Republic of the Philippines

Department of the Interior and Local Government

NATIONAL POLICE COMMISSION
REGIONAL APPELLATE BOARD
Fatima Village, Tacloban City

POLICE REGIONAL OFFICE 8, ADM. CASE No. 25489

Complainant-Appellee, For; Grave Misconduct

-versus-

SPO1 RYAN J. LAZADA

Respondent-Appellant.

x- - - - - - - - - - - - - - - - - - - - - - - - x

APPEAL MEMORANDUM

RESPONDENT-APPELLANT, by and through counsel, unto this

Honorable Regional Appellate Board of the National Police Commission, Region
8, Tacloban City, most respectfully files this Appeal Memorandum containing the
grounds relied upon to nullify the assailed DECISION1 dated 23 January 2009
which found the appellant liable for Grave Misconduct (Sexual Harassment) and
is meted the penalty of ONE (1) RANK DEMOTION, and the denial of his motion
for reconsideration in RESOLUTION2 dated 5 May 2009.

PREFATORY STATEMENT

It is not enough that complainant must charge the respondent with a

certain offense, but must prove this charge with competent evidence. Obviously,
the summary hearing officer summoned biased witnesses for the complainant
without being confronted by the respondent, then took their joint affidavit which
she marked unilaterally as “Tab C” and considered their self-serving allegations
in concluding that “respondent was drinking tuba wine while in the performance
of his duty” – such high-handed tactics coupled with denial of due process of law
to respondent who was not given an opportunity to cross-examine them --- led to
a one-sided, undated RESOLUTION3 by the summary hearing officer, which
ultimately misled the authority to jump into further conclusion in the assailed
DECISION that “respondent was under the influence of liquor and so abused his
authority to force the complainant to kiss her (sic) against her will.”
Thus, the RESOLUTION denying the MOTION FOR
4
RECONSIDERATION takes out of context or misapplied the Supreme Court’s
ruling in Pp. vs. Alagon, 325 SCRA 297 that “denial is intrinsically a weak

1
Annex A – Decision dated 23 January 2009
2
Annex B – Resolution dated 5 May 2009
3
Annex C – undated Resolution of SHO PSI Flordeliza Kahano
4
Annex D – Motion for Reconsideration dated 27 February 2009
 2

defense which must be buttressed by strong evidence of non-culpability to merit

credibility.”
These comedy of errors is a result of the blatant and improper motive of
the summary hearing officer (in her quest to get an unbiased investigation) to get
biased witnesses to testify falsely against the respondent. And more importantly,
even if there is no showing of improper motive on the part of the complainant and
her witnesses to testify falsely against respondent, nonetheless, their testimonies
must be assessed in the light of logic and human experience. Appreciation of
evidence is separate from its admissibility. In other words, if the testimony of the
witness contains improbabilities or matters which are contrary to the dictates of
reason and the ordinary course of human conduct, then such testimony must be
rejected.

Evidence to be believed must not only proceed from the mouth of credible
witnesses, but must be credible in itself such as the common experience of
mankind can approve as probable under the circumstances. We have no test for
the truth of human testimony, except its conformity to our knowledge,
observation, and experience. Whatever is repugnant to these belongs to the
miraculous and is outside of judicial cognizance. (People vs. Escalante, 238
SCRA 554)

For the aforecited reasons, the charge of complaint against respondent for
SEXUAL HARASSMENT must fall.

THE FACTS OF THE CASE

APPELLANT, a police officer then assigned at the Di-it Police Community
Precinct (PCP), Tacloban City, was formally charged with the administrative
offense of Grave Misconduct (violation of RA 7877, Anti-Sexual Harassment) in
relation to NAPOLCOM Memo Circular No. 2007-001, Section 2 (c)(3) which
provides “commit any act or omission that constitute a crime punishable under
the Revised Penal Code/Special Law”.

