G.R. No.
144656            May 9, 2002 old daughter Daisy Diolola to their neighbor's house in Pilapil,
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of
vs.
GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant.
PER CURIAM:
This is an appeal from the decision1 of the Regional Trial Court,
Branch 88, Cavite City, sentencing Gerrico Vallejo y Samartino to
death and ordering him to indemnify the heirs of the victim in the
amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages for the rape-slaying of a 9-year old child, Daisy
Diolola, in Rosario, Cavite on July 10, 1999.
The Information charging accused-appellant Gerrico Vallejo with
the crime of Rape with Homicide alleged:
"That on or about the 10th day of July 1999, in Barangay Ligtong
I, Municipality of Rosario, Province of Cavite, Philippines and
within the jurisdiction of this Honorable Trial Court, the above-
named accused, with lewd design, by means of force and
intimidation, did then and there, willfully, unlawfully and
feloniously have sexual intercourse with DAISY DIOLOLA Y
DITALO, a nine-year old child against the latter's will and while
raping the said victim, said accused strangled her to death."
"CONTRARY TO LAW."2
Accused-appellant was arraigned on July 26, 1999 and, with the
assistance of counsel, pleaded not guilty to the crime charged,
whereupon trial ensued.
Ten (10) witnesses testified for the prosecution, namely, Ma. Nida
Diolola, the victim's mother; Dr. Antonio S. Vertido, medico-legal
officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of
Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorney's
Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-
Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the
Rosario, Cavite police station; and Jessiemin Mataverde and
Charito Paras-Yepes, both neighbors of the victim.
The victim's mother, Ma. Nida Diolola, testified that at around
1:00 o'clock in the afternoon of July 10, 1999, she sent her 9-year
accused-appellant, could help Daisy with her lessons. Aimee's
house, where accused-appellant was also staying, is about four to
five meters away from Daisy's house. Ma. Nida saw her daughter
go to the house of her tutor. She was wearing pink short pants and
a white sleeveless shirt. An hour later, Daisy came back with
accused-appellant. They were looking for a book which accused-
appellant could copy to make a drawing or a poster that Daisy
would submit to her teacher. After finding the book, Daisy and
accused-appellant went back to the latter's house. When Ma. Nida
woke up at about 5:30 o'clock after an afternoon nap, she noticed
that Daisy was not yet home. She started looking for her daughter
and proceeded to the house of Aimee, Daisy's tutor. Aimee's
mother told Ma. Nida that Daisy was not there and that Aimee
was not able to help Daisy with her lessons because Aimee was not
feeling well as she had her menstrual period. Ma. Nida looked for
Daisy in her brother's and sister's houses, but she was not there,
either. At about 7:00 o'clock that evening, Ma. Nida went back to
her neighbor's house, and there saw accused-appellant, who told
her that Daisy had gone to her classmate's house to borrow a
book. But, when Ma. Nida went there, she was told that Daisy had
not been there. Ma. Nida went to the dike and was told that they
saw Daisy playing at about 3:30 o'clock in the afternoon.
Jessiemin Mataverde also told Ma. Nida that Daisy was playing in
front of her house that afternoon and even watched television in
her house, but that Daisy later left with accused-appellant.
Ma. Nida and her brother and sister searched for Daisy the whole
evening of June 10, 1999, a Saturday, until the early morning of
the following day, June 11, 1999, a Sunday, but their search
proved fruitless. Then, at about 10:00 o'clock in the morning of
June 11, 1999, she was informed that the dead body of her
daughter was found tied to the root of an aroma tree by the river
after the "compuerta" by a certain Freddie Quinto. The body was
already in the barangay hall when Ma. Nida saw her daughter.
Daisy was wearing her pink short pants with her sleeveless shirt
tied around her neck. Barangay Councilmen Raul Ricasa and
Calring Purihin reported the incident to the Rosario police. The
other barangay officers fetched accused-appellant from his house
and took him to the barangay hall. At the barangay hall, Ma. Nida
pointed to accused-appellant Gerrico Vallejo as the probable
suspect since he was with the victim when she was last seen alive.3
Another witness, Jessiemin Mataverde, testified that at around
3:00 o'clock in the afternoon of that day, she saw Daisy playing
with other children outside her house. She asked Daisy and her
playmates to stop playing as their noise was keeping Jessiemin's
one-year old baby awake. Daisy relented and watched television
instead from the door of Jessiemin's house. About five minutes
later, accused-appellant came to the house and told Daisy
something, as a result of which she went with him and the two
proceeded towards the "compuerta."
Jessiemin testified that at around 5:00 o'clock that afternoon,
while she and her daughter were in front of a store across the
street from her house, accused-appellant arrived to buy a stick of
Marlboro cigarette. Accused-appellant had only his basketball
shorts on and was just holding his shirt. They noticed both his
shorts and his shirt were wet. After lighting his cigarette, accused-
appellant left.4
Charito Yepes, another neighbor of Ma. Nida, also testified. She
said that at about 4:30 o'clock in the afternoon of July 10, 1999,
while she and her husband and children were walking towards the
"compuerta" near the seashore of Ligtong, Rosario, Cavite, they
met a fisherman named Herminio who said that it was a good day
for catching milkfish (bangus). For this reason, according to this
witness, they decided to get some fishing implements. She said
they met accused-appellant Gerrico Vallejo near the seashore and
noticed that he was uneasy and looked troubled. Charito said that
accused-appellant did not even greet them, which was unusual.
She also testified that accused-appellant's shorts and shirt (sando)
were wet, but his face and hair were not.5
SPO1 Arnel Cuevas testified that upon receipt of the report,
Rosario Police Chief Ricardo B. de la Cruz, Jr. responded to the
call together with his men, PO2 Garcia, SPO1 Araracap and PO2
Lariza. When they arrived, Daisy's body was already in the
barangay hall. SPO1 Cuevas took photographs of the body. At that
time, Daisy was wearing pink short pants and a dirty white panty
with a dirty white sleeveless shirt wrapped around her neck. The
body was afterwards taken to the Samson Funeral Parlor in
Rosario, Cavite. The inquiries conducted by the police showed
that one Freddie Quinto was fishing near the compuerta when he
accidentally hit the body of Daisy, which was in the mud and tied
to the root of an aroma tree.
Accused-appellant was invited by the policemen for questioning.
Two others, a certain Raymond and Esting, were also taken into
custody because they were seen with accused-appellant in front of
the store in the late afternoon of July 10 1999. Later, however, the
two were released. Based on the statements of Jessiemin
Mataverde and Charito Paras-Yepes, the policemen went to the
house of accused-appellant at about 4:00 o'clock in the afternoon
of July 11, 1999 and recovered the white basketball shirt, with the
name Samartino and No. 13 printed at the back, and the violet
basketball shorts, with the number 9 printed on it, worn by
accused-appellant the day before. The shirt and shorts, which
were bloodstained, were turned over to the NBI for laboratory
examination.6
Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at
about 9:00 o'clock in the evening of July 11, 1999, he conducted a
physical examination of accused-appellant. His findings7 showed
the following:
"PHYSICAL FINDINGS:
"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1
cm., knee, left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0
cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects;
right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms.
"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
"Lacerations, left ring finger, posterior aspect, 0.3 cm.
"(Living Case No. BMP-9902, p. 101, records)"
At about 10:00 o'clock in the evening, Dr. Vertido went to the
Samson Funeral Parlor in Rosario, Cavite for an autopsy on the
cadaver of the victim Daisy Diolola. The autopsy revealed the
following postmortem findings:8
"Body in early stage of postmortem decomposition characterized
by foul odor, eyes and tongue protruding, bloating of the face and
blister formation.
"Washerwoman's hands and feet.
"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x
6.0 cms. Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip,
5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks)
anterior aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect,
middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0
cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior
aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms.,
left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms.
knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right
anterior aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right,
dorsal aspect.
"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0
cms.
"Fracture, tracheal rings.
"Hemorrhages, interstitial, neck, underneath, nailmarks.
"Petechial hemorrhages, subendocardial, subpleural.
"Brain and other visceral organs are congested.
"Stomach, contains ½ rice and other food particles.
"CAUSE OF DEATH: -Asphyxia by Manual Strangulation.
"GENITAL EXAMINATION: - Pubic hair, no growth. Labia
majora and minora, gaping and congested. Hymen, moderately
tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00
o'clock positions, edges with blood clots." [Autopsy Report No.
BTNO-99-152]
Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that
he was informed of the rape and murder at past 10:00 o'clock in
the evening of June 11, 1999. The mayor said he immediately
proceeded to the municipal jail, where accused-appellant was
detained, and talked to the latter. Accused-appellant at first
denied having anything to do with the killing and rape of the
child. The mayor said he told accused-appellant that he could not
help him if he did not tell the truth. At that point, accused-
appellant started crying and told the mayor that he killed the
victim by strangling her. Accused-appellant claimed that he was
under the influence of drugs. The mayor asked accused-appellant
if he wanted to have the services of Atty. Lupo Leyva, a resident of
Rosario, as his lawyer. When accused-appellant said he did,
Mayor Abutan fetched Atty. Leyva from his house and took him to
the police station about 11:00 o'clock that evening.9
Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said
that upon arriving at the police station, he asked accused-
appellant if he wanted his services as counsel in the investigation.
After accused-appellant assented, Atty. Leyva testified that he
"sort of discouraged" the former from making statements as
anything he said could be used against him. But, as accused-
appellant was willing to be investigated, Atty. Leyva said he
advised him to tell the truth. PO2 Garcia, the investigator,
informed accused-appellant of his constitutional rights to remain
silent and to be assisted by counsel and warned him that any
answer he gave could and might be used against him in a court of
law. PO2 Garcia asked questions from accused-appellant, who
gave his answers in the presence of Atty. Leyva. After the
statement was taken, Atty. Leyva and accused-appellant read it
and afterwards signed it. Atty. Leyva testified that he did not see
or notice any indication that accused-appellant had been
maltreated by the police. In his sworn statement (Exh. M),
accused-appellant confessed to killing the victim by strangling her
to death, but denied having molested her.10
Pet Byron Buan, Forensic Biologist of the NBI, testified that on
July 12, 1999, he took blood samples from accused-appellant in
his office for laboratory examination to determine his blood type.
Likewise, the basketball shorts and shirt worn by accused-
appellant on the day the victim was missing and the victim's
clothing were turned over to the Forensic Chemistry Division of
the NBI by PO1 Amoranto of the Rosario, Cavite police for the
purpose of determining the presence of human blood and its
groups.11
The results of the examinations conducted by Pet Byron T. Buan
showed accused-appellant to belong to Group "O". The following
specimens: (1) one (1) white no. 13 athletic basketball shirt, with
patches "Grizzlies" in front and "SAMARTINO" at the back; (2)
one (1) violet no. 9 athletic basketball short pants; (3) one (1)
white small "Hello Kitty" T-shirt with reddish brown stains; (4)
one (1) "cut" pink short pants with reddish brown stains; (5) one
(1) "cut" dirty white small panty with reddish brown stains, were
all positive for the presence of human blood showing the reactions
of Group "A".12
Pet Byron Buan also testified that before he took the blood
samples, he had a conversation with accused-appellant during
which the latter admitted that he had raped and later killed the
victim by strangulation and stated that he was willing to accept
the punishment that would be meted out on him because of the
grievous offense he had committed. Mr. Buan observed that
accused-appellant was remorseful and was crying when he made
the confession in the presence of SPO1 Amoranto at the NBI
laboratory.13
When accused-appellant was brought before Inquest Prosecutor
Elpidia J. Itoc at around noon of July 13, 1999 in Cavite City,
accused-appellant had with him a handwritten confession which
he had executed inside his cell at the Municipal Jail of Rosario. In
his confession, accused-appellant admitted not only that he killed
the victim but that he had before that raped her. Accused-
appellant said he laid down the victim on a grassy area near the
dike. He claimed that she did not resist when he removed her
undergarments but that when he tried to insert his penis into the
victim's vagina, she struggled and resisted. Accused-appellant said
he panicked and killed the child. He then dumped her body in the
shallow river near the "compuerta" and went home.14
Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office,
testified that at noon of July 13, 1999, while she was in their office
in Cavite City, Prosecutor Itoc came together with accused-
appellant and some policemen. Prosecutor Itoc asked Atty.
Agbunag to assist accused-appellant about his confession. Atty.
Agbunag read the document, informed accused-appellant of his
constitutional rights, and warned him that the document could be
used against him and that he could be convicted of the case
against him, but, according to her, accused-appellant said that he
had freely and voluntarily executed the document because he was
bothered by his conscience. Accused-appellant, assisted by Atty.
Agbunag, then affixed his signature to the document and swore to
it before Prosecutor Itoc.15
At the instance of City Prosecutor Agapito S. Lu of Cavite City,
NBI Forensic Biologist Pet Byron Buan took buccal swabs and
hair samples from accused-appellant, as well as buccal swabs and
hair samples from the parents of the victim, namely, Ma. Nida
Diolola and Arnulfo Diolola. The samples were submitted to the
DNA Laboratory of the NBI for examination.
Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted
DNA tests on the specimens collected by Dr. Vertido. She testified
that the vaginal swabs of the victim taken by Dr. Vertido during
the autopsy contained the DNA profiles of accused-appellant and
the victim.16
The defense then presented as witnesses accused-appellant
Gerrico Vallejo and his sister Aimee Vallejo. Their testimonies
show that at about 1:00 o'clock in the afternoon of July 10, 1999,
accused-appellant, Aimee, and their sister Abigail were in their
house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy
Diolola came to ask accused-appellant to draw her school project.
After making the request, Daisy left.17 Accused-appellant did not
immediately make the drawing because he was watching
television. Accused-appellant said that he finished the drawing at
about 3:00 o'clock in the afternoon and gave it to the victim's
aunt, Glory. He then returned home to watch television again. He
claimed he did not go out of the house until 7:00 o'clock in the
evening when he saw Ma. Nida, who was looking for her daughter.
Accused-appellant said he told her that he had not seen Daisy.
After that, accused-appellant said he went to the "pilapil" and
talked with some friends, and, at about 8:00 o'clock that evening,
he went home.
At 9:00 o'clock in the morning of July 11, 1999, barangay officials
fetched accused-appellant from his house and took him to the
barangay hall, where he was asked about the disappearance of
Daisy. He claimed that he did not know anything about it.
