appeLLANTS MEMORANDUM ROLLY NEW

REPUBLIC OF THE PHILIPPINES)
C I T Y OF B A C O L O D)s.s.
x- - - - - - - - - - - - - - - - - - - - - - - -x
AFFIDAVIT OF STATEMENT AS TO THE WHEREABOUTS OF THE

ACCUSED
I, ATTY. NICANDRO A. AGUILAR, of legal age, Filipino, married

and with office address at Rm. 206 T.G Building, Gatuslao Street.,
Bacolod City, after having been duly sworn in accordance with law
hereby depose and say:
That I am the counsel for the accused-appellant in CA G.R CR-HC-

NO. 03936 entitled People of the Philippines, Plaintiff-Appellee vs.
Randy Hamantoc y Trinidad and Ma. Rogelina Hamantoc y Guarino,
Accused-Appellant pending before the Court of Appeals, Cebu City.
That both Accused-Appellants are presently detained at the

Bureau of Jail and Management Penology (BJMP), Handumanan,
Barangay Handumanan, Bacolod City, where they are temporarily
awaiting shipment to the New Bilibid Prisons, Muntinlupa City and
Correctional Institution for Women, Mandaluyong City, respectively;
That I am executing this Affidavit of Statement as to the

whereabouts of the Accused-Appellants in compliance with the Notice
to File Briefs issued by the Court of Appeals on May 31, 2021 and
received by the Office of the undersigned on July 15, 2021.
IN WITNESS THEREOF, I have hereunto set my hand this 19th day

of November, 2021, at Bacolod City, Philippines.
NICANDRO A. AGUILAR
Affiant
SUBSCRIBED AND SWORN to before me this 19th day of

November, 2021 at Bacolod City, Philippines. Affiant exhibited to me his
IBP identification No..33660, Negros Occidental Chapter issued by IBP
National President Feliciano M. Bautista, National Office, 15 Dona Julia
Vargas Avenue, Ortigas Center, Pasig City, Philippines.
Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.
ORIGINAL
SUBJECT INDEX
PAGE
ASSIGNMENT OF ERRORS 1-2

STATEMENT OF THE CASE 2-4
STATEMENT OF FACTS 4-8
ISSUES 8-9
ARGUMENTS 9-26
RELIEF/PRAYER 26
ANNEX"A" (ORIGINAL DUPLICATE OF THE QUESTIONED ORDER)
AUTHORITIES CITED:
1. Section 8, Rule 126 of the Revised Rules of Court;
2. People of the Phils. Vs. Benny Go, G. R. No. 144639,

September 12, 2003;
3. Eduardo Quintero vs. NBI, et. al.;
4. People vs. del Rosario
5. Sec. 14 (2) Article III of the Constitution of the Republic of
the Philippines;
6. People vs. Tanchoco, 76 Phil. 463 (1946)
People vs. Constante, 12 SCRA 653 (1969)
People vs. Jara, 144 SCA 516 (1986)
7. Sec. 21, Article II of R. A. 9165, as Amended by R. A. No.
10640;
8. People vs. Tomawis;
9. People vs. Gamboa
10. Malillin vs. People
11. People vs. Kamad and People vs. Dahil
Republic of the Philippines
COURT OF APPEALS
VISAYAS STATION
CEBU CITY
PEOPLE OF THE PHILIPPINES, CA- G.R. CR-HC NO. 03936

Plaintiff- Appellee,
Regional Trial Court

-versus- Branch 52, Bacolod City
RTC Crim. Case No. 19-50067
RANDY HAMANTOC y TRINIDAD

& MA. ROGELINA HAMANTOC y
GUARINO,
Accused- Appellant. Re: Violation of Sec. 11, Art.
II, R. A. 9165
x--------------------------------------------------------------------------------------x
APPELLANT'S BRIEF
ATTY. NICANDRO A. AGUILAR

Counsel for the Accused-Appellant
Rm. 206, T.G. Building,
Gatuslao Street, Bacolod City
x- - - - - - - - - - - - - - - - - - - - - - - -x
AFFIDAVIT OF SERVICE


That on November 19, 2021, I served two (2) copies of the

appellant's brief in the said case in accordance with Rule 124, Sec. 7 of
the Revised Rules on Criminal Procedure 2000 (as amended) in relation
to A.M. No. 11-9-4-SC (Efficient Use of Paper Rule), by depositing copies
thereof in the Post Office in a sealed envelope, plainly addressed to
Office of the Solicitor General, 134 Amorsolo Street., Legaspi Village,
1229 Makati City 6100 with postage fully pre -paid as evidenced by
Registry Receipt No. RE ______________dated November 19, 2021 hereto
attached, with instruction to the postmaster to return the mail to the
sender after Ten (10) days if undelivered, One (1) copy of the
appellant’s brief was also sent to the Presiding Judge, Regional Trial
Court, Branch 52, Bacolod City and filed Three (3) copies thereof, One
(1) original (properly marked) with original duplicate copy of the
decision as annex “A” (clear copy) and Two (2) copies with legible
annexes in the same manner with the Court of Appeals, Cebu City.
I served and filed the appellant's brief by registered mail as it is

impractical to serve and file it personally due to the distance of Bacolod
City to Makati City and Cebu City and for lack of personnel to personally
deliver copy to the Clerk of Court, Regional Trial Court, Branch 52,
Bacolod City.

NICANDRO A. AGUILAR
Affiant
--2-
SUBSCRIBED AND SWORN to before me this 19th day of November,

2021 at Bacolod City, Philippines. Affiant exhibited to me his IBP
identification No..33660, Negros Occidental Chapter issued by IBP
Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.
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Rolly Samillano y Taton, Accused-Appellant pending before the Court of
Appeals, Cebu City.
That on September 7, 2021, I served two (2) copies of the

Registry Receipt No. RE 507-833-550 ZZ dated September 7, 2021
hereto attached, with instruction to the postmaster to return the mail to
the sender after Ten (10) days if undelivered, One (1) copy of the
Court, Branch 55, Himamaylan City and filed Three (3) copies thereof,
One (1) original (properly marked) with original duplicate copy of the

City to Makati City, Himamaylan City and Cebu City.

of September, 2021, at Bacolod City, Philippines.
NICANDRO A. AGUILAR
Affiant
--2-
SUBSCRIBED AND SWORN to before me this ____ day of September,

Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.
x- - - - - - - - - - - - - - - - - - - - - - - -x

ACCUSED

and with office address at Ground Floor, TG Building, Gatuslao Street.,
That I am the counsel for the accused-appellant in CA G.R CR- NO.

04170 entitled People of the Philippines, Plaintiff-Appellee vs. Nelson
Dela Paz y Pineda, Accused-Appellant pending before the Court of
Appeals, Cebu City.
That the Accused-Appellant, who is bonded, is presently residing

at Barangay 1, Poblacion, 6118, E. B. Magalona, Negros Occidental,

whereabouts of the Accused-Appellant in compliance with the Notice to
File Briefs issued by the Court of Appeals on December 21, 2022 and
received by the Office of the undersigned on January 17, 2023.

of April, 2023, at Bacolod City, Philippines.
NICANDRO A. AGUILAR
Affiant
SUBSCRIBED AND SWORN to before me this ____ day of April,

Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2023.
ORIGINAL
SUBJECT INDEX
PAGE
ASSIGNMENT OF ERRORS 1
ISSUE 6
ARGUMENTS 6-13
RELIEF/PRAYER 14
AUTHORITIES CITED:
1. People of the Philippines vs. Nuñez. G.R. No. 209342; and
2. Melky Concha and Romeo Managuelod, petitioners, vs.

People of the Philippines, respondent, G. R. No. 208114, October
03, 2018.
COURT OF APPEALS
VISAYAS STATION
CEBU CITY
PEOPLE OF THE PHILIPPINES, CA- G.R. CR- NO. 04170

Complainant- Appellee,

NELSON DELA PAZ y PINEDA,

Accused- Appellant.
x--------------------------------------------------------------------------------------x
APPELLANT'S BRIEF

Grd Flr, T.G. Building,
Republic of the Philippines ORIGINAL
COURT OF APPEALS
VISAYAS STATION
CEBU CITY
PEOPLE OF THE PHILIPPINES,

Complainant-Appellee,
-versus- CA- G.R. CR-NO. 04170

Branch 44, Bacolod City
NELSON DELA PAZ y PINEDA,

Accused- Appellant.
x--------------------------------------------------------------------------------------x
APPELLANT'S BRIEF
COMES NOW accused/appellant by counsel and to this Honorable

Court most respectfully submits his APPELLANT’S BRIEF in the above-
entitled case, as follows:
ASSIGNMENT OF ERRORS
1) The Honorable Court erred in holding that accused was

caught in flagrante delicto in receiving tally sheets from
Orlando Formento on April 10, 2011 at around 9:30 pm in
front of Circle Inn, Lopez Jaena Street, Barangay Villamonte,
Bacolod City;
2) The Honorable Court failed to appreciate the facts that

accused was indeed arrested while walking along
Malaspina-Lopez Jaena Streets near West Negros College
going to Circle Inn where his car was parked, at around 9:30
pm of April 10, 2011;
3) The Honorable Court failed to appreciate facts that the

arrest of the accused/appellant in this case was “unlawful
warrantless arrest”, hence, no valid search incidental to a
lawful arrest which yielded the alleged illegal gambling
paraphernalia from accused/appellant.
BRIEF STATEMENT OF THE CASE

(copied verbatim from the decision of this case)
This is a case filed against the accused-appellant for violation of

Section 2(h) in relation to Section 3(d) of RA 9287 for Illegal Gambling,
Information of which reads, as follows:
“That on or about the 10th of April 2011, in the City of Bacolod,

Philippines and within the jurisdiction of this Honorable Court, the
herein accused, being then a “coordinator”, did, then and there willfully,
unlawfully and feloniously directly or indirectly take part by acting as
coordinator who exercise control and supervision over the collector or
agent and personnel or staff in a place where an illegal numbers game
or Jai-Alai is operated or conducted, which has taken place or about to
take place, a game similar to lotteries, the result which depends wholly
or chiefly upon chance or hazard, wherein wagers consisting of money,
articles of value or representative of value are stake or made, which do
not have franchise from the National Government or the City of Bacolod,
and which resulted to the recovery of the following items, to wit:
1. 3 bundles betting stubs;

2. 13 pcs. Tally sheets Meridian Vista Gaming Corporation with
number combinations;
3. 3 pcs yellow pad tally sheet with number combination;
4. 6 pcs application from Meridian Vista Gaming Corporation;
5. Cash of P3,925 in different denominations;
6. One (1) unit Nissan Sentra color white with Plate No. FDP627;
In violation of the aforementioned law.
Act contrary to law”
During the pre-trial held on May 25, 2012 the following facts were
admitted by the Parties:
1. The jurisdiction of the Honorable Court and the identification

of the parties in this case.
2. That the Accused was in the vicinity of Lopez Jaena-Malaspina

Streets, Brgy. Villamonte, Bacolod City last April 10, 2011 at
around 9:30 o’ clock in the evening.
3. That the Accused was arrested without a warrant by police
operatives last April 10, 2011 at around 9:30 o’ clock in the
evening at Lopez Jaena Street, Brgy. Villamonte, Bacolod City.
4. That after his arrest, Accused was brought by the police

operatives who arrested him to Police Station 4, Brgy.
Villamonte, Bacolod City.
5. That a recording of the incident was made at the Police Station

4, Brgy. Villamonte, Bacolod City.
BRIEF STATEMENTS OF FACTS

(Copied verbatim from the decision of this case)
Prosecution’s Version
The Prosecution presented PO1 Ray Anthony Banga as its lone

witness and marked the following Exhibits:
Exhibit “A” and sub markings- Joint Affidavit of PO2 Jacson M.

Genolos and PO1 Rey Anthony O. Banga;
Exhibit “B” - Police Blotter Report of Police Precint 4 dated 10

April 2011/10:20pm;
Exhibit “C” - three (3) bundles of Betting Stubs;
Exhibit “D” - thirteen (13) pcs Tally Sheets;
Exhibit “D-1” - number combinations on Tally Sheets;
Exhibit “E” - three (3) pcs Yellow Pad;
Exhibit “E-1” - number combinations on yellow pad;
Exhibit “F” - six (6) application forms of Meridian Vista Gaming

Corporation;
Exhibit “G” - cash in the amount of Php3,925.00 (varied

denominations and coins;
Exhibit “H” - none;

Exhibit “I” - Certification from the Local Government of
Bacolod City;
The lone witness for the prosecution PO1 Banga testified that he
is a member of the Regional Anti- Illegal Drugs/Special Regional
Operation Group as an operative.
On the afternoon of April 7, 2010 their group received

information that Accused was engaged in the illegal numbers game of
Jai-Alai as a financier and is using a private car (Nissan Sentra) to collect
tally sheets within the vicinity of Bacolod City.
On April 8, 2011 their team leader dispatched a team to conduct

surveillance and casing operations on the Accused and/or the identified
Nissan Sentra.
The team spotted the suspected financier at the vicinity of the

Capitol Lagoon and with the help of civilian informants confirmed that
the vehicle being used for the illegal gambling operations was a white
Nissan Sentra with plate no. FDP 627.
In the evening of April 9, 2011 they received information that the

said vehicle was again spotted at the area of Star Mart, Lacson St.
collecting tally sheets but when they proceeded to the area the vehicle
was already cruising toward the north direction and they were not able
to catch the said vehicle.
On or about 9:30 pm of April 10, 2011 they were able to

apprehend “caught in the act in plain view” the accused receiving tally
sheets and they immediately apprehended the accused. They were able
to recover from the possession of the accused the following: three (3)
bundles of betting stubs [Exh. “C”]; thirteen (13) pieces tally sheets [Exh.
“D”]; three (3) pieces yellow pad with written number combinations
[Exh. “E”]; application forms of Meridien Vista Gaming Corporation [Exh.
“F”]; cash in the amount of Php3,925.00; one white Nissan Sentra with
Plate No. FDP 627; and one unit Rusi motorcycle color violet with 1843-
IF. [ par.6, Joint Affidavit dated 11 April 2011; p. 4, T.S.N. dated June 10,
2016]
The person inside the Nissan Sentra who was caught in the act of
receiving four (4) tally sheets was identified as the Accused Nelson Dela
Paz. [p.8, T.S.N. dated June 10, 2016] Accused was caught in the act of
receiving the four (4) tally sheets from certain Orlando Formento, the
collector. At the time Orlando Formento was handing the tally sheets to
the Accused, Formento was in front of Circle Inn hotel. [Ibid]
The other nine (9) tally sheets was recovered by PO2 Jackson
Genolos from inside the vehicle (Nissan Sentra) together with the
Php3,925.00. [p.9, T.S.N. dated June 10, 2016] The recovery of the tally
sheets found inside the Nissan Sentra was made at Police Station 4
when they brought the Accused and his companions to the said police
station. [p. 10. T.S.N. dated June 10, 2016]
Witness Banga affirmed that it was the Accused dela Paz who was
driving the Nissan Sentra. [Ibid.]
The applications forms were also recovered from inside the

Nissan Sentra. [Ibid]
The incident was the recorded in the police blotter. [Exh.”B”]
On the cross examination, the witness affirmed that prior to the

arrest, he did not know Accused dela Paz. [p. 15, T.S.N. dated June 10,
2016]. They only received information from their confidential informant
that the accused dela Paz was engaged in illegal gambling activities in
Bacolod City.
On April 8, 2011 they were informed that the accused was near
Capitol Lagoon, at the area of the Ayala Mall being constructed.
However, the area was not well lighted and they did not see the face of
the driver of the Nissan Sentra. They only saw a person riding a bike
giving a piece of paper to the driver of Nissan Sentra. [p. 17, T. S. N.
dated June 10, 2016].
It was only on April 10, 2011 when they apprehended the driver
of the Nissan Sentra that they knew that the driver of the Nissan Sentra
was Accused dela Paz. [pp. 19-20, T.S.N. dated June 10, 2016].
Witness Banga on cross affirmed that on April 10, 2011 they were
parked at Circle Inn Hotel and they saw Nelson dela Paz open the
window of the Nissan Sentra and the person on a motorcycle handing
tally sheets to the driver of the Nissan Sentra. [p.21, T.S.N. dated June
10, 2016]
Witness Banga attested that it was his companion PO2 Genolos

who arrested Accused dela Paz and he saw that the Accused dela Paz
was holding a 4 tally sheets when PO2 Genolos arrested him. [p. 23,
T.S.N. dated June 10, 2016]
Witness Banga said that the tally sheets were given to him by PO2
Genolos and he saw that they had the name of Barangay Handumanan at
the back and in front there is the name Meridien Vista. [p. 24, T.S.N.
dated June 10, 2016]
Witness Banga explained that the other tally sheets and money
were recovered inside the vehicle when they were already in Station 4.
They brought all three (3) persons arrested that night to Station 4
because the female companion of Accused dela Paz was shouting and
told them that they (Genolos and Banga) cannot arrest them (dela Paz,
Formento and Daddy Lose) because there was no search warrant and
was making scandalous scene in the area. [p. 26, T.S.N. dated June 10,
2016]
Witness Banga also affirmed that the Daddy Lose was the
companion of Accused dela Paz inside the Nissan Sentra. [p. 27, T.S.N.
dated June 10, 2016]
At Police Station 4, PO2 Genolos conducted a search inside the

Nissan Sentra in the presence of witness Banga and the personnel of
Station 4. The amount of Php3,925.00 was found in a small box beside
the driver’s seat. The other items were found in the back seat. [p. 28,
T.S.N. dated June 10, 2016]
Witness Banga reiterated that they had to conduct their search of

the vehicle in Police Station 4 because the female companion of Accused
dela Paz would not go out of the vehicle so they called Police Station 4
and they were told to go to Police Station 4 as there was a female police
officer who can search. [p. 29, T.S.N. dated June 10, 2016]
Witness Banga also testified that they informed Accused dela Paz
of his offense (violation of RA 9287) and his constitutional rights.
Accused dela Paz did not inform them that he would avail of the service
of a lawyer. [Ibid]
Accused’s Version
The Accused dela Paz presented himself and Juliet Salinas as

witness and presented the following Exhibits:
Exhibit “1” - Brief Outline of Complaint dated 14 April

2011/10:05am;
Exhibit “2” - None;
Exhibit “3” – with submarking – Joint Affidavit of Efren D. Pasco,

Jr. and Juliet Salinas;
Accused dela Paz denied the allegations of the prosecutions and

testified that he was arrested while walking along Malaspina-Lopez
Jaena Street near West Negros College going to Circle Inn at around 9:30
pm of April 10, 2011. [pp. 3-4, November 10, 2017]
Accused said he was walking to Circle Inn as that is where his car
is parked.
While walking to Circle inn a black vehicle with no license plate

stopped and three person alighted from the said black vehicle and
pointed a gun at him then he was handcuffed and the said persons asked
money from him. [p.4, T.S.N. dated November 10, 2017]
He was loaded in the black car and brought to his car at Circle Inn
by the 3 persons whom he later identifies as Police Officers Genolos And
Banga and Inspector Basia. They took his car keys and brought him to
Police Station 4. Accused claims that there was Php82,000.00 inside his
car as he just sold a fighting cock. [pp.5, T.S.N. dated November 10,
2017]
At the police station they (the police officers) presented to him a

tipster but Accused denied owning the tipster. The incident was then
recorded in the police blotter. [p. 6, T.S.N. dated November 10, 2017]
Accused claims that he was arrested without warrant, [Ibid.]
Accused claims that there were 2 persons present in the West

Negros area when he was arrested but he could no longer rember their
names. [p. 7, T.S.N. dated November 10, 2017]
Accused also claims that he filed a complaint against Leonardo

Basia, Jackson Genolos, and Richard Delasa and had the matter recorded
in the police blotter. [Exh. “1”]
Accused also claims that he does not know the

location/whereabouts of his vehicle (Nissan Sentra) [p. 8, T.S.N. dated
November 10, 2017]
On cross examination, Accused was confronted with the

certification from Meridien Vista Gaming Corporation stating that he
was employed by Meridien as Sales Supervisor for EB Magalona.
Accused denied knowing Meridien Vista Gaming Corporation and
denied being employed by the said corporation. [p. 9, T.S.N. dated
November 10, 2017]
The second witness of the defense was Juliet Salinas. She testified
that she knows Accused dela Paz because he is the owner of the
boarding house she was living in. The said boarding house is located in
Malaspina-Lopez Jaena, Brgy. Villamonte, Bacolod
On the evening of April 10, 2011 she was outside of her boarding
house with a companion named Efren D. Pasco, Jr. [p. 4, T.S.N. dated
November 12, 2020]
While they were outside the boarding house, she saw pne person
walking (Accused dela Paz) and 3 male persons arrived in a vehicle.
They handcuffed Accused dela Paz and pointed their gun at him. The 3
male persons then made Accused dela Paz board their vehicle. The
vehicle headed along Lopez Jaena Street and she did not know where
they went. [p. 4, T.S.N. dated November 12,2020]
Witness Salinas also affirmed that she executed a Joint Affidavit

with Efren Pasco to state what she saw on April 10, 2011. [Exh. “3”]
On cross examination witness Salinas stated that Accused dela Paz

was walking along the side of the street where she was standing
walking away from them. She further stated that she did not see the face
of Accused dela Paz clearly but she knew it was him because of his
height and because he also came out of the boarding house. [pp. 8-9,
T.S.N. dated November 12, 2020]
Witness further claims that when Accused dela Paz came out of
the boarding house, the black was already parked on the street at the
corner of the church (Cosmopolitan Church). [pp. 9-10, T.S.N. dated
November 12, 2020]
Witness claims that she then saw 3 persons alight from the vehicle
and went to Accused dela Paz but she could not see their faces and she
could not make out their build. [p. 10, T.S.N. dated November 12, 2020]
However, witness claims she was able to see one of the men
pointing a gun at Accused dela Paz. It was not clear what type of gun but
she only saw that one person was pointing a gun at Accused dela Paz. [p.
11, T.S.N. dated November 12, 2020].
On December 16, 2021, the Honorable Court issued a decision in

the above-entitled case, convicting the accused, dispositive portion
reads:
"WHEREFORE, premises considered the accused NELSON DELA

PAZ y PINEDA is hereby found GUILTY BEYOND REASONABLE
DOUBT of the crime of violation of Sec. 2(h) in relation to Sec. 3(d) of
Republic Act No. 9287 (Illegal Gambling) and hereby sentenced to suffer
the penalty of imprisonment of ten (10) years and one (1) day to
twelve (12) years.
The items/articles, money and vehicle used in the commission of

the crime are hereby confiscated in favor of government and the Chief of
Police, Bacolod City is hereby directed to retrieve the same from PO2
Jackson Genolos and to make a report to the Court on the disposition of
the same.
SO ORDERED.
Bacolod City, Philippines; December 16, 2021
original duplicate copy of the said decision hereto attached as Annex

"A", which forms part hereof.
Accused-Appellant is not contented with the aforesaid decision,

hence, the instant appeal.
STATEMENT OF THE ISSUES
The issues raised by the parties during the pre-trial stage of this
case are as follows:
1. Whether or not the accused is guilty of violating Section 2 (h)

in relation to Section 3(d) of Republic Act 9287; and
2. Whether or not the arrest was legally conducted.
ARGUMENTS/DISCUSSIONS
The Honorable Court erred in holding that accused was caught in

flagrante delicto in receiving tally sheets from Orlando Formento
on April 10, 2011 at around 9:30 pm in front of Circle Inn, Lopez
Jaena Street, Barangay Villamonte, Bacolod City.
According to the testimony of the lone prosecution witness, Police

Officer Banga, they received on April 7, 2010, information that Accused
was engaged in the illegal number games of Jai-Alai as financier and is
using a private car (Nissan Sentra) to collect tally sheets within the
vicinity of Bacolod City; On April 8, 2011, their team leader dispatched a
team to conduct surveillance and casing operations on the Accused
and/or the identified Nissan Sentra; The team spotted the suspected
financier at the vicinity of Capitol Lagoon and with the help of civilian
informants confirmed that the vehicle being used for the illegal
gambling operations was a white Nissan Sentra with plate No. FDP 627;
In the evening of April 9, 2011 they received information that the said
vehicle was again spotted at the area of Star Mart, Lacson Street
collecting tally sheets but when they proceeded to the area the vehicle
was already cruising toward the north direction and they were not able
to catch the said vehicle. (Page 3 of the decision)
From the above-aversions, it is very clear that from April 7, 2011

up to April 9, 2011, the police officers who allegedly arrested the
accused on April 10, 2011 had not known the accused yet since they
never met with each other. The information which they gathered about
the activities of the accused were merely hearsays, since, they have not
personally witnessed if the accused was indeed receiving tally sheets.
All said, such information are merely opinions and observations of their
alleged informants. It is also very clear that the purpose of tailing the
accused or the alleged Nissan Sentra vehicle was to apprehend the
same, regardless of who was driving it. It was very unfortunate for the
accused that he was driving the said vehicle when it was apprehended
on April 10, 2011.
The prosecution witness, further testified that: On or about 9:30

pm of April 10, 2011 they were able to apprehend “caught in the act in
plain view” the accused receiving tally sheets and they immediately
apprehended the accused. They were able to recover from the
possession of the accused the following: three (3) bundles of betting
stubs [Exh. “C”]; thirteen (13) pieces tally sheets [Exh. “D”]; three (3)
pieces yellow pad with written number combinations [Exh. “E”];
application forms of Meridien Vista Gaming Corporation [Exh. “F”]; cash
in the amount of Php3,925.00; one white Nissan Sentra with Plate No.
FDP 627; and one unit Rusi motorcycle color violet with 1843-IF. [ par.6,
Joint Affidavit dated 11 April 2011; p. 4, T.S.N. dated June 10, 2016];
The person inside the Nissan Sentra who was caught in the act of
receiving four (4) tally sheets was identified as the Accused Nelson Dela
Paz. [p.8, T.S.N. dated June 10, 2016] Accused was caught in the act of
receiving the four (4) tally sheets from certain Orlando Formento, the
collector. At the time Orlando Formento was handing the tally sheets to
the Accused, Formento was in front of Circle Inn hotel. [Ibid] (Last
paragraph of Page 3 and paragraphs 1 and 2 of Page 4 of the decision)
So even during the alleged arrest of the accused allegedly “caught

in the act in plain view” receiving Four (4) tally sheets from Formento,
the arresting officers did not personally know the accused yet. The rest
of the items including the money in the amount of P3,925.00 were
recovered inside the vehicle by Police Officer Genolos at Police Station 4,
Bacolod City and not in the place of the alleged incident.
During the alleged warrantless arrest of the accused on April 10,
2011, the arresting police officers have no personal knowledge that a
crime had just been committed, was actually being committed, or was
about to be committed in their presence. They were merely informed
by their confidential informant that the motor vehicle was parked
outside the Circle Inn Hotel. Police Officer Banga on June 10, 2016 in
the morning testified during cross examination of Atty. Aguilar, as
follows: (Pages 20 to
Atty. Aguilar:
Question: On April 10, 2011 you were informed by your confidential
informant that the motor vehicle was parked inside the Circle Inn Hotel?
Police Officer Banga:

Answer: Yes, sir outside the Circle Inn Hotel.
Question: And what time did you receive that information?

Answer : Around 9:00, we arrived at the Circle Inn Hotel at around 9:30
in the evening;
Question: What did you do when you saw that vehicle?

Answer: We saw one (1) motorcycle and Nelson dela Paz opened the
window and then I saw the motorcycle driver handed the tally sheets to
the driver;
X x x x x x x x x
Question: So you parked your vehicle at the outer side of the road,
while the Nissan Sentra was parked at the right most part of the road?
Answer: We parked beside the driver. We did not park so close.
Question: You park beside the Nissan Sentra?

Answer: Beside the Nissan Sentra but we make a space between us
in the park;
Question: And you saw a person in a motorcycle?

Answer: Yes sir.
Question: Handing what?

Anwer: Tally Sheets.
Question: How do you know that it was a tally sheets?

Answer: Because we have conducted several operations and we
know that it was a tally sheet.
X x x x x x x x x
It was very clear from the Answer of the witness, Police Officer
Banga that they were not able to see or identify with particularity the
paper or document handed by the motorcycle driver to the accused that
it was tally sheet. Secondly, if the vehicle of the arresting officer was
parked beside the driver of the Nissan Sentra, surely they could not see
what document or paper was handed to the driver of Nissan Sentra
since it will be covered by the body of the motorcycle driver.
Question: And that point you immediately arrested him?

Answer: PO2 Genolos first approached Nelson Dela Paz;
Question: He doesn’t run?
Answer: Yes, sir.
Question: And where were you?

Answer: When PO2 Genolos was able to hold the driver of the
motorcycle, he instructed me to hold the motorcycle driver and arrested
Nelson dela Paz;
Question: Who arrested Nelson Dela Paz?

Answer: PO2 Jackson Genolos.
X x x x x x x x x x
From the foregoing testimony, it was PO2 Genolos who arrested

the accused and not Police Officer Banga, hence, the latter could not
properly testify how the arrest was conducted. Police officer Banga
further testified:
Question : How did PO2 Jackson Genolos arrested the accused?

Answer : PO2 Genolos first was able to get the tally sheets for
illegal number game, sir.
Question: From whom did he get the tally sheets?

Answer: From Nelson dela Paz.
Question: Why, Nelson Dela Paz was holding the tally sheets?
Answer: Yes, sir.
Question: What else did Nelson Dela Paz was holding at that time?
Answer: During that I only saw that he was holding the four (4) tally
sheets.
X x x x x x x x x x
Likewise, it is clear that there was no money handed to the
accused by the motorcycle driver to back-up the alleged tally sheet.
There was no money remitted to the accused.
Police Officer Banga could no longer identify the alleged Four (4)
tally sheets handed to him by PO2 Genolos because accordingly it was
already bundled.
Question: And you said there are four (4), there are many tally sheets?
Answer: Yes sir. Because the total were already bundled so there
were thirteen (13) in all.
Question: There are only three (3) tally sheets stapled. By the way,
can you tell this Honorable Court what particular tally sheets handed to
you by6 PO2 Jackson Genolos which you said recovered from the
accused?
Answer: Yes sir, these were the tally sheets given to me by PO2 Jackson
Genolos . These were that I saw.
X x x x x x x x x x
Question: In this tally sheets, Mr. Witness, could you determine how
much is the bet money for these?
Answer: I could not remember, I am no longer arresting these kind of
cases.
Question: At the time when PO2 Jackson Genolos recovered these tally
sheets from the accused was there also bet money recovered from the
accused together with the tally sheets?
Answer: Inside the Nissan Sentra, sir;
Question: How about at the time PO2 Jackson Genolos recovered the
tally sheets from the accused was there a money also recovered?
Answer: No, sir.
Question: There was none? So the man in the motorcycle only handed
to him the tally sheets?
Answer: Yes, sir.
Question: and after that when the accused was arrested by PO@
Jackson Genolos what did you do to him?
Answer: At first we called the Police Station because the female
companion of Nelson Dela Paz was shouting and told us that we cannot
arrest them because we have no valid search warrant, so and so. So we
called the Police Station because she was making scandalous scene in
the area.
Question: You mean to say the accused was with companion inside the
Nissan Sentra?
Answer: Yes, Sir.
Question: How many were his companions?

Answer: Daddy Lose, a female companion.
Question: Only one?

Answer: Inside the car.
Question: Only one?

Answer: Yes, sir. Nelson Dela Paz and Daddy Lose.
Question: So there were two (2) of them inside the car?

Answer: Yes, sir.
Question: What happened to that man you held who drove that
motorcycle?
Answer: We arrested him boarded him in that Patrol car and brought
him at Police Station 4.
Question: How about the accused Nelson Dela Paz?

Answer: We also took him, brought him to Police Station4.
Question: Who took the Nissan Sentra?

Answer: The Police Station 4 personnel, I cannot recall anymore, Sir.
Question: And there at Police Precinct 4 you discovered all of these

items excluding the three (3) tally sheets?
Answer: Yes, sir.
Question: And also the money?

Answer: Yes, sir.
Question: It was you who discovered these items inside the Nissan
Sentra?
Answer: No, sir.
Question: Who?
Answer: PO2 Jackson Genolos conducted the search inside.
From the foregoing testimony, it is crystal clear that the arrested
persons have not been apprised of their constitutional rights including
the law they violated. After they were apprehended and handcuffed at
Circle Inn Hotel, the police officers merely brought them to Police
Station 4, Bacolod City, since, accordingly one of the companions of
accused dela Paz did not go out from the vehicle.
It is likewise awkward to hear from the prosecution witness, that

he was the one who read to the accused his constitutional right and
violations when in fact he was not the one who arrested the accused.
In Page 30 and 31 of TSN taken on June 10, 2016, prosecution witness

Banga testified as follows:
Question: So you mean to say, it was you who read to the accused his
violation and his Constitutional Rights?
Answer: Only Orlando Formento and also Nelson Dela Paz.
Question: It was you who informed to the accused Dela Paz?

