REPUBLIC OF THE PHILIPPINES

NATIONAL PROSECUTION SERVICE

OFFICE OF THE CITY PROSECUTOR
QUEZON CITY

DIANNE CARLA SY VELEZ,

Complainant,

-versus- NPS No. XV-03-INV-19G-05839

For: Concubinage

ARWIN DOMINGO VELEZ,

Respondent.
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Republic of the Philippines )

Quezon City ) S.S.

COUNTER-AFFIDAVIT

I, ARWIN DOMINGO VELEZ, of legal age, with address at c/o

Ancheta Attorneys-at-Law, Suite 2404 Entrata Urban Complex, 2609
Civic Drive, Alabang, Muntinlupa City, hereby state under oath that:

1. I am assisted by my counsel of record, Ancheta Attorneys-

at-Law, in preparing this counter-affidavit in relation to the
Complaint dated July 1, 2019 (“Complaint”) of Diannce Carla Sy-
Velez (“Dianne”). All my factual statements are based on my personal
knowledge and/or on authentic record.

2. The instant Complaint charges me with alleged

commission of “Concubinage” that is punishable under Article 334 of
the Revised Penal Code.

3. I strongly deny the accusations of Dianne that I allegedly

had sexual intercourse, under scandalous circumstances, with a
woman who is not my wife or cohabiting with such woman in any
other place.

4. A careful examination of the contents of the present

Complaint would show that the allegations and issues raised therein
are just a mere rehash of the allegations and issues in her pending
complaint in NPS No. XV-03-INV-19E-04586 for alleged violation of

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Republic Act No. 9262 (“R.A. 9262”). A copy of the complaint-
affidavit in NPS No. XV-03-INV-19E-04586 is herewith attached as
ANNEX 1.
5. The similarities on the allegations and issues in both
complaint-affidavits are as follow:
COMPLAINT DATED JULY 1,
2019 FOR CONCUBINAGE
In August 2018 when he came
back to the US, he admitted to me
that he has a mistress. He even
had the audacity to tell it to my
parents. My parents advised him
to stop what he is doing for the
family, but he asked be let alone
until he is done with it. He even
asked me to remain as his wife
and to let him live a bachelor life
in the Philippines. I had him
choose and he chose to remain
with his mistress. He even
informed me that the name of his
mistress is Ellen; (par. 4)
I tried to know who is this Ellen.
Eventually, while we were in the
Philippines, Arwin and I had to
inspect a property as it was
planned already. I was able to get
hold of his mobile phone. There
was a message from Arwin’s
father saying the the latter passed
by the house of a certain Jayme.
It was then with the help of
scouring through social media
that I learned that the name of
the other woman is Jaymellen
Serrano. There, I saw pictures of
them together. I was in shock that
they are not shy in public about
their relationship. Probably
knowing that I have seen proof of
their relationship, the other
woman immediately blocked me.
Even so, I sent the other woman a
message to tell her to stay away
from my husband. The other
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COMPLAINT DATED MAY 27,
2019 FOR VIOLATION OF
R.A. 9262
But in August 2018 when he came
back to the US, he admitted to me
that he has a mistress. He even
had the audacity to tell it to my
parents. My parents advised him
to stop what he is doing for the
family, but he asked be let alone
until he is done with it. He even
asked me to remain as his wife
and to let him live a bachelor life
in the Philippines. I had him
choose and he chose to remain
with his mistress. He even
informed me that the name of his
mistress is Ellen; (par. 6)
I tried to know who is this Ellen.
Eventually, while we were in the
Philippines, Arwin and I had to
inspect a property as it was
planned already. I was able to get
hold of his mobile phone. There
was a message from Arwin’s
father saying the the latter passed
by the house of a certain Jayme.
It was then with the help of
scouring through social media
that I learned that the name of
the other woman is Jaymellen
Serrano. There, I saw pictures of
them together. Probably knowing
that I have seen proof of their
relationship, the other woman
immediately blocked me. (par. 8)
woman replied that he will wait
for Arwin to be free from his
marriage with me; (par. 6)

6. The act of filing of the two separate complaints but having

the same allegations and issues is a clear indication of Dianne’s
purpose of vexing and harassing me.