Accused-appellant was allowed to go home, but, at 11:00 o'clock
that morning, policemen came and invited him to the police
headquarters for questioning. His mother went with him to the
police station. There, accused-appellant was asked whether he
had something to do with the rape and killing of Daisy. He denied
knowledge of the crime.
At 4:00 o'clock that afternoon, accused-appellant accompanied
the police to his house to get the basketball shorts and shirt he
was wearing the day before, which were placed together with
other dirty clothes at the back of their house. According to
accused-appellant, the police forced him to admit that he had
raped and killed Daisy and that he admitted having committed the
crime to stop them from beating him up. Accused-appellant
claimed the police even burned his penis with a lighted cigarette
and pricked it with a needle.
Accused-appellant confirmed that Mayor Renato Abutan and Atty.
Lupo Leyva went to see him in the investigation room of the police
station and told him that they would help him if he told the truth.
Atty. Leyva asked him whether he wanted him to be his counsel,
and accused-appellant said he answered in the affirmative. He
said Atty. Leyva informed him of his constitutional rights.
Accused-appellant claimed that, although he admitted to Mayor
Abutan and Atty. Leyva the commission of the crime, this was
because the police had maltreated him. Accused-appellant said he
did not tell the mayor or Atty. Leyva that he had been tortured
because the policemen were around and he was afraid of them. It
appears that the family of accused-appellant transferred their
residence to Laguna on July 12, 1999 because of fear of reprisal by
residents of their barangay.18 According to accused-appellant,
Mayor Abutan and Atty. Leyva were not present when he gave his
confession to the police and signed the same. Accused-appellant
claims that although Exhibit "N" was in his own handwriting, he
merely copied the contents thereof from a pattern given to him by
the police.19
On July 31, 2000, the trial court rendered a decision finding
accused-appellant guilty of the offense charged. The dispositive
portion of its decision reads:
"WHEREFORE, in view of all the foregoing considerations, the
Court finds the accused Gerrico Vallejo y Samartino GUILTY
beyond reasonable doubt of the crime of Rape with Homicide, as
charged in the Information, accordingly hereby sentences him to
the supreme penalty of DEATH. The accused is directed to
indemnify the heirs of the victim in the amount of P100,000.00 as
civil indemnity and P50,000.00 as moral damages.
"SO ORDERED."20
Hence this appeal. Accused-appellant contends that:
"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF RAPE WITH HOMICIDE DESPITE
THE INSUFFICIENCY AND WEAKNESS OF THE
CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.
"II. THE TRIAL COURT GRAVELY ERRED IN GIVING
EVIDENTIARY WEIGHT TO THE ALLEGED ORAL
CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS
BEING HEARSAY IN NATURE.
"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
GIVING PROBATIVE VALUE TO THE WRITTEN EXTRA-
JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT
DESPITE THE FACT THAT THE SAME WAS OBTAINED
THROUGH FORCE AND INTIMIDATION AND THAT THE
LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL
INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE
HIM EFFECTIVE LEGAL ASSISTANCE."
We find accused-appellant's contentions to be without merit.
First. An accused can be convicted even if no eyewitness is
available, provided sufficient circumstantial evidence is presented
by the prosecution to prove beyond reasonable doubt that the
accused committed the crime.21 In rape with homicide, the
evidence against an accused is more often than not circumstantial.
This is because the nature of the crime, where only the victim and
the rapist would have been present at the time of its commission,
makes the prosecution of the offense particularly difficult since
the victim could no longer testify against the perpetrator. Resort
to circumstantial evidence is inevitable and to demand direct
evidence proving the modality of the offense and the identity of
the perpetrator is unreasonable.22
Under Rule 133, section 4 of the Revised Rules on Evidence,
circumstantial evidence is sufficient to sustain a conviction if:
"(a) there is more than one circumstance;
"(b) the facts from which the inferences are derived are proven;
and
"(c) the combination of all circumstances is such as to produce
conviction beyond reasonable doubt."23
In the case at bar, the following circumstantial evidence establish
beyond reasonable doubt the guilt of accused-appellant:
1. The victim went to Aimee Vallejo's house, where accused-
appellant was residing, at 1:00 o'clock in the afternoon of July 10,
1999, for tutoring.
2. At around 2:00 o'clock in the afternoon, accused-appellant and
Daisy went together to the latter's house to get a book from which
the former could copy Daisy's school project. After getting the
book, they proceeded to accused-appellant's residence.
3. From accused-appellant's house, Daisy then went to the house
of Jessiemin Mataverde where she watched television. Accused-
appellant thereafter arrived and whispered something to Daisy,
and the latter went with him towards the "compuerta."
4. At about 4:30 o'clock in the afternoon, the spouses Iluminado
and Charito Yepes saw accused-appellant coming out of the
"compuerta," with his clothes, basketball shorts, and t-shirt wet,
although his face and hair were not. According to these witnesses,
he looked pale, uneasy, and troubled (balisa). He kept looking
around and did not even greet them as was his custom to do so.
5. The fishing boat which accused-appellant used as a bomber (a
boat for catching fish with dynamite) was docked by the seashore.
6. A little before 5:00 o'clock in the afternoon, Jessiemin
Mataverde also saw accused-appellant buying a Marlboro
cigarette from a store. Jessiemen also noticed that accused-
appellant's clothes were wet but not his face nor his hair.
7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for
her daughter, she was told by accused-appellant that Daisy had
gone to her classmate Rosario's house. The information proved to
be false.
8. Daisy's body was found tied to an aroma tree at the part of the
river near the "compuerta."
9. During the initial investigation, accused-appellant had
scratches on his feet similar to those caused by the thorns of an
aroma tree.
10. The clothes which accused-appellant wore the day before were
bloodstained. The bloodstains on accused-appellant's clothes and
on Daisy's clothes were found positive of human blood type "A."
11. Accused-appellant has blood type "O."
12. The vaginal swabs from Daisy's body contained her DNA
profile as well as that of accused-appellant.
Accused-appellant contends that the bloodstains found on his
garments were not proven to have been that of the victim as the
victim's blood type was not determined.
The contention has no merit. The examination conducted by
Forensic Biologist Pet Byron Buan of both accused-appellant's
and the victim's clothing yielded bloodstains of the same blood
type "A".24 Even if there was no direct determination as to what
blood type the victim had, it can reasonably be inferred that the
victim was blood type "A" since she sustained contused abrasions
all over her body which would necessarily produce the bloodstains
on her clothing.25 That it was the victim's blood which
predominantly registered in the examination was explained by
Mr. Buan, thus:26
"ATTY. ESPIRITU
Q:         But you will agree with me that more probably than not, if
a crime is being committed, and it results in a bloody death, it is
very possible that the blood of the victim and the blood of the
assailant might mix in that particular item like the t-shirt, shorts
or pants?
A:         It is possible when there is a huge amount of blood coming
from the victim and the suspect, Sir. It is possible. It will mix.
Whichever is the dominant blood in it, it will be the one which will
register. For example, if there is more blood coming from the
victim, that blood will be the one to register, on occasions when
the two blood mix.
Q:         But in these specimens number 1 to 5, it is very clear now
that only type A and no type O blood was found?
A:         Yes, sir."
Accused-appellant also questions the validity of the method by
which his bloodstained clothes were recovered. According to
accused-appellant, the policemen questioned him as to the clothes
he wore the day before. Thereafter, they took him to his house and
accused-appellant accompanied them to the back of the house
where dirty clothes were kept.27 There is no showing, however,
that accused-appellant was coerced or forced into producing the
garments. Indeed, that the accused-appellant voluntarily brought
out the clothes sought by the police becomes more convincing
when considered together with his confessions. A consented
warrantless search is an exception to the proscription in Section 2
of Article III of the Constitution. As we have held, the consent of
the owner of the house to the search effectively removes any
badge of illegality.28
The DNA analysis conducted by NBI Forensic Chemist Aida
Viloria-Magsipoc is also questioned by accused-appellant. He
argues that the prosecution failed to show that all the samples
submitted for DNA testing were not contaminated, considering
that these specimens were already soaked in smirchy waters
before they were submitted to the laboratory.
DNA is an organic substance found in a person's cells which
contains his or her genetic code. Except for identical twins, each
person's DNA profile is distinct and unique.29
When a crime is committed, material is collected from the scene
of the crime or from the victim's body for the suspect's DNA. This
is the evidence sample. The evidence sample is then matched with
the reference sample taken from the suspect and the victim.30
The purpose of DNA testing is to ascertain whether an association
exists between the evidence sample and the reference
sample.31 The samples collected are subjected to various chemical
processes to establish their profile.32The test may yield three
possible results:
1) The samples are different and therefore must have originated
from different sources (exclusion). This conclusion is absolute and
requires no further analysis or discussion;
2) It is not possible to be sure, based on the results of the test,
whether the samples have similar DNA types (inconclusive). This
might occur for a variety of reasons including degradation,
contamination, or failure of some aspect of the protocol. Various
parts of the analysis might then be repeated with the same or a
different sample, to obtain a more conclusive result; or
3) The samples are similar, and could have originated from the
same source (inclusion).33 In such a case, the samples are found to
be similar, the analyst proceeds to determine the statistical
significance of the Similarity.34
In assessing the probative value of DNA evidence, therefore,
courts should consider, among others things, the following data:
how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards
and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.
In the case at bar, the bloodstains taken from the clothing of the
victim and of accused-appellant, the smears taken from the victim
as well as the strands of hair and nails taken from her tested
negative for the presence of human DNA,35 because, as Ms.
Viloria-Magsipoc explained:
"PROSECUTOR LU:
Q:         I noticed that specimens 1 to 5 consisting of bloodstains
taken from the clothing of the victim and of the accused gave
negative results for the presence of human DNA. Why is it so?
What is the reason for this when there are still bloodstains on the
clothing?
A:         After this Honorable Court issued an Order for DNA
analysis, serological methods were already conducted on the said
specimens. And upon inquiry from Mr. Buan and as far as he also
knew of this case, and we also interviewed the mother who came
over to the laboratory one time on how was the state of the
specimens when they were found out. We found that these
specimens were soaked in smirchy water before they were
submitted to the laboratory. The state of the specimens prior to
the DNA analysis could have hampered the preservation of any
DNA that could have been there before. So when serological
methods were done on these specimens, Mr. Byron could have
taken such portion or stains that were only amenable for
serological method and were not enough for DNA analysis
already. So negative results were found on the clothings that were
submitted which were specimens no. 1 to 5 in my report, Sir.
Q:         I also noticed that specimen no. 6-B consisting of the
smears taken from the victim also proved negative for human
DNA, why is it so?
A:         Because when we received the vaginal smears submitted by
Dr. Vertido, the smear on the slide was very, very dry and could
have chipped off. I already informed Dr. Vertido about it and he
confirmed the state of the specimen. And I told him that maybe it
would be the swab that could help us in this case, Sir. And so upon
examination, the smears geared negative results and the swabs
gave positive results, Sir.
Q:         How about specimen no. 7, the hair and nails taken from
the victim, why did they show negative results for DNA?
A:         The hair samples were cut hair. This means that the hair
did not contain any root. So any hair that is above the skin or the
epidermis of one's skin would give negative results as the hair
shaft is negative for DNA. And then the nails did not contain any
subcutaneous cells that would be amenable for DNA analysis also,
Sir.
Q:         So it's the inadequacy of the specimens that were the
reason for this negative result, not the inadequacy of the
examination or the instruments used?
A:         Yes, Sir."
Thus, it is the inadequacy of the specimens submitted for
examination, and not the possibility that the samples had been
contaminated, which accounted for the negative results of their
examination. But the vaginal swabs taken from the victim yielded
positive for the presence of human DNA. Upon analysis by the
experts, they showed the DNA profile of accused-appellant:36
"PROSECUTOR LU:
Q:         So based on your findings, can we say conclusively that the
DNA profile of the accused in this case was found in the vaginal
swabs taken from the victim?
A:         Yes, Sir.
Q:         That is very definite and conclusive?
A:         Yes, Sir."
In conclusion, we hold that the totality of the evidence points to
no other conclusion than that accused-appellant is guilty of the
crime charged. Evidence is weighed not counted. When facts or
circumstances which are proved are not only consistent with the
guilt of the accused but also inconsistent with his innocence, such
evidence, in its weight and probative force, may surpass direct
evidence in its effect upon the court.37 This is how it is in this case.
Second. Accused-appellant challenges the validity of the oral and
written confessions presented as evidence against him. He alleges
that the oral confessions were inadmissible in evidence for being
hearsay, while the extrajudicial confessions were obtained
through force and intimidation.
The claim is untenable. Section 12 of Art. III of the Constitution
provides in pertinent parts:
"(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.
"(2) No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.
"(3) Any confession or admission obtained in violation of this or
Section 17 shall be inadmissible in evidence against him."
There are two kinds of involuntary or coerced confessions treated
in this constitutional provision: (1) coerced confessions, the
product of third degree methods such as torture, force, violence,
threat, and intimidation, which are dealt with in paragraph 2 of
Section 12, and (2) uncounselled statements, given without the
benefit of Miranda warnings, which are the subject of paragraph 1
of the same section.38
Accused-appellant argues that the oral confessions given to Mayor
Abutan of Rosario, Cavite and to NBI Forensic Biologist should be
deemed inadmissible for being violative of his constitutional
rights as these were made by one already under custodial
investigation to persons in authority without the presence of
counsel. With respect to the oral confessions, Atty. Leyva
testified:39
"PROSECUTOR LU:
Q:         Upon meeting this Gerrico Vallejo at the police station
were you able to confer with him?
A:         Yes, Sir.
Q:         Did you ask him whether he really wants you to represent
or assist him as a lawyer during that investigation?
A:         I did, as a matter of fact, I asked him whether he would like
me to represent him in that investigation, Sir.
Q:         And what was his answer?
A:         He said "yes".
Q:         After agreeing to retain you as his counsel, what else did
you talk about?
A:         I told him that in the investigation, whatever he will state
may be used against him, so it's a sort of discouraging him from
making any statement to the police, Sir."
Upon cross-examination, Atty. Leyva testified as follows:40
Q:         You stated that you personally read this recital of the
constitutional rights of the accused?
A:         Yes, Sir.
Q:         But it will appear in this recital of constitutional rights that
you did not inform the accused that the statement that he will be
giving might be used against him in a court of justice?