Answer: Yes, sir.
Question: But you earlier mentioned that it was not you who arrested
the accused, it was PO2 Jackson Genolos, correct?
Answer: Yes, sir.
In Villamar vs. People (G.R. No. 200396, March 22, 2017, 821
SCRA 328), a case which also involved alleged illegal gambling activities,
the Court held that the conduct of an in flagrante delicto warrantless
arrest therein is unlawful because of the arresting officers’ failure to
reasonably ascertain that the criminal activity was afoot before
proceeding with the same. In that case, the Court remarked that it was
highly suspect for the apprehending officers to have witnessed an overt
act indicating that the accused therein had just committed, were
actually commiting, or were attempting to commit a violation of RA
9287, considering, inter alia, the distance of the police officers from the
purported locus criminis, viz:
“The court finds it doubtful that the police officers, were able to
determine that a criminal activity was ongoing to allow them to validly
effect an in flagrante delicto warrantless arrest and a search incidental
to a warrantless arrest thereafter x x x It appears that the police officers
acted based solely on the information received from PD Peñ aflor’s
informant and not on personal knowledge that a crime had just been
committed, was actually being committed, or was about to be commited
in their presence, xxx POI Saraspi even admitted thatg from his position
outside the compound, he could not read the contents of the so-called
“papelitos” yet upon seeing the calculator, phone, papers and money on
the table, he readily concluded the same to be gambling
(paraphernalia).”
In William Cruz y Fernandez and Virgilio Fernandez y Torres

versus People of the Philippines (G. R. No. 238141 dated July 1, 2019,
the Supreme court also ruled “In this case, the Court similarly finds that
there could have been no lawful in flagrante delicto warrantless arrest
made on petitioners. Based on the records, PO3 Guzman himself
admitted that he and PO2 Sabordo, were about five (5) meters away
from petitioners when they allegedly saw petitioners carrying papelitos,
ball pens and money. Perceiving that the same constitute gambling
paraphernalia, the arresting officers immediately concluded that
petitioners were engaged in illegal gambling activities, i.e, collecting
jueteng bets, prompting them to swoop inm with the intention of
arresting petitioners. Xxx Considering, that the arresting officers were at
a considerable distance of about five (5) meters away from the
supposed criminal transaction, it would be highlky implausible for
them-even assuming that they have perfect vision – to ascertain with
reasonable accuracy that the aforesaid items were being used as
gambling paraphernalia. In an effort to legitimize the warrantless arrest
and the consequent search made incidental thereto, the arresting
officers insist that the arrest was made only after ascertaining that
petitioners were not MVGC employees. However, the fact that
petitioners were (a) holding ballpens, papelitos, and money; and (b) not
MVGC employees, do not by themselves, constitute an illegal gambling
activity punishable under RA 9287. Notably, there was no other overt
act that could be properly attributed to petitioners so as to rouse
suspicion in the minds of the arresting officers that the former had just
committed, were committing, or were about to commit a crime. Verily,
these circumstances are not enough to justify a valid in flagrante delicto
warrantless arrest on petitioners.”
The afore-cited cases are similar to this particular case because in

an effort to legitimize the warrantless arrest and the consequent search
made incidental thereto, the arresting officers insist that the accused
was “caught in the act in plain view” receiving tally sheets. Hence, just
like the afore-cited cases, this case should also be dismissed.
The Honorable Court failed to appreciate the facts that accused

was indeed arrested while walking along Malaspina-Lopez Jaena
Streets near West Negros College going to Circle Inn where his car
was parked, at around 9:30 pm of April 10, 2011;
The Honorable Court failed to appreciate the facts that accused

was arrested while walking along Malaspina-Lopez Jaena Streets near
West Negros College going to Circle Inn Hotel, where he parked his
vehicle. He left his vehicle because he had companions at the Circle Inn
Hotel waiting for him. While walking to Circle Inn Hotel, after talking to
some of his boarders, a black vehicle with no license plate stopped and
three persons alighted pointed a gun at him, then he was handcuffed
and the said persons asked money from him. Thereafter, he was loaded
in the black car and brought to Circle Inn Hotel. He identified later that
the Police Officers are Genolos, Banga and Inspector Basia. They took
his car keys and brought him to Police Station 4. Accused claims that
there was Php82,000.00 inside his car as he had just sold a fighting cock.
(pp. 5, T.S.N. dated November 10, 2017).
At the police station they (the police officers) presented to him a

tipster but Accused denied owning the tipster. The incident was then
recorded in the police blotter. ((p. 6, T.S.N. dated November 10, 2017)
Accused claims that he was arrested without a warrant. (Ibid.)
The fact of accused arrest at Malaspina-Lopez Jaena Streets by

Three (3) persons in black vehicle was witnessed by Juliet Salinas, who
testified and corroborated the testimony of the accused in this case. She
was one of the boarders of the accused, who happened to be outside of
the boarding house together with a companion boarder, Efren Pasco, Jr.
She further testified that when accused Dela Paz came out of the
boarding house, the black vehicle was already parked on the street at
the corner of the Church (Cosmopolitan Church. (PP. 9-10, TSN dated
November 12, 2020)
It is quite apparent that the police officers were following the

accused Dela Paz from Circle Inn Hotel, where his motor vehicle was
parked, and was awaiting for him to pass by in order to arrest him. The
said black vehicle was seen by Juliet Salinas when she came out of the
boarding house. And it was on the same black vehicle, where the three
(3) persons came out, pointed a gun, handcuffed and loaded the accused
therein.
As it pertains to the P82,000.00 which was lost inside the vehicle

after it was searched, he had it recorded and blottered with Police
Station 4, Bacolod City. He left the said amount inside the vehicle
because he was with companion at the Circle Inn Hotel and that accused
was not very long. He just visits his boarding house to check if all the
lights were working.
The Honorable Court should have found the testimonies of the

accused and his witness more credible. Instead, with due respect,
favored the testimony of the lone witness, Police Officer Banga, who was
not the arresting officer and who did not conduct the actual search of
the alleged gambling paraphernalia.
The Honorable Court failed to appreciate facts that the arrest of the
accused/appellant in this case was “unlawful warrantless arrest”,
hence, no valid search incidental to a lawful arrest which yielded
the alleged illegal gambling paraphernalia from
accused/appellant.
From the foregoing discussions, it is humbly advanced that the

warrantless arrest was unlawful and did not conform with the law
under Section 5 (A), Rule 113 of the Revised Rules on Criminal
Procedure, which states:
Section 5. Arrest without warrant; when lawful. – A peace officer

or a private person may, without a warrant, arrest a person:
(A) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to
commit an offense.
“Case law requires two (2) requisites for a valid in flagrante

delicto warrantless arrest, namely, that: (a) the person to be
arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a
crime; and (b) such overt act is done in the presence or within the
view of the arresting officer. Essentially, the arresting officer must
have personal knowledge of the fact of the commission of an
offense, i.e., he must have personally witnessed the same. (See
Sindac v. People, supra note 23, at 429-430).”
The arresting officers have no personal knowledge that the

accused was indeed collecting tally sheets. The information that
accused was engaging in illegal gambling activities came from
their confidential informants. Accordingly, they conducted
surveillance operation but they did not meet with the accused
personally. The testimony of the sole prosecution witness, police
officer Banga was merely intended to legitimize their unlawful
warrantless arrest and apprehension of the accused by saying that
they were able to “caught in the act in plain view” the accused
receiving tally sheets.
In William Cruz y Fernandez, et. al. vs. People of the Philippines, G.

R. No. 238141 dated July 1, 2019, the Supreme Court held:
“As a consequence of petitioner’s unlawful warrantless

arrest, it necessarily follows that there could have beenno valid
search incidental to a lawful arrest which had yielded the alleged
illegal gambling paraphernalia from petitioners. Notably, while
petitioners are deemed to have waived any objections as to the
legality of their arrest due to their failure to question the same
before arraignment and their active participation in trial, it must
be clarified that the foregoing constitutes a waiver only s to any
question concerning any defects in their arrest and not with
regard to the inadmissibility of the evidence seized during an
illegal warrantless arrest. (See supra note 23 at 435). In Sindac v.
People, the Court held:
“We agree with the respondent that the petitioner did not
timely object to the irregularity of his arrest before his
arraignment as required by the Rules. In addition, he actively
participated in the trial of the case. As a result, the petitioner is
deemed to have submitted to the jurisdiction of the trial court,
thereby curing any defect in his arrest.
However, this waiver to question an illegal arrest only

affects the jurisdiction of the court over his person. It is well-
settled that a waiver of an illegal, warrantless arrest does not
carry with it a waiver of the inadmissibility of evidence seized
during an illegal warrantless arrest.
Since the shabu was seized during an illegal arrest, its

inadmissibility as evidence precludes conviction and justifies the
acquittal of the petitioner. (See Id. At 436, citing Homar v. People,
768 Phil. 195, 209(2015)). “
“In fine, since the items seized by the police officers are
inadmissible against petitioners – as they were obtained in
violation of petitioner’s right against unreasonable searches and
seizures – and given that the alleged illegal gambling
paraphernalia is the very corpus delicti of the crime charged, (See
Villamar v. People, supra note, 29, at 349), the Court is hereby
constrained to acquit petitioners.”
PRAYER
WHEREFORE, premises considered, it is respectfully prayed of

this Honorable Court that the decision dated December 16, 2021 (Annex
"A" hereof) rendered in the above-entitled case be declared null and
void and that judgment be rendered acquitting the accused-appellant in
this case.
Accused-Appellant further prays for such other relief as may be

just and equitable in the premises.
Bacolod City, for Cebu City Philippines, April 14, 2023.

Counsel for the accused/ appellant
Grd Flr, T.G. Building,
09074005092
Atty. Aguilar.law.office@gmail.com
PTR # 9086213- 1/12/23
IBP # 296297 - 1/30/23
Roll No. 33660/p.232
MCLE NO. VII-0013316 -3/24/22
Copy Furnished:
Office of the Solicitor General

Counsel for the plaintiff-appellee
134 Amorsolo St., Legaspi Village
1229 Makati City 6100
The Hon. Presiding Judge

RTC, Branch 44
Bacolod City
x- - - - - - - - - - - - - - - - - - - - - - - -x

ACCUSED

That both Accused-Appellants are presently detained at the

Bureau of Jail and Management Penology (BJMP), Handumanan,
Barangay Handumanan, Bacolod City, where they are temporarily
awaiting shipment to the New Bilibid Prisons, Muntinlupa City and
Correctional Institution for Women, Mandaluyong City, respectively;

whereabouts of the Accused-Appellants in compliance with the Notice
to File Briefs issued by the Court of Appeals on May 31, 2021 and
received by the Office of the undersigned on July 15, 2021.

NICANDRO A. AGUILAR
Affiant
SUBSCRIBED AND SWORN to before me this 19th day of

November, 2021 at Bacolod City, Philippines. Affiant exhibited to me his
Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.
ORIGINAL
SUBJECT INDEX
PAGE
ASSIGNMENT OF ERRORS 1-2
ISSUES 8-9
ARGUMENTS 9-26
RELIEF/PRAYER 26
AUTHORITIES CITED:
1. Section 8, Rule 126 of the Revised Rules of Court;
2. People of the Phils. Vs. Benny Go, G. R. No. 144639,

September 12, 2003;
3. Eduardo Quintero vs. NBI, et. al.;
4. People vs. del Rosario
5. Sec. 14 (2) Article III of the Constitution of the Republic of
the Philippines;
6. People vs. Tanchoco, 76 Phil. 463 (1946)
People vs. Constante, 12 SCRA 653 (1969)
People vs. Jara, 144 SCA 516 (1986)
7. Sec. 21, Article II of R. A. 9165, as Amended by R. A. No.
10640;
8. People vs. Tomawis;
9. People vs. Gamboa
10. Malillin vs. People
11. People vs. Kamad and People vs. Dahil

COURT OF APPEALS
VISAYAS STATION
CEBU CITY

RANDY HAMANTOC y TRINIDAD

& MA. ROGELINA HAMANTOC y
GUARINO,
Accused- Appellant. Re: Violation of Sec. 11, Art.
II, R. A. 9165
x--------------------------------------------------------------------------------------x
APPELLANT'S BRIEF


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

That on November 19, 2021, I served two (2) copies of the

Registry Receipt No. RE ______________dated November 19, 2021 hereto
attached, with instruction to the postmaster to return the mail to the
sender after Ten (10) days if undelivered, One (1) copy of the
Court, Branch 52, Bacolod City and filed Three (3) copies thereof, One
(1) original (properly marked) with original duplicate copy of the

City to Makati City and Cebu City and for lack of personnel to personally
deliver copy to the Clerk of Court, Regional Trial Court, Branch 52,
Bacolod City.

NICANDRO A. AGUILAR
Affiant
--2-
SUBSCRIBED AND SWORN to before me this 19th day of November,
Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.

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

Appeals, Cebu City.

Registry Receipt No. RE 507-833-550 ZZ dated September 7, 2021
hereto attached, with instruction to the postmaster to return the mail to
the sender after Ten (10) days if undelivered, One (1) copy of the
Court, Branch 55, Himamaylan City and filed Three (3) copies thereof,
One (1) original (properly marked) with original duplicate copy of the

City to Makati City, Himamaylan City and Cebu City.

NICANDRO A. AGUILAR
Affiant
--2-
SUBSCRIBED AND SWORN to before me this ____ day of September,

Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.

x- - - - - - - - - - - - - - - - - - - - - - - -x
ACCUSED


Appeals, Cebu City.
That the Accused-Appellant is presently detained at the Bureau of

Jail and Management Penology (BJMP), Binalbagan, Negros Occidental,
where he is temporarily awaiting the termination of his other case
before the Regional Trial Court, Branch 41, Bacolod City;

whereabouts of the Accused-Appellant in compliance with the Notice to
File Briefs issued by the Court of Appeals on March 10, 2021 and
received by the Office of the undersigned on May 26, 2021.

NICANDRO A. AGUILAR
Affiant
SUBSCRIBED AND SWORN to before me this ____ day of

September, 2021 at Bacolod City, Philippines. Affiant exhibited to me his
Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2021.
ORIGINAL
SUBJECT INDEX
PAGE
ISSUE 6
ARGUMENTS 6-13
RELIEF/PRAYER 14
AUTHORITIES CITED:
1. People of the Philippines vs. Nuñez. G.R. No. 209342; and
2. Melky Concha and Romeo Managuelod, petitioners, vs.

People of the Philippines, respondent, G. R. No. 208114, October
03, 2018.

COURT OF APPEALS
VISAYAS STATION
CEBU CITY


-versus- Branch 55, Himamaylan, Neg. Occ.
RTC Crim. Case No. 18-4127-MH
ROLLY SAMILLANO y TATON

& JOHN DOE,
Accused- Appellant. Re: MURDER
x--------------------------------------------------------------------------------------x
APPELLANT'S BRIEF


COURT OF APPEALS
VISAYAS STATION
CEBU CITY


-versus- Branch 55, Himamaylan, Neg. Occ.
RTC Crim. Case No. 18-4127-MH
ROLLY SAMILLANO y TATON

& JOHN DOE,
Accused- Appellant. Re: MURDER
x--------------------------------------------------------------------------------------x
APPELLANT'S BRIEF

1) The Honorable Court failed to take into account the relevant

and material inconsistencies in the testimony of the
prosecution witnesses- Jonie Noli, Jr. and Hazel Noli;
2) The Honorable Court erred in solely relying the biased

character of the process of identification by the prosecution
witnesses- Jonie Noli, Jr. and Hazel Noli;
4) The Honorable Court erred in appreciating conspiracy in

this case.
This is a case filed against the accused-appellant and certain John

Doe for violation of Article 248 of the Revised Penal Code, as amended,
or for Murder accordingly perpetrated by the accused together with
John Doe on January 22, 2018 at Purok Sambag, Barangay Pilar,
-2-
Municipality of Hinigaran, Negros Occidental. An Information was filed
by the Provincial Prosecutors Office of Negros Occidental docketed as
Criminal Case No. 18-4127-MH before this Honorable Court on July 2,
2018.
During the pre-trial of conference of this case on January 22,

2019, the parties jointly agreed that the issue should be resolved is
“whether or not the accused is guilty to the charge of “Murder”.
Thereafter, trial on the merits ensued. After the parties rested

their respective cases, the Honorable Court rendered a decision on
February 18, 2020, convicting the accused in this case, the dispositive
portion reads:
"WHEREFORE, the above-premises considered, the court renders

judgment finding ROLLY SAMILLANO y TATON, GUILTY beyond
reasonable doubt of the crime of MURDER, defined under Article 248 of
he Revised Penal Code as amended, and hereby sentences him to suffer
the penalty of RECLUSION PERPETUA. He is likewise ordered to pay
the heirs of JONIE NOLY y PEREZ the following sums, to wit:
1. P100,000.00 as and for death indemnity;

2. P100,000.00 as and for moral damages;
3. P100,000.00 as and for exemplary damages; and
4. P75,000.00 as and for temperate damages.”
X X X X

Accused-Defendant is not contented with the aforesaid decision,

BRIEF STATEMENT OF FACTS
The factual assertions of the parties are hereunder copied

verbatim from the decision of the Honorable Court, as follows:
Version of the Prosecution
As culled from the record, at around 2:00 o’clock in the morning

of January 22, 2018, Jonie Nolie Jr. and his family were headed for
Bacolod City from Kabankalan City on board their respective
-3-
tricycles/food carts. The lead tricycle was occupied by his younger
sister and was driven by his brother-in-law. The second tricycle was
occupied by his mother Hazel Noli and was driven by his father, Jonie
Nolie, Sr. The last tricycle was driven by Nolie, Jr. and with his aunt and
uncle, Elizabeth and Henry Maalat, respectively, as passengers.
The convoy was passing by Brgy. Pilar, Hinigaran, Negros

Occidental, when a motorcycle with a loud muffler went past Nolie, Jr.’s
tricycle. Moments later, the motorcycle approached Jonie Sr.’s tricycle.
At that juncture, Jonie. Jr. heard gunfire. He also saw firearm magazine
fell on the pavement. Then, he yelled to his mother that his father was
shot.
At the time of the incident, prosecution witness Hazel Noli was

seating behind her husband Jonie Noli, Sr. She then noticed the noisy
motorcycle following them closely. When she turned, she saw the
riders-in-tandem but only recognized the driver as accused Rolly
Samillano. She was about to convey this information to her husband
when she heard a gunfire. At that point, she heard her husband utter
“ARAGAY”. When she hugged her husband, she felt blood oozing from
his body. Thereafter, the tricycle driven by Jonie, Sr. zigzagged through
the road but Hazel managed to swerve and pull over the vehicle to the
shoulder of the road.
Subsequently, Jonie Jr. pulled over beside his parent’s food cart.
He then hastily pulled his father out and transferred him to his
tricycle.They were already about to leave for the nearest medical
facility when the motorcycle riding-in-tandem made a u-turn and
moved towards their direction. Jonie Jr. fixed his LED and headlights on
the oncoming tandem and apprised his relatives by shouting
“NAGBALIK SILA TO! SI ROLLY SAMILLANO TO.” (Uncle, they are coming
back! It is Rolly Samillano).
Instinctively, Jonie Jr.’s uncle shouted “PANAGO ANAY!” (take

cover). The riding–in-tandem was already about an arms-length away
from them when Jonie, Jr. was fired at. The assailants then exclaimed
“PANG UBUSON TA KAMO!” (I WILL FINISH YOU ALL!). Thereafter, the
assailants immediately sped away towards the south direction. Jonie, Jr.
immediately brought his father to the Hinigaran Medical Clinic for
treatment. Unfortunately, Jonie, Sr. was declared Dead-On-Arrival(DOA)
due to the multiple gunshot wounds he sustained.
-4-
Version of the Defense
The defense evidence tended to show that, on January 18, 2018,

accused Rolly Samillano rented a car from a certain “Ondo” of RC Palses
Tourist and Car Transport. The vehicle was used by Rolly to conduct
game fowls bought by his client “Gino” in Bacolod, Silay, Talisay and San
Carlos City.
From January 18-21, 2018, accused and “Gino” were together. It

was only at noon of the 21st of January 2018, when accused was bound
for San Carlos that he was with another person.
Accused and his unidentified companion arrived at San Carlos City

around 3:00 o’clock in the afternoon. The game fowls they purchased
were supposed to be shipped to Cebu. However, the San Carlos City
Port denied them passage due to lack of documents. This prompted
them to transfer to the port of Escalante City.
Samillano left his companion at the Escalante port at around 7:00

o’clock in the evening. Thereafter, he took the route to Sagay and
Victorias City in driving back to Bacolod City.
Accused reach Bacolod City between 9:30 and 10:00 o’clock in

the evening. He then proceeded to Brgy. Villamonte to meet up with
Gino for the accounting of his expenses and compensation. At that time
they had a drinking spree until 11:30 in the evening. Thereafter,
accused conducted Gino and his wife to Talisay City.
While in Talisay City, accused received a call from Victor Dante

Escorpion. He then met with Escorpion in front of a Police Station in
Talisay City and received from him the amount of Php 5,000.00.
Subsequently, he went home to Brgy. Taculing and arrived at his
residence at around 3:00 o’clock in the morning of January 22, 2018.
Defense witness Dante Victor Escorpion stated that he knew

accused Samillano, as the latter was his youngest daughter’s
godfather. He recalled that at around 11:30 in the evening of January
21, 2018, he was in front of the RORO Terminal at Reclamation area in
Bacolod City. With him were his older brother Danilo Escorpion and his
cousin Rico Jimenez.
He and his companions were waiting for the 1:00 o’oclock

morning trip bound for Dumangas, Iloilo to transport a couple of
-5-
game fowls they bought. Since they do not have the appropriate
documents for shipping, they “made a package for the two (2)
heads of game fowls”. The vessel left at around 1:20 in the morning
with his companions on-board. After which, he called “Bong” (accused
Samillano).
Escorpion claimed that he intended to return to the accused the

vehicle he rented and at the same time, pay the rent in the amount of
Php 5,000.00. Further, he asserted that he met up with the accused at
around 1:35 or 1:40 in the morning at the public plaza in front of the
Talisay City Police Station. After handing over his rental payments, they
parted on opposite directions. (TSN, August 13, 2019, Pages 3 to 6)
On cross-examination, witness claimed that at that time, he was

employed by “Home Credit” as an “investigator and as area supervisor”.
When he asked why he was paying the accused during that time
when he was to return the vehicle in Bacolod during the day, he
replied that he just wanted to make sure that he pays the rent as
the owner might look for it and that he might not be available at
the time.
Witness also admitted that he is a detainee of the Silay City BJMP

and that he had been detained since April 2019.
Upon inquiry by the Court as to why he was in a hurry to pay the

rental fee when it was almost 2:00 o’clock in the morning, witness
replied that he just took his chance and see if accused was available.
When asked if there were other persons present when he met up with
the accused, witness replied in the negative.
Owen Rojo testified that accused was his former co-employee at

the FRM Marketing. He called that around 11:30 in the evening of
January 21, 2018, he was tidying up in his store while waiting for his
son-in-law Gino. He claimed that the latter arrived around 12:00 o’clock
midnight. He further claimed that Gino was accompanied by accused
Samillano. He then invited accused for a drink and they each consumed
three bottles of beer. Witness vividly recalled the accused leaving the
vicinity at around 10 minutes before 1:00 o’clock in the morning.
On clarificatory questions by the Court, witness admitted that he

could no longer recall the exact date when he met accused’s wife, her
name or the exact address. He likewise admitted that he and the
accused belonged to the same fraternity. The “Guardians”.
-6-
Defense witness Florendo Palses materially corroborated accused’s
declaration that he rented an Innova vehicle from him. According to
Palses, accused obtained the vehicle on January 18, 2018 and returned it
in the morning of January 22, 2018.
STATEMENT OF THE ISSUE
The only issue in this case is whether accused Rolly Samillano y

Taton is guilty of murder as alleged in the information.
ARGUMENTS
1. Relevant and Material Inconsistencies in the Testimony of the

Prosecution Witnesses – Jonie Noli, Jr. and Hazel Noli as follows:
1.1) Both Prosecution witnesses did not actually see the firing of
the gun;
In both testimonies of the witnesses – they testified seeing the

accused driving the motorcycle with a back-rider and hearing burst of fire
but they did not actually see the perpetrator fire the gun. Jonie Noli, Jr. in
his testimony during the Direct Examination Conducted by Pros. Canete on
said witness, mentioned the following:
Q: What happened next since this motorcycle went near your father?
A: I saw the back-rider extended his right hand towards my father and then
I heard burst of fire;
Q: What was being held by that back-rider on his right hand?
A: I cannot identify it because he was wearing a jacket but I saw a magazine

falling down;
Q: How did you know that it was a magazine?
-7-
A: I know that it was a magazine because my three (3) LED lights which
were very bright plus the light of my motorcycle which was also very bright.
I saw it very clearly.
Q: And after you heard that sound what happened next?
A: When I saw the magazine, I shouted, “Si papa gintiro, ma” (Papa was
shot, ma) (TSN, March 12, 2019, Page 5);
The Direct Examination of Pros. Canete on witness Hazel Noli further

corroborated this fact as follows:
Q: What did you say, if any, to the accused since your recognized him?
A: When I was about to turn to my husband to tell him, I heard a shot.
Q: Shot coming from whom?
A: From my side.
Q: Since there were two persons at your side, the accused and another
unidentified man, from which of the two did you hear the sound.
A: From the backrider because when I turned my head I still saw him
holding his firearm. (TSN, May 14, 2019, Page 6)
1.2) Inconsistency in the Testimony of Prosecution Witness’ Hazel

Noli pertaining to the return and firing of gun by the assailants;
Hazel Noli testified, confirmed and identified in her statement in the

complaint affidavit that she heard the accused say in vernacular “Pang-
ubuson ta kamo.” This is inconsistent with what she earlier testified that he
had her head bowed down when the assailants returned. The significant
portion mentioned in the Direct Examination conducted by Pros. Canete
on Witness Hazel Noli as follow:
Q: Madam Witness I would like to confront you with your complaint

affidavit, you mentioned in No. 3 “That as we were about to go, the
suspects returned and moved towards us. As they nearly approached us, I
-8-
heard another gunfire from the suspects while saying in vernacular, to
quote, “Pang-ubuson ta kamo” and they sped away thereafter going to
south direction.
A: When they returned and while firing a gun, that is what he shouted.
Q: Do you confirm this?
A: Yes, ma’am ;
Q: Who between the two said this?
A: Rolly, ma’am. (TSN May 14, 2019, Page 9)
However, in the same proceeding, same witness Hazel Noli testified

the following:
Q: When they returned what happened next, if any?
A: Elizabeth pulled me and told me to hide.
Q: And what happened after Elizabeth told you to hide?

A: I did not hide but I just sat down in front of the tricycle driven by my
husband;
Q: You mentioned you just sat in front of the tricycle, what were you doing?
A: I just bowed my head. (TSN, Mat 14, 2019, Pages 7-8)
Thus, it would be impossible for the witness to know and identify

who between the two assailants uttered those words as witness had her
head bowed down the whole time. Further, it was not part of witness’
testimony that she knows or is familiar with the accused’s voice to
competently identify the accused as the one who said those words.
It is also surprising that this part was not included in Jonie Noli, Jr.’s
testimony nor did he mention hearing this despite being relatively closer to
the assailant than Hazel Noli when the assailants returned and fired at
them before proceeding south bound.
-9-
1.3) Questionable Circumstance and Condition of the Place of
Commission Affecting Identification of the Accused;
The place of commission of the crime is known to have difficult

travelling conditions especially during nighttime. As the National Highway is
not well lighted it makes driving worse if there is not a lot of traffic in the
area which would help light up the main road. This is specifically the case as
testified by both Prosecution Witnesses. As the time of commission of the
crime happened around 2:00 AM in the morning, the Prosecution
Witnesses relied heavily on the headlights of their motorcycles plus
additional LED lights to identify the perpetrators. Despite this, we
respectfully disagree with the RTC’s appreciation of this fact as follows:
1.3.1) In Prosecution Witness Hazel Noli’s Cross Examination

Conducted by Atty. Aguilar, the witness testified that when she turned her
head the second time, she saw a motorcycle with two passengers. She
immediately identified the driver as the accused but did not recognize the
passenger. Please refer to the records as follow:
Q: So this is the second time you turned your head?
A: Yes, sir.
Q: And when you turn your head, to the left or to the right?
A: The same, sir. To the left.
Q: You saw this motorcycle with two passengers?
A: Yes, sir.
Q: And at that point you identify the driver of that motorcycle?
A: Yes, sir.
Q: You know him because you said he was not wearing a bonnet or a mask?
A: Yes sir;
-10-
Q: How about this helmet? He did not wear also a helmet?

A: No, sir, he did not.
Q: How about the passenger at the back of the said driver?
A: When I turned my head, I saw the driver but was not able to recognize
the one riding at the back because I was afraid. (TSN, May 14, 2019, Page
14)
In the exchange above, it would have been difficult to identify the

driver judging from the circumstances as the light coming from the third
motorcycle behind them and driven by another Prosecution Witness, Jonie
Noli, Jr., would have been blocked off by the back-riding passenger. This will
provide a silhouette effect on the driver assailant from the point of view of
Hazel Noli. Even granting for the sake of argument that the kariton or food
cart found on the right portion of the motorcycle Hazel was on – logic will
dictate that it will not be enough to provide sufficient lighting to the
motorcycle on their left, since Hazel and the victim would have blocked the
light before it reaches to the other side. The only possible way for them to
identify and see the face of the overtaking motorcycle is if there would be
another vehicle on traversing the other lane or counterflow to light up the
frontal side.
1.3.2) In the Direct Examination Conducted by Pros. Canete on

Witness Jonie Noli, Jr., the following transpired:
Q: How were you able to identify the accused because it was 1:10 in the
morning?
A: Because my LED light was focused on him when they were approaching
so it was so it was very very clear. (TSN, March 12, 2019, Page 6)
We take this statement as an over exaggeration thus inconsistent. If

witness claims to have focused on the accused driver the LED and
headlight, this would have caused the accused driver to be temporarily
blinded and not be able to properly maneuver the motorcycle and return to
shoot at them.
-11-
1.3.3) It is also quite interesting to note that the early police blotter
report with the investigating police officers, the name of accused Rolly
Samillano was not mentioned as one of the assailant or the driver of the
motorcycle in tandem.
In cross-examination conducted by Atty. Aguilar, TSN dated May 28,

2019, page 18, the following transpired:
Q In that police blotter report early in the morning did you

incorporate that in your police blotter report that it was already known
that it was Rolly Samillano who was the assailant in that shooting incident?
A Not yet sir, because during that time the family of the victim
could not narrate what really happen because of their fear and they were
shocked of what had happened;
Q So, in short it was not in that early morning that Jonie Noli Jr.
told you that it was Rolly Samillno who shot his father?
A He already had said it
Q Why is it that it was not included in your early police blotter

report?
A He said that he cannot really identify the one who really shot
his father and as a part of our investigation, sir, it is our duty to identify and
really know the victim and the family member of the victim said that the
victim was Jonie Noli. On their account of course at that moment they were
afraid and shocked and I could not interview them well.
Q This Jonie Noli Jr. told you that he could not identify the
person who actually shot his father because that person was wearing a
helmet?
A He was not wearing a helmet sir they just really don’t know
the identity of one of the suspects sir.
-12-
2. Reliance of the Court on the Biased Character of the Process of
Identification by the Prosecution Witnesses Jonie Noli, Jr. and Hazel
Noli
The Decision of the of RTC, Branch 55 on the case primarily relied on the
prosecution’ successful establishment of the identity of the accused as the
driver of the gunman who shot the victim. As criminal prosecution carries
severe consequences of deprivation of liberty and or property when capital
punishment is imposed, it is important to approach eyewitness
identification meticulously, and cognizant of the inherent frailty of human
memory.
The importance of positive identification has been thoroughly, if not
exhaustively, discussed in People v. Nunez:
xxx…To convict an accused, it is not sufficient for the prosecution to present
a positive identification by a witness during trial due to the frailty of human
memory. It must also show that the identified person matches the original
description made by that witness when initially reporting the crime. The
unbiased character of the process of identification by witnesses must
likewise be shown. (G.R. No. 208114, October 03, 2018, Melky Concha and
Romeo Managuelod, Petitioners, V. People of the Philippines, Respondent)
In the instant case, it cannot be said that the Testimony of the
Prosecution’s witnesses are not without bias. As can be seen in the records,
Hazel Noli’s testimony during the Clarificatory Questions from the Court,
the witness exhibited her bias by categorically speculating the motive why
the accused committed the act complained of:
Q: Do you know any ill motive on the part of the accused for him to cause
the killing of your husband?
A: Yes your Honor;
Q: What is that motive?
A: They have a case in the barangay;
Q: What is that case all about?
A: It was about the case that he shot my husband but his gun did not fire
and then my husband successively boxed him and then he said that he could
-13-
not accept that it was my husband who had only first boxed him. (TSN May
14, 2019, Page 21)
Further in the Direct Examination Conducted by Pros. Canete on
Witness Jonie Noli, Jr., witness exhibited bias in the speculating the reason
for accused’s failure to attend hearings in the Baranggay:
Q: Do you know the reason why the accused tried to shoot your father?
A: Because he confronted (sita) my father upon arrival saying, “why are you
look at me sharply” (sakit tolok mo haw?) simultaneously alighting from his
motorcycle and pulling his gun and pointed it to my father;
Q: So what did your father do?
A: My father had him summoned in his place but he did not attend in all the
hearings because he had a plan to kill my father; (TSN March 12, 2019,
Page 8)
In the testimony of both the prosecution witness, it is quite clear that
both witnesses have prejudiced to implicate the accused due to the
untoward event that happened back in July 2017. Thus, it is not surprising
that the moment they encounter this tragedy, they are quick to point the
finger at the accused since it was only with him that they can remember ill
feelings or motive to commit such heinous crime.
3. Conspiracy was Erroneously Appreciated
The Prosecution believes that the accused acted in conspiracy with the
gunman to perpetuate the murder of the victim. Granting that for the sake
of argument that accused was indeed the driver of the motorcycle as
claimed by the prosecution, there was nothing on record to support that
there was a common purpose to commit the crime except, for the
testimony of Prosecution Witness Hazel Noli mentioned in the Direct
Examination Conducted by Pros. Canete (see TSN, May 14, 2019, Page 9)
wherein Hazel recounted hearing the words “Pang-ubuson ta kamo” and
identified the accused as the one saying it. We have identified this
statement as inconsistent under paragraph 1.2 and most likely fabricated to
qualify the driver as a principal by indispensable cooperation, which should
not be the case. Also, since it was never questioned nor raised during the
trial, we believe that the RTC should not have appreciated this element.
-14-
PRAYER
this Honorable Court that the decision dated February 18, 2020 (Annex
"A" hereof) rendered in the above-entitled case be declared null and
void and that judgment be rendered acquitting the accused-appellant in
this case.