7. It must be emphasized that Dianne already filed a

petition for divorce before the Superior Court of California on May
31, 2019. Attached herewith as ANNEX 2 is a copy of the petition for
divorce with Case Number 19STFL06496.

8. Clearly, by filing these baseless complaints coupled with

the filing of the petition for divorce, Dianne is trying to improve her
bargaining position in the pending divorce proceeding.

THE ELEMENTS OF THE CRIME OF CONCUBINAGE

ARE NOT PRESENT IN THIS CASE

9. Concubinage under Article 334 of the Revised Penal Code

may be committed by the husband in the following manners:
a. by keeping a mistress in the conjugal dwelling;
b. by having sexual intercourse, under scandalous
circumstances, with a woman who is not his wife;
and
c. by cohabiting with such woman in any other place.

10. The first manner is not applicable because the complaint

does not allege that I am keeping a mistress in our conjugal dwelling.

11. As to the second and third manners of commission, I will

address them separately.

There is no probable cause to charge

me with Concubinage committed
through the second manner, that is,
“having sexual intercourse, under
scandalous circumstances with a
woman who is not his wife.”

12. FIRST. Dianne did not allege or submit any proof that I
am having sexual intercourse, under scandalous circumstances, with
another woman. I do not have any “mistress” as she makes it appear.
I did not also make any admission of having a “mistress”, as she
alleged in paragraph 4 of her Complaint.

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 13. SECOND. Dianne and I have been separated-in-fact since
August 2018. A copy of the printout of our Facebook messenger
conversation that took place on November 13, 2018, confirming that
(a) Dianne had accepted the fact that we are no longer husband and
wife, (b) she is happy and has peace of mind, (c) we apologized to
each other, and (d) we accepted each other as friends is attached as
ANNEX 3.

14. I used my Samsung Note 8 to take the screenshot on

August 1, 2019, and the screenshot (Annex 3) accurately captured the
actual conversation we had on Facebook messenger as it appears on
my Facebook messenger account. I was the one who printed Annex 3
on August 19, 2019, using an HP 1102 model printer, in the presence
of my lawyers during the preparation of my counter-affidavit.

15. THIRD. Dianne admitted the fact of our separation as

indicated in paragraph 1 item 3 subparagraph a(2) of the petition for
divorce that we have been separated since September 17, 2018.

16. While Dianned stated in her divorce petition that we have

permanently separated in September 17, 2018, and I stated in
paragraph 13 herein that we permanently separated in August 2018,
the fact remains that we have both already accepted our permanent
separation.

17. FOURTH. In fact, as a sign that Dianne has moved on

from our separation, She already started to entertain another guy. A
copy of the printed screenshot of our Facebook messenger
conversation on November 21, 2018 is attached as ANNEX 4. The
printed screenshot accurately captured the actual conversation we
had on Facebook messenger as it appears on my Facebook messenger
account.

18. I used my Samsung Note 8 to take the screenshot of our

Facebook messenger conversation on August 1, 2019. I was the one
who printed Annex 3 on August 19, 2019, using an HP 1102 model
printer, in the presence of my lawyer during the preparation of my
counter-affidavit.

19. FIFTH. The photographs attached as Annexes “C,” “C-

1,” “C-2,” and “C-3” are, as advised by counsel, inadmissible in
evidence because it was not authenticated pursuant to Rules 5 and 11
of the Rules on Electronic Evidence (A.M. No. 01-7-01-SC).

(a) Counsel advised that Section 1, Rule 11 of the Rules

on Electronic Evidence provides that photographic
evidence of events, acts or transactions shall be
admissible provided is shall be shown, presented or
displayed to the court and shall be identified,

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 explained or authenticated by the person who made
the recording or by some other person competent to
testify on the accuracy thereof.

(b) Section 1 or Rule 5 of the Rules on Electronic

Evidence provides that “[t]he person seeking to
introduce an electronic document in any legal
proceeding has the burden of proving its
authenticity in the manner provided in this Rule,”
and that Section 2 of the same Rule 5 provides that
“[b]efore any private electronic document offered as
authentic is received in evidence, its authenticity
must be proved.”