A:         I did that, Sir.
Q:         But it does not appear in this statement?
PROSECUTOR LU
The best evidence will be the statement, your Honor.
ATTY ESPIRITU
The only thing that is stated here is that "Maaaring gamitin pabor
o laban sa iyo."
COURT
Let the witness answer.
A:         I told him that, as a matter of fact, and I also told him to
tell the truth and nothing but the truth."
The testimony of Atty. Leyva is not only corroborated by the
testimony of Mayor Renato Abutan,41 it is also confirmed by
accused-appellant who testified as follows:42
"ATTY. ESPIRITU:
Q:         Did Atty. Leyva explain to you the meaning and
significance of that document which you are supposed to have
executed and signed?
A:         Yes, Sir.
Q:         What did Atty. Leyva tell you?
A:         That they are allowing me to exercise my constitutional
right to reveal or narrate all what I know about this case, Sir.
Q:         Did Atty. Leyva tell you that if you do not want, nobody
can force you to give that statement?
A:         Yes, Sir.
Q:         And did he tell you that what you would be giving is an
extra-judicial confession?
A:         Yes, Sir."
Clearly, accused-appellant cannot now claim that he was not
apprised of the consequences of the statements he was to make as
well as the written confessions he was to execute. Neither can he
question the qualifications of Atty. Lupo Leyva who acted as his
counsel during the investigation. To be an effective counsel, a
lawyer need not challenge all the questions being propounded to
his client. The presence of a lawyer is not intended to stop an
accused from saying anything which might incriminate him but,
rather, it was adopted in our Constitution to preclude the slightest
coercion as would lead the accused to admit something false.
Indeed, counsel should not prevent an accused from freely and
voluntarily telling the truth.43
Indeed, accused-appellant admitted that he was first asked
whether he wanted the services of Atty. Leyva before the latter
acted as his defense counsel.44 And counsel who is provided by the
investigators is deemed engaged by the accused where the latter
never raised any objection against the former's appointment
during the course of the investigation but, on the contrary,
thereafter subscribed to the veracity of his statement before the
swearing officer.45Contrary to the assertions of accused-appellant,
Atty. Leyva was not the municipal attorney of Rosario, Cavite but
only a legal adviser of Mayor Renato Abutan.46
Accused-appellant contends that the rulings in People vs.
Andan47 and People vs. Mantung48 do not apply to this case. We
disagree. The facts of these cases and that of the case at bar are
similar. In all these cases, the accused made extrajudicial
confessions to the municipal mayor freely and voluntarily. In all of
them, the extrajudicial confessions were held admissible in
evidence, being the spontaneous, free, and voluntary admissions
of the guilt of the accused. We note further that the testimony of
Mayor Abutan was never objected to by the defense.
Indeed, the mayor's questions to accused-appellant were not in
the nature of an interrogation, but rather an act of benevolence by
a leader seeking to help one of his constituents. Thus, Mayor
Abutan testified:49
"PROSECUTOR LU:
Q:         And during the conversation you had with Accused Gerrico
Vallejo, what exactly did he tell you?
A:         At first he said that he did not do that. That was the first
thing he told me. Then I told him that I will not be able to help
him if he will not tell me the truth.
Q:         And what was the reply of the accused?
A:         He had been silent for a minute. Then we talked about the
incident, Sir.
Q:         And what exactly did he tell you about the incident?
A:         I asked him, "Were you under the influence of drugs at that
time"?
Q:         What else did he tell you?
A:         I told him, "What reason pushed you to do that thing?" x x
x
Q:         Please tell us in tagalog, the exact words that the accused
used in telling you what happened.
A:         He told me that he saw the child as if she was headless at
that time. That is why he strangled the child, Sir. ("Ang sabi niya
po sa 'kin, nakita niya raw 'yung bata na parang walang ulo na
naglalakad. Kaya po sinakal niya.")
x x x           x x x           x x x
COURT:
Q:         When you told the accused that you will help him, what
kind of help were you thinking at that time?
A:         I told him that if he will tell the truth, I could help give him
legal counsel.
Q:         And what was the answer of the accused?
A:         Yes, he will tell me the truth, Your Honor."
In People vs. Mantung,50 this Court said:
"Never was it raised during the trial that Mantung's admission
during the press conference was coerced or made under duress.
As the records show, accused-appellant voluntarily made the
statements in response to Mayor Marquez' question as to whether
he killed the pawnshop employees. Mantung answered in the
affirmative and even proceeded to explain that he killed the
victims because they made him eat pork. These circumstances
hardly indicate that Mantung felt compelled to own up to the
crime. Besides, he could have chosen to remain silent or to do
deny altogether any participation in the robbery and killings but
he did not; thus accused-appellant sealed his own fate. As held in
People v. Montiero, a confession constitutes evidence of high
order since it is supported by the strong presumption that no
person of normal mind would deliberately and knowingly confess
to a crime unless prompted by truth and his conscience."
And in People vs. Andan, it was explained:
"Thus, it has been held that the constitutional procedures on
custodial investigation do not apply to a spontaneous statement,
not elicited through questioning by the authorities, but given in an
ordinary manner whereby appellant orally admitted having
committed the crime. What the Constitution bars is the
compulsory disclosure of incriminating facts or confessions. The
rights under Section 12 are guaranteed to preclude the slightest
use of coercion by the state as would lead the accused to admit
something false, not prevent him from freely and voluntarily
telling the truth."51
For the same reason, the oral confession made by accused-
appellant to NBI Forensic Biologist Pet Byron Buan is admissible.
Accused-appellant would have this Court exclude this confession
on the ground that it was uncounselled and that Mr. Buan, who
initiated the conversation with accused-appellant, was part of the
NBI. The issue concerning the sufficiency of the assistance given
by Atty. Leyva has already been discussed. On the other hand, the
questions put by Mr. Buan to accused-appellant were asked out of
mere personal curiosity and clearly not as part of his tasks. As
Buan testified:52
"PROSECUTOR LU:
Q:         What was the subject of your conversation with him?
A:         It is customary when we examine the accused. During the
examination, we talk to them for me to add knowledge on the
case, Sir.
Q:         What did you talk about during your conversation?
A:         I asked him if he was the one who did the killing on this
victim, Daisy Diolola, Sir.
Q:         And what was the reply of the accused?
A:         He said yes, Sir.
Q:         What else did you ask the accused?
A:         I remember that while asking him, he was crying as if
feeling remorse on the killing, Sir.
....
Q:         And it was you who initiated the conversation?
A:         Yes, Sir.
Q:         Do you usually do that?
A:         Yes, Sir. We usually do that.
Q:         Is that part of your procedure?
A:         It is not SOP. But for me alone, I want to know more about
the case, Sir. And any information either on the victim or from the
suspect will help me personally. It's not an SOP, Sir."
The confession, thus, can be likened to one freely and voluntarily
given to an ordinary individual and is, therefore, admissible as
evidence.
Third. The admissibility of the extrajudicial confessions of
accused-appellant is also attacked on the ground that these were
extracted from him by means of torture, beatings, and threats to
his life. The bare assertions of maltreatment by the police
authorities in extracting confessions from the accused are not
sufficient. The standing rule is that "where the defendants did not
present evidence of compulsion, or duress nor violence on their
person; where they failed to complain to the officer who
administered their oaths; where they did not institute any
criminal or administrative action against their alleged
intimidators for maltreatment; where there appeared to be 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 will be considered as indicating
voluntariness.53 Indeed, extrajudicial confessions are presumed to
be voluntary, and, in the absence of conclusive evidence showing
that the declarant's consent in executing the same has been
vitiated, the confession will be sustained.54
Accused-appellant's claim that he was tortured and subjected to
beatings by policemen in order to extract the said confession from
him is unsupported by any proof:55
"ATTY. ESPIRITU:
Q:         Did they further interrogate you?
A:         Yes, sir.
Q:         What else did they ask you?
A:         They were asking me the project, Sir.
Q:         What else?
A:         That is the only thing, Sir.
Q:         Who was doing the questioning?
A:         The investigator, Sir.
Q:         How many were they inside that room?
A:         Five, Sir.
Q:         They are all policemen?
A:         Yes, Sir.
x x x           x x x           x x x
Q:         Until what time did they keep you inside that room?
A:         Up to 11:00 in the evening, Sir.
Q:         Between 10:30 in the morning up to 11:00 o'clock in the
evening, what did you do there?
A:         They were interrogating and forcing me to admit
something, Sir.
Q:         In what way did they force you to admit something?
A:         They were mauling me, Sir.
Q:         The 5 of them?
A:         Yes, Sir.
Q:         The 5 of them remained inside that room with you
throughout the questioning?
A:         Yes, Sir.
Q:         In what way did they hurt you?
A:         They burned my private part with a lighted cigarette butt
and pierced me with a needle, Sir.
Q:         Who did these things to you?
A:         Mercado, Sir.
Q:         Who is this Mercado?
A:         EPZA policemen, Sir.
Q:         Did the other policemen help in doing these things to you?
A:         No, Sir.
Q:         Were you asked to undress or you were forced to do that?
A:         They forced me to remove my clothes, Sir.
Q:         In what way did they force you to remove your clothes?
A:         They were asking me to take off the pants which I was
wearing at the time, Sir.
Q:         Did they do anything to you to force you to remove your
pants?
A:         Yes, Sir.
Q:         What?
A:         They boxed me, Sir.
Q:         What else, if any?
A:         They hit me with a piece of wood, Sir.
Q:         What did you feel when your private part was burned with
a cigarette butt?
A:         It was painful, Sir.
Q:         In what part of your body were you pricked by a needle?
A:         At my private part, Sir."
These bare assertions cannot be given weight. Accused-appellant
testified that he was made to stay in the municipal hall from 10:00
o'clock in the morning until 11:00 o'clock that night of July 10,
1999, during which time he was boxed, tortured, and hit with a
piece of wood by policemen to make him admit to the crime.
However, accused-appellant was physically examined by Dr.
Antonio Vertido at about 9:00 o'clock in the evening of the same
day. While the results show that accused-appellant did sustain
injuries, the same are incompatible with his claim of torture. As
Dr. Vertido testified:56
"PROSECUTOR LU:
Q:         What were your findings when you conducted the physical
examination of the suspect?
A:         I found abrasions, your Honor, abrasions on the thigh,
knees, legs and feet of the suspect, and I also found hematoma on
the left ring finger, posterior aspect and at the same time, a
laceration on the left ring finger.
x x x           x x x           x x x
Q:         In your findings, it appears that the accused in this case
suffered certain physical injuries on his person like this abrasion
on the thigh, right anterior lateral aspect lower third of the knee,
what could have caused this injury?
A:         Abrasions are usually caused when the skin comes in
contact with a rough surface, Sir. Hematoma are usually caused
by a blunt instrument or object and laceration is the forcible
contact of the skin from that blunt object.
Q:         I am particularly interested in your findings hematoma on
the left ring finger, posterior aspect and laceration left ring finger
posterior aspect, what could have caused those injuries on the
accused?
A:         My opinion to these hematoma and laceration found on
the said left ring finger was that it was caused by a bite, Sir."
If the account of accused-appellant that he was beaten up is true,
Dr. Antonio Vertido would have found more than mere abrasions
and hematoma on his left finger. Dr. Vertido's findings are more
consistent with the theory that accused-appellant sustained
physical injuries as a result of the struggle made by the victim
during the commission of the rape in the "compuerta."
At all events, even if accused-appellant was truthful and his
assailed confessions are inadmissible, the circumstantial
evidence, as already shown, is sufficient to establish his guilt
beyond all reasonable doubt. The prosecution witnesses presented
a mosaic of circumstances showing accused-appellant's guilt.
Their testimonies rule out the possibility that the crime was the
handiwork of some other evil mind. These witnesses have not
been shown to have been motivated by ill will against accused-
appellant.
On the other hand, no other witness not related to accused-
appellant was ever called to corroborate his claim. The defense
presented only accused-appellant's sister, Aimee Vallejo, to
corroborate his story. We have held time and again that alibi
cannot prosper if it is established mainly by the accused and his
relatives, and not by credible persons.57 It is well settled that alibi
is the weakest of all defenses as it is easy to contrive and difficult
to disprove. For this reason, this Court looks with caution upon
the defense of alibi, especially when, as in this case, it is
corroborated only by relatives or friends of the accused.58
Article 266-B of the Revised Penal Code provides that "When by
reason or on the occasion of the rape, homicide is committed, the
penalty shall be death."59 Therefore, no other penalty can be
imposed on accused-appellant.
WHEREFORE, in view of all the foregoing considerations, the
decision of the Regional Trial Court, Branch 88, Cavite City,
finding accused-appellant Gerrico Vallejo y Samartino GUILTY
beyond reasonable doubt of the crime of Rape with Homicide and
sentencing him to the supreme penalty of DEATH and directing
him to indemnify the heirs of the victim in the amount of
P100,000.00 as civil indemnity and P50,000.00 as moral
damages, is hereby AFFIRMED.
In accordance with Section 25 of R.A. 7659, amending Art. 83 of
the Revised Penal Code, upon the finality of this decision, let the
records of this case be forthwith forwarded to the President of the
Philippines for the possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona,
JJ., concur.
De Leon, Jr., J., abroad, on official business.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 171713             December 17, 2007
ESTATE OF ROGELIO G. ONG, petitioner,  Capitol Garden, Tarlac City.
vs.
Minor JOANNE RODJIN DIAZ, Represented by Her Mother
and Guardian, Jinky C. Diaz, respondent.
DECISION
CHICO-NAZARIO, J.:
This is a petition for Review on Certiorari under Rule 45 of the
Revised Rules of Civil Procedure assailing (1) the Decision1 of the
CA dated 23 November 2005 and (2) the Resolution2 of the same
court dated 1 March 2006 denying petitioner’s Motion for
Reconsideration in CA-G.R. CV No. 70125.
A Complaint3 for compulsory recognition with prayer for support
pending litigation was filed by minor Joanne Rodjin Diaz
(Joanne), represented by her mother and guardian, Jinky C. Diaz
(Jinky), against Rogelio G. Ong (Rogelio) before the Regional
Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed
that judgment be rendered:
(a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz
as his daughter.
(b) Ordering defendant to give plaintiff monthly support
of P20,000.00 pendente lite and thereafter to fix monthly
support.