Bacolod City, for Cebu City Philippines, September 6, 2021.

PTR # 8617206- 1/15/21
IBP # 138534 - 1/5/21
Roll No. 33660/p.232
MCLE NO. VI-00002236 -5/16/17
Copy Furnished:


RTC, Branch 55
Himamaylan City
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G.R. No. 209342

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
CRISENTE PEPAÑO NUÑEZ, Accused-Appellant
DECISION
LEONEN, J.:
To convict an accused, it is not sufficient for the prosecution to

present a positive identification by a witness during trial due to the
frailty of human memory. It must also show that the identified person
matches the original description made by that witness when initially
reporting the crime. The unbiased character of the process of
identification by witnesses must likewise be shown.
Criminal prosecution may result in the severe consequences of

deprivation of liberty, property, and, where capital punishment is
imposed, life. Prosecution that relies solely on eyewitness
identification must be approached meticulously, cognizant of the
inherent frailty of human memory. Eyewitnesses who have previously
made admissions that they could not identify the perpetrators of a
crime but, years later and after a highly suggestive process of
presenting suspects, contradict themselves and claim that they can
identify the perpetrator with certainty are grossly wanting in credibility.
Prosecution that relies solely on these eyewitnesses' testimonies fails
to discharge its burden of proving an accused's guilt beyond
reasonable doubt.
This resolves an appeal from the assailed June 26, 2013 Decision1 of
the Court of Appeals in CA-G.R. CR HC No. 04474, which affirmed
with modification the February 24, 2010 Decision2 of Branch 67,
Regional Trial Court, Binangonan, Rizal. This Regional Trial Court
Decision found accused-appellant Crisente Pepaño Nuñez (Nuñez)
guilty beyond reasonable doubt of robbery with homicide.
In an Information, George Marciales (Marciales), Orly Nabia (Nabia),

Paul Pobre (Pobre), and a certain alias "Jun'' (Jun) were charged with
robbery with homicide, under Article 294(1) of the Revised Penal
Code,3 as follows:
That on or about the 22nd of June 2000, in the Municipality of

Binangonan, Province of Rizal, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and aiding one another, armed
with handguns, by means of violence against or intimidation of the
-16-
persons of Felix V. Regencia, Alexander C. Diaz and Byron G.
Dimatulac, with intent to gain, did then and there, willfully, unlawfully
and feloniously take and carry away the money amounting to
₱5,000.00 belonging to the Caltex gasoline station owned by the
family of Felix V. Regencia to their damage and prejudice; that on the
occasion of the said robbery and to insure their purpose, the said
accused, conspiring, confederating and mutually helping and aiding
one another, with intent to kill, did then and there willfully, unlawfully
and feloniously attack, assault and shoot said Felix V. Regencia,
Alexander C. Diaz and Byron G. Dimatulac on the different parts of
their bodies, thereby inflicting gunshot wounds which directly caused
their deaths.4
At first, only Marciales and Nabia were arrested, arraigned, and tried.
In its December 9, 2005 Decision,5 the Regional Trial Court found the
offense of robbery with homicide as alleged in the Information, along
with Marciales and Nabia's conspiracy with Pobre and Jun to commit
this offense, to have been established. Thus, it pronounced Marciales
and Nabia guilty beyond reasonable doubt and sentenced them to
death.6 The case against Pobrn and Jun was archived subject to
revival upon their apprehension.7
On July 2, 2006, accused-appellant Nunez was apprehended by the

Philippine National Police Regional Intelligence Office on the premise
that he was the same ''Paul Pobre" identified in the Inforn1ation.
Upon arraigru11ent, Nuñez moved that the case against him be
dismissed as he was not the "Paul Pobre" charged in the Information.
However, prosecution witnesses identified him as one (1) of the
alleged robbers and his motion to dismiss was denied. The
information was then atnended to state Nuñez's name in lieu of "Paul
Pobre."8
During trial, the prosecution manifested that it would be adopting the

evidence already presented in the course of Marciales and Nabia's
trial. Apart from this, it also recalled prosecution witnesses Ronalyn
Cruz (Cruz) and Relen Perez (Perez). In their testimonies, they both
positively identified Nunez as among the perpetrators of the crime.9
Cruz's testimony recounted that in the evening of June 22, 2000, she
was working as an attendant at the Caltex gasoline station mentioned
in the Infonnation. She was then sitting near the g1;1,soline pumps
with her co-employees, the deceased Byron G. Dimatulac
(Dimatulac) and prosecution witness Pierez. They noticed that the
station's office was being held up. There were two (2) persons poking
guns at and asking for money from the deceased Alex Diaz (Diaz)
and Felix Regencia (Regencia). Regencia hancied money to one (1)
of the robbers while the other robber reached for a can of oil.
Regencia considered this as enough of a distraction to put up a fight.
Regencia and Diaz grappled with the robbers. In the scuffle, Diaz
shouted. At the sound of this, two (2) men ran to the office. The first
was identified to be Marciales and the second, according to Cruz,
was Nunez. Dimatulac also ran to the office to assist Regencia and
Oiaz. Marciales then shot Dimatulac while Nunez shot Diaz. Cruz and
Perez sought refuge in a computer shop. About 10 to 15 minutes
later, they returned to the gasoline station where they found Diaz
already dead, Dimatulac gasping for breath, and Regencia wounded
and crawling. By then, the robbers were rushing towards the
highway.10
Perez's testimony recounted that in the evening of June 22, 2000,

she was working as a sales clerk in the Caltex gasoline station
adverted to in the Information. While seated with Cruz near the
gasoline pumps, she saw Nuñez, who was pointing a gun at Diaz,
and another man who was pointing a gun at Regencia, inside the
gasoline station's office. Diaz shouted that they were being robbed.
Another man then rushed to the gasoline station's office, as did her
co-employee Dimatulac. A commotion ensued where the robber
identified as Marciales shot Dimatulac, Diaz, and Regencia. They
then ran to their employer's house.11
Nunez testified in his own defense and recalled the circumstances of

his apprehension. He stated that when he was apprehended on July
2, 2006, he was on his way to his aunt's fish store where he was
helping since 1999 when a man approached him. He was then
dragged and mauled. With his face covered, he was boarded on a
vehicle and brought to Camp Vicente Lim in Laguna. He further
claimed that on June 22, 2000, he was in Muzon, Taytay, Rizal with
his aunt at her fish store until about 5:00 p.m. before going home. At
home, his aunt's son fetched him to get pails from the store and bring
them to his aunt's house.12
On February 24, 2010, the Regional Trial Court rendered a

Decision13 finding Nunez guilty beyond reasonable doubt of robbery
with homicide. This four (4)-page Decision incorporated the original
Regional Trial Court December 9, 2005 Decision and added the
following singular paragraph in explaining Nunez's supposed
complicity:
To convict Nunez of robbery with homicide requires proof beyond

reasonable doubt that he: (1) took personal property which belongs to
another; (2) the taking is unlawful; (3) the taking is done with intent to
gain; and (4) the taking was accomplished with the use of violence
against or intimidation of persons or by using force upon things.
Article 294(1) of the Revised Penal Code and (5) when by reason or
on occasion of the robbery, the crime of homicide shall have been
committed[.] The facts are simple. Nuñez along with Marciales and
Nabia robbed the Tayuman Caltex gas station of ₱5,000.00 and
some cans of oil. For such booty, he[,] along with his fellow thieves[,]
shot and killed Felix Regencia, Alexander C. Diaz and Byron G.
Dimatulac. He was positively and unequivocally identified by Renel
Cruz and Ronalyn Perez as [one] of the perpetrators even as he tried
to hide behind another name and was arrested later. He ran but could
not hide as the long arm of the law finally caught up with him. As a
defense, he can only offer his weak alibi which cannot offset the
positive identification of the prosecution witnesses. His guilt was
proven beyond reasonable doubt.14
The Regional Trial Court rendered judgment, as follows:
Based on the foregoing, we find accused Crisente Pepaño Nuñez
GUILTY beyond reasonable doubt of the crime of Robbery with

Homicide under Article 294 (1) of the Revised Penal Code and
sentences (sic) him to suffer the penalty of Reclusion Perpetua and
order him to pay:
1. The heirs of Felix Regencia Php. 151,630.00 expenses for the

wake, burial lot and funeral service; Php. 75,000.00 death indemnity;
Php. 5,000.00 money stolen from the victim; exemplary damages of
Php. 50,000.00; and Php. 2,214,000.00 unearned income;
2. The heirs of Alexander Diaz Php. 20,000.00 expenses for funeral

service; Php. 75,000.00 death indemnity; Php. 50,000.00 exemplary
damages; and Php. 1,774,080.00 unearned income;
3. The heirs of Byron Dimatulac Php. 18,000.00 for funeral service;

Php. 75,000.00 death indemnity; Php. 50,000.00 exemplary
damages; and Php. 966,240.00 unearned income[;] and
4. The costs.
Let the case against alias "Jun" who remains at large be archived.
SO ORDERED.15
On March 5, 2010, Nuñez fifed his Notice of Appeal.16
On June 26, 2013, the Court of Appeals rendered its assailed

Decision17 affirming Nunez's conviction, with modification to the
awards of moral and exemplary damages, as follows:
WHEREFORE, in view of the foregoing, the appeal is hereby

DISMISSED for lack of merit. The Decision dated February 24, 2010
of the Regional Trial Court of Binangonan, Rizal, Branch 67, in
Criminal Case No. 00-473 is hereby AFFIRMED with
MODIFICATION. Accused-appellant Crisente Pepaño Nuñez is
ordered to pay ₱75,000.00 as moral damages and ₱30,000.00 as
exemplary damages each to the heirs of Felix Regencia, the heirs of
Alexander Diaz and the heirs of Byron Dimatulac.
SO ORDERED.18
Nuñez then filed his Notice of Appeal.19
The Court of Appeals elevated the records of this case to this Court
on October 22, 2013 pursuant to its Resolution dated July 23, 2013.
The Resolution gave due course to Nuñez's Notice of Appeal.20
In its Resolution21 dated December 4, 2013, this Court noted the

records forwarded by the Court of Appeals and informed the parties
that they may file their supplemental briefs. However, both parties
manifested that they would no longer do so.22
The occurrence of the robbery occasioned by the killing of Regencia,

Diaz, and Dimatulac is no longer in issue as it has been established
in the original proceedings which resulted in the conviction of
Marciales and Nabia.
All that remains in issue for this Court's resolution is whether or not
accused-appellant Crisente Pepaño Nuñez is the same person,
earlier identified as Paul Pobre, who acted in conspiracy with
Marciales and Nabia.
Contrary to the conclusions of the Court of Appeals and Regional

Trial Court, this Court finds that it has not been established beyond
reasonable doubt that accused-appellant Crisente Pepaño Nuñez is
thy same person identified as Paul Pobre. Thus, this Court reverses
the courts a quo and acquits accused-appellant Crisente Pepano
Nunez.
The prosecution's case rises and falls on the testimonies of

eyewitnesses Cruz and Perez. The necessity of their identification of
Nunez is so manifest that the prosecution saw it fit to recall them to
the stand, even as it merely adopted the evidence already presented
in the trial of Marciales and Nabia. Cruz's and Perez's testimonies
centered on their supposed certainty as to how it was Nuñez himself,
excluding any other person, who participated in the robbery and
homicide.
This Court finds this supposed certainty and the premium placed on it
by the Court of Appeals and the Regional Trial Court to be misplaced.
I
There are two (2) principal witnesses who allegedly identified
accused-appellant as the same Pobre who participated in the robbery
holdup. When Cruz, the first witness, was initially put on the witness
stand, she asserted that she could not recall any of the features of
Pobre. After many years, with the police presenting her with accused-
appellant, she positively identified him as the missing perpetrator.
The second principal witness' testimony on the alleged participation
of accused-appellant is so fundamentally at variance with that of the
other principal witness. The prosecution did not account for the
details of the presentation of accused· appellant to the two (2)
witnesses after he was arrested. Finally, these witnesses' alleged
positive identification occurred almost eight (8) years, for the first
witness, and almost nine (9) years, for the second witness, from the
time of the commission of the offense.
The frailty of human memory is a scientific fact. The danger of

inordinate reliance on human memory in criminal proceedings, where
conviction results in the possible deprivation of liberty, property, and
even life, is equally established.
Human memory does not record events like a video recorder. In the
first place, human memory is more selective than a video camera.
The sensory environment contains a vast amount of information, but
the memory process perceives and accurately records only a very
small percentage of that information. Second, because the act of
remembering is reconstructive, akin to putting puzzle pieces together,
human memory can change in dramatic and unexpected ways
because of the passage of time or subsequent events, such as
exposure to "postevent" information like conversations with other
witnesses or media reports. Third, memory can also be altered
through the reconstruction process. Questioning a witness about
what he or she perceived and requiring the witness to reconstruct the
experience can cause the witness memory to change by
unconsciously blending the actual fragments of memory of the event
with information provided during the memory retrieval process.23
Eyewitness identification, or what our jurisprudence commendably

refers to as "positive identification," is the bedrock of many
pronouncements of guilt. However, eyewitness identification is but a
product of flawed human memory. In an expansive examination of
250 cases of wrongful convictions where convicts were subsequently
exonerated by DNA testing, Professor Brandon Garett (Professor
Garett) noted that as much as 190 or 76% of these Wrongful
convictions were occasioned by flawed eyewitness
identifications.24 Another observer has more starkly characterized
eyewitness identifications as ''the leading cause of wrongful
convictions."25
Yet, even Professor Garrett's findings are not novel. The fallibility of
eyewitness identification has been recognized and has been the
subject of concerted scientific study for more than a century:
This seemingly staggering rate of involvement of eyewitness errors in

wrongful convictions is, unfortunately, no surprise. Previous studies
have likewise found eyewitness errors to be implicated in the majority
of cases of wrongful conviction. But Garrett's analysis went farther
than these previous studies. He not only documented that eyewitness
errors occurred in his cases. He also tried to determine why they
occurred - an issue eyewitness science has investigated for over 100
years.26
The dangers of the misplaced primacy of eyewitness identification are

two (2)-pronged: on one level, eyewitness identifications are
inherently prone to error; on another level, the appreciation by
observers, such as jurors, judges, and law enforcement officers of
how an eyewitness identifies supposed culprits is just as prone to
error:
The problem of eyewitness reliability could not be more clearly

documented. The painstaking work of the Innocence Project,
Brandon Garrett, and others who have documented wrongful
convictions, participated in the exonerations of the victims, and
documented the role of flawed evidence of all sorts has clearly and
repeatedly revealed the two-pronged problem of unreliability for
eyewitness evidence: (1) eyewitness identifications are subject to
substantial error, and (2) observer judgments of witness accuracy are
likewise subject to substantial error.27
The bifurcated difficulty of misplaced reliance on eyewitness

identification is borne not only by the intrinsic limitations of human
memory as the basic apparatus on which the entire exercise of
identification operates. It is as much the result of and is exacerbated
by extrinsic factors such as environmental factors, flawed procedures,
or the mere passage of time:
More than 100 years of eyewitness science has supported other

conclusions as well. First, the ability to match faces to photographs
(even when the target is present while the witness inspects the lineup
or comparison photo) is poor and peaks at levels far below what
might be considered reasonable doubt. Second, eyewitness accuracy
is further degraded by pervasive environmental characteristics typical
· of many criminal cases such as: suboptimal lighting; distance; angle
of view; disguise; witness distress; and many other encoding
conditions. Third, memory is subject to distortion due to a variety of
influences not under the control of law enforcement that occur
between the criminal event and identification procedures and during
such procedures. Fourth, the ability of those who must assess the
accuracy of eyewitness testimony is poor for a variety of reasons.
Witnesses' ability to report on many issues affecting or reflecting
accuracy is flawed and subject to distortion (e.g., reports of duration
of observation. distance, attention, confidence, and others). thereby
providing a flawed basis for others' judgments of accuracy.28
Likewise, decision-makers such as jurists and judges, who are

experts in law, procedure, and logic, may simply not know better than
what their backgrounds and acquired inclinations permit:
Additionally, the limits and determinants of performance for facial

recognition are beyond the knowledge of attorneys, judges, and
jurors. The traditional safeguards such as cross-examination are not
effective and cannot be effective in the absence of accurate
knowledge of the limits and determinants of witness performance
among both the cross-examiners and the jurors who must judge the
witness. Likewise, cross-examination cannot be effective if the
witness reports elicited by cross-examination are flawed: for example,
with respect to factors such as original witnessing conditions (e.g.,
duration of exposure), post-event influences (e.g., conversations with
co-witnesses), or police suggestion (e.g., repo1is of police comments
or behaviors during identification procedures).29
II
Legal traditions in various jurisdictions have been responsive to the

scientific reality of the frailty of eyewitness identification.
In the United States, the Supreme Court "ruled for the first time that
the Constitution requires suppression of some identification
evidence"30 in three (3) of its decisions, all rendered on June
12, 1967-United States v. Wade,31 Gilbert v. California, 32 and Stovall
v. Denno.33 Stovall emphasized that such suppression, when
appropriate, was "a matter of due process."34
Until the latter half of the twentieth century, the general rule in the
United States was that any problems with the quality of eyewitness
identification evidence went to the weight, not the admissibility, of that
evidence and that the jury bore the ultimate responsibility for
assessing the credibility and reliability of an eyewitness's
identification. In a trilogy of landmark cases released on the same
day in 1967, however, the Supreme Court ruled for the first time that
the Constitution requires suppression of some identification evidence.
In United States v. Wade and Gilbert v. California, the Court held that
a post-indictment lineup is a critical stage in a criminal prosecution,
and, unless the defendant waives his Sixth Amendment rights,
defense counsel's absence from such a procedure requires
suppression of evidence from the lineup. The court also ruled,
however, that even when the lineup evidence itself must be
suppressed, a witness would be permitted to identify the defendant in
court if the prosecution could prove the witness had an independent
source for his identification ...
….
In Stovall v. Denno, the Court held that, regardless of whether a

defendant's Sixth Amendment rights were in1plicated or violated,
some identification procedures are "so unnecessarily suggestive and
conducive to irreparable mistaken identification" that eyewitness
evidence must be suppressed as a matter of due process.35 (Citations
omitted)
In Wade, the United States Supreme Court noted that the factors
judges should evaluate in deciding the independent source question
include:
[T]he prior opportunity to observe the alleged criminal act, the

existence of any discrepancy between any pre-lineup description and
the defendant's actual description, any identification prior to lineup of
another person, the identification by picture of the defendant prior to
the lineup, failure to identify the defendant on a prior occasion, and
the lapse of time between the alleged act and the lineup
identification."36
Nine (9) months later, in Simmons v. United States, the United States
Supreme Court calibrated its approach by "focusing in that case on
the overall reliability of the identification evidence rather than merely
the flaws in the identification procedure."
Ultimately, the Court concluded there was no due process violation in

admitting the evidence because there was little doubt that the
witnesses were actually correct in their identification of Simmons.
Scholars have frequently characterized Simmons as the beginning of
the Court's unraveling of the robust protection it had offered
in Stovall; while Stovall provided a per se rule of exclusion for
evidence derived from flawed procedures, Simmons rejected this
categorical approach in favor of a reliability analysis that would often
allow admission of eyewitness evidence even when an identification
procedure was unnecessarily suggestive.37
In more recent Supreme Court decisions, the United States has

"reaffirmed its shift toward a reliability analysis, as opposed to a focus
merely on problematic identification procedures" beginning in 1972
through Neil v. Biggers:38
The Biggers Court stated that, at least in a case in which the
confrontation and trial had taken place before Stovall, identification
evidence would be admissible, even if there had been an
unnecessarily suggestive procedure, so long as the evidence was
reliable under the totality of the circumstances. To inform its reliability
analysis, the Biggers Court articulated five factors it considered
relevant to the inquiry:
[(l)] the opportunity of the witness to view the criminal at the time of
the crime, [(2)] the witness' degree of attention, [(3)] the accuracy of
the witness' prior description of the criminal, [(4)] the level of certainty
demonstrated by the witness at the confrontation, and [(5)] the length
of time between the crime and the confrontation.
The Biggers Court clearly proclaimed that the "likelihood of

misidentification," rather than a suggestive procedure in and of itself,
is what violates a defendant's due process rights. However,
the Biggers Court left open the possibility that per se exclusion of
evidence derived from unnecessarily suggestive confrontations might
be available to defendants whose confrontations and trials took place
after Stovall.39
The Biggers standard was further affirmed in 1977 in Manson v.

Brathwaite; 40
The Manson Court made clear that the standard from Biggers would
govern all due process challenges to eyewitness evidence, stating
that judges should weigh the five factors against the "corrupting effect
of the suggestive identification." Ultimately, the Court affirmed that
"reliability is the linchpin in determining the admissibility of
identification testimony." In rejecting the per se exclusionary rule, the
Court acknowledged that such a rule would promote greater
deterrence against the use of suggestive procedures, and it noted a
"surprising unanimity among scholars" that the per se approach was
"essential to avoid serious risk of miscarriage of justice." However,
the Court concluded the cost to society of not being able to use
reliable evidence of guilt in criminal prosecutions would be too high.
The Manson Court also made clear that its new stm1dard would
apply to both pre-trial and in-court identification evidence, thus
resulting in a unified analysis of all identification evidence in the wake
of suggestive procedures. In contrast, the Stovall Court had not
specified whether unnecessarily suggestive procedures would require
per se exclusion of both pre-trial identification evidence and any in-
court identification, or alternatively, whether witnesses who had
viewed unnecessarily suggestive procedures might nonetheless be
allowed to identify defendants in court after an independent source
determination.41
A 2016 article notes that Manson "remains the federal constitutional
standard."42 It' also notes that "[t]he vast majority of states have also
followed Manson in interpreting the requirements of their own
constitutions."43
The United Kingdom has adopted the Code of Practice for the
Identification of Persons by Police Officers.44 It "concerns the principal
methods used by police to identify people in connection with the
investigation of offences and the keeping of accurate and reliable
criminal records" and covers eyewitness identifications. This Code
puts in place measures advanced by the corpus of research in
enhancing the reliability of eyewitness identification, specifically by
impairing the suggestive tendencies of conventional procedures.
Notable measures include having a parade of at least nine (9) people,
when one (1) suspect is included, to at least 14 people, when two (2)
suspects are included45 and forewarning the witness that he or she
may or may not actually see the suspect in the lineup.46 Additionally,
there should be a careful recording of the witness' pre-identification
description of the perpetrator47 and explicit instructions for police
officers to not "direct the witness' attention to any individual."48
III
Domestic jurisprudence recognizes that eyewitness identification is

affected by "normal human fallibilities and suggestive
influences."49 People v. Teehankee, Jr. 50 introduced in this
jurisdiction the totality of circumstances test, which relies on factors
already identified by the United States Supreme Court in Neil v.
Biggers:51
(1) the witness' opportunity to view the criminal at the time of the
crime;
(2) the witness' degree of attention at that time; (3) the accuracy of
any prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length of
time between the crime and the identification; and, (6) the
suggestiveness of the identification procedure.52
A witness' credibility is ascertained by considering the first two

factors, i.e., the witness' opportunity to view the malefactor at the time
of the crime and the witness' degree of attention at that time, based
on conditions of visibility and the extent of time, little and fleeting as it
may have been, for the witness to be exposed to the perpetrators,
peruse their features, and ascertain their identity.53 In People v.
Pavillare: 54
Both witnesses had ample opportunity to observe the kidnappers and
to remember their faces. The complainant had close contact with the
kidnappers when he was abducted and beaten up, and later when the
kidnappers haggled on the amount of the ransom money. His cousin
met Pavillare face to face and actually dealt with him when he paid
the ransom money. The two-hour period that the complainant was in
close contact with his abductors was sufficient for him to have a
recollection of their physical appearance. Complainant admitted in
court that he would recognize his abductors if he s[aw] them again
and upon seeing Pavillare he immediately recognized him as one of
the malefactors as he remember[ed] him as the one who blocked his
way, beat him up, haggled with the complainant's cousin and
received the ransom money. As an indicium of candor the private
complainant admitted that he d[id] not recognize the co-accused,
Sotero Santos for which reason the case was dismissed against
him.55
Apart from extent or degree of exposure, this Court has also

appreciated a witness' specialized skills or extraordinary
capabilities.56 People v. Sanchez57 concerned the theft of an armored
car. The witness, a trained guard, was taken by this Court as being
particularly alert about his surroundings during the attack.
The degree of a witness' attentiveness is the result of many factors,

among others: exposure time, frequency of exposure, the criminal
incident's degree of violence, the witness' stress levels and
expectations, and the witness' activity during the commission of the
crime.58
The degree of the crime's violence affects a witness' stress levels. A

focal point of psychological studies has been the effect of the
presence of a weapon on a witness' attentiveness. Since the 1970s, it
has been hypothesized that the presence of a weapon captures a
witness' attention, thereby reducing his or her attentiveness to other
details such as the perpetrator's facial and other identifying
features.59 Research on this has involved an enactme1'1t model
involving two (2) groups: first, an enactment with a gun; and second,
an enactment of the same incident using an implement like a pencil
or a syringe as substitute for an actual gun. Both groups are then
asked to identify the culprit in a lineup. Results reveal a statistically
significant difference in the accuracy of eyewitness identification
between the two (2) groups:60
[T]he influence of [a weapon focus] variable on an eyewitness's

performance can only be estimated post hoc. Yet the data here do
offer a rather strong statement: To not consider a weapon's effect on
eyewitness performance is to ignore relevant information. The
weapon effect does reliably occur, particularly in crin1es of short
duration in which a threatening wea.pon is visible. Identification
accuracy and feature accuracy of eyewitnesses are likely to be
affected, although, as previous research has noted ... there is not
necessarily a concordance between the two.61
Our jurisprudence has yet to give due appreciation to scientific; data

on weapon focus. Instead, what is prevalent is the contrary view
which empirical studies discredit.62 For instance, in People v.
Sartagoda:
[T]he most natural reaction for victims of criminal violence [is] to strive
to see the looks a..11d faces of their assailants and observe the
manner in which the crime was committed. Most often the face of the
assailant and body movements thereof, create a lasting impression
which cannot easily be erased from their memory.63
Rather than a sweeping approbation of a supposed natural

propensity for remembering the faces of assailants, this Court now
emphasizes the need for courts to appreciate the totality of
circumstances in the identification of perpetrators of crimes.
Apart from the witness' opportunity to view the perpetrator during the
commission of the Grime and the witness' degree of attention at that
time, the accuracy of any prior description given by the witness is
equally vital. Logically, a witness' credibility is enhanced by the extent
to which his or her initial description of the perpetrator matches the
actual appearance of the person ultimately prosecuted for the
offense.
Nevertheless, discrepancies, when properly accounted for, should not

be fatal to the prosecution's case, For instance,
in Lumanog v. People,64 this Court recognized that age estimates
cannot be made accurately:
Though his estimate of Joel's age was not precise, it was not that far
from his true age, especially if we consider that being a tricycle driver
who was exposed daily to sunlight, Joel's looks may give a first
impression that he is older than his actual age. Moreover Alejo's
description of Lumanog as dark-skinned was made two (2) months
prior to the dates of the trial when he was again asked to identify him
in court. When defense counsel posed the question of the
discrepancy in Alejo's description of Lumanog who was then
prese11ted as having a fair complexion and was 40 years old, the
private prosecutor manifested the possible effect of Lumanog's
incarceration for such length of time as to make his appearance
different at the time of trial.65
The totality of circumstances test also requires a consideration of the
degree of certainty demonstrated by the witness at the moment of
identification. What is most critical here is the initial identification
made by the witness during investigation and case build-up, not
identification during trial.66
A witness' certainty is tested in court during cross-examination. In

several instances, this Court has considered a witness' straight and
candid recollection of the incident, undiminished by the rigors of
cross-examination as an indicator of credibility.67
Still, certainty on the witness stand is by no means conclusive. By the

time a witness takes the stand, he or she shall have likely made
narrations to investigators, to responding police or barangay officers,
to the public prosecutor, to any possible private prosecutors, to the
families of the victims, other sympathizers, and even to the media.
The witness, then, may have established certainty, not because of a
foolproof cognitive perception and recollection of events but because
of consistent reinforcement borne by becoming an experienced
narrator. Repeated narrations before different audiences may also
prepare a witness for the same kind of scrutiny that he or she will
encounter during cross-examination. Again, what is more crucial is
certainty at the onset or on initial identification, not in a relatively
belated stage of criminal proceedings.
The totality of circumstances test also requires a consideration of the

length of time between the crime and the identification made by the
witness. "It is by now a well established fact that people are less
accurate and complete in their eyewitness accounts after a long
retention interval than after a short one."68 Ideally then, a prosecution
witness must identify the suspect immediately after the incident. This
Court has considered acceptable an identification made two (2) days
after the commission of a crime,69 not so one that had an interval of
five and a half (5 1/2) months.70
The passage of time is not the only factor that diminishes memory.
Equally jeopardizing is a witness' interactions with other individuals
involved in the event.71 As noted by cognitive psychologist Elizabeth
F. Loftus, "[p]ost[-]event information can not only enhance existing
memories but also change a witness's memory and even cause
nonexistent details to become incorporated into a previously acquired
memory."72
Thus, the totality of circumstances test also requires a consideration

of the suggestiveness of the identification procedure undergone by a
witness. Both verbal and non-verbal information might become
inappropriate cues or suggestions to a witness:
A police officer may tell a witness that a suspect has been caught and
the witness should look at some photographs or come to view a
lineup and make an identification. Even if the policeman does not
explicitly mention a suspect, it is likely that the witness will believe he
is being asked to identify a good suspect who will be one of the
members of the lineup or set of photos ... If the officer should
unintentionally stare a bit longer at the suspect, or change his tone of
voice when he says, "Tell us whether you think it is number one, two,
THREE, four, five, or six," the witness's opinion might be swayed.73
In appraising the suggestiveness of identification procedures, this