(c) This preliminary investigation is a legal proceeding

covered by Rule 5, and complainant failed to
discharge that burden of proving the authenticity of
Annexes “C,” “C-1,” “C-2,” and “C-3” pursuant to the
Rules on Electronic Evidence. As such, they are
inadmissible evidence and they cannot be
considered in the resolution of this complaint.

20. Assuming, but without admitting, that Annexes “C,” “C-1,”

“C-2,” and “C-3” were properly authenticated, these photographs per
se do not prove any act of sexual intercourse, under scandalous
circumstances, with a woman not my wife.

21. FINALLY. Annex “C-4” of her Complaint appears to be a

printout of a screenshot of a message that starts with the words
“Hello Barney, xxx”. This is also inadmissible in evidence as advised
by counsel because it was not authenticated pursuant to the Rules on
Electronic Evidence.

(a) Rule 2 Section 1 (k) of the Rules on Electronic

Evidence categorizes chat room sessions and other
electronic forms of communication as “Ephemeral
Electronic Communication”.
(b) Rule 11 Section 2 of the Rules on Electronic
Evidence provides that ephemeral electronic
communications shall be proven by the testimony of
a person who was a party to the same or has
personal knowledge thereof.
(c) Annex “C-4” of the complaint is unauthenticated
and thus should not be given consideration in the
resolution of this case.

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 22. Assuming for the sake of argument the authenticity of
Annex “C-4”, Dianne’s own allegations show that the message therein
was private and it was only in reaction to complainant’s act of
sending her a message. To emphasize, I did not send the message as
can be shown in Annex “C-4”, nor I have anything to do with it.

There is no probabale cause to

charge me with Concubinage
through the third manner, that is,
“cohabiting with such woman in any
other place.”

23. The Supreme Court defined the term “cohabit” in the case
of People vs. Pitoc, 43 Phil. 758, as:

To dwell together, in the manner of husband and wife,

for some period of time, as distinguished from
occasional, transient interviews for unlawful intercourse.

24. I strongly deny cohabiting with another woman, in

particular, a certain Jaymellen Serrano.

25. As alleged proof of cohabitation, Dianne attached

Annexes “C,” “C-1,” “C-2,” and “C-3” to her Complaint. These
photographs do not prove any cohabitation. In fact, these
photographs were not authenticated pursuant to the Rules on
Electronic Evidence.

26. Being unauthenticated, such photographs are all

inadmissible in evidence and cannot be considered in the resolution
of this case.

27. Assuming without admitting that the photographs were

properly authenticated, the same do not depict any act of cohabitation
with a woman not my wife in any other place.

28. Dianne’s accusation that I cohabit with “another woman”

in Grass Residences, Quezon City contradicts her own admission that
I reside in No. 1519 Sulu St. Sta. Cruz Manila. She admitted the fact of
my residence when she requested that the subpoena in both
complaints be sent to me to this address.

29. Copies of the subpoena for the present complaint dated

July 5, 2019 and in NPS XV-03-INV-19E-04586 dated July 1, 2019
are attached hereto as ANNEXES 5 and 6, respectively

30. In sum, there is no probable cause to charge me with

commission of Concubinage under Article 334 of the Revised Penal
Code.
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 31. I attest to the truthfulness of my factual statements and to
the voluntary execution of this counter-affidavit. I reserve the right to
charge the complainant with Perjury under Article 183 of the Revised
Penal Code and with other appropriate crimes. I also reserve the right
to file civil action for damages against her for her malicious and false
accusations.

ARWIN D. VELEZ
Affiant

CERTIFICATION

SUBSCRIBED AND SWORN to before me this 5 th day of September,

2019 at Quezon City, Philippines, and I hereby certify that I have
personally examined the affiant and that I am satisfied that he has
voluntrily executed and understood this affidavit.

MA. CECILIA GERTRUDES R. SALVADOR

Assistant City Prosecutor
Quezon City

COPY FURNISHED:

DIANNE CARLA SY VELEZ

c/o Unit 2E New Domain Bldg.
19 Holy Spirit Drive
Don Antonio Heights
Brgy. Holy Spirit Drive
Quezon City