(c) Ordering the defendant to pay plaintiff attorney’s fees in the
sum of P100,000.00.
(d) Granting plaintiff such other measure of relief as maybe just
and equitable in the premises.4
As alleged by Jinky in her Complaint in November 1993 in Tarlac
City, she and Rogelio got acquainted. This developed into
friendship and later blossomed into love. At this time, Jinky was
already married to a Japanese national, Hasegawa Katsuo, in a
civil wedding solemnized on 19 February 1993 by Municipal Trial
Court Judge Panfilo V. Valdez.5
From January 1994 to September 1998, Jinky and Rogelio
cohabited and lived together at Fairlane Subdivision, and later at
From this live-in relationship, minor Joanne Rodjin Diaz was
conceived and on 25 February 1998 was born at the Central Luzon
Doctors’ Hospital, Tarlac City.
Rogelio brought Jinky to the hospital and took minor Joanne and
Jinky home after delivery. Rogelio paid all the hospital bills and
the baptismal expenses and provided for all of minor Joanne’s
needs – recognizing the child as his.
In September 1998, Rogelio abandoned minor Joanne and Jinky,
and stopped supporting minor Joanne, falsely alleging that he is
not the father of the child.
Rogelio, despite Jinky’s remonstrance, failed and refused and
continued failing and refusing to give support for the child and to
acknowledge her as his daughter, thus leading to the filing of the
heretofore adverted complaint.
After summons had been duly served upon Rogelio, the latter
failed to file any responsive pleading despite repeated motions for
extension, prompting the trial court to declare him in default in its
Order dated 7 April 1999. Rogelio’s Answer with Counterclaim
and Special and Affirmative Defenses was received by the trial
court only on 15 April 1999. Jinky was allowed to present her
evidence ex parte on the basis of which the trial court on 23 April
1999 rendered a decision granting the reliefs prayed for in the
complaint.
In its Decision6 dated 23 April 1999, the RTC held:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to recognize plaintiff as his natural child;
2. Ordering defendant to provide plaintiff with a monthly support
of P10,000.00 and further
3. Ordering defendant to pay reasonable attorney’s fees in the
amount of P5,000.00 and the cost of the suit.
On 28 April 1999, Rogelio filed a motion to lift the order of default
and a motion for reconsideration seeking the court’s
understanding, as he was then in a quandary on what to do to find
a solution to a very difficult problem of his life.7
On 29 April 1999, Rogelio filed a motion for new trial with prayer
that the decision of the trial court dated 23 April 1999 be vacated
and the case be considered for trial de novo pursuant to the
provisions of Section 6, Rule 37 of the 1997 Rules of Civil
Procedure.
On 16 June 1999, the RTC issued an Order granting Rogelio’s
Motion for New Trial:
WHEREFORE, finding defendant’s motion for new trial to be
impressed with merit, the same is hereby granted.
The Order of this court declaring defendant in default and the
decision is this court dated April 23, 1999 are hereby set aside but
the evidence adduced shall remain in record, subject to cross-
examination by defendant at the appropriate stage of the
proceedings.
In the meantime defendant’s answer is hereby admitted, subject
to the right of plaintiff to file a reply and/or answer to defendant’s
counterclaim within the period fixed by the Rules of Court.
Acting on plaintiff’s application for support pendente lite which
this court finds to be warranted, defendant is hereby ordered to
pay to plaintiff immediately the sum of P2,000.00 a month from
January 15, 1999 to May 1999 as support pendente lite in arrears
and the amount of P4,000.00 every month thereafter as regular
support pendente lite during the pendency of this case.9
The RTC finally held:
The only issue to be resolved is whether or not the defendant is
the father of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiff’s mother Jinky Diaz
was married at the time of the birth of Joanne Rodjin Diaz, the
law presumes that Joanne is a legitimate child of the spouses
Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The
child is still presumed legitimate even if the mother may have
declared against her legitimacy (Article 167, Ibid).
The legitimacy of a child may be impugned only on the following
grounds provided for in Article 166 of the same Code. Paragraph 1
of the said Article provides that there must be physical
impossibility for the husband to have sexual intercourse with the
wife within the first 120 days of the 300 days following the birth
of the child because of –
a) physical incapacity of the husband to have sexual intercourse
with his wife;
b) husband and wife were living separately in such a way that
sexual intercourse was not possible;
c) serious illness of the husband which prevented sexual
intercourse.
It was established by evidence that the husband is a Japanese
national and that he was living outside of the country (TSN, Aug.
27, 1999, page 5) and he comes home only once a year. Both
evidence of the parties proved that the husband was outside the
country and no evidence was shown that he ever arrived in the
country in the year 1997 preceding the birth of plaintiff Joanne
Rodjin Diaz.
While it may also be argued that plaintiff Jinky had a relationship
with another man before she met the defendant, there is no
evidence that she also had sexual relations with other men on or
about the conception of Joanne Rodjin. Joanne Rodjin was her
second child (see Exh. "A"), so her first child, a certain Nicole
(according to defendant) must have a different father or may be
the son of Hasegawa K[u]tsuo.
The defendant admitted having been the one who shouldered the
hospital bills representing the expenses in connection with the
birth of plaintiff. It is an evidence of admission that he is the real
father of plaintiff. Defendant also admitted that even when he
stopped going out with Jinky, he and Jinky used to go to motels
even after 1996. Defendant also admitted that on some instances,
he still used to see Jinky after the birth of Joanne Rodjin.
Defendant was even the one who fetched Jinky after she gave
birth to Joanne.
On the strength of this evidence, the Court finds that Joanne
Rodjin is the child of Jinky and defendant Rogelio Ong and it is
but just that the latter should support plaintiff.10
On 15 Dec 2000, the RTC rendered a decision and disposed:
WHEREFORE, judgment is hereby rendered declaring Joanne
Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong
with plaintiff Jinky Diaz. The Order of this Court awarding
support pendente lite dated June 15, 1999, is hereby affirmed and
that the support should continue until Joanne Rodjin Diaz shall
have reached majority age.11
Rogelio filed a Motion for Reconsideration, which was denied for
lack of merit in an Order of the trial court dated 19 January
2001.12 From the denial of his Motion for Reconsideration,
Rogelio appealed to the CA. After all the responsive pleadings had
been filed, the case was submitted for decision and ordered re-
raffled to another Justice for study and report as early as 12 July
2002.13
During the pendency of the case with the CA, Rogelio’s counsel
filed a manifestation informing the Court that Rogelio died on 21
February 2005; hence, a Notice of Substitution was filed by said
counsel praying that Rogelio be substituted in the case by the
Estate of Rogelio Ong,14 which motion was accordingly granted by
the CA.15
In a Decision dated 23 November 2005, the CA held:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED. The appealed Decision dated December 15, 2000 of
the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case
No. 8799 is hereby SET ASIDE. The case is hereby REMANDED
to the court a quo for the issuance of an order directing the parties
to make arrangements for DNA analysis for the purpose of
determining the paternity of plaintiff minor Joanne Rodjin Diaz,
upon consultation and in coordination with laboratories and
experts on the field of DNA analysis.
No pronouncement as to costs.
Petitioner filed a Motion for Reconsideration which was denied by
the CA in a Resolution dated 1 March 2006.
In disposing as it did, the CA justified its Decision as follows:
In this case, records showed that the late defendant-appellant
Rogelio G. Ong, in the early stage of the proceedings volunteered
and suggested that he and plaintiff’s mother submit themselves to
a DNA or blood testing to settle the issue of paternity, as a sign of
good faith. However, the trial court did not consider resorting to
this modern scientific procedure notwithstanding the repeated
denials of defendant that he is the biological father of the plaintiff
even as he admitted having actual sexual relations with plaintiff’s
mother. We believe that DNA paternity testing, as current
jurisprudence affirms, would be the most reliable and effective
method of settling the present paternity dispute. Considering,
however, the untimely demise of defendant-appellant during the
pendency of this appeal, the trial court, in consultation with out
laboratories and experts on the field of DNA analysis, can possibly
avail of such procedure with whatever remaining DNA samples
from the deceased defendant alleged to be the putative father of
plaintiff minor whose illegitimate filiations is the subject of this
action for support.17
Hence, this petition which raises the following issues for
resolution:
I WHETHER OR NOT THE CA ERRED WHEN IT DID NOT
DISMISS RESPONDENT’S COMPLAINT FOR COMPULSORY
RECOGNITION DESPITE ITS FINDING THAT THE EVIDENCE
PRESENTED FAILED TO PROVE THAT ROGELIO G. ONG WAS
HER FATHER.
II WHETHER OR NOT THE CA ERRED WHEN IT DID NOT
DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF
JINKY C. DIAZ AND HER JAPANESE HUSBAND,
CONSIDERING THAT RESPONDENT FAILED TO REBUT THE
PRESUMPTION OF HER LEGITIMACY.
III WHETHER OR NOT THE CA ERRED WHEN IT REMANDED
THE CASE TO THE COURT A QUO FOR DNA ANALYSIS
DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE
TO THE DEATH OF ROGELIO G. ONG.18
Petitioner prays that the present petition be given due course and
the Decision of the CA dated November 23, 2005 be modified, by
setting aside the judgment remanding the case to the trial court
for DNA testing analysis, by dismissing the complaint of minor
Joanne for compulsory recognition, and by declaring the minor as
the legitimate child of Jinky and Hasegawa Katsuo.19
From among the issues presented for our disposition, this Court
finds it prudent to concentrate its attention on the third one, the
propriety of the appellate court’s decision remanding the case to
the trial court for the conduct of DNA testing. Considering that a
definitive result of the DNA testing will decisively lay to rest the
issue of the filiation of minor Joanne, we see no reason to resolve
the first two issues raised by the petitioner as they will be
rendered moot by the result of the DNA testing.
As a whole, the present petition calls for the determination of
filiation of minor Joanne for purposes of support in favor of the
said minor.
Filiation proceedings are usually filed not just to adjudicate
paternity but also to secure a legal right associated with paternity,
such as citizenship, support (as in the present case), or
inheritance. The burden of proving paternity is on the person who
alleges that the putative father is the biological father of the child.
There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case,
affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child.20
A child born to a husband and wife during a valid marriage is
presumed legitimate.21 As a guaranty in favor of the child and to
protect his status of legitimacy, Article 167 of the Family Code
provides:
Article 167. The children shall be considered legitimate although
the mother may have declared against its legitimacy or may have
been sentenced as an adulteress.
The law requires that every reasonable presumption be made in
favor of legitimacy. We explained the rationale of this rule in the
recent case of Cabatania v. CA22:
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. The
presumption is grounded on the policy to protect the innocent
offspring from the odium of illegitimacy.
The presumption of legitimacy of the child, however, is not
conclusive and consequently, may be overthrown by evidence to
the contrary. Hence, Article 255 of the New Civil Code23 provides:
Article 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other
than that of the physical impossibility of the husband’s having
access to his wife within the first one hundred and twenty days of
the three hundred which preceded the birth of the child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such
a way that access was not possible;
3) By the serious illness of the husband.
The relevant provisions of the Family Code provide as follows:
ART. 172. The filiation of legitimate children is established by any
of the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
ART. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
children.
There had been divergent and incongruent statements and
assertions bandied about by the parties to the present petition.
But with the advancement in the field of genetics, and the
availability of new technology, it can now be determined with
reasonable certainty whether Rogelio is the biological father of the
minor, through DNA testing.
DNA is the fundamental building block of a person’s entire
genetic make-up. DNA is found in all human cells and is the same
in every cell of the same person. Genetic identity is unique. Hence,
a person’s DNA profile can determine his identity.25
DNA analysis is a procedure in which DNA extracted from a
biological sample obtained from an individual is examined. The
DNA is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is
unique for each person, except for identical twins.
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except in
the rare occurrence of identical twins that share a single, fertilized
egg), and DNA is unchanging throughout life. Being a component
of every cell in the human body, the DNA of an individual’s blood
is the very DNA in his or her skin cells, hair follicles, muscles,
semen, samples from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as
A (Adenine), G (guanine), C (cystosine) and T (thymine). The
order in which the four bases appear in an individual’s DNA
determines his or her physical make up. And since DNA is a
double stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called "genes."
Every gene has a certain number of the above base pairs
distributed in a particular sequence. This gives a person his or her
genetic code. Somewhere in the DNA framework, nonetheless, are
sections that differ. They are known as "polymorphic loci," which
are the areas analyzed in DNA typing (profiling, tests,
fingerprinting). In other words, DNA typing simply means
determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample obtained or
extracted, a molecular biologist may proceed to analyze it in
several ways. There are five (5) techniques to conduct DNA
typing. They are: the RFLP (restriction fragment length
polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which
was used in 287 cases that were admitted as evidence by 37 courts
in the U.S. as of November 1994; DNA process; VNTR (variable
number tandem repeats); and the most recent which is known as
the PCR-([polymerase] chain reaction) based STR (short tandem
repeats) method which, as of 1996, was availed of by most forensic
laboratories in the world. PCR is the process of replicating or
copying DNA in an evidence sample a million times through
repeated cycling of a reaction involving the so-called DNA
polymerize enzyme. STR, on the other hand, takes measurements
in 13 separate places and can match two (2) samples with a
reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are
determined. To illustrate, when DNA or fingerprint tests are done
to identify a suspect in a criminal case, the evidence collected
from the crime scene is compared with the "known" print. If a
substantial amount of the identifying features are the same, the
DNA or fingerprint is deemed to be a match. But then, even if only
one feature of the DNA or fingerprint is different, it is deemed not
to have come from the suspect.
As earlier stated, certain regions of human DNA show variations
between people. In each of these regions, a person possesses two
genetic types called "allele," one inherited from each parent. In [a]
paternity test, the forensic scientist looks at a number of these
variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is
possible to determine which half of the child’s DNA was inherited
from the mother. The other half must have been inherited from
the biological father. The alleged father’s profile is then examined
to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the man’s DNA types do
not match that of the child, the man is excluded as the father. If
the DNA types match, then he is not excluded as the father.26
In the newly promulgated rules on DNA evidence it is provided:
SEC. 3 Definition of Terms. – For purposes of this Rule, the
following terms shall be defined as follows:
xxxx
(c) "DNA evidence" constitutes the totality of the DNA profiles,
results and other genetic information directly generated from
DNA testing of biological samples;
(d) "DNA profile" means genetic information derived from DNA
testing of a biological sample obtained from a person, which
biological sample is clearly identifiable as originating from that
person;
(e) "DNA testing" means verified and credible scientific methods
which include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purpose of determining, with reasonable certainty, whether or not
the DNA obtained from two or more distinct biological samples
originates from the same person (direct identification) or if the
biological samples originate from related persons (kinship
analysis); and
(f) "Probability of Parentage" means the numerical estimate for
the likelihood of parentage of a putative parent compared with the
probability of a random match of two unrelated individuals in a
given population.