Court has previously considered prior or contemporaneous74 actions
of law enforcers, prosecutors, media, or even fellow witnesses.
In People v. Baconguis,75 this Court acquitted the accused, whose

identification was tainted by an improper suggestion.76 There, the
witness was made to identify the suspect inside a detention cell which
contained only the suspect.77
People v. Escordiaz78 involved robbery with rape. Throughout their

ordeal, the victim and her companions were blindfolded.79 The victim,
however, felt a "rough projection''80 on the back of the perpetrator.
The perpetrator also spoke, thereby familiarizing the victim with his
voice.81 Escordial recounted the investigative process which resulted
in bringing the alleged perpetrator into custody. After several
individuals were interviewed, the investigating officer had an inkling of
who to look for. He "found accused-appellant [in a] basketball court
and 'invited' him to go to the police station for questioning."82 When
the suspect was brought to the police station, the rape victim was
already there. Upon seeing the suspect enter, the rape victim
requested to see the suspect's back. The suspect removed his shirt.
When the victim saw a "rough projection" on the suspect's back, she
spoke to the police and stated that the suspect was the perpetrator.
The police then brought in the other witnesses to identify the suspect.
Four (4) witnesses were taken to the cell containing the accused and
they consistently pointed to the suspect even as four (4) other
individuals were with him in the cell.83
This Court found the show-up, with respect to the rape victim, and the
lineup, with respect to the four (4) other witnesses, to have been
tainted with irregularities. It also noted that the out-of-court
identification could have been the subject of objections to its
admissibility as evidence although these objections were never raised
during trial.84
Although these objections were not timely raised, this Court found
that the prosecution failed to establish the accused's guilt beyond
reasonable doubt and acquitted the accused.85 It noted that the victim
was blindfolded throughout her ordeal. Her identification was
rendered unreliable by her own admission that she could only
recognize her perpetrator through his eyes and his voice. It reasoned
that, given the limited exposure of the rape victim to the perpetrator, it
was difficult for her to immediately identify the perpetrator. It found
the improper suggestion made by the police officer as having possibly
aided in the identification of the suspect.86 The Court cited with
approval the following excerpt from an academic journal:
Social psychological influences.Various social psychological factors

also increase the danger of suggestibility in a lh1eup confrontation.
Witnesses, like other people, are motivated by a desire to be correct
and to avoid looking foolish. By arranging a lineup, the police have
evidenced their belief that they have caught the criminal; witnesses,
realizing this, probably will feel foolish if they cannot identify anyone
and therefore1 may choose someone despite residual uncertainly.
Moreover, the need to reduce psychological discomfort often
motivates the victim of a crime to find a likely target for feelings of
hostility.
Finally, witnesses are highly motivated to behave like those around

them. This desire to conform produces an increased need to identify
someone in order to show the police that they, too, feel that the
criminal is in the lineup, and makes the witnesses particularly
vulnerable to any clues conveyed by the police or other witnesses as
to whom they suspect of the crime.87 (Emphasis in the original)
People v. Pineda, 88 involved six (6) perpetrators committing robbery

with homicide aboard a passenger bus.89 A passenger recalled that
one (1) of the perpetrators was referred to as "Totie" by his
companions. The police previously knew that a certain Totie Jacob
belonged to the robbery gang of Rolando Pineda (Pineda). At that
time also, Pineda and another companion were in detention for
another robbery. The police presented photographs of Pineda and his
companion to the witness, who positively identified the two (2) as
among the perpetrators.90
This Court found the identification procedure unacceptable.91 It then

articulated two (2) rules for out-of-court identifications through
photographs:
The first rule in proper photographic identification procedure is that a

series of photographs must be shown, and not merely that of the
suspect. The second rule directs that when a witness is shown a
group of pictures, their arrangement and display should in no way
suggest which one of the pictures pertains to the suspect.92
Non-compliance with these rules suggests that any subsequent
corporeal identification made by a witness may not actually be the
result of a reliable recollection of the criminal incident. Instead, it will
simply confirm false confidence induced by the suggestive
presentation of photographs to a witness.
Pineda further identified 12 danger signals that might indicate

erroneous identification. Its list is by no means exhaustive, but it
identifies benchmarks which may complement the application of the
totality of circumstances rule. These danger signals are:
(1) the witness originally stated that he could not identify anyone;
(2) the identifying witness knew the accused before the crime, but
made no accusation against him when questioned by the police;
(3) a serious discrepancy exists between the identifying witness'

original description and the actual description of the accused;
(4) before identifying the accused at the trial, the witness erroneously
identified some other person;
(5) other witnesses to the crime fail to identify the accused;
(6) before trial, the witness sees the accused but fails to identify him;
(7) before the commission of the crime, the witness had limited
opportunity to see the accused;
(8) the witness and the person identified are of different racial groups;
(9) during his original observation of the perpetrator of the crime, the
witness was unaware that a crime was involved;
(10) a considerable time elapsed between the witness' view of the

criminal and his identification of the accused;
(11) several persons committed the crime; and
(12) the witness fails to make a positive trial identification.93
Pineda underscored that "[t]he more important duty of the

prosecution is to prove the identity of the perpetrator and not to
establish the existence of the crime."94 Establishing the identity of
perpetrators is a difficult task because of this jurisdiction's tendency
to rely more on testimonial evidence rather than on physical
evidence. Unlike the latter, testimonial evidence can be swayed by
improper suggestions. Legal scholar Patrick M. Wall notes that
improper suggestion "probably accounts for more miscarriages of
justice than any other single factor[.]"95 Marshall Houts, who served
the Federal Bureau of Investigation and the American judiciary,
concurs and considers eyewitness identification as "the most
unreliable form of evidence[.]"96
People v. Rodrigo97 involved the same circumstances as Pineda. The

police presented a singular photograph for the eyewitness to identify
the person responsible for a robbery with homicide. The witness
identified the person in the photograph as among the perpetrators.
This Court stated that, even as the witness subsequently identified
the suspect in court, such identification only followed an
impermissible suggestion in the course of the photographic
identification. This Court specifically stated that a suggestive
identification violates the right of the accused to due process, denying
him or her of a fair trial:98
The greatest care should be taken in considering the identification of

the accused especially, when this identification is made by a sole
witness and the judgment in the case totally depends on the reliability
of the identification. This level of care and circumspection applies with
greater vigor when, as in the present case, the issue goes beyond
pure credibility into constitutional dimensions arising from the due
process rights of the accused.
….
The initial photographic identification in this case carries serious

constitutional law implications in terms of the possible violation of the
due process rights of the accused as it may deny him his rights to a
fair trial to the extent that his in-court identification proceeded from
and was influenced by impermissible suggestions in the earlier
photographic identification. In the context of this case, the
investigators might not have been fair to Rodrigo if they themselves,
purposely or unwittingly, fixed in the mind of Rosita, or at least
actively prepared her mind to, the thought that Rodrigo was one of
the robbers. Effectively, this act is no different from coercing a
witness in identifying an accused, varying only with respect to the
means used. Either way, the police investigators a.re the real actors
in the identification of the accused; evidence of identification is
effectively created when none really exists.99 (Emphasis supplied)
IV
Applying these standards, this Court finds the identification made by

prosecution witnesses Cruz and Perez unreliable. Despite their
identification, there remains reasonable doubt if accused-appellant
Nuñez is the same Pobre who supposedly committed the robbery
with homicide along with Marciales and Nabia.
The prosecution banks on the following portion of Cruz's
testimony.100 The Court of Appeals heavily relies on the same portion,
reproducing parts of it in its Decision:101
Q: Madam Witness, where were you on June 22, 2000 in the

afternoon?
A: I was on duty at Tayuman Caltex station, Ma'am.
Q: And while you were on duty, what happened if any?
A: While we were on duty there was a pick-up which was getting gas
and a person was in front and we were joking baka kami mahold-up
yun pala, hinoholdup na kami sa opisina.
Q: You mentioned that there was already hold-up happening?
A: Yes, Ma'am.
Q: What time was that when you noticed that holdup?
A: Around 8:00p.m.
Q: Where was the hold-up going on?
A: In the office, Ma'am.
Q: And how far is that office from where you were at that time, how
many meters?
A: From here to the wall of the court.
Court:
Anyway, I have the reference.
Prosecutor Aragones:
Q: What happened after you saw that there was [a] hold[-up] going on
inside the office of the Caltex Station?
A: After that me and my companions ran to the computer shop which

is beside the office.
Q: By the way, why were you at the Caltex gasoline station?
A: I was an attendant, Ma'am.
Q: You mentioned that you proceeded to the computer shop which is

beside the office?
A: Yes, Ma'am.
Q: Where did you run, inside or outside the computer shop?
A: Inside, Ma'am.
Q: Before you went inside, what did you witness after you saw that
there was hold-up inside the office?
A: I saw that one of our companions, a gun was pointed to him and
also to our employer.
Q: Who was your companion you saw who was pointed with a gun?
A: Alex Diaz, and Kuya Alex my employer.
Q: Who were those persons who pointed guns to your co-worker and
to your employer?
A: The two accused who were first arrested.
Q: Aside from the two accused, do they have other companions?
A: Yes, Ma'am.
Q: Who was that person who was also with the two accused?
A: Paul Pobre.
Q: By the way, who were those two accused you are referring to
according to you were arrested?
A: George Marciales and I cannot remember the other one.
Q: You mentioned of the name Paul Pobre, kindly look around if there
is any Paul Pobre in court?
A: Yes, Ma'am, he is here.
Q: Can you point to him?
A: He is that one (pointing)
INTERPRETER;
Witness is pointing to a person wearing yellow shirt who when asked

gave his name as Crisanto Pepafio.
PROSECUTOR ARAGONES:
Q: Who told you that the name of that person is Paul Pobre?
A: Kuya Rommel
Q: Who is Kuya Rommel?
A: Brother of my employer Kuya Alex.
Q: Who was apprehended in Laguna?
A: He is the one, Paul Pobre.
Q: What was the participation of that person you pointed to as being

the companion of accused George Marciales and the other one?
A: He was the one who entered last and who shot.
COURT:
Q: Who did he shoot?
A: Kuya Alex.102
The prosecution similarly banks on the narration and identification

made by Perez:
Q: Madam Witness when Alex, the accused you pointed a while ago,
the other accused Marciales and your boss, all of them were inside
the computer shop, the office of Caltex?
A: At first no[,] ma'am[.] Nagsimula po kasi andoon po kami sa labas

may lalaking nakatayo po doon sa malapit sa road, sya po yung na[]
identify before as George Marciales. Ang nakita po lang naming una
sa loob apat po sila si boss, si Alex, that man (Nunez) and the man
identified before as Orly Nabia.
Q: Where were you at that time when these four persons were inside
the office?
A: We were sitting in an island near the three pumps in front of the

gas station[,] ma'am.
Q: The office in relation to that island is at the back, is that correct?
A: Yes[,] ma'am.
Q: There were no customers at that time?
A: None[,] ma'am.
Q: The cashier were (sic) Alex is positioned is facing you[.] [I]s that
correct?
A: Yes[,] ma'am.
Q: So it was the back of the accused that you saw, is that correct?
A: No[,] ma'am. Sa pinto po kasi yung register namin e. So andito po

si Alex nakatungo po sya andito po yung accused naka[-]ganito po
sya, nakatutok pos a (sic) kanya. (Witness was standing while
demonstrating the incident between the accused and Alex inside the
office) very clear po yung itsura nya nung nakita po namin sya.
Q: How far is that island from the cashier, from the place you were
seated right now?
A: Around 4 to 5 meters[,] ma'am.
Q: Were you able to hear the conversation considering that distance

of 4 to 5 meters?
A: I heard nothing[,] ma'am[,] except when Alex shouted[,] "Byron

tulong, hinoholdap tayo[.]"
Q: Alex was shouting while he was still inside the office?
A: Yes[,] ma'am.
Q: And it was Byron who ran towards the office?
A: The first one was George Marciales, Byron only followed him.
Q: Where was George Marciales before he entered that office?
A: He was near the road[,] ma'am.
Q: But that is not within the gas station's premises?
A: Bali eto po yung pinaka sementado, andito sya. (Witness referring

to the place where Marciales is)
Q: When you said the cemented area, you were referring to the
National road?
A: Yes[,] ma'am.
Q: After Byron went inside the said office, were you able to see what
happened inside?
A: Yes[,] ma'am. Nakasuntok po sya ng isa kay George tapos
tinadyakan po siya sa tagiliran tsaka binaril po sya. Tapos bumagsak
napo (sic) sya.
Q: You were still outside your office at that time?
A: Yes[,] ma'am.
Q: Nobody was with you at that time aside from your co-employees,
only the accused was inside at that time?
A: Yes[,] ma'am.
Q: You did not run or ask for help considering that that Caltex is along
the National road? A: Honestly speaking[,] we were not able to say
anything at that time[,]ma'am.
A: After po ng pag shoot sa kanila tumakbo po kami ni Rona doon sa

may computer shop, sa bahay po nila. Pagkaraan po ng ilang minuto
lumabas kami nakita po naming sila na nagtatakbuhan together with
Kuya Lawrence. Nakita po naming (sic) sila na tumatakbo, yung
dalawa papuntang Angono, yung isa hindi ko na po alam kung [saan]
nagpunta. Nakita na lang po naming si boss na gmnagapang asking
for help.103
The Court of Appeals also favorably cited the following identification

made by Perez:
Prosecutor Aragones
Q : Now can you look inside the court and tell us if there is anybody
here who took part in that incident or involved in that incident?
Relen Perez
A: Him[,] ma'am. (witness pointing to the accused)
Q: What was the participation of that man whom you pointed today in
that robbery with homicide incident in Caltex gasoline station?
A: He was the one who was pointing a gun to my co-employee

Alexander Diaz[,] ma'am.104
These identifications are but two (2) of a multitude of circumstances

that the Regional Trial Court and the Court of Appeals should have
considered in determining whether or not the prosecution has
surmounted the threshold of proof beyond reasonable doubt.
Lamentably, they failed to give due recognition to several other
factors that raise serious doubts on the soundness of the
identification made by prosecution witnesses Cruz and Perez.
First and most glaringly, Cruz had previously admitted to not

remembering the appearance of the fourth robber, the same person
she would later claim with supposed certainty as Nuñez. In the
original testimony she made in Marciales and Nabia's trial in 2002,
she admitted to her inability to identify the fourth robber:
Fiscal Dela Cuesta
Q: Can you describe the other holdupper during that date and time
who were the companions of George Marciales?
Ronalyn Cruz
A: I cannot describe them[,] ma 'am.
Q: Why can you not describe the appearance of the other holdupper?
A: I cannot remember their appearances, ma 'am.
….
Fiscal Dela Cuesta
Q: At what particular point in time that the 4th holdupper went inside
the office?
Ronalyn Cruz
A: When they were wrestling with each other, ma'am.
Q: Was that before the shooting or after?
A: Before the shooting[,] ma'am.105
Second, by the time Cruz and Perez stood at the witness stand and
identified Nuñez, roughly eight (8) years had passed since the
robbery incident.
Third, as the People's Appellee's Brief concedes, witnesses'

identification of Nunez did not come until after he had been arrested.
In fact, it was not until the occasion of his arraigmnent,106 Nuñez was
the sole object of identification, in an identification process that had
all but pinned him as the perpetrator.
VI
Cruz's admission that she could not identify the fourth robber
anathemized any subsequent identification. Moreover, the
prosecution, the Court of Appeals, and the Regional Trial Court all
failed to account for any intervening occurrence that explains why
and how Cruz shifted from complete confusion to absolute certainty.
Instead, they merely took her and Perez's subsequent identification
as unassailable and trustworthy because of a demeanor apparently
indicating certitude.
The conviction of an accused must hinge less on the certainty

displayed by a witness when he or she has already taken the stand
but more on the certainty he or she displayed and the accuracy he or
she manifested at the initial and original opportunity to identify the
perpetrator. Cruz had originally admitted to not having an iota of
certainty, only to make an unexplained complete reversal and
implicate Nunez as among the perpetrators. She jeopardized her own
credibility.
Cruz's and Perez's predicaments are not aided by the sheer length of
time that had lapsed from the criminal incident until the time they
made their identifications. By the time Cruz made the identification,
seven (7) years and eight (8) months had lapsed since June 22,
2000. As for Perez, eight (8) years and nine (9) months had already
lapsed.
In People v. Rodrigo, 107 this Court considered a lapse of five and a

half (5 1/2) months as unreliable. Hence, there is greater reason that
this Court must exercise extreme caution for identifications made
many years later. This is consistent with the healthy sense of
incredulity expected of courts in criminal cases, where the
prosecution is tasked with surmounting the utmost threshold of proof
beyond reasonable doubt.
It is not disputed that Nunez's identification by Cruz and Perez was

borne only by Nunez's arrest on July 2, 2006. The prosecution even
acknowledged that his identification was initially done only to defeat
his motion to have the case against him dismissed.108 Evidently,
Nuñez's identification before trial proper was made in a context which
had practically induced witnesses to identify Nuñez as a culprit. Not
only was there no effort to countervail the likelihood of him being
identified, it even seemed that the prosecution and others that had
acted in its behalf such as tile apprehending officers, had actively
designed a situation where there would be no other possibility than
for him to be identified as the perpetrator of the crime.
The dubiousness of Nunez's presentation for identification is further

exacerbated by the circumstances of his apprehension. In a
Manifestation filed with the Court of Appeals, and which, quite
notably, the prosecution never bothered repudiating, Nunez
recounted how his apprehension appeared to have been borne by
nothing more than the crudeness and sloth of police officers:
6). That, the truth of the matter as far as the offended charged
against me, I ha[ve] no any truthfulness (sic) nor having any reality as
it was indeed only a mere strong manufactured, fabricated and
unfounded allegations against me just to get even with me of my
[untolerable] disciplinary actions of some individuals who had a
personal grudge against me.
….
9). That, with all due respect, I ha[ve] nothing to do with the offensed
(sic) charged and it is not true that the case was done was charged
against me it is Paul Borbe y Pipano it was wrong person pick-up by
the police officer, because the said Paul Borbe y [P]ipano was
charged of several crimes, while me my record has no single offense
against me.
10). That, with due respect, there was no truthfulness that I was the
one who committed the said crime, it was a big mistake because we
have the [same 1 family name they just pick up the wrong person
which is innocent to the said crime.
11). That, with all due respect, it was not true, also that it was me who
committed the said crime, it was Paul Borbe y Pipano is the one
because he was habitual in doing crime in our community, in fact my
record is clean never been committed any crime in my life, I am a
concern citizen who can help our community well.109 (Emphasis
supplied)
The identification made during Nunez's trial, where eyewitnesses

vaunted certainty, was but an offshoot of tainted processes that
preceded his trial. This Court finds Nunez's identification prior to trial
bothersome and his subsequent and contingent identification on the
stand more problematic.
Nunez's identification, therefore, fails to withstand the rigors of the

totality of circumstances test. First, the witnesses failed to even give
any prior description of him. Second, a prosecution witness failed to
exhibit even the slightest degree of certainty when originally given the
chance to identify him as the supposed fourth robber. Third, a
significantly long amount of time had lapsed since the criminal
incident; the original witness' statement that none of his features were
seen as to enable his identification; and the positive identification
made of him when the case was re-opened. And finally, his
presentation for identification before and during trial was peculiarly,
even worrisomely, suggestive as to practically induce in prosecution
witnesses the belief that he, to the exclusion of any other person,
must have been the supposed fourth robber.
These deficiencies and the doubts over Cruz's and Perez's

opportunity to peruse the fourth robber's features and their degree of
attentiveness during the crime clearly show that this case does not
manage to satisfy even one (1) of the six (6) factors that impel
consideration under the totality of circumstances test.
VII
Recall that both prosecution witnesses Cruz and Perez

acknowledged the extreme stress and fright that they experienced on
the evening of June 22, 2000.1âwphi1 As both Cruz and Perez
recalled, it was enough for them to run and seek refuge in a computer
shop. Their tension was so palpable that even Cruz's and Perez's
recollections of what transpired and of how Nuñez supposedly
participated in the crime are so glaringly different:
According to Cruz, two (2) other persons initiated the robbery, by

pointing guns at Regencia and Diaz inside the gasoline station's
office. It was supposedly only later, when Diaz shouted, that a third
robber, Marciales, and a fourth robber, allegedly Nunez, ran in, to
assist the first two (2) robbers. In contrast, Perez claimed that Nuñez
was one (1) of the two (2) robbers who were initially already in the
office. Nunez was then supposedly pointing a gun at Diaz while the
other robber was pointing a gun at Regencia.
They both claim that after Diaz shouted, the first two (2) robbers
received assistance. Cruz, however, claims that two (2) additional
robbers came to the aid of the first two (2), while Perez claims that
there was only one (1) additional robber.
In the scuffle that ensued in the office, Cruz claims that Marciales
shot Dimatulac while Nunez shot Diaz. For her part, Perez claims that
Marciales was the only one who fired shots at Regencia, Diaz, and
Dimatulac.
Jurisprudence holds that inconsistencies in the testimonies of

prosecution witnesses do not necessarily jeopardize the
prosecution's case.110 This, however, is on1 y true o f mm. or m.
consistencies that are ultimately inconsequential or merely incidental
to the overarching narrative of what crime was committed; how,
when, and where it was committed; and who committed it. "It is well-
settled that inconsistencies on minor details do not affect credibility as
they only refer to collateral matters which do not touch upon the
commission of the crime itself."111
The inconsistencies here between Cruz and Perez are far from trivial.
At issue is precisely the participation of an alleged conspirator whose
name the prosecution did not even know for proper indictment. Yet,
where the prosecution witnesses cannot agree is also precisely how
the person who now stands accused actually participated in the
commission of the offense. Their divergences are so glaring that they
demonstrate the prosecution's failure to establish Nunez's complicity.
VIII
These failings by the prosecution vis-a-vis the totality of

circumstances test are also indicative of many of the 12 danger
signals identified in People v. Pineda12 to be present in this case. On
the first, fifth, and twelfth danger signals, prosecution witness Cruz
originally made an unqualified admission that she could not identify
the fourth robber. On the third danger signal, there is not even an
initial description ·with which to match or counter-check Nuñez. On
the tenth danger signal, a considerable amount of time had passed
since Cruz and Perez witnessed the crime and their identification of
Nunez. On the eleventh danger signal, several perpetrators
committed the crime.
IX
Conviction in criminal cases demands proof beyond reasonable

doubt. While this does not require absolute certainty, it calls for moral
certainty.1âwphi1 It is the degree of proof that appeals to a
magistrate's conscience:
An accused has in his favor the presumption of innocence which the

Bill of Rights guarantees. Unless his guilt is shown beyond
reasonable doubt, he must be acquitted. This reasonable doubt
standard is demanded by the due process clause of the Constitution
which protects the accused from conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged. The burden of proof is on the
prosecution, and unless it discharges that burden the accused need
not even offer evidence in his behalf, and he would be entitled to an
acquittal. Proof beyond reasonable doubt does not, of course, mean
such degree of proof as excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind. The
conscience must be satisfied that the accused is responsible for the
offense charged.113
This Court is unable to come to a conscientious satisfaction as to

Nuñez's guilt. On the contrary, this Court finds it bothersome that a
man of humble means appears to have been wrongly implicated, not
least because of lackadaisical law enforcement tactics, and has been
made to suffer the severity and ignominy of protracted prosecution,
intervening detention, and potential conviction. Here, this Court puts
an end to this travesty of justice. This Court acquits accused-
appellant.
WHEREFORE, premises considered, the Decision dated June 26,

2013 of the Court of Appeals in CA-G.R. CR-HC No. 04474 is
REVERSED and SET ASIDE. Accused-appellant Crisente Pepaño
Nuñez is ACQUITTED for reasonable doubt. He is ordered
immediately RELEASED from detention, unless confined for any
other lawful cause.
Let a copy of this Decision be furnished to the Director of the Bureau

of Corrections, Muntinlupa City, for immediate implementation. The
Director of the Bureau of Corrections is directed to report to this Court
within five (5) days from receipt of this Decision the action he has
taken. A copy shall also be furnished to the Director General of
Philippine National Police for his information.
Let entry of judgment be issued immediately.
SO ORERED.
MARVIC M.V.F. LEONEN

Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson
LUCAS P. BERSAMIN SAMUEL R. MARTIRES

Associate Justice Associate Justice
ALEXANDER G. GESMUNDO
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to the Section 13, Article VIII of the Constitution and the
Division Chairperson’s Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes
1
Rollo, pp. 2-17. The Decision was penned by Associate Justice
Ramon A. Cruz and concurred in by Associate Justices Noel G. Tijam
and Romeo F. Barza of the Seventh Division, Court of Appeals,
Manila.
2
CA rollo, pp. 18-21. The Decision, docketed as Crim. Case No. 00-
473, was penned by Presiding Judge Dennis Patrick Z. Perez.
3
REV. PEN. CODE, art. 294(1) provides: Article 294. Robbery with
violence against or intimidation of persons- Penalties. -Any person
guilty of robbery with the use of violence against or intimidation of any
person shall suffer: 1. The penalty of reclusion perpetua to death,
when by reason or on occasion of the robbery, the crime of homicide
shall have been committed.
4
Rollo, p. 3.
5
CA rollo, p. 73.
6
Id. at 108 and rollo, pp. 3-4.
7
Rollo, pp. 3-4.
8
CA rollo, pp. 108-109.
9
Rollo, pp. 4-5.
10
Id. and CA rollo, pp.111-113.
11
Id. at 5 and CA rollo, pp. 114-116.
12
Id. at 5-6.
13
14
Id. at 19.
15
Id. at 21.
16
Rollo, p. 6.
17
Id. at 2-17.
18
Id. at 16.
19
Id. at 19-20.
20
Id. at 1.
21
Id. at 24.
22
Id. at 27-30, Manifestation of the Office of the Solicitor General on
behalf of the People of the Philippines, and rollo, pp. 31-34,
Manifestation of Nuñez.
23
Elizabeth F. Loftus et a., Beyond the Ken – Testing Jurors’
Understanding of Eyewitness Reliability Evidence , 46 JURIMETRICS
177 (2005).
24
Deborah Davis and Elizabeth F. Loftus, Dangers of Eyewitnesses
for the Innocent; Learning from the Past and Projecting into the Age
of Social Media, 46 NEW ENG. L. REV. 769, 769 (2012).
25
Sandra Guerra Thompson, Dauberi Gatekeeping for Eyewitness
Identifications, 65
26
Deborah Davis and Elizabeth F. Loftus, Dangers of Eyewitnesses
for the Innocent: Learning from the Past and Projecting into the Age
of Social Media, 46 NEW ENG. L. REV. 769, 770 (2012).
27
Id. at 808.
28
Id.
29
Id.
30
Nicholas A. Kahn-Fogel, The Promises and Pitfalls of State
Eyewitness Identification Reforms, 104 KY. L.J. 99 (2016).
31
388 U.S. 218 (1967).
32
388 U.S. 263 (1967).
33
388 U.S. 293 (1967).
34
Id.
35
Nicholas A. Kahn-Fogel, The Promises and Pi(falls of State
Eyewitness Identification Reforms, 104 KY. L.J. 99, 104-105 (2016).
36
United States v. Wade, 3 88 U.S. at 24 I (I 967).
37
Id.
38
409 U.S. 188 (1972).
39
Eyewitness Identification Reforms, 104 KY. L.J. 99 (2016):
40
432 U.S. 98, 114 (1977).
41
Eyewitness Identification Reforms, 104 KY. L.J. 99 (2016).
42
Id.
43
Id.
44
Code of Practice for the Identification of Persons by Police Officers,
available at
<https://www.gov.uk/g9vemment/uploads/system/upload$1attachmen
t_data/file/ 181118/pace-coded 2008.pdf> (last visited October 3,
2017).
45
Annex B, par. 9. Available at
<https://www.gov.uk/govemment/uploads/system/uploads/attachment
data/file/181118/pace-coded 2008,pdf.> (last visited October 3,
2017).
46
Annex B, par. 16. Available at
<https://www.gov.uk/government/uploads/system/uploads/attachment
_ data/file/181118/pace-coded 2008.pdf> (last visited October 3,
2017).
47
sec. 3.2(a). Available at
<https://www.gov.uk/government/uploads/system/uploads/attachment
_data/file/181118/pace-coded_ 2008.pdf> (last visited October 3,
2017).
48
sec. 3.2(b). Available at
<https://www.gov.uk/governmen.t/uploacls/system/uploads/attachme
nt_ data/file/181118/pace-coded _2008.pdf.> (last visited October 3,
2017).
49
People v. Teehankee, Jr., 319 Phil. 128, 179 (1995) [Per J. Puno,
Second Division]. See also Dissenting Opinion of J. Leonen in People
v. Pepino, G.R. No. 174471, January 12, 2016,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file""fjurisprudence/
2016/january2016/174471_leonen. pdf.> [Per J. Brion, En Banc).
50
319 Phil. 128 (1995) [Per J.Puno, Second Division].
51
409 U.S. 188 (1972).
52
People v. Teehankee, Jr., 319 Phil. 128, 180, citing Neil v.
Biggers, 409 US 188 (1973); Manson v. Brathwaite, 432 us 98
(1977); DEL CARMEN, CRIMINAL PROCEDURE, LAW AND
PRACTICE 346 (3rd ed.) [Per J. Puno, Second Division].
53
See Dissenting Opinion of J. Leonen in People v. Pepino, G.R. No.
174471; January 12, 2016, <http://sc.judiciary.gov.
ph/pdf/web/viewer.html?file=/j
urisprudence/20l6/january2016/174471_leonen. pdf> [Per J. Brion,
En Banc].
54
386 Phil. 126 (2000) [Per Curiam, En Banc].
55
Id. at 144.
56
See Dissenting Opinion of J. Leonen in People v. Pepino, G.R. No,
174471, January 12, 2016,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/
20l6/january2016/ 1744 71_leonen.pdf> [Per J. Brion, En Banc].
57
318 Phil. 547 (1995) [Per Kapunan, First Division].
58
ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY 23-51
(1996). See also Dissenting Opinion of J. Leonen in People v.
Pepino, G.R. No. 174471, January 12, 2016,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/
2016/january2016/174471_leonen.pdf> [Per J. Brion, En Banc].
59
Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon
Focus Effect, 16 LAW AND HUMAN BEHAVIOR 413, 414 (1992).
60
Id. at 420.
61
Id. at 421.
62
See Dissenting Opinion of J. Leonen ln People v. Pepino, Q.R. No.
174471, January 12, 2016, <http://so.judiciary.gov.ph/pdf/web/viewer.
html?file=/jurisprudence/2016/january2016/174471_leonen.pdf> [Per
J. Brion, En Banc].
63
People v. Sartagoda 2.93 Phil. 259, (1993) [Per J. Campos, Jr ..
Second Division].
64
644 Phil. 296 (2010) [Per J. Villarama, Jr., En Banc].
65
Id. at 400-401.
66
See also Dissenting Opinion of J. Leonen in People v. Pepino, G.R.
No. 174471, January 12, 2016,
<http;//sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/
2016/january2016/174471_leonen.pdf> [Per J. Brion, En Banc].
67
See People v. Rar1ios, 371 Phil. 66, 76 (1999) [Per Curiam, En
Banc]; and People: v. Guevarra, 258-A Phil. 909, 916-918 (1989) [Per
J. Sarmiento, Second Division].
68
ELIZABETH F. LOFTUS, EYEWITNGSS TESTIMONY 53 (1996).
69
People v. Teehankee, .Jr., 319 Phil. 128, 152 (1995) [Per J. Puno,
Second Division].
70
People v. Rodrigo, 586 Phil. 515, 536 (2008) [Per J. Brion, Second
Division].
71
ELIZABETH F. LOfTUS, EYEWITNESS TESTIMONY 54-55
(1996).
72
Id. at 55.
73
ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY 73.74
(1996).
74
People v. Algarme, et al., 598 Phil. 423, 444 (2009) [Per J, Brion,
Second Division].
75
462 Phil. 480 (2003) [Per J. Carpio Morales, En Banc].
76
Id. at 495 to 496.
77
Id. at 494.
78
424 Phil. 627 (2002) [Per J. Mendoza, En Banc].
79
Id. at 633.
80
Id. at 635.
81
Id. at 639.
82
Id,
83
Id.
84
Id. at 652-654.
85
Id. at 665.
86
Id at 659-662.
87
Id. at 659, citing Frederic D. Woocher, Did Your Eyes Deceive
You? Expert Psychological Testimony on the Unreliability of
Eyewitness Identification, 29 STAN L. REV 969 (1977).
88
4 73 Phil. 517 (2004) [Per J. Carpio, En Banc].
89
Id. at 522.
90
Id. at 536.
91
Id. at 540.
92
Id. at 540, citing PATRICK M. WALL, EYE-WITNESS
IDENTIFICATION IN CRIMINAL CASES 74 and 81 (1965).
93
Id. at 547-548, citing PATRICK M. WALL, EYE-WITNESS
IDENTIFICATION IN CRIMINAL CASES 90-130 (1965). .
94
Id. at 548.
95
PATRICK M. WALL, EYE" WITNESS IDENTIFICATION IN
CRIMINAL CASES 26 (1965).
96
MARSHALL HOUTS, FROM EVIDENCE TO PROOF 10-11 (1956).
97
586 Phil. 515 (2008) [Per J. Brion, Second Division].
98
Id. at 529.
99
Id. at 528-530.
100
101
RoIIo, pp. 9-10.
102
103
CA Rollo, pp. 114-116.
104
Rollo, p. 10.
105
Id. at 7.
106
CA rollo, pp, 108-109.
107
586 Phil. 515, 536 (2008) [Per J. Brion, Second Division].
108
CA rollo, p. 109.
109
110
Jurisprudence even holds that "minor inconsistencies and
contradictions in the declarations of witnesses do not destroy the
witnesses' credibility, but even enhance their truthfulness as they
erase any suspicion of a rehearsed testimony." People v.
Arcega, G.R. No. 96319, March 31, 1992, 207 SCRA 681, 687 [Per J.
Melencio-Herrera, Second Division], citing People v. Payumo, 265
Phil. 65 (1990) [Per J. Cortes, Third Division].
111
People v. Canada, 228 Phil. 121, 128 (1986) [Per J. Gutierrez, Jr.,
Second Division] citing People v. Pelias Jones, 221 Phil. 535 (1985)
[Per J. Gutierrez, Jr., First Division]; People v. Balane, 208 Phil. 537
(1983) [Per J. Gutierrez, Jr., En Banc]; People v. Alcantara, 144 Phil.
623 (1970) [Per J. Castro, En Banc]; People v. Escoltero, 223 Phil.
430 (1985) [Per J. Gutierrez, Jr., First Division].
112
473 Phil. 517 (2004) [Per J. Carpio, En Banc].
113
People v. Ganguso, 320 Phil. 324, 335 (1995) [Per J. Davide, Jr.,
First Division], citing CONST., art. III, sec. 14(2); RULES OF COURT,
Rule 133, sec. 2; People vs. Garcia, 284-A Phil. 614 (1992) [Per J.
Davide, Jr., Third Division]; People vs. Aguilar, 294 Phil. 389 (1993)
[Per J. Davide, Jr., Third Division]; People vs. Dramayo,149 Phil. 107
(1971) [Per J. Fernando, En Banc]; People vs. Matrimonio, 290 Phil.
96 (1992) [Per J. Davide, Jr., Third Division]; and People vs.
Casinillo, 288 Phil. 688 (l992) [Per J. Davide, Jr., Third Division].
Dapat , together with the confidential agent, went to the house

occupied by accused. Upon reaching the area, the duo saw accused
standing outside the door of his house. Accused met PO2 Dapat and the
confidential agent by the gate. The confidential agent introduced PO2
Dapat to accused saying, : “Mig, migo ko gali, ma score kami tani”.
Accused asked confidential agent, “Pila inyo mig haw?” to which the
confidential agent replied” Balur 3 hund amon mig”. When accused
demanded for the money, PO2 Dapat handed to him the Three Hundred
peso (P300.00) buy-bust money.
Accused invited PO2 Dapat and the confidential agent into the
house. Inside the house, accused joined four (4) persons, later identified
as Rico Velasquez y Corpus, Emmanuel Diamante y Bayotas, Jerry
Magbanua y Orbita and Sheddah Apawan y Diaz, around the small table
for a pot session. Later, accused handed an elongated plastic sachet to
the confidential agent and in turn, the confidential agent handed the
sachet to PO2 Dapat. Upon receipt of the sachet and checking that the
content is indeed “shabu”, PO2 Dapat made the pre-arranged signal. PO2
Dapat introduced himself as a police officer. Accused and his other
companions tried to escape but PO2 Dapat was able to grab accused
while the other CAID-SOTG operatives arrested the four (4) companions
of accused. PO2 Dapat apprised accused and the four (4) persons of
their violations and their constitutional rights.”
These statements of the prosecution witness were unbelievable if

not absurd because accused before May 27, 2013 personally knew PO2
Dapat, as one of the CAID-SOTG operatives based at Magsaysay Avenue,
Bacolod City. In his Judicial Affidavit, accused testified:
Q15: PO2 Dapat, in his affidavit, mentioned that he conducted

buy-bust operation against you in the afternoon of May 27, 2013 at your
-8-
house located at Purok Sigay, Barangay 2, Bacolod City, what can you
say about that?
A15: That is not true because I was in my house at that time
sleeping and besides I already knew Dave Dapat as police officer of
Bacolod City long before May 27, 2013 at their office at the Bacolod City
Philippine National Police, Barangay Taculing, Bacolod City, when I
visited my wife and I frequently saw him at Purok Sigay, Barangay 2,
Bacolod City together with his fellow police officers;
With the above-statements of the accused that he knew PO2

