The prosecution similarly banks on the narration and
identification made by Perez:
Q: Madam Witness when Alex, the accused you pointed a
while ago, the other accused Marciales and your boss, all of
them were inside the computer shop, the office of Caltex?
A: At first no[,] ma'am[.] Nagsimula po kasi andoon po kami sa
labas may lalaking nakatayo po doon sa malapit sa road, sya
49
po yung na[] identify before as George Marciales. Ang nakita
po lang naming una sa loob apat po sila si boss, si Alex, that
man (Nunez) and the man identified before as Orly Nabia.
Q: Where were you at that time when these four persons were
inside the office?
A: We were sitting in an island near the three pumps in front of
the gas station[,] ma'am.
Q: The office in relation to that island is at the back, is that
correct?
A: Yes[,] ma'am.
Q: There were no customers at that time?
A: None[,] ma'am.
Q: The cashier were (sic) Alex is positioned is facing you[.] [I]s
that correct?
A: Yes[,] ma'am.
Q: So it was the back of the accused that you saw, is that
correct?
A: No[,] ma'am. Sa pinto po kasi yung register namin e. So
andito po si Alex nakatungo po sya andito po yung accused
naka[-]ganito po sya, nakatutok pos a (sic) kanya. (Witness
was standing while demonstrating the incident between the
accused and Alex inside the office) very clear po yung itsura
nya nung nakita po namin sya.
Q: How far is that island from the cashier, from the place you
were seated right now?
A: Around 4 to 5 meters[,] ma'am.
Q: Were you able to hear the conversation considering that
distance of 4 to 5 meters?
A: I heard nothing[,] ma'am[,] except when Alex shouted[,]
"Byron tulong, hinoholdap tayo[.]"
Q: Alex was shouting while he was still inside the office?
A: Yes[,] ma'am.
Q: And it was Byron who ran towards the office?
A: The first one was George Marciales, Byron only followed
him.
Q: Where was George Marciales before he entered that office?
A: He was near the road[,] ma'am.
Q: But that is not within the gas station's premises?
A: Bali eto po yung pinaka sementado, andito sya. (Witness
referring to the place where Marciales is)
Q: When you said the cemented area, you were referring to the
National road?
A: Yes[,] ma'am.
Q: After Byron went inside the said office, were you able to see
what happened inside?
A: Yes[,] ma'am. Nakasuntok po sya ng isa kay George tapos
tinadyakan po siya sa tagiliran tsaka binaril po sya. Tapos
bumagsak napo (sic) sya.
Q: You were still outside your office at that time?
A: Yes[,] ma'am.
Q: Nobody was with you at that time aside from your co-
employees, only the accused was inside at that time?
A: Yes[,] ma'am.
Q: You did not run or ask for help considering that that Caltex
is along the National road? A: Honestly speaking[,] we were
not able to say anything at that time[,]ma'am.
A: After po ng pag shoot sa kanila tumakbo po kami ni Rona
doon sa may computer shop, sa bahay po nila. Pagkaraan po
ng ilang minuto lumabas kami nakita po naming sila na
nagtatakbuhan together with Kuya Lawrence. Nakita po
naming (sic) sila na tumatakbo, yung dalawa papuntang
Angono, yung isa hindi ko na po alam kung [saan] nagpunta.
Nakita na lang po naming si boss na gmnagapang asking for
help.103
The Court of Appeals also favorably cited the following
identification made by Perez:
Prosecutor Aragones
Q : Now can you look inside the court and tell us if there is
anybody here who took part in that incident or involved in that
incident?
Relen Perez
A: Him[,] ma'am. (witness pointing to the accused)
Q: What was the participation of that man whom you pointed
today in that robbery with homicide incident in Caltex gasoline
station?
A: He was the one who was pointing a gun to my co-employee
Alexander Diaz[,] ma'am.104
V
These identifications are but two (2) of a multitude of
circumstances that the Regional Trial Court and the Court of
Appeals should have considered in determining whether or not
the prosecution has surmounted the threshold of proof beyond
reasonable doubt. Lamentably, they failed to give due
recognition to several other factors that raise serious doubts on
the soundness of the identification made by prosecution
witnesses Cruz and Perez.
50
First and most glaringly, Cruz had previously admitted to not
remembering the appearance of the fourth robber, the same
person she would later claim with supposed certainty as
Nuñez. In the original testimony she made in Marciales and
Nabia's trial in 2002, she admitted to her inability to identify the
fourth robber:
Fiscal Dela Cuesta
Q: Can you describe the other holdupper during that date and
time who were the companions of George Marciales?
Ronalyn Cruz
A: I cannot describe them[,] ma 'am.
Q: Why can you not describe the appearance of the other
holdupper?
A: I cannot remember their appearances, ma 'am.
….
Fiscal Dela Cuesta
Q: At what particular point in time that the 4th holdupper went
inside the office?
Ronalyn Cruz
A: When they were wrestling with each other, ma'am.
Q: Was that before the shooting or after?
A: Before the shooting[,] ma'am.105
Second, by the time Cruz and Perez stood at the witness stand
and identified Nuñez, roughly eight (8) years had passed since
the robbery incident.
Third, as the People's Appellee's Brief concedes, witnesses'
identification of Nunez did not come until after he had been
arrested. In fact, it was not until the occasion of his
arraigmnent,106 Nuñez was the sole object of identification, in
an identification process that had all but pinned him as the
perpetrator.
VI