Amidst the protestation of petitioner against the DNA analysis,
the resolution thereof may provide the definitive key to the
resolution of the issue of support for minor Joanne. Our
articulation in Agustin v. CA27 is particularly relevant, thus:
Our faith in DNA testing, however, was not quite so steadfast in
the previous decade. In Pe Lim v. CA (336 Phil. 741, 270 SCRA 1),
promulgated in 1997, we cautioned against the use of DNA
because "DNA, being a relatively new science, (had) not as yet
been accorded official recognition by our courts. Paternity (would)
still have to be resolved by such conventional evidence as the
relevant incriminating acts,verbal and written, by the putative
father."
In 2001, however, we opened the possibility of admitting DNA as
evidence of parentage, as enunciated in Tijing v. CA [G.R. No.
125901, 8 March 2001, 354 SCRA 17]:
x x x Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA
test for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis is
based on the fact that the DNA of a child/person has two (2)
copies, one copy from the mother and the other from the father.
The DNA from the mother, the alleged father and child are
analyzed to establish parentage. Of course, being a novel scientific
technique, the use of DNA test as evidence is still open to
challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence.
For it was said, that courts should apply the results of science
when competently obtained in aid of situations presented, since to
reject said results is to deny progress.
The first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence came in 2002
with out en banc decision in People v. Vallejo [G.R. No. 144656, 9
May 2002, 382 SCRA 192] where the rape and murder victim’s
DNA samples from the bloodstained clothes of the accused were
admitted in evidence. We reasoned that "the purpose of DNA
testing (was) to ascertain whether an association exist(ed)
between the evidence sample and the reference sample. The
samples collected (were) subjected to various chemical processes
to establish their profile.
A year later, in People v. Janson [G.R. No. 125938, 4 April 2003,
400 SCRA 584], we acquitted the accused charged with rape for
lack of evidence because "doubts persist(ed) in our mind as to
who (were) the real malefactors. Yes, a complex offense (had)
been perpetrated but who (were) the perpetrators? How we wish
we had DNA or other scientific evidence to still our doubts."
In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634
and 161824, 3 March 2004, 424 SCRA 277], where the Court en
banc was faced with the issue of filiation of then presidential
candidate Fernando Poe, Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells of
the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up
filiation or paternity. In Tijing v. CA, this Court has acknowledged
the strong weight of DNA testing...
Moreover, in our en banc decision in People v. Yatar [G.R. No.
150224, 19 May 2004, 428 SCRA 504], we affirmed the conviction
of the accused for rape with homicide, the principal evidence for
which included DNA test results. x x x.
Coming now to the issue of remand of the case to the trial court,
petitioner questions the appropriateness of the order by the CA
directing the remand of the case to the RTC for DNA testing given
that petitioner has already died. Petitioner argues that a remand
of the case to the RTC for DNA analysis is no longer feasible due
to the death of Rogelio. To our mind, the alleged impossibility of
complying with the order of remand for purposes of DNA testing
is more ostensible than real. Petitioner’s argument is without
basis especially as the New Rules on DNA Evidence 28 allows the
conduct of DNA testing, either motu proprio or upon application
of any person who has a legal interest in the matter in litigation,
thus:
SEC. 4. Application for DNA Testing Order. – The appropriate
court may, at any time, either motu proprio or on application of
any person who has a legal interest in the matter in litigation,
order a DNA testing. Such order shall issue after due hearing and
notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the
type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case;
and
(e) The existence of other factors, if any, which the court may of facts and does not, in the course of daily routine, conduct
consider as potentially affecting the accuracy or integrity of the hearings. Hence, it would be more appropriate that the case be
DNA testing. remanded to the RTC for reception of evidence in appropriate
hearings, with due notice to the parties. (Emphasis supplied.)
From the foregoing, it can be said that the death of the petitioner
does not ipso facto negate the application of DNA testing for as As we have declared in the said case of Agustin v. CA32:
long as there exist appropriate biological samples of his DNA.
x x x [F]or too long, illegitimate children have been marginalized
As defined above, the term "biological sample" means any organic by fathers who choose to deny their existence. The growing
material originating from a person’s body, even if found in sophistication of DNA testing technology finally provides a much
inanimate objects, that is susceptible to DNA testing. This needed equalizer for such ostracized and abandoned progeny. We
includes blood, saliva, and other body fluids, tissues, hairs and have long believed in the merits of DNA testing and have
bones.29 repeatedly expressed as much in the past. This case comes at a
perfect time when DNA testing has finally evolved into a
Thus, even if Rogelio already died, any of the biological samples as dependable and authoritative form of evidence gathering. We
enumerated above as may be available, may be used for DNA therefore take this opportunity to forcefully reiterate our stand
testing. In this case, petitioner has not shown the impossibility of that DNA testing is a valid means of determining paternity.
obtaining an appropriate biological sample that can be utilized for
the conduct of DNA testing. WHEREFORE, the instant petition is DENIED for lack of
merit. The Decision of the CA dated 23 November 2005 and its
And even the death of Rogelio cannot bar the conduct of DNA Resolution dated 1 March 2006 are AFFIRMED. Costs against
testing. In People v. Umanito,30 citing Tecson v. Commission on petitioner.
Elections,31 this Court held:
SO ORDERED.
The 2004 case of Tecson v. Commission on Elections [G.R. No.
161434, 3 March 2004, 424 SCRA 277] likewise reiterated the Ynares-Santiago, Chairperson, Austria-Martinez,, Nachura,
acceptance of DNA testing in our jurisdiction in this wise: "[i]n Reyes, JJ., concur.
case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells of
the illegitimate child and any physical residue of the long
dead parent could be resorted to."
It is obvious to the Court that the determination of whether
appellant is the father of AAA’s child, which may be accomplished
through DNA testing, is material to the fair and correct
adjudication of the instant appeal. Under Section 4 of the Rules,
the courts are authorized, after due hearing and notice, motu
proprio to order a DNA testing. However, while this Court retains
jurisdiction over the case at bar, capacitated as it is to receive and
act on the matter in controversy, the Supreme Court is not a trier
 G.R. No. 162571               June 15, 2005
ARNEL L. AGUSTIN, petitioner,  support.6
vs.
HON. CA AND MINOR MARTIN JOSE PROLLAMANTE,
REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA
PROLLAMANTE, respondents.
DECISION
CORONA, J.:
At issue in this petition for certiorari  1 is whether or not the CA
(CA) gravely erred in exercising its discretion, amounting to lack
or excess of jurisdiction, in issuing a decision2 and
resolution3 upholding the resolution and order of the trial
court,4 which denied petitioner’s motion to dismiss private
respondents’ complaint for support and directed the parties to
submit themselves to deoxyribonucleic acid (DNA) paternity
testing.
Respondents Fe Angela and her son Martin Prollamante sued
Martin’s alleged biological father, petitioner Arnel L. Agustin, for
support and support pendente lite before the Regional Trial Court
(RTC) of Quezon City, Branch 106.5
In their complaint, respondents alleged that Arnel courted Fe in
1992, after which they entered into an intimate relationship. Arnel
supposedly impregnated Fe on her 34th birthday on November
10, 1999. Despite Arnel’s insistence on abortion, Fe decided
otherwise and gave birth to their child out of wedlock, Martin, on
August 11, 2000 at the Capitol Medical Hospital in Quezon City.
The baby’s birth certificate was purportedly signed by Arnel as the
father. Arnel shouldered the pre-natal and hospital expenses but
later refused Fe’s repeated requests for Martin’s support despite
his adequate financial capacity and even suggested to have the
child committed for adoption. Arnel also denied having fathered
the child.
On January 19, 2001, while Fe was carrying five-month old
Martin at the Capitol Hills Golf and Country Club parking lot,
Arnel sped off in his van, with the open car door hitting Fe’s leg.
This incident was reported to the police. In July 2001, Fe was
diagnosed with leukemia and has, since then, been undergoing
chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for
In his amended answer, Arnel denied having sired Martin because
his affair and intimacy with Fe had allegedly ended in 1998, long
before Martin’s conception. He claimed that Fe had at least one
other secret lover. Arnel admitted that their relationship started
in 1993 but "he never really fell in love with (Fe) not only because
(she) had at least one secret lover, a certain Jun, but also because
she proved to be scheming and overly demanding and possessive.
As a result, theirs was a stormy on-and-off affair. What started as
a romantic liaison between two consenting adults eventually
turned out to be a case of fatal attraction where (Fe) became so
obsessed with (Arnel), to the point of even entertaining the idea of
marrying him, that she resorted to various devious ways and
means to alienate (him) from his wife and family…. Unable to
bear the prospect of losing his wife and children, Arnel terminated
the affair although he still treated her as a friend such as by
referring potential customers to the car aircon repair shop"7 where
she worked. Later on, Arnel found out that Fe had another
erstwhile secret lover. In May 2000, Arnel and his entire family
went to the United States for a vacation. Upon their return in
June 2000, Arnel learned that Fe was telling people that he had
impregnated her. Arnel refused to acknowledge the child as his
because their "last intimacy was sometime in 1998."8 Exasperated,
Fe started calling Arnel’s wife and family. On January 19, 2001, Fe
followed Arnel to the Capitol Hills Golf and Country Club parking
lot to demand that he acknowledge Martin as his child. According
to Arnel, he could not get through Fe and the discussion became
so heated that he had no "alternative but to move on but without
bumping or hitting any part of her body." 9 Finally, Arnel claimed
that the signature and the community tax certificate (CTC)
attributed to him in the acknowledgment of Martin’s birth
certificate were falsified. The CTC erroneously reflected his
marital status as single when he was actually married and that his
birth year was 1965 when it should have been 1964.10
In his pre-trial brief filed on May 17, 2002, Arnel vehemently
denied having sired Martin but expressed willingness to consider
any proposal to settle the case.11
On July 23, 2002, Fe and Martin moved for the issuance of an
order directing all the parties to submit themselves to DNA
paternity testing pursuant to Rule 28 of the Rules of Court.12
Arnel opposed said motion by invoking his constitutional right
against self-incrimination.13 He also moved to dismiss the
complaint for lack of cause of action, considering that his
signature on the birth certificate was a forgery and that, under the
law, an illegitimate child is not entitled to support if not
recognized by the putative father.14 In his motion, Arnel
manifested that he had filed criminal charges for falsification of
documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a
petition for cancellation of his name appearing in Martin’s birth
certificate (docketed as Civil Case No. Q-02-46669). He attached
the certification of the Philippine National Police Crime
Laboratory that his signature in the birth certificate was forged.
The trial court denied the motion to dismiss the complaint and
ordered the parties to submit themselves to DNA paternity testing
at the expense of the applicants. The CA affirmed the trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a complaint
for support can be converted to a petition for recognition and (2)
whether DNA paternity testing can be ordered in a proceeding for
support without violating petitioner’s constitutional right to
privacy and right against self-incrimination.
The petition is without merit.
First of all, the trial court properly denied the petitioner’s motion
to dismiss because the private respondents’ complaint on its face
showed that they had a cause of action against the petitioner. The
elements of a cause of action are: (1) the plaintiff’s primary right
and the defendant’s corresponding primary duty, and (2) the
delict or wrongful act or omission of the defendant, by which the
primary right and duty have been violated. The cause of action is
determined not by the prayer of the complaint but by the facts
alleged.16
In the complaint, private respondents alleged that Fe had
amorous relations with the petitioner, as a result of which she
gave birth to Martin out of wedlock. In his answer, petitioner
admitted that he had sexual relations with Fe but denied that he
fathered Martin, claiming that he had ended the relationship long
before the child’s conception and birth. It is undisputed and even
admitted by the parties that there existed a sexual relationship
between Arnel and Fe. The only remaining question is whether
such sexual relationship produced the child, Martin. If it did, as
respondents have alleged, then Martin should be supported by his
father Arnel. If not, petitioner and Martin are strangers to each
other and Martin has no right to demand and petitioner has no
obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies
the genuineness and authenticity of the child’s birth certificate
which he purportedly signed as the father. He also claims that the
order and resolution of the trial court, as affirmed by the CA,
effectively converted the complaint for support to a petition for
recognition, which is supposedly proscribed by law. According to
petitioner, Martin, as an unrecognized child, has no right to ask
for support and must first establish his filiation in a separate suit
under Article 28317 in relation to Article 26518 of the Civil Code
and Section 1, Rule 10519 of the Rules of Court.
The petitioner’s contentions are without merit.
The assailed resolution and order did not convert the action for
support into one for recognition but merely allowed the
respondents to prove their cause of action against petitioner who
had been denying the authenticity of the documentary evidence of
acknowledgement. But even if the assailed resolution and order
effectively integrated an action to compel recognition with an
action for support, such was valid and in accordance with
jurisprudence. In Tayag v. CA,20 we allowed the integration of an
action to compel recognition with an action to claim one’s
inheritance:
…In Paulino, we held that an illegitimate child, to be entitled to
support and successional rights from the putative or presumed
parent, must prove his filiation to the latter. We also said that it is
necessary to allege in the complaint that the putative father had
acknowledged and recognized the illegitimate child because such
acknowledgment is essential to and is the basis of the right to
inherit. There being no allegation of such acknowledgment, the
action becomes one to compel recognition which cannot be
brought after the death of the putative father. The ratio
decidendi in Paulino, therefore, is not the absence of a cause of
action for failure of the petitioner to allege the fact of
acknowledgment in the complaint, but the prescription of the
action.
Applying the foregoing principles to the case at bar, although
petitioner contends that the complaint filed by herein private
respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be
considered as one to compel recognition. Further, that the two
causes of action, one to compel recognition and the other to
claim inheritance, may be joined in one complaint is not new
in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz,
et al. (43 Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present
plaintiff can in any event maintain a complex action to compel
recognition as a natural child and at the same time to obtain
ulterior relief in the character of heir, is one which in the opinion
of this court must be answered in the affirmative, provided always
that the conditions justifying the joinder of the two distinct causes
of action are present in the particular case. In other words, there
is no absolute necessity requiring that the action to compel
acknowledgment should have been instituted and prosecuted
to a successful conclusion prior to the action in which that
same plaintiff seeks additional relief in the character of heir.