Dapat before May 27, 2013 as police officer because he saw him at their
office at CAID-SOTG, Bacolod City, when he visited his wife there and he
saw him frequently at Purok Sigay, Barangay II, Bacolod City, it leaves us
no doubt that the introduction made by the confidential agent between
PO2 Dapat and accused was not true. It is only a natural reaction for
any person selling illegal items to avoid transactions with any police
officer unless he wanted to be immediately arrested. Nobody in this
world after engaging in illegal activities wanted to be arrested and
incarcerated.
“In the case of People vs. Archie Distrito, September, 1992, G. R.
No. L-055-40, the trial court convicted the accused on the basis of the
testimony of the arresting officer that accused allegedly sold him a
prohibited drug. During the trial, it was not disputed that accused knew
the arresting officer as a police officer for many years.
Accused was acquitted on appeal because the Supreme Court

could not believe that accused could not have been foolish as to do
business with the arresting officer whom he knew was a policeman.”
Another point that the prosecution’s evidence deserves to be

given a scant consideration was the fact that “accused invited PO2 Dapat
and the confidential agent into the house. Inside the house, accused
joined four (4) persons, later identified as Rico Velasquez y Corpus,
Emmanuel Diamante y Bayotas, Jerry Magbanua y Orbita and Sheddah
Apawan y Diaz, around the small table for a pot session. Later, accused
handed an elongated plastic sachet to the confidential agent and in turn,
the confidential agent handed the sachet to PO2 Dapat.” These were
statements made by the prosecution witness which should not be given
credence because it is contrary to logic. Why invite the duo inside the
house, left them there and joined the Four (4) in a pot session and later
gave the elongated plastic sachet (buy bust item) to them, when in fact
and in truth accused could give the same to them right after giving the
buy bust money. Per testimony of the prosecution witness, it seems that
-9-
the items were in the possession of the accused at the very time the buy
bust money was given to him. But how could it be with him when he
was naked and wearing jersey shorts with no pocket at all.
The accused in his judicial affidavit stated:
Q16: PO2 Dapat, in his affidavit, further stated “that after their
arrest and securing them, I was able to recover from the possession and
control of Eugene Sevillano aside from our marked money another four
(4) elongated heat sealed plastic sachets containing suspected shabu
marked later EES B-1 to EES B-4, one (1) big heat sealed plastic sachet
containing suspected shabu marked later as “EES-C”, while recovered
from his occupied place aside from the two (2) improvised tooter with
visible traces of suspected shabu and two (2) disposable lighters all
marked later “EES” they used in their pot session were the following
one (1) plastic straw used as scoop, one (1) bamboo clip used as
clippings, two (2) scissors, one (1) black box, one (1) Nokia cellphone
1280 model and cash amounting to Three Hundred Pesos believed part
proceeds in the illegal sale of shabu all marked later “EES”, what can you
say about this?
A16: That is not true because they have not recovered from me those
plastic sachets he mentioned including the marked money. As earlier
stated, I was sleeping at home and was illegally arrested and handcuffed
and brought to the house of Jerry Magbanua, where I was half-naked
and walk barefooted. My short I wore at the time was a jersey with no
pocket. So, how come PO2 Dapat recovered from me the marked money
and the plastic sachets of shabu he mentioned and further, it is the
house of Jerry Magbanua which they accordingly searched and not
mine; Lastly, it was not PO2 Dapat who arrested and handcuffed me but
Rey Villanueva.
It is very clear from the above-statements that the accused was

not subject to a buy-bust operation. He was illegally arrested while he
was sleeping in his house, handcuffed and brought to the house of Jerry
Magbanua, where the Four (4) other accused were arrested while they
were engaged in a pot session. The other Four (4) accused pleaded
guilty to the offense charged against them and availed the benefits of
probation.
In view of the illegal arrest of the accused, the alleged Four (4)
elongated heat sealed plastic sachets containing suspected shabu
marked later as EES B-1 to EES B-4, One (1) big heat sealed plastic
sachet containing suspected shabu marked later as “EES-C” and shabu
-10-
paraphernalias which were allegedly recovered from the accused

should be denied admission for being a product of poisonous tree and
therefore inadmissible as evidences against the accused.
ON ISSUE NO. 3
It is humbly submitted that the police officers who raided the

house and arrested the accused did not comply the mandate of Republic
Act No. 9165 specifically Section 21 thereof, paragraph 1, which states:
"Sec.21. Custody and Disposition of Confiscated, seized and/or

surrendered Dangerous Drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, Instruments, Paraphernalia
and/or Laboratory Equipment. The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs,
controlled and essential chemicals, as well as instruments,
paraphernalia and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the following manner:
1. The apprehending team having initial custody and control of

the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the persons from whom such item were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of inventory and be given a copy thereof.x
x x x"
From the evidence presented by the prosecution, there was no

witness present at the time of the raid. Pictures or photographs were
taken only after the Barangay Officials arrived few minutes later. The
Receipt/Inventory of property seized dated May 27, 2013 lacks the
signature and presence of a third witness which should be a
representative of the Department of Justice or media. The items after
the seizure and arrest by the arresting officer should be marked and
pictures taken at the time the same is being marked. The mandate of
law that the items seized or confiscated be physically inventoried and
photographed immediately after the confiscation should be strictly
followed taking into considerations the penalty the law imposes. It
should be strictly implemented, since it is one of the safeguards and
protections imposed by law for the public safety, to avoid any
harassments and abuses from the police/arresting officers.
-11-
It should be noted that although markings were made on the

plastic sachets, the same did not bear signatures of the person who
marked including the dates the same were marked.
In the latest case of People v. Sabdula, G.R. No. 184758, April 21,
2014, the Supreme Court held.
“It is important that the seized illegal drug be immediately

marked since marking is the start of the custodial link. Such marking
will be used as a reference of the succeeding handlers of the seized
contraband. It will also serve to separate the marked evidence from the
corpus of all other similar or related evidence from the time they are
seized from the accused until they are disposed of at the end of the
criminal proceedings, thus preventing switching, planting or
contamination of evidence. “Marking “ means the placing by the
apprehending officer or the poseur buyer of his/her initials and
signature on the items seized.”
“It was held in a long line of cases that the Court should acquit the
accused on reasonable doubt in a drug case if there are any
irregularities attending the chain of custody over the seized illegal
drugs. This is in harmony with the rule in criminal law that penal laws
are strictly construed against the government and liberally in favor the
accused.”
For greater specifity, marking means the placing by the

apprehending officer or the poseur-buyer of his/her initials and
signature on the item/s seized (People v. Sanchez, id.; People vs. Garcia,
G,. R. No., 173480, 25 February 2009, 580 SCRA 259)
The prosecution witness failed to explain why the seized items did
not bear the signature or initials of the police officer who marked the
same and the date when it was marked, hence, such failure created a
doubt whether the items seized were the very same items which were
brought to the crime laboratory for examination.
PRAYER

this Honorable Court that the decision dated July 19, 2017 (Annex "A"
hereof) rendered in the above-entitled case be declared null and void
and that judgment be rendered acquitting the accused-appellant in this
case.
-12-

Bacolod City, for Cebu City Philippines, March 15, 2018.

PTR # 6689475- 1/9/17
IBP # 1055519 - 1/3/17
Roll No. 33660/p.232
MCLE NO. V-000013361/6/14
Copy Furnished:


RTC, Branch 52
Bacolod City
x- - - - - - - - - - - - - - - - - - - - - - - -x
I, NICANDRO A. AGUILAR, of legal age, Filipino, married and with office

address at Rm.206 T.G Building, Gatuslao St., Bacolod City, after being
sworn accordance with law hereby depose and say:
That I am the counsel for the accused-appellant in CA G.R CEB-

CR- NO. 01928, entitled People of the Philippines, Complainant-
Appellee vs. Rosa Calatis y Inocencio, Defendant-Appellant pending
before the Court of Appeals, Cebu City.

Office of the Solicitor General, 134 Amorsolo St., Legaspi Village, 1229
Makati City with postage fully pre -paid as evidenced by Registry
Receipt No. 2858 dated September 23, 2013 hereto attached, with
instruction to the postmaster to return the mail to the sender after Ten
(10) days if undelivered, and filed Three (3) copies thereof, One (1)
original (properly marked) with original duplicate copy of the decision
as annex “A” (clear copy) and Two (2) copies with legible annexes in the
same manner with the Court of Appeals, Cebu City.

City to Makati City and Cebu City.
IN WITNESS THEREOF, I have hereunto set my hand this 23rd day

NICANDRO A. AGUILAR
Affiant
SUBSCRIBED AND SWORN to before me this 23rd day of

National President Feliciano M. Bautista National Office, 15 Dona Julia
Doc. No. _________;
Page No. _________;
Book No. _________;
Series of 2013.
ORIGINAL
SUBJECT INDEX
PAGE
STATEMENT OF FACTS 3
ISSUES 4
ARGUMENTS 4-7
RELIEF/PRAYER 7
APPENDIX "A" (ORIGINAL DUPLICATE OF THE QUESTIONED

ORDER)
AUTHORITIES CITED:
1. Section 21, paragraph 1 of R. A. No. 9165;
2. People of the Philippines vs. Allan Nazareno, GR No.

174771, September 11, 2007. It cited the case of People vs. Lim,
435 Phil. 640, 659 (2002) and
3. People of the Philippines vs. Archie Distrito, Sept. 1992,

G.R. No. L-055-4
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL
6th Judicial Region
Branch 62, Bago City
-o0o-
MYRA F. FLORES-DAGDAGAN,
Represented by her Attorney-
In-Fact FRITZ GERARD E.
LEDESMA,
Plaintiff,
- versus - RTC APPEALED CASE NO. 21-008

(MTCC CASE NO. M-BGO-18-010-CV)
GINA JUANEZA, ET. AL.,

Defendants.
x- - - - - - - - - - - - - - - - - - -------x
APPELLANT’S MEMORANDUM
COME NOW defendants/appellants by counsel and to this

Honorable Court most respectfully submit their APPELLANT’S
MEMORANDUM in the above-entitled case, as follows:
I
THE HONORABLE COURT ERRED IN HOLDING THAT THE

DEFENDANTS/APPELLANTS ARE OCCUPYING THE SUBJECT
PROPERTY BY MERE TOLERANCE OF THE PLAINTIFF/APPELLEE
II
THE HONORABLE COURT ERRED IN HOLDING THAT THIS CASE

(UNLAWFUL DETAINER) IS THE PROPER REMEDY TO RECOVER
POSSESSION OF CERTAIN PROPERTY THAT PLAINTIFF HAD NEVER
BEEN IN POSSESSION
III
THE HONORABLE COURT ERRED IN ASSUMING JURISDICTION IN

THIS CASE EVEN IF IT INVOLVES AGRICULTURAL LAND WHERE
DEFENDANTS ARE TENANTS WHO ARE IN ACTUAL
TILLAGE/CULTIVATION OF THE LAND IN QUESTION.
This is a complaint for unlawful detainer filed by the plaintiff

against defendants relative to Lot 517 of the Cadastral Survey of
Valladolid containing an area of 16,217 Square Meters of rice land
situated in the Barangay Palaka, Valladolid, Negros Occidental covered
by TCT No. T-230881 under the name of Bangko Sentral ng Pilipinas.
Answer with counterclaim was filed by the defendants on February 26,
2019. Issues having been joined, the case was set for preliminary
conference and was referred to the Philippine Mediation Center for
mandatory mediation but failed. This case was accordingly referred to
the Department of Agrarian Reform for determination of whether or not
there is an agrarian dispute on the land. On August 29, 2019, the DAR
through Teresita R. Mabunay, OIC, PARPO II, DAR-Negros Occidental
issued a certification stating that the case does not involve an agrarian
dispute, thus it is proper for trial. During the setting for pre-trial,
plaintiff and counsel were present however defendants and counsel
were not in the court despite notice. Counsel for defendant filed a
notice for postponement alleging that he has conflict of schedule to
which counsel for the plaintiff opposed stating that this case has been
rescheduled several times due to postponements made by the defense
counsel and moved judgment be rendered in accordance with section 7
of the rules on Summary Procedure. Finding said motion to be in order,
the same was granted and the case was submitted for decision.
Herein appellants are adopting the facts of the case as narrated by

the plaintiff/appellee in her complaint, as follows:
“Plaintiff avers that defendants are occupying the property

covered by Transfer Certificate of Title T-230881 issued by the Register
of Deeds of Province of Negros Occidental consisting of 16, 217 square
meters more or less covered registered in the name of Bangko Sentral
ng Pilipinas; that Bangko Sentral ng Pilipinas, a government
instrumentality created by the authority of Republic Act No. 7653
entered into CONTRACT TO SELL with Bangko Sentral ng Pilipinas
Provident Fund (BSP-PF), an employee’s trust created by law, over the
subject property; that Bangko Sentral ng Pilipinas Provident Fund (BSP-
PF), ASSIGNED, TRANSFERRED AND CONVEYED all its rights and
interest over the aforementioned Contract to Sell over the subject
property to plaintiff, an employee of the BSP; that under the Contract to
Sell, the VENDEE (BSP-PF) shall be allowed to enter into and take
physical possession of the property upon execution of the Contract to
Sell. Accordingly, BSP-PF, in addition to the Deed of Assignment , issued
a certification in favor of Plaintiff expressly recognizing the assignment
and the accompanying right to enter into and take physical possession
of the property, subject to certain restrictions provided under the
Contract to Sell; that plaintiff tried to take physical possession of the
property but found that the same was being occupied by defendants
and other persons acting under their authority; that plaintiff, through
her representative made verbal demands for the defendants to vacate,
presenting them documents to show that plaintiff has the right to
possession of the subject property but her demands remained
unheeded and defendants refused to vacate the property; that plaintiff
then sent through registered mail written demands to vacate to all
defendants reiterating her right to take physical possession of the
property; that Defendants were given fifteen (15) days from receipt of
the demand letter to vacate the property. Having received the letter last
November 16, 2018, the period given to defendants have already lapsed
without their compliance to vacate the premises. Their possession of the
property has now become unlawful; thus, plaintiff was constrained to
file this case for ejectment to enforce her rights”.
Attached to the complaint filed were several documents marked

as Annexes “A” to “J-1” (inclusive of sub-markings) served to back-up
plaintiff’s claims.
In their Answer with Counterclaim, defendants alleged the

following Special and/or Affirmative Defenses:
1. That the Honorable Court has no jurisdiction to try this case,
the property involved is an agricultural land or an irrigated
rice land which is within the original and exclusive jurisdiction
of the DARAB, attaching therewith as Annex “A” the Tax
Declaration showing that the property involved is an
agricultural land;
2. Defendants are the children of Nieva Juaneza, the former
owner of the land in question and after she retired in rice
production in year 2007, the said property was turned over to
them paying the latter her share of the harvest. Defendants
until now are cultivating and tilling the land as agricultural
share tenants. Under Section 22 of RA No. 6657, defendants
are qualified beneficiaries because they are landless residents
of the same Barangay and Municipality, agricultural tenants,
actual tillers, who are directly working on the land;
“Sec. 22-QUALIFIED BENEFICIARIES – The lands covered by
the CARP shall be distributed as much as possible to
landless residents of the same barangay, or in the absence
thereof, landless residents of the same municipality in the
following order of priority:
a) Agricultural lessees and share tenants;
b) Regular farmworkers
c) Seasonal farmworkers
d) Other farmworkers
e) Actual tillers or occupants of public lands;
f) Collectives or cooperatives of the above
beneficiaries and
g) Others directly working on the land
provided, however, that the children of landowners who
are qualified under Section 6 of this Act shall be given
preference in the distribution of the land of their parents;
and provided further, that actual tenant tillers in the
landholdings shall not be ejected or removed
therefrom. X xxx”. (Underscoring ours)
3. Under the above-mentioned provision of the CARP law,

plaintiff is not qualified to own or buy the said property since
she could never be qualified under the above-mentioned
requirements;
4. The alleged Deed of Assignment and Contract to Sell executed

by BSP in favor of BSP-PF and BSP-PF in favor of the plaintiff
are null and void for being contrary to the CARP Law, in fact
the alleged documents did not bear a stamp of approval by the
DAR;
5. Considering that this involved agricultural land, it is necessary
that this case be referred to the Lupong Tagapamayapa of
Barangay Palaka, Valladolid, Negros Occidental in view of their
full knowledge of the status and nature of the land in question;
6. The alleged demand letters were not delivered to the

respective addressees since the alleged return cards were
clearly received only by one person and
7. The complaint against defendants should be dismissed for lack

of cause of action against them.
ARGUMENTS

DEFENDANTS/APPELLANTS ARE OCCUPYING THE SUBJECT
PROPERTY BY MERE TOLERANCE OF THE PLAINTIFF/APPELLEE
The plaintiff’s case of action for unlawful detainer was based on

her supposed right to possession resulting from her having acquired it
through the Contract to Sell and Deed of Assignments executed by BSP,
the registered owner of the property and BSP-Provident Fund in her
favor.
The defendants are occupying the said property through the
blessings of the former owner, Nieva Juaneza, who happened to be their
mother since year 2007. They gave her the share of the harvest every
harvest time. They did not even know that the title of the property they
are tilling is already transferred in the name of BSP. They were
surprised, however, to learn that the title of the property was already in
the name of the Bangko Sentral Ng Pilipinas at the time when they
received summons in this case.
Now, plaintiff filed this complaint on the ground that the

defendants are occupying the property by the mere tolerance of BSP
and subsequently to herself. In Jose vs. Alfuerto, et. al., G. R. No. 169380,
the Supreme Court says:
“The petitioner nevertheless insists that he properly alleged that the

respondents occupied the premises by mere tolerance of the owner. No.
allegation in the complaint nor any supporting evidence on record,
however, shows when the respondents entered the property or who had
granted them permission to enter. Without these allegations and evidence
the bare claim regarding “tolerance” cannot be upheld.
In Sarona, et. al. v. Villegas, et. al., the Court cited Prof. Arturo M.
Tolentino’s definition and characterizes “tolerance” in the following
manner: Professor Arturo M. Tolentino states that acts merely tolerated
are “those which by reason of neighborliness or familiarity, the owner of
property allows his neighbor or another person to do on the property;
they are generally those particular services or benefits which one’s
property can give to another without material injury or prejudice to the
owner who permits them out of friendship or courtesy.” He adds that:
“(t)hey are acts of little disturbances. Which a person in the interest of
neighborliness or friendly relations, permits others to do on his property,
such as pssing over the land, tying a horse therein or getting some water
from a well.” And Tolentino continues, even though “this is continued for a
long time, no right will be acquired by prescription.” Further expounding
on the concept Tolentino writes. “There is tacit consent of the possessor to
the acts which are merely tolerated. Thus not every case of knowledge
and silence on the part of the possessor can be considered mere tolerance.
By virtue of tolerance that is considered as an authorization, permission
or license, acts of possession are realized or performed. The question
reduces itself to the existence or non-existence of the permission.
The Court has consistently adopted this position: tolerance or

permission must have been present at the beginning of possession; it the
possession was unlawful from the start, an action for unlawful detaineer
would not be the proper remedy and should be dismissed.
It is not the first time that this court adjudged contradictory

statements in a complaint for unlawful detainer as a basis for dismissal.
In Unida v. Heirs of Urban, the claim that the defendant’s possession was
merely tolerated was contradicted by the complainant’s allegation that
the entry in the subject property was unlawful from the very beginning.
This court then ruled that the unlawful detainer action should fail.
Similarly, in Go, Jr. v. Court of Appeals, the Court considered the

owner’s lack of knowledge of the defendant’s entry of the land to be
inconsistent with the allegation that there had been tolerance.
In Padre v. Malabanan, the Court not only required allegations

regarding the grant of permission, but poof as well. It noted that the
plaintiffs alleged the existence of tolerance but ordered the dismissal of
the unlawful detainer case because the evidence was “totally wanting as
to when and under what circumstances xxx the alleged tolerance came
about.” It stated that: Judging from the respondent’s answer, the
petitioners were never at all in physical possession of the premises from
the time he started occupying it and continuously up to the present. For
sure, the petitioners merely derived their alleged prior physical possession
only on the basis of their Transfer Certificate of Title (TCT), arguing that
the issuance of said title presupposes their having been in possession of
the property at one time or another. Thus, the complainants in unlawful
detainer cases cannot simply anchor their claims on the validity of the
owner’s title. Possession de facto must also be proved.
In unlawful detainer action, the possession of the defendant was

originally legal and his possession was permitted by the owner through an
express or implied contract.
The petitioner nevertheless insists that he properly alleged that the

respondents occupied the premises by mere tolerance of the owner. No
allegation in the complaint nor any supporting evidence on record,
however, shows when the respondents entered the property or who had
granted them permission to enter. Without these allegations and
evidence, the bare claim regarding “ tolerance” cannot be upheld.”
Xxxxxxx
Given these rulings, it would be equally dangerous for us to deprive

the respondents of possession over a property that they have held for at
least eight years before the case was filed in 1999 by means of summary
proceedings, simply because the petitioner used the word “tolerance”
without sufficient allegations or evidence to support it.
In Serdoncillo v. Spouses Benolirao, we held that:

In this regard, to give the court jurisdiction to effect the ejectment
of an occupant or deforciant on the land, it is necessary that the complaint
must sufficiently show such statement of facts as to bring the party clearly
within the class of cases for which the statutes provide a remedy without
resort to parol testimony; as these proceedings are summary in nature. In
short the jurisdictional facts must appear on the face of the complaint.
When the complaint fails to aver facts constitutive of forcible entry or
unlawful detainer as where it does not state how entry was effected or
how and when dispossession started, the remedy should either be an
action publiciana or accion reivindicatoria.
THE HONORABLE COURT ERRED IN HOLDING THAT THIS CASE

(UNLAWFUL DETAINER) IS THE PROPER REMEDY TO RECOVER
POSSESSION OF CERTAIN PROPERTY THAT PLAINTIFF HAD NEVER
BEEN IN POSSESSION
It is very clear from the allegations of the Complaint and the

position paper submitted by the plaintiff that she had no prior
possession of the property in question. Neither the Bangko Sentral Ng
Pilipinas nor the Bangko Sentral Ng Pilipinas-Provident Fund, where
plaintiff derives her alleged authority and ownership over the land in
question.
“An ejectment case cannot be a substitute for a full-blown trial for

the purpose of determining rights of possession or ownership.”
“Citing Mediran v. Villanueva, the Court in Gonzaga v. Court of

Appeals describes in detail how these two remedies should be used.”
“In giving recognition to the action of forcible entry and detainer,
the purpose of the law is to protect the person who in fact has actual
possession; and in case of controverted right, it requires the parties to
preserve the status quo until one or the other of them sees fit to invoke the
decision of a court of competent jurisdiction upon the question of
ownership. It is obviously just that the person who has first acquired
possession should remain in possession pending (the decision); and the
parties cannot be permitted meanwhile to engage in a petty warfare over
the possession of the property which is the subject of dispute. To permit
this would be highly dangerous to individual security and disturbing to
social order. Therefore, where a person supposes himself to be the owner
of a piece of property and desires to vindicate his ownership against the
party actually in possession, it is incumbent upon him to institute an
action to this end in a court of competent jurisdiction and he (cannot) be
permitted, by invading the property and excluding the actual possessor, to
place upon the latter the burden of instituting an (action) to try the
property right.”
RODOLFO CHUA SING never had actual physical possession of his

supposed property as when he became an owner of the 1,919 Square
Meters property described in TCT No. 52594, the property had already
been occupied by herein DEFENDANTS since late 1970. Therefore,
DEFENDANTS were already occupants/possessors of the property from
where they are being ejected by FIORELLO JOSE, a supposed LESSEE of a
property with a dubious title. The main thing to be proven in the case at
bar is prior possession and that the same was lost through force,
intimidation, threat, strategy and stealth, so that it behooves the court to
restore possession regardless of title or even ownership xxxx.”
THE HONORABLE COURT ERRED IN ASSUMING JURISDICTION IN

THIS CASE EVEN IF IT INVOLVES AGRICULTURAL LAND WHERE
DEFENDANTS ARE TENANTS WHO ARE IN ACTUAL
TILLAGE/CULTIVATION OF THE LAND IN QUESTION
It is admitted that the property involves in this case is an

agricultural land (irrigated rice land) located at Barangay Palaka,
Valladolid, Negros Occidental.
It is also admitted that defendants are actually tilling/cultivating
the land devoted to rice production and giving their mother, her share
of the harvest every harvest time.
The land was foreclosed by Bangko Sentral Ng Pilipinas due to

non-payment of mortgaged loan from Countrywide Rural Bank of La
Carlota.
The Bangko Sentral Ng Pilipinas assigned its

rights/ownership/participation of the land in favor of BSP-Provident
Fund.
BSP-PF executed a Deed of Assignment/Contract to

Sell/certification in favor of the plaintiff and authorized her to take
possession of the land in question.
It is very clear that the Bangko Sentral Ng Pilipinas acquired its

ownership from the mortgagor, which is the former owner of the
property, who in effect placed the defendants as agricultural share
tenants.
Since BSP, BSP-PF and the plaintiff should respect the rights of the
defendants being agricultural share tenants, since they were being
placed thereon by the former owner since 2007 or for 14 years now.
And since they are agricultural share tenants and qualified as

CARP beneficiaries under Section 22 of Republic Act No. 6657, their
rights and interest over the land in question should be protected under
the law.
The certification of the DAR through Teresita R. Mabunay, OIC,

PARPO II, DAR-Negros Occidental that the land in question has no
agrarian dispute has no basis in fact and in law because if there was
actual inspection or investigation of the land, she should have
discovered that the tillers/possessors are agricultural tenants sharing
their produced to the owner thereof.
With the above-stated facts and circumstances, it is very clear that

this controversy involves agrarian dispute and should be within the
absolute and jurisdiction of the DARAB.
PRAYER
this Honorable Court that the decision dated April 23, 2021, rendered in
the above-entitled case be REVERSED AND SET ASIDE with cost
against the plaintiff/appellee.
Bacolod City, for Bago City, Philippines, August 27, 2021.