The basis of the FORMAL CHARGE5 was the AFFIDAVIT6 of a PO1

KAREN M. TONOG, which narrates how the purported violation was committed
by the respondent, to wit:

“That on July 4, 2008 at about 3:00 o’clock in the morning at Di-it

Police Community Precinct (PCP), Tacloban City, SPO1 Christopher
Comique, PO1 Rez Laurino and PO1 Karen Tonog arrived at said police
precinct after providing security during the vesper night celebration at
Brgy. 94-A, Basper, Tacloban City. SPO1 Carlo LAZADA was drinking
“tuba” wine together with PO1 Igmedio Alboleras, called PO1 Tonog to
join them and uttered in vernacular “WOW KAR I LIKE YOUR STYLE,
WARAY KARAGTUROGAY AKO IT TEAM LEADER YANA”. PO1 Tonog
ws requested to sit beside him and further said “MAARAM KA KAR
NAGSESELOS AKO NGAN NA CARE AKO HA IM” which means “You
know Kar I felt jealous and I care of (sic) you”. When PO1 Tonog
proceeded to the quarters to take a nap, SPO1 LAZADA followed her and
told her to stand up and they went back to the kiosk. Thereat, SPO1
5
Annex E – Formal Charge
6
Annex F – Affidavit-complaint of PO1 Karen Tonog
 3

LAZADA gripped the forearm of PO1 Karen Tonog and forced to kiss her
but the latter resisted and hurriedly left the kiosk and stayed at a nearby
waiting shed. Thus respondent while being a member of the Philippine
National Police and within the disciplinary jurisdiction of the Regional
Director, PRO 8, did then and there committed said administrative offense
tantamount to Grave Misconduct (Violation of R.A. 7877, Anti-Sexual
Harassment) in violation to NAPOLCOM Memorandum Circular No. 2007-
001, Rule 21, Section 2, Paragrah C(3) which provides “commit any act
or omission that constitute a crime punishable under the Revised Penal
Code/Special Law”.

Appellant-Respondent filed his Counter-Affidavit7 dated 31 July 2008,

rebutting the complaint by stating that (par. 3.4 to 3.8) –

At about 2:30 AM of July 4, 2008, we, except for PO1 Alborelas

who was posted at the waiting shed, gathered inside the kiosk as one of
the team members had prepared something to eat. We ate some food
and then we drank softdrinks and water.

A few minutes thereafter or at about 3:00 AM, and while we were

about to finish our meals, SPO2 Comique, PO1 Laurino and PO1 Tonog
arrived from Sitio Puro, Brgy. 94-A, Basper, Tacloban City. PO1 Laurino
immediately replaced PO1 Alborelas at the waiting shed while SPO2
Comique and PO1 Tonog proceeded to the kiosk where we were. SPO2
Comique, however, told us that he will go home in the meantime as he
was very tired and needs some rest.

When PO1 Tonog joined us inside the kiosk, I asked her how was
it at Sitio Puro, Brgy. 94-A, Basper, Tacloban City. She replied that she
enjoyed herself there as in fact, she drank one bottle of beer. I then told
her in the vernacular: “Bilib liwat ak hit im style, Mailob ka gud”. PO1
Tonog simply smirked at my comments.

In the middle of our conversation and while we were in the height

of exchanging harmless jokes, PO1 Tonog asked permission if she can
take a nap as she was tired already. I replied in a jokingly manner:
“waray ini kagturogay kay unfair ito. Kon kumaturog ka, pwede ko
ikaw imark na absent.” PO1 Tonog somehow took my comments
negatively as she left us at the kiosk with a frowned and irritated face.
PO1 Tonog then joined PO1 Laurino at the waiting shed.

Afterwhich, PO1 Alborelas, PO2 Curiano and PO3 Ador took turns
in guarding the precinct while I stayed mostly at the kiosk as I was
listening to an audio about the United Nations. Every now and then,
however, the other duty officers would join me inside the kiosk until our
duty hours were over. Apparently, PO1 Tonog stayed at the waiting shed
until the sun came to shine.”

Respondent likewise filed his SUPPLEMENTAL COUNTER-AFFIDAVIT 8

dated 20 November 2008. stating for the record that he has been in the service
for more than 12 years with sterling performance and good track record in the
7
Annex G – Counter-Affidavit of SPO1 Carlo B. Carisma
8
Annex H – Supplemental Counter-Affidavit of SPO1 Carlo B. Carisma
 4

various posts that he was assigned, and recipient of many commendations and
awards from the PNP.

A summary hearing was conducted by the summary hearing officer (SHO)

PSI FLORDELIZA KAHANO on 6 November 2008 where both parties presented
their respective affidavit/excerpt of police blotter and
counter-affidavit/supplemental counter-affidavit as their sole evidence.

Subsequently, the SHO issued an undated Resolution, finding the

respondent “culpable of grave misconduct and hereby recommends that he be
meted the medium penalty of one rank demotion.”