Certainly, there is nothing so peculiar to the action to compel
acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases.
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported
by our prior decisions. Thus, we have held in numerous cases,
and the doctrine must be considered well settled, that a
natural child having a right to compel acknowledgment, but
who has not been in fact legally acknowledged, may maintain
partition proceedings for the division of the inheritance
against his coheirs x x x; and the same person may intervene in
proceedings for the distribution of the estate of his deceased
natural father, or mother x x x. In neither of these situations has it
been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in
partition suits and distribution proceedings the other persons who
might take by inheritance are before the court; and the
declaration of heirship is appropriate to such proceedings.
(Underscoring supplied)
Although the instant case deals with support rather than
inheritance, as in Tayag, the basis or rationale for integrating
them remains the same. Whether or not respondent Martin is
entitled to support depends completely on the determination of
filiation. A separate action will only result in a multiplicity of
suits, given how intimately related the main issues in both cases
are. To paraphrase Tayag, the declaration of filiation is entirely
appropriate to these proceedings.
On the second issue, petitioner posits that DNA is not recognized
by this Court as a conclusive means of proving paternity. He also
contends that compulsory testing violates his right to privacy and
right against self-incrimination as guaranteed under the 1987
Constitution. These contentions have no merit.
Given that this is the very first time that the admissibility of DNA
testing as a means for determining paternity has actually been the
focal issue in a controversy, a brief historical sketch of our past
decisions featuring or mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee21 where the appellant was
convicted of murder on the testimony of three eyewitnesses, we
stated as an obiter dictum that "while eyewitness identification is
significant, it is not as accurate and authoritative as the scientific
forms of identification evidence such as the fingerprint or
the DNA test result(emphasis supplied)."
Our faith in DNA testing, however, was not quite so steadfast in
the previous decade. In Pe Lim v. CA,22 promulgated in 1997, we
cautioned against the use of DNA because "DNA, being a
relatively new science, (had) not as yet been accorded official
recognition by our courts. Paternity (would) still have to be
resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as
evidence of parentage, as enunciated in Tijing v. CA
A final note. Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in
using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to
conduct DNA typing using short tandem repeat (STR) analysis.
The analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other from
the father. The DNA from the mother, the alleged father and child
are analyzed to establish parentage. Of course, being a novel
scientific technique, the use of DNA test as evidence is still open
to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence.
For it was said, that courts should apply the results of science
when competently obtained in aid of situations presented, since to
reject said result is to deny progress.
The first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence came in 2002
with our en banc decision in People v. Vallejo24 where the rape
and murder victim’s DNA samples from the bloodstained clothes
of the accused were admitted in evidence. We reasoned that "the
purpose of DNA testing (was) to ascertain whether an association
exist(ed) between the evidence sample and the reference sample.
The samples collected (were) subjected to various chemical
processes to establish their profile."
A year later, in People v. Janson,25 we acquitted the accused
charged with rape for lack of evidence because "doubts persist(ed)
in our mind as to who (were) the real malefactors. Yes, a complex
offense (had) been perpetrated but who (were) the perpetrators?
How we wish we had DNA or other scientific evidence to still our
doubts!"
In 2004, in Tecson, et al. v. COMELEC 26 where the Court en
banc was faced with the issue of filiation of then presidential
candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells of
the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up
filiation or paternity. In Tijing vs. CA, this Court has
acknowledged the strong weight of DNA testing…
Moreover, in our en banc decision in People v. Yatar,27 we
affirmed the conviction of the accused for rape with homicide, the
principal evidence for which included DNA test results. We did a
lengthy discussion of DNA, the process of DNA testing and the
reasons for its admissibility in the context of our own Rules of
Evidence:
DNA, is a molecule that encodes the genetic information in all
living organisms. A person’s DNA is the same in each cell and it
does not change throughout a person’s lifetime; the DNA in a
person’s blood is the same as the DNA found in his saliva, sweat,
bone, the root and shaft of hair, earwax, mucus, urine, skin tissue,
and vaginal and rectal cells. Most importantly, because of
polymorphisms in human genetic structure, no two individuals
have the same DNA, with the notable exception of identical twins.
In assessing the probative value of DNA evidence, courts should
consider, inter alia, the following factors: how the samples were
collected, how they were handled, the possibility of contamination
of the samples, the procedure followed in analyzing the samples,
whether proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who
conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly
qualified by the prosecution as an expert witness on DNA print or
identification techniques. Based on Dr. de Ungria’s testimony, it
was determined that the gene type and DNA profile of appellant
are identical to that of the extracts subject of examination. The
blood sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and
CSF1PO 10/11, which are identical with semen taken from the
victim’s vaginal canal. Verily, a DNA match exists between the
semen found in the victim and the blood sample given by the
appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in
science and technology in the Philippine criminal justice system,
so we must be cautious as we traverse these relatively uncharted
waters. Fortunately, we can benefit from the wealth of persuasive
jurisprudence that has developed in other jurisdictions.
Specifically, the prevailing doctrine in the U.S. has proven
instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d
469) it was ruled that pertinent evidence based on scientifically
valid principles could be used as long as it was relevant and
reliable. Judges, under Daubert, were allowed greater discretion
over which testimony they would allow at trial, including the
introduction of new kinds of scientific techniques. DNA typing is
one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly
to a fact in issue as to induce belief in its existence or non-
existence. Applying the Daubert test to the case at bar, the DNA
evidence obtained through PCR testing and utilizing STR analysis,
and which was appreciated by the court a quo is relevant and
reliable since it is reasonably based on scientifically valid
principles of human genetics and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA
testing and the admissibility of the results thereof as evidence. In
that case, DNA samples from semen recovered from a rape
victim’s vagina were used to positively identify the accused Joel
"Kawit" Yatar as the rapist. Yatar claimed that the compulsory
extraction of his blood sample for DNA testing, as well as the
testing itself, violated his right against self-incrimination, as
embodied in both Sections 12 and 17 of Article III of the
Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not against
all compulsion, but against testimonial compulsion. The right
against self-incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt. It
does not apply where the evidence sought to be excluded is not an
incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object
evidence taken from the person of the accused from the realm of
self-incrimination. These include photographs, hair, and other
bodily substances. We have also declared as constitutional several
procedures performed on the accused such as pregnancy tests for
women accused of adultery,31 expulsion of morphine from one’s
mouth32 and the tracing of one’s foot to determine its identity with
bloody footprints.33 In Jimenez v. Cañizares,34 we even authorized
the examination of a woman’s genitalia, in an action for
annulment filed by her husband, to verify his claim that she was
impotent, her orifice being too small for his penis. Some of these
procedures were, to be sure, rather invasive and involuntary, but
all of them were constitutionally sound. DNA testing and its
results, per our ruling in Yatar,35 are now similarly acceptable.
Nor does petitioner’s invocation of his right to privacy persuade
us. In Ople v. Torres,36 where we struck down the proposed
national computerized identification system embodied in
Administrative Order No. 308, we said:
In no uncertain terms, we also underscore that the right to
privacy does not bar all incursions into individual privacy. The
right is not intended to stifle scientific and technological
advancements that enhance public service and the common
good... Intrusions into the right must be accompanied by proper
safeguards that enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches
and seizures,37 and the infringement of privacy of
communication38 where the constitutional right to privacy has
been critically at issue. Petitioner’s case involves neither and, as
already stated, his argument that his right against self-
incrimination is in jeopardy holds no water. His hollow invocation
of his constitutional rights elicits no sympathy here for the simple
reason that they are not in any way being violated. If, in a criminal
case, an accused whose very life is at stake can be compelled to
submit to DNA testing, we see no reason why, in this civil case,
petitioner herein who does not face such dire consequences
cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United
States, where it yielded its first official results sometime in 1985.
In the decade that followed, DNA rapidly found widespread
general acceptance.39 Several cases decided by various State
Supreme Courts reflect the total assimilation of DNA testing into
their rules of procedure and evidence.
The case of Wilson v. Lumb shows that DNA testing is so
commonly accepted that, in some instances, ordering the
procedure has become a ministerial act. The Supreme Court of St.
Lawrence County, New York allowed a party who had already
acknowledged paternity to subsequently challenge his prior
acknowledgment. The Court pointed out that, under the law,
specifically Section 516 of the New York Family Court Act, the
Family Court examiner had the duty, upon receipt of the
challenge, to order DNA tests:41
§ 516-a. Acknowledgment of paternity. (a) An acknowledgment of
paternity executed pursuant to section one hundred eleven-k of
the social services law or section four thousand one hundred
thirty-five-b of the public health law shall establish the paternity
of and liability for the support of a child pursuant to this act. Such
acknowledgment must be reduced to writing and filed pursuant to
section four thousand one hundred thirty-five-b of the public
health law with the registrar of the district in which the birth
occurred and in which the birth certificate has been filed. No
further judicial or administrative proceedings are required to
ratify an unchallenged acknowledgment of paternity.
(b) An acknowledgment of paternity executed pursuant to section
one hundred eleven-k of the social services law or section four
thousand one hundred thirty-five-b of the public health law may
be rescinded by either signator’s filing of a petition with the court
to vacate the acknowledgment within the earlier of sixty days of
the date of signing the acknowledgment or the date of an
administrative or a judicial proceeding (including a proceeding to
establish a support order) relating to the child in which either
signator is a party. For purposes of this section, the "date of an
administrative or a judicial proceeding" shall be the date by which
the respondent is required to answer the petition. After the
expiration of sixty days of the execution of the acknowledgment,
either signator may challenge the acknowledgment of paternity in
court only on the basis of fraud, duress, or material mistake of
fact, with the burden of proof on the party challenging the
voluntary acknowledgment. Upon receiving a party’s
challenge to an acknowledgment, the court shall order
genetic marker tests or DNA tests for the determination
of the child’s paternity and shall make a finding of
paternity, if appropriate, in accordance with this article.
Neither signator’s legal obligations, including the obligation for
child support arising from the acknowledgment, may be
suspended during the challenge to the acknowledgment except for
good cause as the court may find. If a party petitions to rescind an
acknowledgment and if the court determines that the alleged
father is not the father of the child, or if the court finds that an
acknowledgment is invalid because it was executed on the basis of
fraud, duress, or material mistake of fact, the court shall vacate
the acknowledgment of paternity and shall immediately provide a
copy of the order to the registrar of the district in which the child’s
birth certificate is filed and also to the putative father registry
operated by the department of social services pursuant to section
three hundred seventy-two-c of the social services law. In
addition, if the mother of the child who is the subject of the
acknowledgment is in receipt of child support services pursuant to
title six-A of article three of the social services law, the court shall
immediately provide a copy of the order to the child support
enforcement unit of the social services district that provides the
mother with such services.
(c) A determination of paternity made by any other state, whether
established through the parents’ acknowledgment of paternity or
through an administrative or judicial process, must be accorded
full faith and credit, if and only if such acknowledgment meets the
requirements set forth in section 452(a)(7) of the social security
act. (emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court
Act:
§532. Genetic marker and DNA tests; admissibility of records or
reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or more
genetic marker tests or DNA tests and, on the court’s own motion
or the motion of any party, shall order the mother, her child and
the alleged father to submit to one or more genetic marker or
DNA tests of a type generally acknowledged as reliable by an
accreditation body designated by the secretary of the federal
department of health and human services and performed by a
laboratory approved by such an accreditation body and by the
commissioner of health or by a duly qualified physician to aid in
the determination of whether the alleged father is or is not the
father of the child. No such test shall be ordered, however,
upon a written finding by the court that it is not in the best
interests of the child on the basis of res judicata, equitable
estoppel, or the presumption of legitimacy of a child born to a
married woman. The record or report of the results of any such
genetic marker or DNA test ordered pursuant to this section or
pursuant to section one hundred eleven-k of the social services
law shall be received in evidence by the court pursuant to
subdivision (e) of rule forty-five hundred eighteen of the civil
practice law and rules where no timely objection in writing has
been made thereto and that if such timely objections are not
made, they shall be deemed waived and shall not be heard by the
court. If the record or report of the results of any such genetic
marker or DNA test or tests indicate at least a ninety-five
percent probability of paternity, the admission of such record
or report shall create a rebuttable presumption of paternity,
and shall establish, if unrebutted, the paternity of and liability
for the support of a child pursuant to this article and article
four of this act.
(b) Whenever the court directs a genetic marker or DNA test
pursuant to this section, a report made as provided in subdivision
(a) of this section may be received in evidence pursuant to rule
forty-five hundred eighteen of the civil practice law and rules if
offered by any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this
section shall be, in the first instance, paid by the moving party. If
the moving party is financially unable to pay such cost, the court
may direct any qualified public health officer to conduct such test,
if practicable; otherwise, the court may direct payment from the
funds of the appropriate local social services district. In its order
of disposition, however, the court may direct that the cost of any
such test be apportioned between the parties according to their
respective abilities to pay or be assessed against the party who
does not prevail on the issue of paternity, unless such party is
financially unable to pay. (emphasis supplied)
In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court,
DNA tests were used to prove that H.W., previously thought to be
an offspring of the marriage between A.C.W. and C.E.W., was
actually the child of R.E. with whom C.E.W. had, at the time of
conception, maintained an adulterous relationship.
In Erie County Department of Social Services on behalf of
Tiffany M.H. v. Greg G.,44 the 4th Department of the New York
Supreme Court’s Appellate Division allowed G.G., who had been
adjudicated as T.M.H.’s father by default, to have the said
judgment vacated, even after six years, once he had shown
through a genetic marker test that he was not the child’s father. In
this case, G.G. only requested the tests after the Dept of Social
Services, six years after G.G. had been adjudicated as T.M.H.’s
father, sought an increase in his support obligation to her.