Counsel for the Defendants/Appellants
PTR # 8617206 – 1/15/21
IBP # 138534 - 1/5/21
Roll No. 33660/p.232
MCLE NO. VI-00002236-5/16/17
Copy Furnished:
ATTY. RHODORA P. LO
Counsel for the plaintiff/Appellee
Unit 204, 2nd Floor, BFIC Building
6th Street, Bacolod City
REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL
6th Judicial Region
-o0o-

Complainant,
- versus - CRIM. CASE NO. 18-47589
NOEL LOBATON y CATALINO,

Accused.
x- - - - - - - - - - - - - - - - - - -------x

Court most respectfully submits his APPELLANT’S MEMORANDUM in
the above-entitled case, as follows:
THE HONORABLE COURT ERRED IN HOLDING THAT THE ACCUSED
WAS GUILTY OF VIOLATION OF SECTION 1 OF R. A. 8294
THE HONORABLE COURT ERRED IN HOLDING THAT MERE

ACCIDENTAL POSSESSION OF UNLICENSED CAL. 22 REVOLVER
IMMEDIATELY TANTAMOUNTS TO VIOLATION OF SECTION 1 OF R.
A. 8294 OR ILLEGAL POSSESSION OF FIREARMS
THE HONORABLE COURT FAILED TO APPRECIATE THE FACTS

THAT ACCUSED VOLUNTARILY SURRENDERED THE FIREARM
The accused stands charged of two (2) separate cases arising from
the same incident that took place on April 14, 2013 at Panaad Park and
Stadium, Barangay Mansilingan, Bacolod City for violation of RA 7166 in
Relation to COMELEC Resolution No. 9561-A docketed as Criminal Case
No. 13-37649 pending before the Regional Trial Court, Branch 50,
Bacolod City and in this case for violation of PD 1866 as amended by RA
8294 docketed as Criminal Case No. 13-04-23933, which was decided
before MTCC, Branch 3, Bacolod City. The two (2) information were
filed to the respective courts on April 15, 2013.
This case was decided by the MTCC, Branch 3, Bacolod City, on
September 10, 2018 while the other case before RTC, Branch 50,
Bacolod City, is still pending for trial. Notice of Appeal in this case dated
October 3, 2018 was filed on October 4, 2018 after paying all the appeal
fees, hence, this APPEAL MEMORANDUM.
On April 14, 2013, at around 3:00 o’clock in the morning, accused

together with his companion or body Cpl. Rey Malan, volunteered and
assisted police officers to maintain peace and order at the Panaad
festivities. They were in Type “B” uniform, t-shirt with fatigue pants.
While they were at the eatery, they heard someone shouting that there
was a rumble and they were asking for help. They went to where the
rumble was in order to help pacify the parties and while accused came
nearer, he saw a gun on the ground, picked it and placed it on his
pocket. When they tried to pacify the parties, a group of persons
attacked them and as he tried to look for his companion Malan, he was
already blocked and somebody hit him by striking him on his left
eyebrow by a brass knuckle and he fell down. Accused lost
consciousness for a while and when he recovered, he stood up while
two (2) police officers came towards him and gave the gun to them
nozzle downwards and told them that he saw the said gun from the
ground. The two (2) police officers brought him to the space at Panaad
Park and Stadium together with the persons who were involved in the
rumble and told the police that it was accused who fired the shot and
that was the reason why they attacked him and his companion Malan.
The youngsters who were involved in the rumble in order to avoid
being brought to the police station pointed their fingers to the accused
as the one who created the commotion and upon knowing that he is a
member of the Army Reservist, Col. Rapiz ordered the two (2)
policemen to bring him to Police Station 7 at Barangay Mansilingan,
Bacolod City and have him imprisoned. The two (2) police officers
following his order, brought accused to Police Station 7, Barangay
Mansilingan, Bacolod City and endorsed him to the duty investigator,
SPOI Jim Augustus Velasco, without informing him of the nature of his
offense and his constitutional rights. Accused was further prohibited by
the said police officers from contacting his Army superior about what
happened to him. He was detained in the meantime but after his bail
was reduced he was able to post bail sometime in the end of April, 2013.
ARGUMENTS
THE HONORABLE COURT ERRED IN HOLDING THAT THE ACCUSED

WAS GUILTY OF VIOLATION OF SECTION 1 OF R. A. 8294
------------------------------------------------------------------------
Section 1 of R. A. 8294 , otherwise known as illegal possession of

firearms provides:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or

Possession of Firearms or Ammunition or Instruments Used or Intended
to be Used in the Manufacture of Firearms or Ammunition. – The
penalty of prision correccional in its maximum period and a fine of not
less than Fifteen thousand pesos (P15,000) shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or
possess any low powered firearm, such as rimfire handgun, .380 or .32
and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition: Provided, That no other
crime was committed. (Emphasis supplied)
This instant case falls squarely in the case of Agote vs. Judge
Lorenzo, 502 Phil. 318 (2005) [Per J. Garcia, En Banc], when it said
“already settled the question of whether there can be a “separate
offense of illegal possession of firearms and ammunition if there is
another crime committed. In that case, the petitioner was charged with
both illegal possession of firearms and violation of the Gun Ban under
Commission on Elections Resolution No. 2826. This court acquitted
petitioner in the case for illegal possession of firearms since he
simultaneously violated the Gun Ban. This court also held that the
unlicensed firearm need not be actually used in the course of
committing the other crime for the application of Section 1 of Republic
Act No. 8294.”
“Similarly, Madrigal vs. People plied the ruling in Agote and held
that Section 1 of Republic Act No. 8294 is express in its terms that a
person may not be convicted for illegal possession of firearms if another
crime was committed.”
This ruling was still applied in the recent case of Erwin Libo-on de
la Cruz vs. People of he Philippines, G. R. No. 209387 dated January 11,
2016.
In People of the Philippines vs. Alexis Dindo San Jose y Suico, G. R.

No. 179148, July 23, 2018, the same legal principle was applied when
the Supreme Court said that:
“We have affirmed in People vs. Ladjaalam that there could be no

offense of illegal possession of firearms and ammunition under R. A. No.
8294 if another crime was committed. With the letter of the law itself
being forthright, the courts have no discretion to give the law a maning
detached from the manifest intendment and language of Congress, for
our task is constitutionally confined to applying the law and pertinent
jurisprudence to the proven facts, which we must do now in this case.”
Foregoing considered, the decision of this case dated September

10, 2018 should be reversed and set aside and that accused be
acquitted.
THE HONORABLE COURT ERRED IN HOLDING THAT MERE

ACCIDENTAL POSSESSION OF UNLICENSED CAL. 22 REVOLVER
IMMEDIATELY TANTAMOUNTS TO VIOLATION OF SECTION 1 OF R.
A. 8294 OR ILLEGAL POSSESSION OF FIREARMS
THE HONORABLE COURT FAILED TO APPRECIATE THE FACTS

THAT ACCUSED VOLUNTARILY SURRENDERED THE FIREARM
These two (2) issues should be discussed together since they are
entertwined to each other.
The questioned firearm was merely recovered by the accused
while trying to pacify the parties involved in a commotion. He placed
the said firearm in his pocket and contrary to the allegations in the
police blotter report and the allegations of the youngsters involved in
the rumble, there was no gun shot sound heard even by the police
officers. Nothing in there testimonies that there was gunshot.
The police officers have not recovered the gun. It was shown and
given to them by the accused upon knowing that they are uniformed
police officers. POI Guanga testified during direct examination
conducted by the government prosecutor on March 30, 2015, page 5 of
TSN stated:
Q Upon your approached you said you introduced yourselves as
Police Officers, what was his reaction?
A He immediately give us the gun.
Q Were you able to identify what kind of gun was that?
A 22 revolver
Q Aside from 22 Revolver is there anything else that you recovered
from his possession?
A We did not recover the gun but he showed the gun to us
Xxxxxxxxxxx
In the same testimony of POI Guanga, he testified further:
Q You said that both of you and POI Regie Manangkil was on duty at
that time. At that time of the apprehension were you together with POI
Manangkil, at that time when you apprehended the accused Noel
Lobaton, were you together with Police Officer Manangkil?
A Yes, ma’am
Q What did you do with the recovered firearm?
A We arrest him and we turn over him to the Police Station 7.
Xxxxxxxx
Q Can you recall if that person whom you personally endorsed the
subject firearm?
A The duty investigator ma’am.
Q Can you recall the name of that duty investigator?
A A certain Police Officer Velasco.
Xxxxxxxxxx
It can be deduced from the testimony of POI Guanga that the
accused had not even been informed the nature of the offense why he
was arrested and of his constitutional rights, hence, the arrest of the
accused was illegal.
In page 6 of his direct testimony, POI Guanga testified:
Q So after you have turning him over, what else did you do after
that?
A The investigator record our affidavit then POI Manangkil marked
the firearm and the bullets.
In that testimony, it was very clear that after turning over the
accused to the duty investigator, they signed there joint affidavit in this
case, however, the affidavit was dated April 15, 2013, hence, this
witness was not telling the truth.
During the cross-examination, witness POI Guanga further

testified: (Page 8, TSN dated March 30, 2015)
Q Now, you said that you saw the accused standing holding a gun
pointing the barrel downward and when you approached him, he
voluntarily gave that gun to you?
A Yes, sir.
Q Did you ask any question from him?
A Later because here were so many people
Xxxxxxxxx
Q How about he gun, did you asked him if it was owned by him?
A In Bac-up Station he did not admit that the gun belong to him.
From his testimony, it seems that the gun was not owned by the
accused. It further bolstered his testimony that the firearm was
recovered by him when he saw it from the ground.
From the testimonies of the witnesses of the prosecution, more

specifically POI Manangkil and Guanga, it was very clear that 1) the said
firearm was merely recovered by the accused from the ground and that
ownership thereof was not ascertained, 2) the said firearm was
surrendered by the accused voluntarily to POI Manangkil and Guanga
and in fact it was given with the barrel pointing downward 3) that there
was no intent on the part of the accused to possess the said firearm
because when he knew that they were police officers he immediately
and voluntarily gave the firearm to them, 4) he never used the said
firearm despite the fact that he was hit by the brass knuckle and fell on
the ground and in fact became unconscious for awhile and lastly,
accused and his companion were there at the Panaad Park and Stadium
to assist in keeping peace and order thereat.
The accused was able to keep hold of the firearm by mere accident
when he saw it on the ground while trying to help pacify the quarreling
parties. Accused has no firearm at the time because there issued
firearm was a long one and they have already returned it to their chief
after 2:30o’clock in that morning.
It is well to emphasize that the offense of illegal possession of

firearms is malum prohibitum punished by special law, and in order
that one may be found guilty of a violation of the decree, it is sufficient
that the accused had no authority or license to possess a firearm, and
that he intended to possess the same, even if such possession was made
in good faith and without criminal intent.
In this case, it was very clear that the accused had no intention to
possess the same as shown in his action of voluntarily giving the said
firearm to the police authorities.
The prosecution failed to prove that the accused had intent to

possess the said firearm. Although, motive is not one of the elements of
the crime of illegal possession, nevertheless, it can prove the intent of
the accused. Here, motive has not been proven.
PRAYER

this Honorable Court that the decision dated September 10, 2018,
rendered in the above-entitled case be REVERSED AND SET ASIDE and
and thereafter, ACQUITTING the accused of the offense charged against
him.
Bacolod City, Philippines, April 15, 2019.

Counsel for the Accused
PTR # 7538984 – 1/09/19
IBP # 1055519 - 1/3/19
Roll No. 33660/p.232
MCLE NO. VI-00002236-5/16/17
Copy Furnished:
The Prosecutors Office

City of Bacolod
ORIGINAL
SUBJECT INDEX
PAGE
ISSUES 5
ARGUMENTS 5-11
RELIEF/PRAYER 11-12
AUTHORITIES CITED:
1. People v. Sabdula, G.R. No. 184758, April 21, 2014;and

2. People of the Philippines vs. Sanchez., id; People vs.
Garcia, G.R.No. 173480,25 February 2009, 580 SCRA 259

COURT OF APPEALS
CEBU CITY
PEOPLE OF THE PHILIPPINES, CA G.R CEB-CR-HC NO. 02670

RTC, Branch 52, Bacolod City

-versus- RTC Case No. 13-37800 to 803
EUGENE SEVILLANO y ESTIL,

Accused- Appellant.
x-------------------------------------------x
APPELLANT'S BRIEF

COURT OF APPEALS
CEBU CITY

-versus- CA G.R. CEB-CR-HC NO. 02670
EUGENE SEVILLANO y ESTIL,

Accused- Appellant.
x-------------------------------------------------------x
APPELLANT'S BRIEF

1. The Honorable Court failed to appreciate the facts that there
was no buy bust operation that took place on May 27, 2013
at the house of Jerry Magbanua located at Purok Sigay,
Barangay 2, Bacolod City;
2. The Honorable Court erred in believing/accepting in

evidence as gospel truth the testimonies of the alleged
arresting officer, PO2 Dave Dapat; and
3. The prosecution failed to prove the chain of custody of the

alleged illegal drugs
This is a case filed against the accused-appellant for violations of

Sections 5, 11, 12 and 15, Article II of Republic Act No. 9165 otherwise
known as the “Comprehensive Dangerous Drugs Act of 2002” in an
information filed by the City Prosecutors Office of Bacolod City docketed
as Criminal Cases Nos. 13-37803, 13-37802, 13-37800 and 13-37801,
respectively. The last case was filed against the accused together with
-2-
other alleged companions Rico C. Velasquez, Emmanuel B. Diamante,

Jerry O. Magbanua and Sheddah D. Apawan, however, his companions
pleaded guilty to the offense of drug use during arraignment.
During the pre-trial of these cases on October 15, 2014, the

following issues were raised by the parties:
1. The legality of the buy-bust operation which led to the

apprehension of accused-defendant on May 27, 2013;
2. Whether accused-defendant was in possession of the

dangerous drugs or its paraphernalia;
3. Whether the chain of custody was properly observed; and
4. Whether the defense of denial should be given evidentiary

weight;

their respective cases, the Honorable Court rendered a decision on July
19, 2017, convicting the accused in Criminal Cases Nos. 13-37803, 13-
37802 and 13-37800 and acquitting him in Criminal Case No. 13-37801,
the dispositive portion reads:
"WHEREFORE, premises considered, judgment is hereby

rendered:
(a) In Criminal Case No. 13-37803 (Sale and Delivery of

Dangerous Drugs), finding Accused-Defendant EUGENE SEVILLANO y
ESTIL “GUILTY” beyond reasonable doubt, of Section 5, Article II,
Comprehensive Dangerous Drug Act of 2002 as charged in the
Information dated May 28, 2013. Consequently, he is hereby sentenced
to suffer the penalty of life imprisonment and to PAY a fine of Five
Hundred Thousand Pesos (P500,000.00);
(b) In Criminal Case No. 13-37802 (Possession of Dangerous

Drugs), finding Accused-Defendant EUGENE SEVILLANO y ESTIL
“GUILTY” beyond reasonable doubt, of Section 11, Article II,
to suffer an indeterminate prison term of twelve (12) years and eight
(8) months, as minimum to seventeen (17) years and eight (8) months,
-3-
as maximum and to PAY a fine of three hundred thousand pesos

(P300,000.00);
(c) In Criminal Case No. 13-37800 (Possession of Dangerous

Drugs Paraphernalia), finding Accused-Defendant EUGENE SEVILLANO
y ESTIL “GUILTY” beyond reasonable doubt, of Section 12, Article II,
to suffer an indeterminate prison term of six (6) months and one (1)
day, as minimum, to two (2) years and seven (7) months, as maximum
and to PAY a fine of ten thousand pesos (P10,000.00);
X X X X

Accused-Defendant is not contented with the aforesaid decision,


The factual assertions of the parties are hereunder copied
verbatim from the decision of the Honorable Court, as follows:
Version of the Plaintiff
PO2 Dapat was an intelligence operative of the Bacolod City

Police office assigned to the City Anti-Illegal Drugs Special Operations
Task Group (CAID-SOTG) based at Magsaysay Avenue, Bacolod City,
Their unit was under the supervision of PSI Neil G. Exaltado (Capt.
Exaltado).
On May 27, 2013 at about 10:00 o’clock in the morning, Capt.

Exaltado received information from a confidential agent that accused
was engaged in the selling of “shabu” in Purok Sigay, Barangay 2,
Bacolod City. Upon receipt of the information, PSI Exaltado planned a
buy-bust operation against accused. PO2 Dapat was designated as a
poseur-buyer. It was agreed that the confidential agent would
accompany him and facilitate the sale of “ shabu”. Capt. Exaltado gave
PO2 Dapat Three Hundred Pesos (P300.00) to be used as buy-bust
money. A pre-arranged signal was also agreed upon during the briefing.
-4-
At around 2:00 o’clock in the afternoon of the same day, the team
of CAID-SOTG jumped off and proceeded to the target area at Barangay
2, Bacolod City. PO2 Dapat , together with the confidential agent, went
to the house occupied by accused. Upon reaching the area, the duo saw
accused standing outside the door of his house. Accused met PO2 Dapat
and the confidential agent by the gate. The confidential agent
introduced PO2 Dapat to accused saying, : “Mig, migo ko gali, ma score
kami tani”. Accused asked confidential agent, “Pila inyo mig haw?” to
which the confidential agent replied” Balur 3 hund amon mig”. When
accused demanded for the money, PO2 Dapat handed to him the Three
Hundred peso (P300.00) buy-bust money.
their violations and their constitutional rights.
PO2 Dapat body searched accused. He recovered the buy-bust

money and a pouch containing four (4) more elongated sachets of “
shabu” and one (1) big sachet of “shabu”. On top of the table, PO2 Dapat
recovered two (2) improvised tooter with traces of “shabu”, two (2)
disposable lighters, one(1) plastic straw, one (1) bamboo clip, two (2)
pairs of scissors, one (1) black box, one (1) Nokia cellular phone and
cash amounting to Three Hundred pesos. The marking and the
inventory were done in the presence of the barangay officials and
accused. PO2 Dapat marked the buy-bust item “EES-A”, the four (4)
elongated sachets of “shabu” as “EES B-1” to “EES B-4”, the one (1) big
transparent sachet of “shabu as “EES C”, the two (2) improvised tooters
with traces of “shabu” as “EES”. The markings stand for the initial of
accused “Eugene Estil Sevillano”.
-5-
Version of the accused
For his defense, accused advanced the defense of denial. He

presented a different version of the incident which happened on May
27, 2013:
According to accused, on May 27, 2013 at around 2:00

o’clock in the afternoon, he was sleeping in his house at Purok Sigay,
Barangay 2, Bacolod City when he was awakened by the sound of the
door of his bedroom being kicked open. When the door was opened
accused was brought by Police Officer Rey Villanueva to the house of
Jerry Magbanua. Upon arrival at the house of Jerry Magbanua , accused
saw Jerry Magbanua, Rico Velasquez, Emmanuel Diamante and Sheddah
Apawan sitting beside the wall. Accused saw that there were items
already placed on top of a table. Accused saw Police Officer Hechanova
making a list on a piece of paper, which he later known to be a receipt of
property seized. He and the four (4) persons in the house were later
arrested and detained.
The issues of this case are as follows:

1. Whether or not there was indeed a buy bust operation
conducted by the police officers against the accused in his house located
at Purok Sigay, Barangay II, Bacolod City on May 27, 2013;
2. Whether or not the Accused was in possession of the

Dangerous Drugs or its paraphernalia at the time he was arrested on
May 27, 2013;
3. Whether or not the chain of custody was properly observed by

the apprehending police officers.
ARGUMENTS
ISSUES 1 AND 2 ARE HEREBY

JOINTLY DISCUSSED AND
ARGUED SINCE THEY ARE
RELATED
Accused maintained that he is innocent of the crime charged

against him and that there was no buy bust operation that took place on
May 27, 2013 at his residence at Purok Sigay, Barangay II, Bacolod City.
-6-
Accused in his Judicial Affidavit which he executed on September

11, 2014 adopting the same to be his direct testimony in this case
stated, as follows:
Q3: Do you remember where were you at around 3:00 o’clock in

the afternoon of May 27, 2013?
A3: I was inside my house sleeping alone.
Q4: What untoward incidents that took place while you were
sleeping?
A4: I was awakened by the sound of my bedroom door which was
forced open by a kick made by police officer Rey Villanueva;
Q5: After you were awakened, what happened?

A5: Police Officer Rey Villanueva immediately handcuffed me and
told me to get out;
Q6: Where did he bring you out?

A6: He brought me to the house of Jerry Magbanua, half-naked
and in barefoot;
It is very clear from the above-statements of the accused that he
was sleeping at the time inside his house when police officer Rey
Villanueva awakened him by kicking his bedroom door, arrested,
handcuffed and brought to the house of Jerry Magbanua half-naked and
in barefoot. These statements were supported by admissions during the
pre-trial conference dated October 15, 2014, No. 26 thereof which
states:
“The four (4) photographs were taken inside the house of Memar
Deopita who was the live-in partner of Jerry Magbanua which was
located at Purok Sigay, Barangay 2, Bacolod City;”
In the said photographs, accused identified himself as that person

who was naked with jersey shorts and he was one of the Five (5)
persons who were arrested at that time.
Accused further testified in his Judicial Affidavit, as follows:
Q7: After Rey Villanueva brought you to the house of Jerry

Magbanua, what happened when you arrived thereat?
A7: When I arrived at the house of Jerry Magbanua, I saw Jerry
Magbanua, Rico Velasquez, Emmanuel Diamante and Sheddah Apawan
sitting besides the wall and on top of the table in front of them were
-7-
several items which they were listing and later I knew it to be

Receipt/Inventory of Property Seized dated May 27, 2013;
The afore-stated answer and testimony of the accused depicts

clearly of what indeed happened on May 27, 2013.
It was completely different to the testimony of PO2 Dave Dapat

and the findings of this Honorable Court found in Page 6 of the decision,
paragraphs 3 and 4 thereof which states:
“At around 2:00 o’clock in the afternoon of the same day, the team
of CAID-SOTG jumped off and proceeded to the target area at Barangay
2, Bacolod City. PO2 Dapat , together with the confidential agent, went
to the house occupied by accused. Upon reaching the area, the duo saw
accused standing outside the door of his house. Accused met PO2 Dapat
and the confidential agent by the gate. The confidential agent
introduced PO2 Dapat to accused saying, : “Mig, migo ko gali, ma score
kami tani”. Accused asked confidential agent, “Pila inyo mig haw?” to
which the confidential agent replied” Balur 3 hund amon mig”. When
accused demanded for the money, PO2 Dapat handed to him the Three
Hundred peso (P300.00) buy-bust money.
their violations and their constitutional rights.”
These statements of the prosecution witness were unbelievable if

not absurd because accused before May 27, 2013 personally knew PO2
Dapat, as one of the CAID-SOTG operatives based at Magsaysay Avenue,
Bacolod City. In his Judicial Affidavit, accused testified:
Q15: PO2 Dapat, in his affidavit, mentioned that he conducted

buy-bust operation against you in the afternoon of May 27, 2013 at your
-8-
house located at Purok Sigay, Barangay 2, Bacolod City, what can you
say about that?
A15: That is not true because I was in my house at that time
sleeping and besides I already knew Dave Dapat as police officer of
Bacolod City long before May 27, 2013 at their office at the Bacolod City
Philippine National Police, Barangay Taculing, Bacolod City, when I
visited my wife and I frequently saw him at Purok Sigay, Barangay 2,
Bacolod City together with his fellow police officers;
With the above-statements of the accused that he knew PO2

Dapat before May 27, 2013 as police officer because he saw him at their
office at CAID-SOTG, Bacolod City, when he visited his wife there and he
saw him frequently at Purok Sigay, Barangay II, Bacolod City, it leaves us
no doubt that the introduction made by the confidential agent between
PO2 Dapat and accused was not true. It is only a natural reaction for
any person selling illegal items to avoid transactions with any police
officer unless he wanted to be immediately arrested. Nobody in this
world after engaging in illegal activities wanted to be arrested and
incarcerated.
“In the case of People vs. Archie Distrito, September, 1992, G. R.
No. L-055-40, the trial court convicted the accused on the basis of the

business with the arresting officer whom he knew was a policeman.”
Another point that the prosecution’s evidence deserves to be

given a scant consideration was the fact that “accused invited PO2 Dapat
and the confidential agent into the house. Inside the house, accused
joined four (4) persons, later identified as Rico Velasquez y Corpus,
Emmanuel Diamante y Bayotas, Jerry Magbanua y Orbita and Sheddah
Apawan y Diaz, around the small table for a pot session. Later, accused
handed an elongated plastic sachet to the confidential agent and in turn,
the confidential agent handed the sachet to PO2 Dapat.” These were
statements made by the prosecution witness which should not be given
credence because it is contrary to logic. Why invite the duo inside the
house, left them there and joined the Four (4) in a pot session and later
gave the elongated plastic sachet (buy bust item) to them, when in fact
and in truth accused could give the same to them right after giving the
buy bust money. Per testimony of the prosecution witness, it seems that
-9-
the items were in the possession of the accused at the very time the buy
bust money was given to him. But how could it be with him when he
was naked and wearing jersey shorts with no pocket at all.
The accused in his judicial affidavit stated:
Q16: PO2 Dapat, in his affidavit, further stated “that after their
arrest and securing them, I was able to recover from the possession and
control of Eugene Sevillano aside from our marked money another four
(4) elongated heat sealed plastic sachets containing suspected shabu
marked later EES B-1 to EES B-4, one (1) big heat sealed plastic sachet
containing suspected shabu marked later as “EES-C”, while recovered
from his occupied place aside from the two (2) improvised tooter with
visible traces of suspected shabu and two (2) disposable lighters all
marked later “EES” they used in their pot session were the following
one (1) plastic straw used as scoop, one (1) bamboo clip used as
clippings, two (2) scissors, one (1) black box, one (1) Nokia cellphone
1280 model and cash amounting to Three Hundred Pesos believed part
proceeds in the illegal sale of shabu all marked later “EES”, what can you
say about this?
A16: That is not true because they have not recovered from me those
plastic sachets he mentioned including the marked money. As earlier
stated, I was sleeping at home and was illegally arrested and handcuffed
and brought to the house of Jerry Magbanua, where I was half-naked
and walk barefooted. My short I wore at the time was a jersey with no
pocket. So, how come PO2 Dapat recovered from me the marked money
and the plastic sachets of shabu he mentioned and further, it is the
house of Jerry Magbanua which they accordingly searched and not
mine; Lastly, it was not PO2 Dapat who arrested and handcuffed me but
Rey Villanueva.
It is very clear from the above-statements that the accused was

not subject to a buy-bust operation. He was illegally arrested while he
was sleeping in his house, handcuffed and brought to the house of Jerry
Magbanua, where the Four (4) other accused were arrested while they
were engaged in a pot session. The other Four (4) accused pleaded
guilty to the offense charged against them and availed the benefits of
probation.
In view of the illegal arrest of the accused, the alleged Four (4)
elongated heat sealed plastic sachets containing suspected shabu
marked later as EES B-1 to EES B-4, One (1) big heat sealed plastic
sachet containing suspected shabu marked later as “EES-C” and shabu
-10-
paraphernalias which were allegedly recovered from the accused

should be denied admission for being a product of poisonous tree and
therefore inadmissible as evidences against the accused.
ON ISSUE NO. 3


x x x"

witness present at the time of the raid. Pictures or photographs were
taken only after the Barangay Officials arrived few minutes later. The
Receipt/Inventory of property seized dated May 27, 2013 lacks the
signature and presence of a third witness which should be a
representative of the Department of Justice or media. The items after
the seizure and arrest by the arresting officer should be marked and
pictures taken at the time the same is being marked. The mandate of
law that the items seized or confiscated be physically inventoried and
photographed immediately after the confiscation should be strictly
followed taking into considerations the penalty the law imposes. It
should be strictly implemented, since it is one of the safeguards and
protections imposed by law for the public safety, to avoid any
harassments and abuses from the police/arresting officers.
-11-
It should be noted that although markings were made on the

plastic sachets, the same did not bear signatures of the person who
marked including the dates the same were marked.
In the latest case of People v. Sabdula, G.R. No. 184758, April 21,
2014, the Supreme Court held.
“It is important that the seized illegal drug be immediately

marked since marking is the start of the custodial link. Such marking
will be used as a reference of the succeeding handlers of the seized
contraband. It will also serve to separate the marked evidence from the
corpus of all other similar or related evidence from the time they are
seized from the accused until they are disposed of at the end of the
criminal proceedings, thus preventing switching, planting or
contamination of evidence. “Marking “ means the placing by the
apprehending officer or the poseur buyer of his/her initials and
signature on the items seized.”
“It was held in a long line of cases that the Court should acquit the
accused on reasonable doubt in a drug case if there are any
irregularities attending the chain of custody over the seized illegal
drugs. This is in harmony with the rule in criminal law that penal laws
are strictly construed against the government and liberally in favor the
accused.”
For greater specifity, marking means the placing by the

apprehending officer or the poseur-buyer of his/her initials and
signature on the item/s seized (People v. Sanchez, id.; People vs. Garcia,
G,. R. No., 173480, 25 February 2009, 580 SCRA 259)
The prosecution witness failed to explain why the seized items did
not bear the signature or initials of the police officer who marked the
same and the date when it was marked, hence, such failure created a
doubt whether the items seized were the very same items which were
brought to the crime laboratory for examination.
PRAYER

this Honorable Court that the decision dated July 19, 2017 (Annex "A"
case.
-12-

Bacolod City, for Cebu City Philippines, March 15, 2018.

PTR # 6689475- 1/9/17
IBP # 1055519 - 1/3/17
Roll No. 33660/p.232
MCLE NO. V-000013361/6/14
Copy Furnished:

RTC, Branch 52
Bacolod City

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




NICANDRO A. AGUILAR
Affiant

Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2013.
ORIGINAL
SUBJECT INDEX
PAGE
ISSUES 4
ARGUMENTS 4-7
RELIEF/PRAYER 7

ORDER)
AUTHORITIES CITED:

435 Phil. 640, 659 (2002) and

G.R. No. L-055-4
COURT OF APPEALS
Visayas Station
Cebu City
ROMULO SOMBITO, JR. AND

YVONNE SARONA,
Plaintiffs-Appellants,
-versus- CA G.R. CV-NO. 06260

Re: Annulment of Foreclosure
and Certificate of Sale, etc.
PHILIPPINE VETERANS BANK,

Defendant-Appellee.
x--------------------------------------------x
BRIEF FOR THE APPELLANTS
PLAINTIFFS-APPELLANTS, by counsel and to this Honorable

Court respectfully submit their Brief for the Appellants in the above-
The Regional Trial Court, Branch 55, Himamaylan City, Negros

Occidental committed the following errors, as follows:
1. The Honorable Court erred in holding that failure to comply the

mandatory requirement of posting of notice of extra-judicial sale
and publication thereof will not invalidate the foreclosure
proceedings;
2. The Honorable Court erred in holding that the Sheriff who

conducted the foreclosure sale was regularly performing his
official duty;
3. The Honorable Court erred in holding that inadequacy of the
selling price during the public auction sale will not invalidate the
sale;
4. The Honorable Court erred in holding that the Register of Deeds

which issued the new title of the land in controversy and the
-2-
Sheriff who conducted the foreclosure sale are indispensable

parties;
5. The Honorable Court erred in holding that plaintiffs late father

feigned ignorance of the foreclosure;
6. The Honorable Court erred in holding that the late Romulo

Sombito, Sr. acknowledged the legality and validity of the
foreclosure, as in fact he offered to buy back the property;
7. The Honorable Court erred in holding that plaintiffs and their

predecessors were guilty of estoppel and laches;
8. The Honorable Court erred in concluding that the delay and

inaction of plaintiffs offer to buy back the property for Six (6) long
years by the defendant was not attended by bad faith; and
9. The Honorable Court failed to apply the principle of Justice and

Equity in this case.
BRIEF STATEMENTS OF THE CASE
This case was filed by the plaintiffs on January 7, 2005 before the
Regional Trial Court, Branch 55, Himamaylan City, Negros Occidental
against defendant Philippine Veterans Bank (PVB for short) questioning
the validity of the foreclosure proceedings over Lot No. 1483 of the
Himamaylan Cadastre and the Certificate of Sale dated July 3, 1984,
Transfer Certificate of Title No. T-187149 in the name of defendant PVB
be ordered cancelled, and the unreasonable delay in the processing of
plaintiffs offer to redeem as suggested to by the officers of the defendant
and asking for damages.
On February 9, 2005, defendant filed its Answer with

Counterclaim, claiming that the foreclosure was valid and also asking
for damages.
After the issues have been joined, pre-trial conference of this
case was terminated per order of the court dated June 8, 2006.
Thereafter, trial on the merits ensued.
On December 17, 2015, the Honorable Court rendered a decision,

dispositive portion of which reads:
-3-
“WHEREFORE, all the foregoing considered, the instant complaint

is hereby DISMISSED, for lack of merit, with no pronouncement as to
costs. Defendant’s counterclaim is likewise dismissed.”
“SO ORDERED.”
copy of the said decision was received by the plaintiffs on January 13,
2016, original duplicate copy of the said decision hereto attached as
Annex “A”, which forms part hereof;
Not contented with the findings and conclusions of the Honorable