The Regional Director of PNP PRO8 confirmed the

resolution/recommendation of the SHO in the assailed DECISION dated 23
January 2009.

Appellant filed a motion for reconsideration dated 27 February 2009 on

the ground that “there is misappreciation of facts which, if not corrected, would do
injustice and prejudice to the herein respondent”.

The PNP PRO8 Director issued the assailed RESOLUTION on 5 May

2009, denying the motion for reconsideration, claiming that the arguments raised
by the respondent are without merit.

Hence, this appeal by way of APPEAL MEMORANDUM of the assailed

DECISION dated 23 January 2009 confirming the undated Resolution of the
SHO, which finds the appellant guilty of the offense as charged, and the assailed
RESOLUTION dated 5 May 2009 which denied respondent’s motion for
reconsideration.

GROUNDS RELIED UPON WITH DISCUSSION

[ I ] UNDATED RESOLUTION OF SHO

The SUMMARY HEARING OFFICER acted with grave abuse of discretion

when she summoned, in the guise of unbiased investigation, SPO2 Christopher
Comique, PO3 Eric Rodrigo Ador, PO2 Julito Curiano, PO1 Igmedio Alboleras
and PO1 Rex Laurino (p. 3, par. 2, Resolution). It is in the alleged joint affidavit of
SPO2 Comique, PO2 Curiano and PO1 Laurino (p. 3, par. 4, ibid) who allegedly
testified that respondent was drinking tuba wine while in the performance of duty
--- that she evaluated and concluded that respondent “while drinking tuba wine at
the kiosk adjacent to the Diit PCP, called out to her (complainant) and uttered in
the dialect: “WOW KAR I LIKE YOUR STYLE, WARAY KARAGKATUROGAY
AKO IT TEAM LEADER YANA.”
 5

This testimony of the above named PNCOs, which was extracted by the
SHO without affording the respondent his constitutional right to confront them
and to cross-examine them, must be stricken off the record for being secured
from a poison tree. As it stands, there is no basis to conclude that respondent
was drinking tuba during the performance of his duty.

[ II ] DECISION OF PRO8 RD

The PNP PRO8 RD acted with grave abuse of discretion when he issued
the assailed 23 January 2009 DECISION confirming the aforesaid undated
Resolution of the SHO, stating in page 2 thereof, that:

“After careful evaluation of the records, this Authority

concurs with the findings of the SHO. The very issue of this case is
whether or not SPO1 LAZADA committed sexual harassment
against PO1 Tonog and it would appear that the version of the
complainant is more credible than the arguments presented by
respondent. Facts of the case clearly suggest that respondent,
who was under the influence of liquor, abused his authority
being a superior officer and forced the complainant to kiss her
against her will.”

As concluded by P/Supt Romulo Cleve Taboso in his Pre-Charge

Investigation Report dated 15 August 2008 to the PD, Leyte PPO, “in the
absence of witnesses that would sustain their respective allegations, it is the
statement of the complainant against the statement of the respondent that would
entangle.”

These are the lines where the contending parties entangled --- The
complainant says that upon their arrival at the police precinct, respondent x x x
together with PO1 Alboleras who were in the kiosk drinking tuba wine called my
attention and uttered in the vernacular words: WOW KAR I LIKE YOUR STYLE,
WARAY KARAGKATUROGAY AKO IT TEAM LEADER YANA (par. 3, affidavit-
complaint). Respondent says that he and PO1 Alboleras x x x gathered inside
the kiosk as one of the team members had prepared something to eat. We ate
some food and then we drank softdrinks and water.”(par. 3.4, counter-affidavit).

From the foregoing circumstances, it is evident that there were several

policemen at the kiosk at that time. It is unlikely and contrary to human
experience that respondent would utter such unremarkable words to a
policewoman in the presence of her team members. Notably, these policemen
were investigated by the SHO without the presence of the respondent, and one
indirectly stated that he saw a half gallon of tuba wine on top of the table where
SPO1 Carlo LAZADA was, while another confirmed that respondent was drinking
tuba wine, and PO1 Alboleras who was reported to be drinking with respondent
denied the report, because he just had his anti-tetanus vaccination.
 6

Impliedly, the SHO concluded that Alboleras did not drink. That negates
the allegation of complainant that respondent and Alboleras were drinking tuba.

Falsus in unius, falsus in omnibus! In the first premise, the SHO herself
exposed the fact that the complainant LIED in stating that “respondent and
Alboleras were drinking”!