In Greco v. Coleman, the Michigan SC while ruling on the
constitutionality of a provision of law allowing non-modifiable
support agreements pointed out that it was because of the
difficulty of determining paternity before the advent of DNA
testing that such support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can
be proven has increased significantly since the parties in this
lawsuit entered into their support agreement…(current testing
methods can determine the probability of paternity to
99.999999% accuracy). However, at the time the parties before us
entered into the disputed agreement, proving paternity was a very
significant obstacle to an illegitimate child's access to child
support. The first reported results of modern DNA paternity
testing did not occur until 1985. ("In fact, since its first reported
results in 1985, DNA matching has progressed to 'general
acceptance in less than a decade'"). Of course, while prior blood-
testing methods could exclude some males from being the
possible father of a child, those methods could not affirmatively
pinpoint a particular male as being the father. Thus, when the
settlement agreement between the present parties was entered in
1980, establishing paternity was a far more difficult ordeal than at
present. Contested paternity actions at that time were often no
more than credibility contests. Consequently, in every contested
paternity action, obtaining child support depended not merely on
whether the putative father was, in fact, the child's biological
father, but rather on whether the mother could prove to a court of
law that she was only sexually involved with one man--the
putative father. Allowing parties the option of entering into
private agreements in lieu of proving paternity eliminated the risk
that the mother would be unable meet her burden of proof.
It is worth noting that amendments to Michigan’s Paternity law
have included the use of DNA testing:46
§722.716 Pretrial proceedings; blood or tissue typing
determinations as to mother, child, and alleged father; court
order; refusal to submit to typing or identification profiling;
qualifications of person conducting typing or identification
profiling; compensation of expert; result of typing or
identification profiling; filing summary report; objection;
admissibility; presumption; burden of proof; summary
disposition.
Sec. 6. (1) In a proceeding under this act before trial, the court,
upon application made by or on behalf of either party, or on
its own motion, shall order that the mother, child, and alleged
father submit to blood or tissue typing determinations, which
may include, but are not limited to, determinations of red cell
antigens, red cell isoenzymes, human leukocyte antigens,
serum proteins, or DNA identification profiling, to determine
whether the alleged father is likely to be, or is not, the father
of the child. If the court orders a blood or tissue typing or
DNA identification profiling to be conducted and a party
refuses to submit to the typing or DNA identification
profiling, in addition to any other remedies available, the
court may do either of the following:
(a) Enter a default judgment at the request of the appropriate
party.
(b) If a trial is held, allow the disclosure of the fact of the
refusal unless good cause is shown for not disclosing the fact
of refusal.
(2) A blood or tissue typing or DNA identification profiling shall
be conducted by a person accredited for paternity determinations
by a nationally recognized scientific organization, including, but
not limited to, the American association of blood banks.
(5) If the probability of paternity determined by the qualified
person described in subsection (2) conducting the blood or
tissue typing or DNA identification profiling is 99% or higher,
and the DNA identification profile and summary report are
admissible as provided in subsection (4), paternity is
presumed. If the results of the analysis of genetic testing
material from 2 or more persons indicate a probability of
paternity greater than 99%, the contracting laboratory shall
conduct additional genetic paternity testing until all but 1 of
the putative fathers is eliminated, unless the dispute involves
2 or more putative fathers who have identical DNA.
(6) Upon the establishment of the presumption of paternity as
provided in subsection (5), either party may move for summary
disposition under the court rules. this section does not abrogate
the right of either party to child support from the date of birth of
the child if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled
that DNA test results showing paternity were sufficient to
overthrow the presumption of legitimacy of a child born during
the course of a marriage:
The presumption of legitimacy having been rebutted by the results
of the blood test eliminating Perkins as Justin's father, even
considering the evidence in the light most favorable to Perkins, we
find that no reasonable jury could find that Easter is not Justin's
father based upon the 99.94% probability of paternity concluded
by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court
upheld an order for genetic testing given by the CA, even after
trial on the merits had concluded without such order being given.
Significantly, when J.C.F., the mother, first filed the case for
paternity and support with the District Court, neither party
requested genetic testing. It was only upon appeal from dismissal
of the case that the appellate court remanded the case and
ordered the testing, which the North Dakota Supreme Court
upheld.
The case of Kohl v. Amundson,49 decided by the Supreme Court of
South Dakota, demonstrated that even default judgments of
paternity could be vacated after the adjudicated father had,
through DNA testing, established non-paternity. In this case,
Kohl, having excluded himself as the father of Amundson’s child
through DNA testing, was able to have the default judgment
against him vacated. He then obtained a ruling ordering
Amundson to reimburse him for the amounts withheld from his
wages for child support. The Court said "(w)hile Amundson may
have a remedy against the father of the child, she submit(ted) no
authority that require(d) Kohl to support her child. Contrary to
Amundson's position, the fact that a default judgment was
entered, but subsequently vacated, (did) not foreclose Kohl from
obtaining a money judgment for the amount withheld from his
wages."
In M.A.S. v. Mississippi Dept. of Human Services,50 another case
decided by the Supreme Court of Mississippi, it was held that even
if paternity was established through an earlier agreed order of
filiation, child support and visitation orders could still be vacated
once DNA testing established someone other than the named
individual to be the biological father. The Mississippi High Court
reiterated this doctrine in Williams v. Williams.51
The foregoing considered, we find no grave abuse of discretion on
the part of the public respondent for upholding the orders of the
trial court which both denied the petitioner’s motion to dismiss
and ordered him to submit himself for DNA testing. Under Rule
65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is
only available "when any tribunal, board or officer 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, nor any plain, speedy and adequate remedy in the
ordinary course of law."52 In Land Bank of the Philippines v. the
CA53 where we dismissed a special civil action for certiorari under
Rule 65, we discussed at length the nature of such a petition and
just what was meant by "grave abuse of discretion":
Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or, in
other words, where the power is exercised in an arbitrary
manner by reason of passion, prejudice, or personal
hostility, and it must be so patent or gross as to amount
to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in
contemplation of law.
The special civil action for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment.
The raison d’etre for the rule is when a court exercises its WHEREFORE, in view of the foregoing, the petition is hereby
jurisdiction, an error committed while so engaged does not DENIED. The CA’ decision dated January 28, 2004 in CA-G.R. SP
deprive it of the jurisdiction being exercised when the error is No. 80961 is hereby AFFIRMED in toto.
committed. If it did, every error committed by a court would Costs against petitioner. SO ORDERED.
deprive it of its jurisdiction and every erroneous judgment would Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales,
be a void judgment. In such a scenario, the administration of and Garcia, JJ., concur.
justice would not survive. Hence, where the issue or question
involved affects the wisdom or legal soundness of the decision—
not the jurisdiction of the court to render said decision—the same
is beyond the province of a special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the
CA is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court. On the other hand, if the error subject of
the recourse is one of jurisdiction, or the act complained of was
perpetrated by a quasi-judicial officer or agency with grave abuse
of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition for
certiorari under Rule 65 of the said Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any
arbitrariness, passion, prejudice or personal hostility that would
amount to grave abuse of discretion on the part of the CA. The
respondent court acted entirely within its jurisdiction in
promulgating its decision and resolution, and any error made
would have only been an error in judgment. As we have discussed,
however, the decision of the respondent court, being firmly
anchored in law and jurisprudence, was correct.
Epilogue: For too long, illegitimate children have been
marginalized by fathers who choose to deny their existence. The
growing sophistication of DNA testing technology finally provides
a much needed equalizer for such ostracized and abandoned
progeny. We have long believed in the merits of DNA testing and
have repeatedly expressed as much in the past. This case comes at
a perfect time when DNA testing has finally evolved into a
dependable and authoritative form of evidence gathering. We G.R. No. 158802             November 17, 2004
therefore take this opportunity to forcefully reiterate our stand IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE
that DNA testing is a valid means of determining paternity. VILLA (detained at the New Bilibid Prisons, Muntinlupa City)
JUNE DE VILLA, petitioner-relator, 
 vs.
THE DIRECTOR, NEW BILIBID PRISONS, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for the issuance of a writ of habeas corpus under
Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa,
joined by his son, petitioner-relator June de Villa, seeks a two-fold
relief: First, that respondent Director of Prisons justify the basis
for the imprisonment of petitioner Reynaldo de Villa; and second,
that petitioner be granted a new trial. 1 These reliefs are sought on
the basis of purportedly exculpatory evidence, gathered after
performing deoxyribonucleic acid (DNA) testing on samples
allegedly collected from the petitioner and a child born to the
victim of the rape.
By final judgment dated Feb 1, 2001, in Pp v. Reynaldo de
Villa,2 we found petitioner guilty of the rape of Aileen Mendoza,
his niece by affinity; sentenced him to suffer the penalty of
reclusión perpetua; and ordered him to pay the offended party
civil indemnity, moral damages, costs of the suit, and support for
Leahlyn Corales Mendoza, the putative child born of the rape.
Petitioner is currently serving his sentence at the New Bilibid
Prison, Muntinlupa City.
As summarized in our Decision dated February 1, 2001, Aileen
Mendoza charged petitioner Reynaldo de Villa with rape in an
information dated January 9, 1995, filed with the Regional Trial
Court of Pasig City. When arraigned on January 26, 1995,
petitioner entered a plea of "not guilty."3
During the trial, the prosecution established that sometime in the
third week of April 1994, at about 10:00 in the morning, Aileen
Mendoza woke up in her family's rented room in Sagad, Pasig,
Metro Manila, to find petitioner on top of her. Aileen was then
aged 12 years and ten months. She was unable to shout for help
because petitioner covered her mouth with a pillow and
threatened to kill her. Aileen could not do anything but cry.
Petitioner succeeded in inserting his penis inside her vagina. After
making thrusting motions with his body, petitioner ejaculated.
This encounter allegedly resulted in Aileen's pregnancy, which
was noticed by her mother, Leonila Mendoza, sometime in Nov
1994. When confronted by her mother, Aileen revealed that
petitioner raped her. Aileen's parents then brought her to the
Pasig Police Station, where they lodged a criminal complaint
against petitioner.4
Dr. Rosaline Cosidon, who examined Aileen, confirmed that she
was 8 months pregnant and found in her hymen healed
lacerations at the 5:00 and 8:00 positions. On Dec 19, 1994,
Aileen gave birth to a baby girl whom she named Leahlyn
Mendoza.5
In his defense, petitioner alleged that, at the time of the alleged
rape, he was already 67 years old. Old age and sickness had
rendered him incapable of having an erection. He further averred
that Aileen's family had been holding a grudge against him, which
accounted for the criminal charges. Finally, he interposed the
defense of alibi, claiming that at the time of the incident, he was in
his hometown of San Luis, Batangas.6
The trial court found petitioner guilty beyond reasonable doubt of
the crime of qualified rape, and sentenced him to death, to
indemnify the victim in the amount of P50,000.00, to pay the
costs of the suit and to support the child, Leahlyn Mendoza.7
On automatic review,8 we found that the date of birth of Aileen's
child was medically consistent with the time of the rape. Since it
was never alleged that Aileen gave birth to a full-term nine-month
old baby, we gave credence to the prosecution's contention that
she prematurely gave birth to an eight-month old baby by normal
delivery.9 Thus, we affirmed petitioner's conviction for rape, in a
Decision the dispositive portion of which reads:
WHEREFORE, the judgment of the RTC, finding accused-
appellant guilty beyond reasonable doubt of the crime of rape, is
AFFIRMED with the MODIFICATIONS that he is sentenced to
suffer the penalty of reclusión perpetua and ordered to pay the
offended party P50,000.00 as civil indemnity; P50,000.00 as
moral damages; costs of the suit and to provide support for the
child Leahlyn Corales Mendoza. SO ORDERED.
3 years after the promulgation of our Decision, we are once more
faced with the question of Reynaldo de Villa's guilt or innocence.
Petitioner-relator in this case, June de Villa, is the son of
Reynaldo. He alleges that during the trial of the case, he was
unaware that there was a scientific test that could determine once
and for all if Reynaldo was the father of the victim's child,
Leahlyn. Petitioner-relator was only informed during the
pendency of the automatic review of petitioner's case that DNA
testing could resolve the issue of paternity. 11 This information was
apparently furnished by the Free Legal Assistance Group (FLAG)
Anti-Death Penalty Task Force, which took over as counsel for
petitioner.
Thus, petitioner's brief in People v. de Villa sought the conduct of
a blood type test and DNA test in order to determine the paternity
of the child allegedly conceived as a result of the rape. This relief
was implicitly denied in our Decision of February 21, 2001.
On March 16, 2001, Reynaldo de Villa filed a Motion for Partial
Reconsideration of the Decision, wherein he once more prayed
that DNA tests be conducted. The Motion was denied with finality
in a Resolution dated Nov 20, 2001.14 Hence, the Decision became
final and executory on January 16, 2002.15
Petitioner-relator was undaunted by these challenges. Having
been informed that DNA tests required a sample that could be
extracted from saliva, petitioner-relator asked Billy Joe de Villa, a
grandson of Reynaldo de Villa and a classmate of Leahlyn
Mendoza, to ask Leahlyn to spit into a new, sterile cup.16 Leahlyn
readily agreed and did so. Billy Joe took the sample home and
gave it to the petitioner-relator, who immediately labeled the cup
as "Container A."
Petitioner-relator then gathered samples from four grandchildren
of Reynaldo de Villa. These samples were placed in separate
containers with distinguishing labels and temporarily stored in a
refrigerator prior to transport to the DNA Analysis Laboratory at
the National Science Research Institute (NSRI).17 During
transport, the containers containing the saliva samples were kept
on ice.
Petitioner-relator requested the NSRI to conduct DNA testing on
the sample given by Leahlyn Mendoza, those given by the
grandchildren of Reynaldo de Villa, and that given by Reynaldo de
Villa himself. The identities of the donors of the samples, save for
the sample given by Reynaldo de Villa, were not made known to
the DNA Analysis Laboratory.18
After testing, the DNA Laboratory rendered a preliminary report
on March 21, 2003, which showed that Reynaldo de Villa could
not have sired any of the children whose samples were tested, due
to the absence of a match between the pertinent genetic markers
in petitioner's sample and those of any of the other samples,
including Leahlyn's.
In the instant petition for habeas corpus, petitioner argues:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT
PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN
MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE FACT
THAT LEAHLYN WAS SIRED AS A RESULT OF THE ALLEGED
RAPE, CANNOT STAND AND MUST BE SET ASIDE.20
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS
PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW OF THE
RESULTS OF THE DNA TESTS CONDUCTED.21
Considering that the issues are inter-twined, they shall be
discussed together.