Trial Court, plaintiffs appealed the said decision to this Honorable Court
on January 27, 2016, machine copy of a Notice of Appeal hereto attached
as Annex “B”, which forms part hereof;
On July 19, 2017, plaintiffs received a copy of Notice to file Brief

issued by this Honorable Court, requiring plaintiffs to file within Forty-
Five (45) days from notice, printed APPELLANTS BRIEF among others
in the above-entitled case, hence, this BRIEF FOR THE APPELLANTS.
BRIEF STATEMENTS OF FACTS
The plaintiffs are the children of the late Sps. Romulo, Sr. and
Carmen Mirasol Sombito, who during their lifetime were the absolute
and registered owners of Lot 1483 of the Cadastral Survey of
Himamaylan, Himamaylan City, covered by Transfer Certificate of Title
No. T-28293 containing an area of 14.0944 Hectares of agricultural land
located at Himamaylan City. The said property was adjudicated in favor
of the plaintiffs in equal shares.
On March 19, 1971, the aforesaid parcel of land was mortgaged by

the late Sps. Romulo Sombito, Sr. and Carmen Mirasol Sombito with the
defendant PVB for P10,500.00 which was amended to P25,000.00 on
September 13, 1973 and finally amended to P30,000.00 on October 14,
1974 under Entry Nos. 160166, 181871 and 197570, respectively which
were duly annotated at the back of the title. Due to the closure of the
defendant, plaintiffs’ parents could not effect payment of their account
of P30,000.00 since no advice had ever been received by them from the
defendant as to where they are going to pay their account. The late
Romulo Sombito, Sr. went in May, 1984 to the office of the defendant
but defendant was closed. It may be under the receivership under the
Bangko Sentral Ng Pilipinas, but Philippine Veterans Bank Bacolod
could have informed him that they can receive loan payments but they
-4-
did not. In that instance, Romulo, Sr. could have paid his loan account
right then and there, as it was the purpose that he came there (Exh. “D”).
When the defendant Bank resumed its operation, plaintiff’s late

father, Romulo Sombito, Sr. wrote defendant and inquired into the
status of their account and requested for a statement thereof in a letter
dated February 1, 1994. Defendant replied on April 8, 1994 informing
among others that the account of Sps. Romulo Sombito, Sr. and Carmen
Mirasol Sombito was already foreclosed, and even gave an advice “to
make a definite offer with a peso amount which will be evaluated by
their Acquired Assets Management Committee as soon as the present
moratorium on disposal of acquired assets is lifted (Exh. “E”).
The late Romulo Sombito, Sr. was very much surprised when he
received the reply letter dated April 8, 1994 from the defendant that
their account was already foreclosed, nevertheless, he had followed the
defendant’s advice and in fact submitted a definite offer to buy the
subject property for P70,000.00, in a letter dated April 22, 1994 (Exh.
“F”). Several follow-up letters were sent to the defendant since no reply
of the April 22, 1994 letter offer was made. Finally, on April 10, 1995,
plaintiffs’ late father received a letter from defendant, informing him
that it had requested its PVB Bacolod Branch to transmit to them the
loan folders and other files of the account in order that it could start
processing the offer and that in the meantime the property will be
accordingly reappraised by an independent real estate appraisal
company (Exh. “G”).
Again, several letters were sent by the late Romulo Sombito, Sr. to
the defendant in order to follow up the status of his offer. However,
defendants made its reply only on August 19, 1998 or after Three (3)
years, informing that it was still awaiting the appraisal report from its
Credit Department and at the same time made an assurance that upon
receipt thereof, it will submit the matter to the Board of Directors for
decision (Exh. “H”). On May 21, 1999 and January 18, 2000, the late
Romulo Sombito, Sr. again made follow-up letters inquiring as to the
status of his April 22, 1994 offer and informed defendant that he
deposited the amount of P70,000.00 at its PVB Bacolod Branch as
guarantee payment of his said offer (Exh. “I”).
On February 4, 2000, defendant made its reply, informing that the

offer was not acceptable because the estimated account was
P337,467.64 as of February 29, 2000 but instead Mr. Sombito, Sr. was
further given a chance “to submit the last and final offer as soon as
possible so that defendant can evaluate the proposal for submission to
-5-
their Board of Directors for approval (Exh. “K”). The late Sombito, Sr.
pleaded with defendant in his letter dated April 29, 2000, that its
decision be reconsidered because his offer was made six (6) years ago
and submitted thereto that his last and final offer was P160,000.00
(Exh. “L”).
On May 9, 2000, defendant sent a letter, informing Sombito, Sr.

that his offer of P160,000.00 was way below the market value of the
property and suggested to substantially increase the offer to merit
consideration by their Board of Directors (Exh. “M”). On May 26, 2000,
Sombito, Sr. received another letter from defendant informing among
others that the minimum price of the subject property is P2,114,160.00
(Exh. “N”). As if adding insult to injury, defendant sent another letter
addressed to plaintiff Romulo Sombito, Jr. dated February 26, 2003,
threatening among others to eject him the premises (Exh. “O”).
The complaint further alleges that from early seventies up to the

present, plaintiffs and their parents are in actual, continuous and in
open possession of the property in question. The foreclosure
proceedings conducted by the defendant in 1984 was illegal for lack of
the required notice and contrary to the provisions of Act 3135, as
amended, hence, the Certificate of Sale issued therefrom was null and
void and the new Transfer Certificate of Title No. T-187149 issued in the
name of the defendant in lieu of the former title Transfer Certificate of
Title No. T-28293 did not transfer ownership to the defendant PVB. The
aforesaid property was sold only for P48,000.00 as appearing in the
Certificate of Sale dated July 3, 1984 which is quite unconscionable and
shocking because the true value of the property as appraised by the
defendant itself is P2,114,160.00.
Herein plaintiffs further maintain that it is quite apparent from

the beginning that defendant was maliciously and malevolently delaying
to act on the offer of the plaintiffs’ father to repurchase or pay their
accounts. Since it took the defendant more than six (6) long years to
determine the actual price of the property in question.
As can be gleaned from the records, it is very clear that defendant
is maliciously blocking the reacquisition of the said property to the
detriment and prejudice of the rightful owners thereof. From the selling
price of P337,467.64 as of February 29, 2000 defendant without mercy
and in an effort to unjustifiably block the plaintiffs from reacquiring the
subject property unreasonably raised the minimum price thereof to
P2,114,160.00 on May 26, 2000 in such a way that it is already beyond
the reach of the plaintiffs and their parents. By reason of the
-6-
unjustifiable acts of the defendant, it triggered the fast deterioration of

the physical and mental condition of the plaintiffs’ father which caused
his untimely demise on August 5, 2004. In view of the malicious and
fraudulent acts of the defendant as duly adverted to in the foregoing
paragraphs, plaintiffs are entitled to moral and exemplary damages in
the amounts of P400,000.00 and P100,000.00, respectively, which
should be assessed against herein defendant. To assert their rightful
claims, plaintiffs engaged the services of counsel for P150,000.00 as
Attorney’s fees plus P2,500.00 as appearance fee for every court
hearing.
STATEMENT OF ISSUES
The issues of law and of facts raised in this case are as follows:
Whether or not the foreclosure conducted by the defendant bank

against the property of the plaintiff is valid or not;
Whether or not defendant’s inaction or delay in the processing of

the plaintiffs’ offer to redeem the property amounted to an actionable
wrong; and
Whether or not plaintiffs are entitled to damages.
DISCUSSION/ARGUMENT
Errors raised by the plaintiffs/appellants Nos. 1 and 2 are hereby

discussed jointly considering that they are entertwined to each other, as
follows:
1. The Honorable Court erred in holding that failure to comply

the mandatory requirement of posting of notice of extra-
judicial sale and publication thereof will not invalidate the
foreclosure proceedings and
2. The Honorable Court erred in holding that the Sheriff who
conducted the foreclosure sale was regularly performing his
official duty.
With due respect to the findings and conclusions of the Honorable

Court, paragraph 5, page 5 of the decision dated December 17, 2015
states:
-7-
“The contention of the plaintiffs is however untenable. Indeed, the

plaintiffs relied heavily on the failure of the defendant to present proof
that proper notices of the auction sale had been made. Defendant
merely presented a Certification dated November 19, 2009 (Exh. “14”)
issued by the Office of the Clerk of Court & Ex-officio Provincial Sheriff
to the effect that “the records in Philippine Veterans Bank petition for
extrajudicial foreclosure of mortgage under Act 3135 against spouses
Romulo & Carmen Sombito is no longer in their office archives”.
Defendant likewise presented an original copy of the Petition for
Foreclosure dated May 2, 1984 (Exh. “13”) addressed to the sheriff.”
Appellants would like to take exception to the fact that the petition
for foreclosure dated May 2, 1984 (Exh. “13”) had no impression
stamped received by the Office of the Provincial Sheriff of Negros
Occidental. By itself, the said document could not prove if it was the
same petition which was made the basis of the issuance of the
Certificate of Sale by the Sheriff. Also, there was no evidence submitted
that the required procedures under Act No. 3135, as amended, for the
extrajudicial foreclosure of the property of the Appellants had been
properly followed and observed. It was true that defendant/appellee
submitted a Certification issued by the Office of the Clerk of Court & Ex-
officio Provincial Sheriff that the “the records in Philippine Veterans
Bank petition for extrajudicial foreclosure of mortgage under Act 3135
against the spouses Romulo and Carmen Sombito is no longer in their
office archives”, however, the said Certification could not prove the fact
that procedures in the foreclosure under Act 3135, as amended, were
properly followed. Plaintiffs/Appellants maintain that the required
notice under Act 3135 had not been complied with in view of the fact
that they had no actual knowledge of the alleged foreclosure in 1984.
The Honorable Regional Trial Court further cited “the recent case of
Virginia M. Venzon vs. Rural Bank of Buenavista, Inc., G.R. No. 178031,
August 28, 2013, the Supreme Court ruled that ”the February 2, 2005
certification issued by the Office of the Clerk of Court of Butuan City to
the effect that the record of the foreclosure proceedings could not be
found is not sufficient ground to invalidate the proceedings taken”.
The Supreme Court likewise held in said Venzon case that “the court
is not prepared to be lenient in petitioner’s case as Civil Case No. 5535
was instituted only in 2005 while the questioned foreclosure
proceedings took place way back in 1987. Petitioner’s long inaction and
commission of a procedural faux pas certainly cannot earn the
sympathy of the court.”
-8-
It is humbly submitted herein that the above-mentioned Venzon Case

cited in the questioned decision is not applicable in the instant case
because of the following reasons: 1) In the Venzon case, publication of
the notice of extrajudicial sale is no longer required under the law since
the amount involved was below P10,000.00 and 2) In the Venzon case,
the issue raised was that there was no foreclosure proceedings,
however, in this case Appellants questioned the compliance required
under Act 3135, as amended, more specifically the required posting and
publication of the notice of extrajudicial sale.
Appellants admitted that they have unpaid loan accounts with

defendant bank. Appellants were also aware of the existence of the
Certificate of Sale issued by the Sheriff in this case. However, the
defendant/appellee failed to submit that prior to the issuance of the
Certificate of Sale, the required posting and publication of notice of
extrajudicial sale were complied.
The Supreme Court has ruled in several cases the importance of

publication and posting of notices of extrajudicial sale as follows:
“The notice, to be valid, of sheriff’s sale must contain the correct title number and
technical description of the foreclosed, and the date, time and place of the foreclosure sale,
otherwise the proceedings will be invalid. X x x Notice of Sheriff’s sale must contain the correct
title number and technical description of property foreclosed. X x x The purpose of the
publication of the Notice of Sheriff’ s Sale is to inform all interested parties of the date, time
and place of the foreclosure sale of the real property subject thereof. (See San Jose vs. CA, 225
SCRA 450.)”
“The posting of the notice is to let the public know of the sale to the end that the best price
or a better bid may be made possible to minimize prejudice to the judgment debtor. The notice
to the judgment debtor is intended to give him the opportunity to prevent the sale by paying
the judgment debt sought to be enforced and the costs which may have been incurred
pursuant to Section 20 of Rule 38, Or, at the very least, it affords him a chance to be present at
the auction sale and help insure a regular bidding or prevent the rigging of the process. See
Torres vs. Cabling, 84 SCAD 419.”
Defendant/appellee failed to establish and prove that they comply
the requisites of valid posting and publication of notice of extrajudicial
sale. In fact there was none, otherwise, plaintiffs/appellants parents
would have prevented the extrajudicial sale by paying in full their
account of only P48,000.00 or otherwise, at least, redeem the
mortgaged property. But in view of its failure to comply the said
requirements of notices, the foreclosure proceedings conducted by the
Sheriff in 1984 should be declared by this Honorable Court as null and
void.
-9-
The Honorable Regional Trial Court concluded that the Sheriff who
conducted the extrajudicial sale against the property of the
plaintiffs/appellants, enjoys the presumption of regularly performing
his official functions. With due respect, the Honorable Court failed to
observe in this case that the records of foreclosure which should be
regularly or usually kept in the possession of the Office of the Provincial
Sheriff as part of its official functions should have been intact in its
possession, if there is any record, but according to its Certification “no
longer in their office archives”, are blatant disregards of its official
functions and irregular in the performance of its duty. It is the duty of
the said office to maintain all the records of foreclosures, hence, failure
to produce copy of the foreclosure proceedings could also create a
presumption that there was no foreclosure proceedings at all that were
conducted against the property of the plaintiffs/appellants. Hence, the
presumption that the Sheriff had regularly performed his official
functions should not be given enough credence by this Honorable Court.
3. The Honorable Court erred in holding that inadequacy of the

selling price during the public auction sale will not invalidate
the sale
While the plaintiffs/appellants still subscribed to the legal principle

enunciated in Sulit vs. CA, 79 SCAD 684, that:
“The general rule that mere inadequacy of price is not sufficient to set
aside of foreclosure sale is based on the theory that the lesser the price the
easier it will be for the owner to effect the redemption. X x x”
is, however, not applicable to the case at bar because how could the
plaintiffs/appellants parents effect redemption thereof, when they have
no knowledge of the foreclosure of their property. Only on April 8, 1994,
that the father of the plaintiffs/appellants knew of the said foreclosure.
As earlier said, there was no posting and publication of notice of
extrajudicial foreclosure sale against the property of the
plaintiffs/appellants were made, otherwise, plaintiffs/appellants father
could have prevented the auction sale in 1984 or at least redeem the
property within the One-year redemption period.
4. The Honorable Court erred in holding that the Register of

Deeds which issued the new title of the land in controversy
and the Sheriff who conducted the foreclosure sale are
indispensable parties
-10-
With due respect, the plaintiffs/appellants disagree to the findings

and conclusions of the Honorable Regional Trial court that “the Sheriff
and the Register of Deeds, are indeed indispensable parties, who should
have been impleaded by the plaintiffs to vest jurisdiction of the court”.
It is the humble conclusion of the herein plaintiffs/appellants that the
Sheriff and the Register of Deeds are merely necessary parties and
joinder of necessary parties is only directory.
“Indispensable parties are those with such an interest in the

controversy that a final decree would necessarily affect their rights, so
that the courts cannot proceed without their presence. Necessary
parties are those whose presence is necessary to adjudicate the whole
controversy, but whose interests are so far separable that a final decree
can be made in their absence without affecting them. (Seno vs.
Mangubat, 156 SCRA 113). Necessary parties are now called proper
parties (Quiombing vs. CA, 189 SCRA 325).”
The duties and functions of the Sheriff and the Register of Deeds are
purely ministerial in nature and the inclusion of them in a case was
because they are the government officials who handled foreclosures and
recording or changing of titles from one person to another. Their rights
and interest are not affected by the final judgment or order of the court
unless they are sued in their respective personal capacity. Hence,
inclusion of them in controversy similar with this case is merely
directory and not mandatory.
“The non-inclusion of a necessary party does not prevent the court

from proceeding in the action, and the judgment rendered therein shall
be without prejudice to the rights of such necessary party. (Agro-
Conglomerates, Inc. vs. CA, 348 SCRA 450.”
5. THE HONORABLE COURT ERRED IN HOLDING THAT
PLAINTIFFS LATE FATHER FEIGNED IGNORANCE OF THE
FORECLOSURE
It is quite unfair for the Honorable Regional Trial Court to conclude

that plaintiffs/appellants late father, in his letter dated February 1,
1994, “feigned ignorance of the foreclosure and requested for a
statement of account” because the said conclusion was merely based on
its opinion and there was no evidence to support the same.
Plaintiffs/appellants late father in truth did not know about the
foreclosure of his property by the defendant/appellee since he did not
receive any notice of foreclosure thereof. Since he did not know of the
alleged foreclosure, how could he participate in the public auction sale
-11-
or at least redeem the same within the one-year redemption period.

When the late Romulo Sombito, Sr. wrote defendant/appellee on
February 1, 1994 inquiring about his account, he did not know that the
same was already foreclosed by the bank.
6. THE HONORABLE COURT ERRED IN HOLDING THAT THE

LATE ROMULO SOMBITO, SR. ACKNOWLEDGED THE
LEGALITY AND VALIDITY OF THE FORECLOSURE, AS IN FACT
HE OFFERED TO BUY BACK THE PROPERTY
As earlier advanced, the offer to buy back the property was in line
with the suggestion of the defendant’s/appellee’s letter dated April 8,
1994 (Exhibit “E”), in the desire of plaintiffs/appellants late father to
recover the said property. In the said letter offer dated April 22, 1994,
(Exhibit “F) in compliance with the suggestion of the
defendant/appellee, plaintiffs/appellants late father had even showed
his surprise to the former about the foreclosure of his account and
complied by submitting his offer to buy back the property. He did not
acknowledge in that letter the legality and validity of the foreclosure. In
fact, he was surprised of the foreclosure of his property since he did not
receive any notice of such alleged foreclosure proceedings. Such offer to
buy back the property was only made in compliance with the suggestion
of the defendant/appellee since plaintiffs/appellants late father wanted
to recover the same through peaceful and less expensive means since he
was also a veteran himself.
7. THE HONORABLE COURT ERRED IN HOLDING THAT

PLAINTIFFS AND THEIR PREDECESSORS WERE GUILTY OF
ESTOPPEL AND LACHES.
As earlier mentioned, upon receipt of the letter reply of
defendant/appellee dated April 8, 1994, informing that
plaintiffs/appellants late father’s account was already foreclosed and
suggesting to make a definite offer to buy back the property, it was
only that time that he knew of the said foreclosure. In fact, in his
letter offer dated April 22, 1994, he made mention of his surprises of
the foreclosure by the defendant/appellee. He did not waste time
but immediately follow the suggestion of the defendant/appellee to
make a definite offer. However, the said offer of April 22, 1994 was
only answered after almost Six (6) years, when plaintiffs/appellants
late father received defendant/appellee’s letter reply dated February
4, 2000, that the offer was unacceptable because accordingly the
Bank’s Claim was estimated at P337,467.64 as of February 29, 2000
(Exh. “K”). The negotiations to recover back the property dragged
-12-
until year 2003, when defendant/appellee replied Mr. Sombito, Sr.’s

letter dated January 25, 2003, rejecting the latter’s offer and
threatening to eject him from the property (Exh. “O”).Mr. Sombito, Sr.
died on August 5, 2004. This case was filed in year 2005, when the
plaintiffs/appellants could not reacquire back the property through
peaceful and inexpensive means. Where is laches and estoppel in
this case. Certainly, you could not blame the plaintiffs/appellants
deceased parents from July 3, 1984, the day the Certificate of Sale
was issued by the Sheriff until April 8, 1994, the day the letter reply
of defendant/appellee was made informing the former about the
foreclosure of his account certainly because they have no knowledge
of the said foreclosure. In fact, there was no posting and publication
of notice of extra-judicial foreclosure of their account. Hence, laches
and estoppel did not set in this case.
The case of Maximo Landrito, Jr. and Pacita Edgalani vs. the Hon.
Court of Appeals and Ex-Officio Sheriff of RTC-Makati and Reg. of
Deeds of Makati, G. R. No. 133079, August 9, 2005 will not apply in
this case because in this case there was absence of posting and
publication of notice of extra-judicial foreclosure sale, hence, it was
the very reason why plaintiffs/appellants late parents failed to
attend the foreclosure sale or at least redeem the property in
question.
8. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE

DELAY AND INACTION OF PLAINTIFFS OFFER TO BUY BACK
THE PROPERTY FOR SIX (6) LONG YEARS BY THE
DEFENDANT WAS NOT ATTENDED BY BAD FAITH.
With due respect to the conclusion of the Honorable Court that
the six (6) long years of inaction and delay in the processing of
plaintiffs offer to buy was not tainted with bad faith. This conclusion
was derived at because accordingly defendant/appellee have in fact
acted plaintiffs offer to buy back the property by responding Five (5)
letters, letter dated April 10, 1995 (Exh. “G”), letter dated August 19,
1998 (Exh. “H”), letter dated February 4, 2000 (Exh. “K”, letter dated
May 9, 2000 (Exh. “M”) and letter dated May 26, 2000 (Exh. “N”).
However, if you go over the said letter reply of defendant/appellee, it
was only in that last letter dated May 26, 2000, wherein the latter
finally responded as to the actual selling price of the property. To
sum it up, it took defendant/appellee six (6) long years to respond on
the letter offer of the plaintiffs dated April 22, 1994. The
plaintiffs/appellants hereby argue that if the said offer was earlier
acted upon by the defendant, the selling price or value of the
-13-
property could not have risen very high or up to the extent that it will
be beyond the reach of herein plaintiffs/appellants. In short, the long
delay of inaction by the defendant of plaintiffs offer has cast doubt as
to the real intention of the latter.
9. THE HONORABLE COURT FAILED TO APPLY THE PRINCIPLE

OF JUSTICE AND EQUITY IN THIS CASE.
As earlier discussed, the defendant/appellee failed to comply the

requirements of notice and posting as required under Act 3135, as
amended, and as such the plaintiffs/appellants failed to participate in
the alleged public auction sale or block the foreclosure of their property
or at least exercised their right of redemption.
In Perez vs. PNB, 17 SCRA 833, the Supreme Court said that:
"Where the mortgagee failed to give notice of the foreclosure to

the debtor's widow and heirs, thus preventing them from blocking the
foreclosure through seasonable payment and impeding their
effectuating a seasonable redemption, justice and equity would be
served by permitting them to redeem the foreclosed property within a
reasonable time, by paying the capital and interest of the indebtedness
up to the time of redemption, plus foreclosure and useful expenses,
less any rents and profits obtained by the mortgagee from and after the
same entered into its possession."
Plaintiffs/appellants wish, under the principle of justice and

equity that they be given reasonable time to redeem the subject
property pursuant to the aforesaid decision of the Supreme Court.
PRAYER

this Honorable Court that the Decision dated December 17, 2015 issued
by the Honorable Regional Trial Court, Branch 55, Himamaylan City,
Negros Occidental, be REVERSED AND SET ASIDE and that another
decision be issued declaring the foreclosure proceedings over Lot No.
1483 of the Himamaylan Cadastre and the Certificate of Sale dated July
3, 1984 be declared null and void, Transfer Certificate of Title No. T-
187149 in the name of the defendant bank be ordered cancelled and for
the Register of Deeds of the Province of Negros Occidental to reinstate
TCT No. T-28293 in the name of Sps. Romulo Sombito, Sr. and Carmen
Mirasol Sombito and to award damages.
-14-
Such other relief and remedies equitable under the premises are
likewise prayed for.

Counsel for the Plaintiffs/Appellants
Rm. 206, TG Building,
PTR No. 6689475-1/9/17
IBP No. 3055519-1/3/17
Roll No. 33660/p.232
MCLE No. V-00001336-1/6/14
Copy Furnished:
Atty. Francisco Mabayag, Jr.

Counsel for the defendant/appellee
Philippine Veterans Bank
Suite 201, Yusay Bldg., Araneta St.,
6100, Bacolod City
The Regional Trial Court

Branch 55, Himamaylan City
REGIONAL TRIAL COURT
6th Judicial Region
-o0o-
PEOPLE OF THE PHILIPPINES, Criminal Case Nos. 07-30641-

60
Complainant,
- versus -
AUDIE YELO,
Accused.
x- - - - - - - - - - - - - - - - - - -x

Court most respectfully submits his APPELLANT’S MEMORANDUM in
the above-entitled cases, as follows:
I
THAT THE DECISION DATED JULY 23, 2007 ISSUED BY THE
LOWER COURT IS NULL AND VOID FOR LACK OF DUE PROCESS
II
THAT THE HONORABLE LOWER COURT FAILED TO OBSERVE

THAT THE TOTAL AMOUNT OF CHECKS ISSUED ARE MORE
THAN THE VALUE OF THE ALLEGED MATERIALS DELIVERED
The information of these cases, (20 cases) were filed by the City
Prosecutions Office on May 25, 2004 for violations of Batas Pambansa
Blg. 22 which arose from the Complaint filed by YR Trading &
Construction, Inc. duly represented by its President, Enrique Rojas. The
accused was arraigned last August 20, 2004 before the Municipal Trial
Court in Cities, Branch 4, Bacolod City presided by Judge Danilo
Amisola. On April 12, 2005, a Preliminary Conference
Order was issued. In view of the failure of mediation and JDR, the
said cases
were transferred to Municipal Trial Court in Cities, Branch 3, Bacolod
City in May, 2005. Initial presentation of evidence for the prosecution
was immediately set on June 21, 2005. However, the prosecution only
filed its formal offer of exhibits on January 30, 2007. On February 23,
2007, the lower court issued an order for admission of all exhibits of the
prosecution despite Opposition thereof. The presentation of evidence
for the defense was scheduled on March 7, 2007. The undersigned
counsel failed to appear due to the fact that the said schedule did not
appear in his calendar and that the same time and date of hearing
(March 7, 2007), he had a conflict of scheduled hearings at Municipal
Circuit Trial Court of E.B. Magalona-Manapla, E.B. Magalona, Negros
Occidental which as duly explained in his Explanation dated March 16,
2007, which is now part of the records of these cases. The court set
another date for the presentation of evidence for the defense on March
28, 2007, but the same was cancelled in view of the request of the
Private Complainant’s counsel. Again, the Honorable Court reset the
same on April 30, 2007. On the said hearing, counsel for the defense
failed to appear, instead, sent his Secretary to inform the Court that he
could not attend due to the fact that he was suffering from LBM. Despite
thereof, the Honorable Court proceeded and submitted the case for
decision. On May 22, 2007, counsel for the defense filed a Motion for
Reconsideration but the same was denied per order dated May 25,
2007. On July 23, 2007, the Court issued a decision in these cases
convicting the accused for (Twenty (20) Counts for violations of Batas
Pambansa Bilang 22. On August 13, 2007, the Accused appealed this
cases, hence, they are pending before this Honorable Court.
The accused is engaged in a construction business using the Trade

name AVY Construction. He started purchasing project materials in
August, 2001 at YR
Trading and Construction, Inc. and began to know its owners Mr.
Enrique Roxas, Jr. and Emily Yanson Ramos. When the accused was able
to obtain a project at
Ayala North Point, Talisay City, he approached the owners of Private
Complainant if they can assist him by supplying him construction
materials on credit, payable upon collection of which they agreed after
visiting the site and conducting credit investigation on the personal
capacity of accused. When the construction of the project started, the
Accused made cash purchases of materials with the Private
Complainant. However, when he ran out money, he started availing the
assistance of the Private Complainant and issued Twenty (20) post
dated checks. Unfortunately, the Accused failed to collect the progress of
his work at Ayala North Point due to an accident he succumbed which
rendered him and his business paralyzed for six (6) months. When the
Twenty (20) post dated checks were presented for payment to the
drawee bank, all were returned for being account closed. The accused
wanted to redeem these checks, however, due to the discrepancy which
the Private Complainant could not explain and correct, the Accused
deferred his payment until now.
ARGUMENTS
THAT THE DECISION DATED JULY 23, 2007 ISSUED BY THE
LOWER COURT IS NULL AN VOID FOR LACK OF DUE PROCESS
------------------------------------------------------------------------
As shown in the Order of the Lower Court dated May 25, 2007,
denying the motion for reconsideration of the accused dated May 22,
2007, specifically paragraph 6 thereof, which is quoted hereunder:
“On March 7, 2007 and on April 30, 2007, the defense failed to
present evidence for reason that the hearing were not reflected on his
calendar or there was conflict of schedule as counsel appeared
elsewhere and that on the second date he was suffering from loose
bowel movement.”
and the last three paragraphs, page 9 of the questioned decision which
is also quoted hereunder:
“The defense were given all the chances to settle and to defend
himself by presenting evidence.”
“The counsel fell short of what was expected to him.” And
“It is said that the mistaken committed by a counsel binds the
client, true there is no despite therefore that the cases be considered
ripe for resolution.”
The reasons of the failure of the counsel for the defense to attend
the March 7, 2007 hearing as already explained per explanation dated
March 16, 2007 submitted to the lower court were:
1. “He was not aware of the said schedule of hearing because it
was not recorded in his calendar book” which means that there was no
notice to him of such schedule and that even if he has been notified he
could not attend the same due to
2. conflict of schedule hearings in People of the Philippines vs. Ma.
Fe Baloran, et. al., docketed as Criminal Case No. 4162-M for Slight
Physical Injuries, People of the Philippines vs. Alfredo Baloran docketed
as Criminal Case No. 4164-M for Grave Threats and in People of the
Philippines vs. Ma. Fe Baloran docketed as Criminal Case No. 4194-M
for Less Serious Physical Injuries, all at Municipal Circuit Trial Court of
E.B. Magalona-Manapla, E.B. Magalona, Negros Occidental.
are the foregoing reasons not compelling enough?
The reason why counsel for the defense failed to appear the April
30, 2007 was due to sickness. He was then suffering from Loose Bowel
Movement. The same was explained in his Motion for Reconsideration
dated May 22, 2007.
Is sickness not a compelling reason why counsel failed to attend?
The said cases were pending before the Honorable Lower Court in
May, 2005 and the prosecution was able to present evidence and in fact
submitted its formal offer of exhibits only on January 30, 2007. Now for
only two (2) occasions (March 7, 2007 and April 30, 2007) and the
failure to attend hearing were based
on lack of notice, conflict of hearing and sickness, are not compelling
reasons of counsel’s failure to appear of the hearings above-mentioned?
The Lower Court immediately foreclosed the right of the Accused to
present his evidence in this case, contrary to its own decision and
conclusion that “the defense was given all the chances to settle and to
defend himself by presenting evidence”. The worst of all is that the
Honorable Lower Court is blaming the undersigned counsel when it said
“the counsel fell short of what was expected to him” is the Honorable
Lower Court expect counsel for the defense to attend the hearing of
these cases without due notice thereof or even if he was sick and
incapable to withstand the rigors of trial, is the Honorable Lower Court
forcing him to present his case? The counsel for the defense is merely a
human being and susceptible to sickness. The Honorable Lower Court
should be receptive and liberal enough especially that these cases
involved a penalty of imprisonment. These cases should be ordered and
remanded back to the Lower Court for reception of evidence for the
Accused for lack of due process.
“A denial of due process suffer to cast on the official acts taken by
whatever branch of government the impression of nullity. A decision
rendered without due process is void ab initio and may be attacked
directly or collaterally. (__US. CA, G.R. No. 109557, Nov. 9, 2000).”
THE HONORABLE COURT FAILED TO OBSERVE THAT THE

TOTAL
AMOUNT OF CHECKS ISSUED ARE MORE THAN THE VALUE
OF
THE ALLEGED MATERIALS DELIVERED
__________________________________________________
The questioned decision and the evidences presented, failed to

explain how the accused issued Twenty (20) Checks aggregating
P476,880.64 accordingly as payment to the materials only worth
P425,838.14. It merely shows how haphazard the decision was
prepared, may be to reduce the number of cases it pends before the
Lower Court at the detriment of the Accused. If the Accused was allowed
to present his evidence, may be these facts can be clearly shown and
explained. These facts are substantially inconsistent, hence, the decision
deserves to be declared null and void.
PRAYER

this Honorable Court that the decision dated July 23, 2007 rendered in
the above-entitled cases be declared null and void and that the same
be ordered to be
remanded back to the lower court for reception of evidence of the
accused.
Bacolod City, Philippines, November 25, 2007.

Counsel for the Accused
PTR # 0140952 – 1/31/07
IBP # 613433 - 1/31/07
Roll No. 33660/p.232
Copy Furnished:
The Prosecutors Office

City of Bacolod
Atty. Ronnie Causapin

Private Prosecutor
6th Judicial Region
BRANCH 68
P.D Monfort North, Dumangas, Iloilo
FELIMON BEARNEZA, SR.

herein represented by
FELIMON BEARNEZA, JR
Plaintiff/s.
-versus- CIVIL CASE NO. 503

For: Ejecment with Prayer
for Preliminary
Mandatory
Injunction
EDWIN BEARNOD
Defendant/s
x------------------------------x
APPELLANT'S MEMORANDUM
COMES NOW defendant/appellant by counsel and to this

Honorable Court most respectfully submits his APPELLANT’S
I
THAT THE DECISION DATED JUNE 15, 2011 ISSUED BY THE
LOWER COURT IS NULL AND VOID FOR FAILURE OF THE PLAINTIFF
TO PROVE PRIOR POSSESSION OF THE LAND
II

THAT THE DEFENDANT OCCUPIED ONLY A PORTION OF THE
PROPERTIES MENTIONED WHICH PERTAINS AS SHARE OF HIS
DECEASED FATHER
This case was filed by Felimon Bearneza, Sr., duly

represented by his son Felimon Bearneza, Jr., for ejectment with prayer
for preliminary mandatory injunction on August 27, 2009 against
defendant/appellant, Edwin Bearnod. On September 22, 2009,
defendant Bearnod filed this Answer with Counterclaim through
registered mail. After the Mediators of the Philippine Mediation Center,
Dumangas Unit at RTC, Br. 68, P. D. Monfort North, Dumangas, iloilo,
failed to bring the parties to a compromise agreement, this case was set
for Pre-trial Conference on January 26, 2010 at 8:30 o'clock in the
morning. On May 18, 2010, after several failed hearings, the lower court
issued an order, submitting this case for resolution. On June 15, 2011,
the lower court issued a decision in the above-entitled case, dispositive
portion of which reads:
"Wherefore, judgment is hereby rendered ordering the defendant
the following:
1. To vacate and to peacefully turn-over the possession of the
following parcels of land to the plaintiff, to wit:
a. Lot No. 1, being a portion of the consolidation of Lots 4948 &

4951, with an area of 6,067 square meters more o less, and
covered by TCT No. 220, 712.
b. Lot No. 1 being a portion of the consolidation of Lots 4 & 5,

with an area of 9, 101 square meters, more or less, and covered by
TCT No. 220, 713.
c. Lot No. 2 being a portion of consolidation of Lots 4948 & 4951,

with an area of 3, 033 square meters, more or less, and covered by
TCT No. 220,708.
d. Lot No. 3 being a portion of consolidation of Lots 4948 & 4951,

with an area of 6,067 square meters, more or less, and covered by
TCT No. 220,709.
2. To demolish and to remove all improvements he introduced on

the subject Lots at his own expense.
3. To pay plaintiff litigation expenses in the amount of P

10,000.00, attorney's fees of P 10,000.00 and appearance fee of P
2,000.00.
SO OREDERED."
In view of the said adverse decision, hence, this appeal.