Cruz's admission that she could not identify the fourth robber
anathemized any subsequent identification. Moreover, the
prosecution, the Court of Appeals, and the Regional Trial Court
all failed to account for any intervening occurrence that
explains why and how Cruz shifted from complete confusion to
absolute certainty. Instead, they merely took her and Perez's
subsequent identification as unassailable and trustworthy
because of a demeanor apparently indicating certitude.
The conviction of an accused must hinge less on the certainty
displayed by a witness when he or she has already taken the
stand but more on the certainty he or she displayed and the
accuracy he or she manifested at the initial and original
opportunity to identify the perpetrator. Cruz had originally
admitted to not having an iota of certainty, only to make an
unexplained complete reversal and implicate Nunez as among
the perpetrators. She jeopardized her own credibility.
Cruz's and Perez's predicaments are not aided by the sheer
length of time that had lapsed from the criminal incident until
the time they made their identifications. By the time Cruz made
the identification, seven (7) years and eight (8) months had
lapsed since June 22, 2000. As for Perez, eight (8) years and
nine (9) months had already lapsed.
In People v. Rodrigo, 107 this Court considered a lapse of five
and a half (5 1/2) months as unreliable. Hence, there is greater
reason that this Court must exercise extreme caution for
identifications made many years later. This is consistent with
the healthy sense of incredulity expected of courts in criminal
cases, where the prosecution is tasked with surmounting the
utmost threshold of proof beyond reasonable doubt.
It is not disputed that Nunez's identification by Cruz and Perez
was borne only by Nunez's arrest on July 2, 2006. The
prosecution even acknowledged that his identification was
initially done only to defeat his motion to have the case against
him dismissed.108 Evidently, Nuñez's identification before trial
proper was made in a context which had practically induced
witnesses to identify Nuñez as a culprit. Not only was there no
effort to countervail the likelihood of him being identified, it
even seemed that the prosecution and others that had acted in
its behalf such as tile apprehending officers, had actively
designed a situation where there would be no other possibility
than for him to be identified as the perpetrator of the crime.
The dubiousness of Nunez's presentation for identification is
further exacerbated by the circumstances of his apprehension.
In a Manifestation filed with the Court of Appeals, and which,
quite notably, the prosecution never bothered repudiating,
Nunez recounted how his apprehension appeared to have
been borne by nothing more than the crudeness and sloth of
police officers:
6). That, the truth of the matter as far as the offended charged
against me, I ha[ve] no any truthfulness (sic) nor having any
reality as it was indeed only a mere strong manufactured,
fabricated and unfounded allegations against me just to get
even with me of my [untolerable] disciplinary actions of some
individuals who had a personal grudge against me.
….
9). That, with all due respect, I ha[ve] nothing to do with the
offensed (sic) charged and it is not true that the case was done
was charged against me it is Paul Borbe y Pipano it was wrong
person pick-up by the police officer, because the said Paul
Borbe y [P]ipano was charged of several crimes, while me my
record has no single offense against me.
10). That, with due respect, there was no truthfulness that I
was the one who committed the said crime, it was a big
mistake because we have the [same 1 family name they just
pick up the wrong person which is innocent to the said crime.
11). That, with all due respect, it was not true, also that it was
me who committed the said crime, it was Paul Borbe y Pipano
is the one because he was habitual in doing crime in our
community, in fact my record is clean never been committed
51
any crime in my life, I am a concern citizen who can help our
community well.109 (Emphasis supplied)
The identification made during Nunez's trial, where
eyewitnesses vaunted certainty, was but an offshoot of tainted
processes that preceded his trial. This Court finds Nunez's
identification prior to trial bothersome and his subsequent and
contingent identification on the stand more problematic.
Nunez's identification, therefore, fails to withstand the rigors of
the totality of circumstances test. First, the witnesses failed to
even give any prior description of him. Second, a prosecution
witness failed to exhibit even the slightest degree of certainty
when originally given the chance to identify him as the
supposed fourth robber. Third, a significantly long amount of
time had lapsed since the criminal incident; the original
witness' statement that none of his features were seen as to
enable his identification; and the positive identification made of
him when the case was re-opened. And finally, his
presentation for identification before and during trial was
peculiarly, even worrisomely, suggestive as to practically
induce in prosecution witnesses the belief that he, to the
exclusion of any other person, must have been the supposed
fourth robber.
These deficiencies and the doubts over Cruz's and Perez's
opportunity to peruse the fourth robber's features and their
degree of attentiveness during the crime clearly show that this
case does not manage to satisfy even one (1) of the six (6)