In brief, petitioner relies upon the DNA evidence gathered
subsequent to the trial in order to re-litigate the factual issue of
the paternity of the child Leahlyn Mendoza. Petitioner alleges that
this issue is crucial, considering that his conviction in 2001 was
based on the factual finding that he sired the said child. Since this
paternity is now conclusively disproved, he argues that the 2001
conviction must be overturned.
In essence, petitioner invokes the remedy of the writ of habeas
corpus to collaterally attack the 2001 Decision. The ancillary
remedy of a motion for new trial is resorted to solely to allow the
presentation of what is alleged to be newly-discovered evidence.
This Court is thus tasked to determine, first, the propriety of the
issuance of a writ of habeas corpus to release an individual
already convicted and serving sentence by virtue of a final and
executory judgment; and second, the propriety of granting a new
trial under the same factual scenario.
The extraordinary writ of habeas corpus has long been a haven of
relief for those seeking liberty from any unwarranted denial of
freedom of movement. Very broadly, the writ applies "to all cases
of illegal confinement or detention by which a person has been
deprived of his liberty, or by which the rightful custody of any
person has been withheld from the person entitled
thereto".22 Issuance of the writ necessitates that a person be
illegally deprived of his liberty. In the celebrated case of
Villavicencio v. Lukban,23 we stated that "[a]ny restraint which will
preclude freedom of action is sufficient."
The most basic criterion for the issuance of the writ, therefore, is
that the individual seeking such relief be illegally deprived of his
freedom of movement or placed under some form of illegal
restraint. If an individual's liberty is restrained via some legal
process, the writ of habeas corpus is unavailing. Concomitant to
this principle, the writ of habeas corpus cannot be used to directly
assail a judgment rendered by a competent court or tribunal
which, having duly acquired jurisdiction, was not deprived or
ousted of this jurisdiction through some anomaly in the conduct
of the proceedings.
Thus, notwithstanding its historic function as the great writ of
liberty, the writ of habeas corpus has very limited availability as a
post-conviction remedy. In the recent case of Feria v. CA,25 we
ruled that review of a judgment of conviction is allowed in a
petition for the issuance of the writ of habeas corpus only in very
specific instances, such as when, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a constitutional
right resulting in the restraint of a person; (b) the court had no
jurisdiction to impose the sentence; or (c) an excessive penalty
has been imposed, as such sentence is void as to such excess.26
In this instance, petitioner invokes the writ of habeas corpus to
assail a final judgment of conviction, without, however, providing
a legal ground on which to anchor his petition. In fine, petitioner
alleges neither the deprivation of a constitutional right, the
absence of jurisdiction of the court imposing the sentence, or that
an excessive penalty has been imposed upon him.
In fine, petitioner invokes the remedy of habeas corpus in order to
seek the review of findings of fact long passed upon with finality.
This relief is far outside the scope of habeas corpus proceedings.
In the early case of Abriol v. Homeres,27 for example, this Court
stated the general rule that the writ of habeas corpus is not a writ
of error, and should not be thus used. The writ of habeas corpus,
whereas permitting a collateral challenge of the jurisdiction of the
court or tribunal issuing the process or judgment by which an
individual is deprived of his liberty, cannot be distorted by
extending the inquiry to mere errors of trial courts acting squarely
within their jurisdiction.28 The reason for this is explained very
simply in the case of Velasco v. CA:29 a habeas corpus petition
reaches the body, but not the record of the case. 30 A record must
be allowed to remain extant, and cannot be revised, modified,
altered or amended by the simple expedient of resort to habeas
corpus proceedings.
Clearly, mere errors of fact or law, which did not have the effect of
depriving the trial court of its jurisdiction over the case and the
person of the defendant, are not correctible in a petition for the
issuance of the writ of habeas corpus; if at all, these errors must
be corrected on certiorari or on appeal, in the form and manner
prescribed by law.31 In the past, this Court has disallowed the
review of a court's appreciation of the evidence in a petition for
the issuance of a writ of habeas corpus, as this is not the function
of said writ.32 A survey of our decisions in habeas corpus cases
demonstrates that, in general, the writ of habeas corpus is a high
prerogative writ which furnishes an extraordinary remedy; it may
thus be invoked only under extraordinary circumstances.33 We
have been categorical in our pronouncements that the writ of
habeas corpus is not to be used as a substitute for another, more
proper remedy. Resort to the writ of habeas corpus is available
only in the limited instances when a judgment is rendered by a
court or tribunal devoid of jurisdiction. If, for instance, it can be jurisdiction, of the court or the judge to render the order that so
demonstrated that there was a deprivation of a constitutional serves as the basis of imprisonment or detention.41 It is the nullity
right, the writ can be granted even after an individual has been of an assailed judgment of conviction which makes it susceptible
meted a sentence by final judgment. to collateral attack through the filing of a petition for the issuance
of the writ of habeas corpus.
Thus, in the case of Chavez v. CA, the writ of habeas corpus was
held to be available where an accused was deprived of the Upon a perusal of the records not merely of this case but of People
constitutional right against self-incrimination. A defect so v. de Villa, we find that the remedy of the writ of habeas corpus is
pronounced as the denial of an accused's constitutional rights unavailing.
results in the absence or loss of jurisdiction, and therefore
invalidates the trial and the consequent conviction of the accused. First, the denial of a constitutional right has not been alleged by
That void judgment of conviction may be challenged by collateral petitioner. As such, this Court is hard-pressed to find legal basis
attack, which precisely is the function of habeas corpus. Later, in on which to anchor the grant of a writ of habeas corpus. Much as
Gumabon v. Director of the Bureau of Prisons, this Court ruled this Court sympathizes with petitioner's plea, a careful scrutiny of
that, once a deprivation of a constitutional right is shown to exist, the records does not reveal any constitutional right of which the
the court that rendered the judgment is deemed ousted of petitioner was unduly deprived.
jurisdiction and habeas corpus is the appropriate remedy to assail
We are aware that other jurisdictions have seen fit to grant the
the legality of the detention. Although in Feria v. CA, this Court
writ of habeas corpus in order to test claims that a defendant was
was inclined to allow the presentation of new evidence in a
denied effective aid of counsel. In this instance, we note that the
petition for the issuance of a writ of habeas corpus, this was an
record is replete with errors committed by counsel, and it can be
exceptional situation. In that case, we laid down the general rule,
alleged that the petitioner was, at trial, denied the effective aid of
which states that the burden of proving illegal restraint by the
counsel. The U.S SC requires a defendant alleging incompetent
respondent rests on the petitioner who attacks such restraint.
counsel to show that the attorney's performance was deficient
Where the return is not subject to exception, that is, where it sets
under a reasonable standard, and additionally to show that the
forth a process which, on its face, shows good ground for the
outcome of the trial would have been different with competent
detention of the prisoner, it is incumbent on petitioner to allege
counsel. The purpose of the right to effective assistance of counsel
and prove new matter that tends to invalidate the apparent effect
is to ensure that the defendant receives a fair trial.
of such process.39
The U.S. SC asserts that in judging any claim of ineffective
In the recent case of Calvan v. CA, we summarized the scope of
assistance of counsel, one must examine whether counsel's
review allowable in a petition for the issuance of the writ of
conduct undermined the proper functioning of the adversarial
habeas corpus. We ruled that the writ of habeas corpus, although
process to such an extent that the trial did not produce a fair and
not designed to interrupt the orderly administration of justice, can
just result.45 The proper measure of attorney performance is
be invoked by the attendance of a special circumstance that
"reasonable" under the prevailing professional norms, and the
requires immediate action. In such situations, the inquiry on a
defendant must show that the representation received fell below
writ of habeas corpus would be addressed, not to errors
the objective standard of reasonableness. For the petition to
committed by a court within its jurisdiction, but to the question of
succeed, the strong presumption that the counsel's conduct falls
whether the proceeding or judgment under which a person has
within the wide range or reasonable professional assistance must
been restrained is a complete nullity. The probe may thus proceed
be overcome.
to check on the power and authority, itself an equivalent test of
In the case at bar, it appears that in the middle of the appeal, the
petitioner's counsel of record, a certain Atty. Alfonso G. Salvador,
suddenly and inexplicably withdrew his appearance as counsel,
giving the sole explanation that he was "leaving for the United
States for an indefinite period of time by virtue of a petition filed
in his favor."48 In the face of this abandonment, petitioner made
an impassioned plea that his lawyer be prevented from this
withdrawal in a handwritten "Urgent Motion for Reconsideration
and Opposition of Counsel's Withdrawal of Appearance with
Leave of Court" received by this Court on September 14,
1999.49 Petitioner alleged that his counsel's withdrawal is an
"untimely and heartbreaking event", considering that he had
placed "all [his] trust and confidence on [his counsel's]
unquestionable integrity and dignity."50
While we are sympathetic to petitioner's plight, we do not,
however, find that there was such negligence committed by his
earlier counsel so as to amount to a denial of a constitutional
right. There is likewise no showing that the proceedings were
tainted with any other jurisdictional defect.
In fine, we find that petitioner invokes the remedy of the petition
for a writ of habeas corpus to seek a re-examination of the records
of People v. de Villa, without asserting any legal grounds therefor.
For all intents and purposes, petitioner seeks a reevaluation of the
evidentiary basis for his conviction. We are being asked to
reexamine the weight and sufficiency of the evidence in this case,
not on its own, but in light of the new DNA evidence that the
petitioner seeks to present to this Court. This relief is outside the
scope of a habeas corpus petition. The petition for habeas corpus
must, therefore, fail.
Coupled with the prayer for the issuance of a writ of habeas
corpus, petitioner seeks a new trial to re-litigate the issue of the
paternity of the child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn Mendoza's paternity
is not central to the issue of petitioner's guilt or innocence. The
rape of the victim Aileen Mendoza is an entirely different
question, separate and distinct from the question of the father of
her child. Recently, in the case of People v. Alberio, we ruled that
the fact or not of the victim's pregnancy and resultant childbirth
are irrelevant in determining whether or not she was raped.
Pregnancy is not an essential element of the crime of rape.
Whether the child which the victim bore was fathered by the
purported rapist, or by some unknown individual, is of no
moment in determining an individual's guilt.
In the instant case, however, we note that the grant of child
support to Leahlyn Mendoza indicates that our Decision was
based, at least in small measure, on the victim's claim that the
petitioner fathered her child. This claim was given credence by the
trial court, and, as a finding of fact, was affirmed by this Court on
automatic review.
The fact of the child's paternity is now in issue, centrally relevant
to the civil award of child support. It is only tangentially related to
the issue of petitioner's guilt. However, if it can be conclusively
determined that the petitioner did not sire Leahlyn Mendoza, this
may cast the shadow of reasonable doubt, and allow the acquittal
of the petitioner on this basis.
Be that as it may, it appears that the petitioner once more relies
upon erroneous legal grounds in resorting to the remedy of a
motion for new trial. A motion for new trial, under the Revised
Rules of Crim Procedure, is available only for a limited period of
time, and for very limited grounds. Under Sec 1, Rule 121, of the
Revised Rules of Criminal Procedure, a motion for new trial may
be filed at any time before a judgment of conviction becomes final,
that is, within 15 days from its promulgation or notice. Upon
finality of the judgment, therefore, a motion for new trial is no
longer an available remedy. Sec 2 of Rule 121 enumerates the
grounds for a new trial:
SEC. 2. Grounds for a new trial.—The court shall grant a new trial
on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed during the
trial;
(b) That new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and
produced at the trial and which if introduced and admitted would
probably change the judgment.
In the case at bar, petitioner anchors his plea on the basis of
purportedly "newly-discovered evidence", i.e., the DNA test
subsequently conducted, allegedly excluding petitioner from the
child purportedly fathered as a result of the rape.
The decision sought to be reviewed in this petition for the
issuance of a writ of habeas corpus has long attained finality, and
entry of judgment was made as far back as January 16, 2002.
Moreover, upon an examination of the evidence presented by the
petitioner, we do not find that the DNA evidence falls within the
statutory or jurisprudential definition of "newly- discovered
evidence".
A motion for new trial based on newly-discovered evidence may
be granted only if the ff requisites are met: (a) that the evidence
was discovered after trial; (b) that said evidence could not have
been discovered and produced at the trial even with the exercise
of reasonable diligence; (c) that it is material, not merely
cumulative, corroborative or impeaching; and (d) that the
evidence is of such weight that that, if admitted, it would probably
change the judgment. It is essential that the offering party
exercised reasonable diligence in seeking to locate the evidence
before/during trial but nonetheless failed to secure it.
In this instance, although the DNA evidence was undoubtedly
discovered after the trial, we nonetheless find that it does not
meet the criteria for "newly-discovered evidence" that would
merit a new trial. Such evidence disproving paternity could have
been discovered and produced at trial with the exercise of
reasonable diligence.
Petitioner-relator's claim that he was "unaware" of the existence
of DNA testing until the trial was concluded carries no weight
with this Court. Lack of knowledge of the existence of DNA testing
speaks of negligence, either on the part of petitioner, or on the
part of petitioner's counsel. In either instance, however, this
negligence is binding upon petitioner. It is a settled rule that a
party cannot blame his counsel for negligence when he himself
was guilty of neglect.54 A client is bound by the acts of his counsel,
including the latter's mistakes and negligence.55 It is likewise
settled that relief will not be granted to a party who seeks to be
relieved from the effects of the judgment when the loss of the
remedy at law was due to his own negligence, or to a mistaken
mode of procedure.
Even with all of the compelling and persuasive scientific evidence
presented by petitioner and his counsel, we are not convinced that
Reynaldo de Villa is entitled to outright acquittal. As correctly
pointed out by the Solicitor General, even if it is conclusively
proven that Reynaldo de Villa is not the father of Leahlyn
Mendoza, his conviction could, in theory, still stand, with Aileen
Mendoza's testimony and positive identification as its bases.57 The
Solicitor General reiterates, and correctly so, that the pregnancy
of the victim has never been an element of the crime of rape.
Therefore, the DNA evidence has failed to conclusively prove to
this Court that Reynaldo de Villa should be discharged. Although
petitioner claims that conviction was based solely on a finding of
paternity of the child Leahlyn, this is not the case. Our conviction
was based on the clear and convincing testimonial evidence of the
victim, which, given credence by the trial court, was affirmed on
appeal.
WHEREFORE, in view of the foregoing, the instant petition for
habeas corpus and new trial is DISMISSED for lack of merit.
No costs. SO ORDERED.