Worse, being violative of due process, all the testimonies of the other
witnesses should be stricken off the records as fruits of the poison tree. What
remains is the ground for reasonable doubt in favor of the respondent.

[ III ] RESOLUTION OF PRO8 RD

The PNP PRO8 RD acted with grave abuse of discretion when he issued
the assailed 5 May 2009 RESOLUTION denying the motion for reconsideration
for lack of merit without considering the following:

A. The motion for reconsideration is correct to present the irregularity of

the proceedings which constitute bias and prejudice to the interest of
the respondent – when it pointed out that the decision is solely
anchored on the unsubstantiated, self-serving and inconsistent
allegations of the complainant (not only par. 6 thereof but also par. 3)
as those statements in the vernacular appear to be contrary to human
nature when made in the presence of many gentlemen-policemen who
seem unmindful of the purported sexual harassment going on before
their very eyes! Unbelievable!

B. Facts of the case clearly suggest that respondent, who was under
the influence of liquor, abused his authority being a superior
officer and forced the complainant to kiss her against her will!
This is an absurd ruling! Where is the sexual harassment there when
the complainant is forced to kiss her own self? Moreso, in the absence
of competent proof that respondent indeed was under the influence of
liquor (after eliminating the fruit of the poison tree) there is no more
logic, rhyme or reason to claim that intoxication pushed him to abuse
his authority to “force the girl to kiss her against her will(?)

C. Finally, there is merit after all, if we give a second look at the

jurisprudence applied in the instant case and favorable to the
respondent, to wit:

“For testimony to be believable, it must not only

proceed from the mouth of a credible witness, but
must be credible in itself. (Pp v. Alfonso, GR
78954, 18 June 1990)
 7

“Further, the constitution and the law are clear

that in case of reasonable doubt, the respondent
must be exonerated. x x x (Pp v. Libag, GR No.
68997, 27 April 1990)

“Moreover, in the law on evidence, allegations are

not proofs, more so when, as here, the other party
very much denied the allegations. (Padre v.
Malabanan, 501 SCRA 278).

PRAYER
WHEREFORE, it is most respectfully PRAYED of this Honorable
Commission, considering that above grounds relied upon with discussion, to
reverse or set aside DECISION dated 23 January 2009 and RESOLUTION dated
5 May 2009 of the PNP Police Regional Office 8, and to issue a RESOLUTION
finding the appellant SP01 RYAN J. LAZADA not guilty of grave misconduct
(sexual harassment).

Such other relief just and equitable in the premises are also prayed for.
Tacloban City. 1 June 2009.

MITCHELLE MAY A. CALADES

Counsel for the Appellant
Roll No. 50220
IBP Lifetime No. 01789
PTR No. 8476397; 1-2-08; Tacloban City
MCLE Compliance No. II-0035479; 11-20-08
143 Del Pilar St., Tacloban City

COPY FURNISHED: by registered mail due to distance

Regional Director
PNP PRO8
Camp Kangleon, Palo, Leyte
Complainant-Appellee
 8

Republic of the Philippines )

Province of Leyte ) SS
City of Tacloban )

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, SP01 RYAN J. LAZADA, of legal age, Filipino, and a resident of

Tacloban City, after being first sworn according to law, hereby depose and state:
that—

I am the RESPONDENT-APPELLANT in the above-captioned case; that I

caused the foregoing APPEAL MEMORANDUM to be prepared and filed with the
Commission; that I have read all the allegations thereon contained, and that the
same are all true and correct to the best of my own personal knowledge and
based on authentic documents/records.

I have not commenced any other action or filed any other claim involving
the same issues in any other forum and to the best of my knowledge, no such
other action or claim is pending therein; and that if I should learn thereafter that
the same or similar action or claim has been filed or pending, I shall report that
fact to this Honorable Commission within five (5) days therefrom.

IN WITNESS WHEREOF, I have hereunto set my hand this 1 June 2009

at Tacloban City, Philippines.

SP01 RYAN J. LAZADA

Appellant/Affiant

SUBSCRIBED AND SWORN to before me this 1 JUNE 2009 at Tacloban

City by RYAN J. LAZADA, personally known to me, who is the same person who
personally signed before me the foregoing Verification and Certification of Non-
Forum Shopping, and acknowledged that he executed the same.

Doc. No. ___

Page No. ___
Book No. 56
SERIES OF 2009