factors that impel consideration under the totality of
circumstances test.
VII
Recall that both prosecution witnesses Cruz and Perez
acknowledged the extreme stress and fright that they
experienced on the evening of June 22, 2000.1âwphi1 As both
Cruz and Perez recalled, it was enough for them to run and
seek refuge in a computer shop. Their tension was so palpable
that even Cruz's and Perez's recollections of what transpired
and of how Nuñez supposedly participated in the crime are so
glaringly different:
According to Cruz, two (2) other persons initiated the robbery,
by pointing guns at Regencia and Diaz inside the gasoline
station's office. It was supposedly only later, when Diaz
shouted, that a third robber, Marciales, and a fourth robber,
allegedly Nunez, ran in, to assist the first two (2) robbers. In
contrast, Perez claimed that Nuñez was one (1) of the two (2)
robbers who were initially already in the office. Nunez was then
supposedly pointing a gun at Diaz while the other robber was
pointing a gun at Regencia.
They both claim that after Diaz shouted, the first two (2)
robbers received assistance. Cruz, however, claims that two
(2) additional robbers came to the aid of the first two (2), while
Perez claims that there was only one (1) additional robber.
In the scuffle that ensued in the office, Cruz claims that
Marciales shot Dimatulac while Nunez shot Diaz. For her part,
Perez claims that Marciales was the only one who fired shots
at Regencia, Diaz, and Dimatulac.
Jurisprudence holds that inconsistencies in the testimonies of
prosecution witnesses do not necessarily jeopardize the
prosecution's case.110 This, however, is on1 y true o f mm. or
m. consistencies that are ultimately inconsequential or merely
incidental to the overarching narrative of what crime was
committed; how, when, and where it was committed; and who
committed it. "It is well-settled that inconsistencies on minor
details do not affect credibility as they only refer to collateral
matters which do not touch upon the commission of the crime
itself."111
The inconsistencies here between Cruz and Perez are far from
trivial. At issue is precisely the participation of an alleged
conspirator whose name the prosecution did not even know for
proper indictment. Yet, where the prosecution witnesses
cannot agree is also precisely how the person who now stands
accused actually participated in the commission of the offense.
Their divergences are so glaring that they demonstrate the
prosecution's failure to establish Nunez's complicity.
VIII
These failings by the prosecution vis-a-vis the totality of
circumstances test are also indicative of many of the 12 danger
signals identified in People v. Pineda12 to be present in this
case. On the first, fifth, and twelfth danger signals, prosecution
witness Cruz originally made an unqualified admission that she
could not identify the fourth robber. On the third danger signal,
there is not even an initial description ·with which to match or
counter-check Nuñez. On the tenth danger signal, a
considerable amount of time had passed since Cruz and Perez
witnessed the crime and their identification of Nunez. On the
eleventh danger signal, several perpetrators committed the
crime.
IX
Conviction in criminal cases demands proof beyond
reasonable doubt. While this does not require absolute
certainty, it calls for moral certainty.1âwphi1 It is the degree of
proof that appeals to a magistrate's conscience:
An accused has in his favor the presumption of innocence
which the Bill of Rights guarantees. Unless his guilt is shown
beyond reasonable doubt, he must be acquitted. This
reasonable doubt standard is demanded by the due process
clause of the Constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of
every fact necessary to constitute the crime with which he is
charged. The burden of proof is on the prosecution, and unless
it discharges that burden the accused need not even offer
evidence in his behalf, and he would be entitled to an acquittal.
Proof beyond reasonable doubt does not, of course, mean
such degree of proof as excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced
mind. The conscience must be satisfied that the accused is
responsible for the offense charged.113
This Court is unable to come to a conscientious satisfaction as
to Nuñez's guilt. On the contrary, this Court finds it bothersome
that a man of humble means appears to have been wrongly
implicated, not least because of lackadaisical law enforcement
tactics, and has been made to suffer the severity and ignominy
of protracted prosecution, intervening detention, and potential
conviction. Here, this Court puts an end to this travesty of
justice. This Court acquits accused-appellant.
52
WHEREFORE, premises considered, the Decision dated June
26, 2013 of the Court of Appeals in CA-G.R. CR-HC No. 04474
is REVERSED and SET ASIDE. Accused-appellant Crisente
Pepaño Nuñez is ACQUITTED for reasonable doubt. He is
ordered immediately RELEASED from detention, unless
confined for any other lawful cause.

Let a copy of this Decision be furnished to the Director of the

Bureau of Corrections, Muntinlupa City, for immediate
implementation. The Director of the Bureau of Corrections is
directed to report to this Court within five (5) days from receipt
of this Decision the action he has taken. A copy shall also be
furnished to the Director General of Philippine National Police
for his information.

Let entry of judgment be issued immediately.

SO ORERED.

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