The defendant, Edwin Bearnod, is the grandson of Sps. Maximo
Bearnod and Simona Bayoneta, who are now deceased. The deceased
Spouses were survived by Five (5) children, namely: Faustino, Liberata,
Domingo, Jesus and Irenea Bearnod. Liberata died as single, hence, only
the Four (4) of them will inherit from the deceased Spouses.
Defendant/appellant is the son of Faustino Bearnod. The properties
subject matter of this case were formerly owned and registered by the
deceased Spouses Maximo Bearnod and Simona Bayoneta. Irenea
Bearnod who married Felimon Bearneza, was able to transfer the
properties in her name by means of a Deed of Extra-Judicial Settlement
dated October 5, 1990, wherein she fraudulently stated that she was the
only forced heir of the deceased, prompting Faustino Bearnod upon
learning the same to file an adverse claim thereof. However, without
the knowledge and through fraudulent manipulation by Irenea Bearnod
and her husband Felimon Bearneza, the said adverse claim was
cancelled. When Irenea Bearnod died, the titles of the properties were
transferred in the sole name of Felimon Bearneza, Sr., as it appears
right now. In the meantime, from the death of Maximo Bearnod in 1980
since Simona Bayoneta died earlier, Faustino Bearnod continue to
cultivate and toil a portion of the aforesaid land which pertain to his
share. When Faustino Bearnod died, defendant Edwin Bearnod, the
eldest son of Faustino Bearnod, told Felimon Bearneza, Jr.,
administrator of Felimon Bearneza, Sr., that he will continue the
cultivation and occupation of the land which was earlier possessed by
his deceased father since it was vacant then. He did not object. When
defendant plowed and planted the land to rice, he was surprised to
receive demand letter to vacate the properties and summons in this
case. Defendant has no other recourse except to hire the services of a
lawyer and defend himself.
ARGUMENTS
I
THAT THE DECISION DATED JUNE 15, 2011 ISSUED BY THE
LOWER COURT IS NULL AND VOID FOR FAILURE OF THE PLAINTIFF
TO PROVE PRIOR POSSESSION OF THE LAND
------------------------------------------------------------------------
As can be gleaned from the allegations in the Complaint and

findings of the lower court in its decision dated June 15, 2011, plaintiff
has not shown and the evidence submitted are bereft of his prior
possession of the properties in question. Plaintiff relied merely of his
titles to the land. Police blotter submitted is also self-serving since
there was no confrontation of the parties nor investigation conducted
by the police who recorded the same. The allegations of the Complaint
although this is entitled "ejectment and damages" points out that this
case is for forcible entry. Paragraph 4 of the Complaint points that out.
However, there was no allegations that plaintiff was in prior possession
thereof which is imperative requirement under the law and in several
decisions of the Supreme Court, viz:
"In forcible entry, the allegations of prior physical possession is
indispensable, x x x (Sumulong vs. CA, 232 SCRA 372)"
"The requirement of prior physical possession of the disputed

property is an indispensable requirement in an action for forcible entry,
x x x (Aznar Brothers Realty Company vs. CA, 327 SCRA 359)"
"Prior physical possession is indispensable only in actions for

forcible entry, x x x (Jimenez vs. Patricia, Inc., 340 SCRA 525)"
While the properties are titled in the name of the plaintiff,
possession thereof belongs to the defendant/appellant as successor of
his deceased father, Faustino Bearnod. The latter was in possession of
portion of the properties being one of the heirs of the deceased Sps.
Maximo and Simoneta Bearnod since 1980 yet. Irenea Bearnod, who
was the only schooled child of deceased Sps. Bearnod, was able to
transfer the titles of their common properties in her name without the
knowledge and consent of her siblings. Such transfer was illegal
because she declared that she is the only forced heir of the deceased
Sps. Bearnod, when in fact and in truth they were actually five of them.
When Irenea Bearnod Bearneza died, all of the titles are transferred
only in the name of the plaintiff with a ploy may be to cover the
fraudulent and illegal transfer of titles by them.
In forcible entry cases, the Honorable Court is merely tasked to
determine who has the right of possession unless the same cannot be
resolved without resolving first the issue of ownership. This is true in
line of Supreme Court decisions on the matter:
"The only issue in an action for forcible entry is the physical or
material possession of real property that is possession de facto and not
possession de jure. See Joven vs. CA, 212 SCRA 700.)"
"In an action for forcible entry, the only issued involved is mere
physical possessiion (Possession de facto) and not juridical possession
(possession de Jure) nor ownership--the judgment rendered in the
ejectment case is effective only with respect to possession and--in no
wise bind the title or affect the ownership of sthe land." See Cagayan de
Oro City Landless Residents Association, Inc. vs. CA 254 SCRA 220.
The plaintiff presented the titles of the land and official receipts
that he paid the land taxes but failed to allege prior possession thereof,
hence, this case should be dismissed.
II

THAT THE DEFENDANT OCCUPIED ONLY A PORTION OF THE
PROPERTIES MENTIONED WHICH PERTAINS AS SHARE OF HIS
DECEASED FATHER
As earlier mentioned, these properties are owned in common by

the heirs of Sps. Maximo and Simoneta Bearnod. Faustino Bearnod is
the eldest son while Irenea Bearnod, wife of the plaintiff in this case,
was the youngest of Five (5) siblings. When Maximo died in 1980,
Faustino cultivated portion of the properties which represents his
share. However, without the knowledge and consent of him, Irenea was
able to transfer the titles of the properties in her name alone with the
exclusion of the other heirs. Faustino and his other three siblings were
unschooled and did not know how to read and write which was taken
advantage by their youngest sister, Irenea. When Faustino died and the
land was abandoned, defendant being the eldest son of Faustino
continue to cultivate that portion which was cultivated before by his
father. The rest of the land was in the possession of the plaintiff. Hence,
it would be unfair for the defendant to hold him liable that he was in
possession on the entire properties.
PRAYER

this Honorable Court that the decision dated June 15, 2011 rendered in
the above-entitled case be declared null and void and that the
Complaint filed against the defendant be DISMISSED.
Bacolod City, for Dumangas, Iloilo, Philippines, December 15,
2011.

Counsel for the Appellant
PTR # 0140952 – 1/29/11
IBP # 732038 - 2/3/11
Roll No. 33660/p.232
MCLE NO. IV-00001992-6/1/11
Copy Furnished:
ATTY. EDGAR CLAUDIO SUMIDO

Provincial Capitol, Bonifacio Drive
Iloilo City

6th Judicial Region
BRANCH 60, Cadiz City
O0o
MARILOU E. CABRAL, represented
By her AIF Antonio Enoc,
Plaintiff,
-versus- CIVIL CASE NO. (1556)1008-S

For: Unlawful Detainer and
Damages.
CAROLINA ENOC-VIKAN,
Defendant.
x------------------------------------------------x
COMES NOW defendant/appellant by counsel and to this

Honorable Court most respectfully submits his APPELLANT’S
THAT THE DECISION DATED AUGUST 12, 2013 ISSUED BY THE

LOWER COURT IS NULL AND VOID FOR FAILURE TO OBSERVE DUE
PROCESS AS MANDATED BY LAW
II
THAT THE DECISION ISSUED BY THE HONORABLE LOWER COURT

ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE THAT PLAINTIFF
IS ENTITLED TO POSSESSION OF SUBJECT PROPERTY AND THAT IT
FAILED TO ASCERTAIN THAT THE PROPERTY SUBJECT MATTER OF
THIS CASE IS CO-OWNED BY THE PARTIES HEREIN
This case was filed by Marilou E. Cabral, duly represented

by her brother Antonio Enoc for Unlawful Detainer and Damages on
October 1, 2012 against defendant/appellant, Carolina Enoc-Vikan, who
happened to be their elder sister, on a property which belong to their
deceased parents Sps. Flaviano and Loreta Enoc. On October 17, 2012,
defendant Vikan filed her Verified Answer with Compulsory
Counterclaims. After the mediation and Judicial Dispute Resolution
(JDR) failed to bring the parties to a compromise agreement, this case
was set for Pre-trial Conference on May 24, 2013 at 10:00 o'clock in the
morning but the same was transferred to July 5, 2013 for failure of the
parties to appear. On July 5, 2013 hearing, the son of the defendant
Teresito Fernandez appeared for and behalf of his mother and informed
the court that Atty. Tranquilino Gale, their counsel has withdrawn his
appearance from the case and that they were looking for another lawyer
to represent them. In view of that predicament, the court was
constrained to transfer the hearing of the case to July 26, 2013 at 10:00
o’clock in the morning. On July 26, 2013 hearing, the defendant and
counsel failed to appear, however, Teresito Fernandez, son of defendant
appeared and manifested about the absence of their counsel and that of
the defendant herself. But considering that he has no authority to
appear and represent the defendant, the court deemed the defendant
and counsel to be absent in the proceedings and upon motion of the
plaintiff, citing section 8 of Rule 70 on the 3 rd paragraph thereof,
wherein the defendant is not present during the preliminary
conference, judgment shall be rendered based upon the complaint, as
well as the dismissal of the defendant’s counterclaim and that the case
was submitted for decision. On August 12, 2013, the Honorable lower
court rendered a decision in the above-entitled case, dispositive portion
of which reads:
"Wherefore, finding the allegations found in the complaint to be

true, defendant CAROLINA ENOC-VIKAN including members of her
family, guests, privies, agents and successors-in-interest pendent lite are
hereby ordered to vacate the parcel of land situated at Barangay
Bulanon, Sagay City, Negros Occidental, identified as Lot 1335, Sagay
Cad. 127 evidenced by Orihinal Titulo Blg. P-18638 and to turn-over the
possession of the premises to the plaintiff. No pronouncement on
damages and attorney’s fees and litigation expenses for insufficient
factual and legal basis therefor.
SO ORDERED.”
The defendant, Carolina Enoc-Vikan is the elder sister of plaintiff

Marilou E. Cabral. They are the children of the late Sps. Flaviano and
Loreta Enoc. There are Ten (10) brothers and sisters in the family
which are hereunder named, as follows: Ester Enoc, (now deceased),
Michaela F. Villaflor, Mariano Enoc (deceased), Eutelia Enoc (disabled
and staying with defendant in the subject house), Lenida E. Mahinay,
defendant Carolina Enoc-Vikan, Antonio Vikan, Virgie E. Villaflor,
Marilou E. Cabral (plaintiff) and Roger Enoc. The above-mentioned
brothers and sisters lived and grew in the subject property which was
owned by the government, until defendant, Carolina Enoc-Vikan left in
1965 for good in Norway. In 1968, after she got married, she visited her
family at their house located at Lot 1335 in Barangay Bulanon, Sagay
City and after she found that their house was about to collapse, she had
it repaired and remodeled. That every time she visited the said house,
she had it repaired and remodeled until the present. That the said
house is open to all of the members of the family since it is owned in
common by them after the death of their parents in 1999. Attached
herewith is the joint affidavit of the parties siblings, attesting to the fact
that the house located at Lot 1335, Barangay Bulanon, Sagay city, is
owned by their late parents and were repaired and remodeled by herein
defendant and to show that the said house was not constructed by the
plaintiff, copy of the said joint affidavit is hereto attached as Annex “A”,
which forms part hereof. At the back of the said house, defendant in
year 2009 constructed a building worth P3,000,000.00 but the same is
unfinished until now since she was being stopped by Marilou Cabral,
Antonio Enoc and Vergie Villaflor. That unknown to the defendant and
to her other brothers and sisters, plaintiff together with Antonio Enoc
and Vergie Enoc-Villaflor in year 2007 surreptitiously and fraudulently
obtained title of the said property in their names only, excluding
defendant and their other siblings. That the said title they obtained is
null and void because the property in this case is owned in common by
the children of the late Sps. Flaviano and Loreta Enoc and not only by
the three (3) of them.
That defendant continuously residing from the subject house

every time she is in the Philipppines and in Sagay City and in fact she
continuously making repairs of the said house. Plaintiff, Antonio Enoc
and Vergie Enoc-Villaflor were never residing in the said house after
they got married. They live separately from their parents even during
the lifetime of the latter.
The defendant learned that plaintiff maliciously and illegally

obtained title of the subject property when plaintiff filed the instant case
and trying to evict her from the premises. Defendant has no other
recourse except to fight and defend her rights and in effect hired the
services of a lawyer.
ARGUMENTS
THAT THE DECISION DATED AUGUST 12, 2013 ISSUED BY THE

LOWER COURT IS NULL AND VOID FOR FAILURE TO OBSERVE DUE
PROCESS AS MANDATED BY LAW
During the July 5, 2013 hearing, the lower court was already
informed by the son of the defendant that their counsel, Atty. Gale had
withdrawn his appearance from this case, in short, defendant at that
time has no counsel to defend herself or handle her defense. It was
informed further that they were still looking for a lawyer. During the
July 26, 2013 hearing, the Honorable lower court declared that the said
case was submitted for resolution. In both scheduled hearings,
defendant failed to appear because she was in Norway. She did not
receive notices of the said scheduled hearings. In fact, she never knew
that her counsel had withdrawn from the case. In All those times,
hearings were attended by her son Teresito Fernandez, who have no
knowledge what to do at that time, and in fact his appearance was
blankly denied by the lower court. Her son did not also inform the
defendant the status of her case. This lack of notice to the defendant
had denied her a day in court. Atty. Gale did not also inform her that he
will withdraw his appearance so that she can hire new lawyer for her
defense. The Lower Court immediately foreclosed the right of the
defendant to present her evidence in this case, by submitting the same
for decision despite the fact that no notices were duly received by the
defendant. Besides, the Honorable lower court had already knowledge
that Atty. Gale has withdrawn from the said case.l The Honorable Lower
Court should be receptive and liberal enough especially that this case
involved a property owned in common by the parties. This fact was
already disclosed in the verified Answer with Compulsory
counterclaims filed by the defendant. This case should be ordered
reversed for failure to observe due process as mandated by law.
“A denial of due process suffer to cast on the official acts taken by

whatever branch of government the impression of nullity. A decision
rendered without due process is void ab initio and may be attacked
directly or collaterally. (__US. CA, G.R. No. 109557, Nov. 9, 2000).”
The records of this case were bereft of any showing that

defendant was duly notified of the scheduled hearings on July 5 and July
26, 2013. And even granting that the withdrawal of Atty. Gale in
handling this case was not proper, he was not also duly notified of the
said hearings on July 5 and 26, 2013 in this case, the main reason
defendant failed to appear on the said scheduled hearings.
II

ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE THAT PLAINTIFF
IS ENTITLED TO POSSESSION OF SUBJECT PROPERTY AND THAT IT
FAILED TO ASCERTAIN THAT THE PROPERTY SUBJECT MATTER OF
THIS CASE IS CO-OWNED BY THE PARTIES HEREIN
As earlier mentioned, the property subject matter of this case is

owned in common by the heirs of the late Sps. Flaviano and Loreta Enoc.
That the parties are one of them. They are both entitled to possession,
the same being undivided and they have not executed any document of
partition to that effect. The plaintiff was not and has never been in
possession of this property including the house. She never constructed
a house thereat as shown in Annex “A” hereof. The alleged house was
built by their parents and was repaired and remodeled by the defendant
herself since 1968 up to the present. Considering that it is owned in
common, any member of the family is entitled to live and reside on the
subject house. That it is not true that it was plaintiff who constructed
and built the house standing in Lot 1335 at Barangay Bulanon, Sagay
City. Plaintiff is residing in Norway right now, Antonio Enoc is residing
in Bacolod City while Virgie Villaflor is residing on a different place and
separate house. In short, plaintiff had never been in possession of the
subject property.
As co-owner of the subject property, defendant is also entitled to

possession thereof. The status of the land never changes, whether it
was titled in the name of the plaintiff or not. It is co-owned by the
children of the late Sps. Flaviano and Loreto Enoc and defendant is one
of the children of the latter. Hence, she is also entitled to possession.
“Each co-owner of property which is held pro-indiviso exercises

his rights over the whole property and may use and enjoy the same with
no other limitation than that he shall not injure the interests of his co-
owners. (See Alejandrino vs. CA, 98 SCAD 472)
Plaintiff and her cohorts were able to obtain title of the subject
property through fraud with the damaged and prejudiced of the
defendant and her other brothers and sisters. They are part owner
thereof and their names should have been included as owners, said
property being the conjugal property of their deceased parents.
Considering that plaintiff obtained the title thereof through fraud, the
same is null and void and had no legal effect. It should be noted that
plaintiff was able to obtain or secure title thereof only in year 2007. The
house standing thereon was built by their parents and not by the
plaintiff in 1977. While it is true that she is working in Norway in 1977,
it was of course through the help and assistance of the defendant. In
fact, it was defendant who shouldered her fares and allowances in going
to Norway.
That defendant did not receive any written demand to vacate

from the premises coming from the plaintiff. The demand letter Annex
“C” of the complaint did not bear defendant’s signature, hence, this
Complaint is premature.
It is very clear that the decision of the lower court was merely
based on the title which was fraudulently obtained by the plaintiff as
her own when in fact and in truth it is owned in common by her other
siblings, defendant included therein. Aside from that, the decision is
bereft of any substantial evidence to support its findings. Hence, this
case deserves to be dismissed.
PRAYER

this Honorable Court that the decision dated August 12, 2013 rendered
in the above-entitled case be declared null and void and that the
Complaint filed against the defendant, who is one of the co-owners of
the subject property, be DISMISSED.
Bacolod City, for Cadiz City, Philippines, April 8, 2014.

Counsel for the Appellant
PTR # 0140952 – 1/31/14
IBP # 732038 - 1/31/14
Roll No. 33660/p.232
MCLE NO. IV-00001992-6/1/11
Copy Furnished:
ATTY. CHERYL PONTEVEDRA
Counsel for the plaintiff
Escalante City
Explanation
This is to certify that copy of this Appellant’s Memorandum was

furnished to ATTY. CHERYL PONTEVEDRA, through registered mail
because personal service is impractical due to the distance of Bacolod
City to Escalante City and also for lack of personnel to personally serve
her.
Thank you.

6th Judicial Region
BRANCH 42, Bacolod City
O0o
SPS. VIRGILIO AND VIOLETA MALAN,

Plaintiffs-Appellees,
-versus- CIVIL CASE NO. 14-14362

(33042)
SPS. MICHAEL AND EVELYN HONTIVEROS,

Defendants-Appellants.
x----------------------------------------------------x
COME NOW defendants/appellants by counsel and to this

Honorable Court most respectfully submit their APPELLANTS
THAT THE DECISION DATED MARCH 14, 2014 ISSUED BY THE

LOWER COURT FAILED TO APPRECIATE THE FACTS THAT THE
PLAINTIFFS/APPELLEES WERE BUYER IN BAD FAITH
II

FAILED TO ADDRESS THE IMPROVEMENTS INTRODUCED BY THE
DEFENDANTS-APPELLANTS
-2-
BRIEF STATEMENTS OF THE CASE AND FACTS
This case was filed by Sps. Virgilio and Violeta Malan for
recovery of possession and damages on February 5, 2013 against
defendants/appellants, Sps. Michael and Evelyn Hontiveros, who are in
possession of Lot 25, Block 79 containing an area of 174 Square Meters
located at Barangay Villamonte, Bacolod City. The possession of the
defendants on that land was made only after the former owner
Sobrejuanite left from the premises and Jonel Ealdama, representative
and employee of the Development Bank of the Philippines allowed
them to take possession thereof after they proposed to buy the same.
By reason thereof and the promise of Jonel Ealdama, to help them
acquire the said property which is just located at the back of their
house, they made room extension, which they incurred expenses in the
amount of P75,000.00. Defendants-Appellees in introducing
improvements thereon in the amount of P75,000.00 have the intention
to buy the same and in fact willing to reimbursed the plaintiffs-
appellees on the amount they paid to the Development Bank of the
Philippines plus expenses for the transfer thereof. Plantiffs-appellees
before buying the said property already knew that defendants-
appellants are in possession and have already introduced
improvements thereof but for ill intentions and motives, they
surreptitiously and secretly bought the said property from the
Development Bank of the Philippines to the damage and prejudice of the
herein defendants-appellants.
After the pre-trial conference on October 8, 2013, the case was

submitted for resolution and the lower court on March 14, 2014,
rendered a decision in the above-entitled case, dispositive portion of
which reads:
"Wherefore, in the light of the foregoing premises, the Court shall

render judgment ordering the defendants:
1. To immediately vacate the premises and peacefully return the

possession of the same to the plaintiffs;
2. To pay plaintiff reasonable rental and/or damages of One

Thousand Pesos (Php1,000.00) per month
-3-
3. computed from Judicial demand or on February 5, 2013 until

possession of the subject property is finally restored in favor of
the plaintiffs;
4. To pay attorney’s fees in the amount of Five Thousand Pesos

(Php5,000.00); and
5. To pay the cost of suit or litigation expenses in the amount of
Four Thousand Seven Hundred Thirty Seven Pesos
(Php4,737.00.
SO ORDERED.”
ARGUMENTS
THAT THE DECISION DATED MARCH 14, 2014 ISSUED BY THE

LOWER COURT FAILED TO APPRECIATE THE FACTS THAT THE
PLAINTIFFS/APPELLEES WERE BUYER IN BAD FAITH
The plaintiffs-appellees before buying the subject property

already knew that the defendants-appellants are in possession thereof.
Such possession was allowed by a certain Jonel Ealdama, employee and
in charge of the disposal of assets acquired of Development Bank of the
Philippines, Bacolod Branch, Bacolod City. Such possession only came
when Romeo Sobrejuanite, former owner, left from the premises and
defendants proposed to buy the said property from the Development
Bank of the Philippines. In fact, such intention to buy plus the promise
of Mr. Jonel Ealdama to help them acquire the said property have
boldened the defendants to introduce improvements of the land. Such
improvements in the form of room extension of their house was made
during the time when Mr. Ealdama was still alive. It is of common
knowledge in the neighborhood that defendants occupied the place with
the blessings of Mr. Ealdama. However, after his untimely demise,
plaintiffs-appellee surreptitiously and secretly
-4
bought the property without our knowledge. They knew of the sale,
only when they were called for conference at the Office of the Barangay
Captain, Barangay Villamonte, Bacolod City. Such acts of the plaintiffs-
appellees, despite knowledge and information that defendants are in
possession thereof and in fact introduced improvements on the
property, could not qualify as buyer in good faith rather they qualified
as purchaser in bad faith.
“Where a purchaser was fully aware of another person’s

possession of the lot he purchased, he cannot successfully pretend later
to be an innocent purchaser for value.”(Heirs of Teodoro de la Cruz vs.
CA, 100 SCAD 312.)
Considering that the plaintiffs-appellees are not innocent
purchaser for value, they should not be accorded protection under the
law.
Lastly, defendants are very much willing to pay the plaintiffs of

the price they paid to the Development Bank of the Philippines and also
the expenses for the transfer thereof.
II

FAILED TO ADDRESS THE IMPROVEMENTS INTRODUCED BY THE
DEFENDANTS-APPELLANTS
With due respect, the Honorable lower court failed to address the
improvements which were introduced by the defendants in the amount
of P75,000.00. Such introduction of improvements are made in good
faith as earlier adverted to. Being a builder in good faith, defendants are
entitled to the protection allowed by law. In Carbonell vs. CA, 69 SCRA
99, the Supreme Court held:
“As a matter of equity, possessor in bad faith is entitled to remove

useful expenditures made by him, such as drainage construction, walled
fence and bungalow if lawful possessor fails to refund the same.”
-5-
PRAYER

this Honorable Court that the decision dated March 14, 2014 rendered
in the above-entitled case be declared null and void and that the
Complaint filed against the defendants be DISMISSED.
Bacolod City, Philippines, September 12, 2014.

Counsel for the Appellants
PTR # 0140952 – 1/31/14
IBP # 732038 - 1/31/14
Roll No. 33660/p.232
MCLE NO. IV-00001992-6/1/11
Copy Furnished:
ATTY. KAROL JOSEPH P. CHIU

Counsel for the plaintiffs
Suite 1, Ground Floor, Geocadin Building
No. 41, Mabini Street, Bacolod City
COURT OF APPEALS
CEBU CITY
PEOPLE OF THE PHILIPPINES, CA G.R CEB-CR- NO. 01928

Regional Trial Court, Br. 47
-versus- Bacolod City, Negros Occ.
RTC No. 05-27874
Re: Viol. of Sec. 11, Art. II of RA
9165
ROSA CALATIS Y INOCENCIO,
Accused- Appellant.
x-------------------------------------------x
APPELLANT'S BRIEF

COURT OF APPEALS
CEBU CITY
PEOPLE OF THE PHILIPPINES, CA G.R CEB-CR NO. 01928

-versus-
ROSA CALATIS Y INOCENCIO,

Accused- Appellant.
x-------------------------------------------x
APPELLANT'S BRIEF

Court most respectfully submits her APPELLANT’S BRIEF in the above-
1. The Honorable Court failed to appreciate the facts that the

arresting officer failed to comply the mandate of Section 21 of Republic
Act No. 9165 (Comprehensive Dangerous Drugs Act).
2. The Honorable Court erred in believing/accepting in evidence as

gospel truth the testimonies of the arresting officer.

Section 11, Article II of Republic Act No. 9165 (Possession of Dangerous
Drugs) in an information filed by the City Prosecutors Office of Bacolod
City, alleging among others “that on or about the 26 th day of April, 2006,
in the City of Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, having in her possession and
under her custody and control one (1) transparent plastic bag
containing five (5) elongated heat-sealed transparent plastic packets
each containing methamphetamine hydrochloride or shabu with a total
weight of 0.19 gram and one (1) transparent plastic bag containing two
(2) small heat-sealed transparent plastic packets each containing
methamphetamine hydrochloride or shabu with a total weight of 0.04
gram in violation
-2-
of the aforementioned law.” The accused was arraigned on May 25,

2005 and pleaded not guilty to the crime charged against her. On June
1, 2005, pre-trial was conducted, wherein the prosecution and the
defense agreed on the following stipulation of facts as embodied in the
Pre-Trial Order:
5. That on April 26, 2005, the police searched the residence of

accused Calatis located at Purok Sigay, Barangay 2, Bacolod
City by virtue of Search Warrant 027-2005 issued by the MTCC
Branch 3;
6. That the searched was done in a peaceful and orderly manner

at around 4:00 P.M. of April 26, 2005;
7. The existence of Search Warrant No. 027-2005 against Rosa

Calatis;
8. The existence for the request for laboratory examination dated

April 19, 2005 issued by SPO4 Ernesto Gonzales and
9. Final Chemistry Report No. D-168-2005 (result of Laboratory

examination).

their respective cases, the Honorable Court rendered a decision on April
16, 2012, convicting the accused, the dispositive portion reads:
"WHEREFORE, finding the guilt of accused Rosa Calatis y

Inocencio @ “Neneng” for violation of Section 11, Article II of R.A. No.
9165 (Possession of Dangerous Drug) in the instant case to have been
proven beyond reasonable doubt, judgment is hereby rendered
sentencing her to suffer an indeterminate prison term of Twelve (12)
years and One (1) day, as minimum to Fifteen (15) years, as maximum
and to pay a fine of P300,000.00). She is also to suffer the accessory
penalty provided by law. Costs against accused. x x x

Not contented with the aforesaid decision, hence, the instant
appeal.
-3-
As clearly established by the testimonies of the accused-appellant

and her lone witness husband, Alberto Calatis, they were watching TV
together with their children and grandchildren at around 2:00 o’clock in
the afternoon of April 26, 2005 when suddenly seven persons entered.
Three of them went upstairs while four remained at the door. The three
–Malate, Ron-ron and Gonzales – were known to them since they usually
passed by their house in roving the area. They did not recover anything.
The four- Grijaldo, Alain, May and another one they failed to recall also
went upstairs but nothing was recovered from the house. POI Liza
Aliposa did not go up the house of Calatis because accordingly she was
in the neighboring house of Nima Delma, which was also raided. They
denied Aliposa’s claim that Calatis surrendered to SPO4 Gonzales five
(5) elongated plastic sachets and two (2) small sachets of suspected
shabu, Accordingly, the sachets of shabu were surrendered by a certain
Marlene, laudry woman in the house of Calatis sister-in-law Lina Bala-
oro, who surrendered them to SPO4 Gonzales because Marlene heard
that if Calatis could not surrender anything, no bail shall be
recommended. The items were placed by SPO4 Gonzales on the table
and said “these are the shabu.” Notwithstanding the insistence of Rosa
Calatis that nothing was recovered from her, Gonzales let her sign a
document/search warrant or else her husband and son would be
brought by them; she thus voluntarily signed in the presence of the
Barangay Officials and Accused was later brought to the lock cell in
Taculing (Police headquarters).
During the presentation of evidence for the prosecution, POI Liza

Aliposa testified that the five (5) elongated plastic sachets and two (2)
small sachets of suspected shabu were personally surrended by the
accused and that she marked the items and were safekept by Grijaldo in
the evidence room of there office in Barangay Taculing, Bacolod city
Police Office and gave the same to POI Aliposa for delivery to the crime
laboratory for examination the following day, April 27, 2005.
There are two versions submitted by the parties which the

Honorable Court should resolve. First, the version of the accused that
she did not own and surrender the five (5) elongated plastic sachets and
two (2) small sachets of suspected shabu to SPO4 Gonzales but
surrendered by a certain Marlene. Laundry woman of the elder sister-
in- law of accused and the second version was the testimony of POI
Aliposa that the illegal drugs were voluntarily surrendered by accused
to SPO4 Gonzales.
-4-
The issues of this case are as follows:
1. Whether or not the accused was the owner and voluntarily

surrendered the dangerous drugs to SPO4 Gonzales;
2. Whether or not the police officers complied the mandate of
Republic Act No. 9165 especially in handling of the evidences seized.
ARGUMENTS
The Honorable Court failed to appreciate the facts that the

arresting officer failed to comply the mandate of Section
21 of Republic Act No. 9165 (Comprehensive Dangerous
Drugs Act).



x x x"
picture or photograph taken immediately after the seizure and arrest
by the arresting officer. The mandate of law that the items seized or
confiscated be physically inventoried and photographed immediately
-5-
after the confiscation should be strictly followed taking into

considerations the penalty it imposed. It should be strictly
implemented, since it is one of the safeguards and protections imposed
by law for the public safety, to avoid any harassments and abuses from
the police/arresting officers. As you can observe, the penalty imposed
by the law is very stiff.
The observation of the Honorable Court that non-compliance of

the said requirement of taking pictures and photographs immediately
after confiscation will not nullify the valid service of the Search Warrant
and that what is of utmost importance is the preservation of the
integrity and evidentiary value of the seized items as the same would be
utilized in the determination of the guilt or innocence of the accused.
The same will hold to be true if the accused was the owner and in
fact surrendered the subject items. That fact was duly disputed by the
accused because according to her and to her witness, the said items
were surrendered by a certain Marlene to SPO4 Gonzales. Accused
hereby argues, that the presentation of pictures or photographs taken
after the seizure should be submitted in evidence by the prosecution.
What is doubtful in this case is that, the items were placed by SPO4
Gonzales on the table, Gonzales prepared the inventory while POI
Aliposa accordingly marked the items and after the same items were
marked, the same was in the possession and custody of POI Grijaldo for
safekeeping at their evidence room located at their office. The question
is, were those items are same items that were brought to the laboratory
for examination since, they were the only one who have done
everything, inventory, marking and custodian. Why Grijaldo took
custody of the items, when in fact it was accordingly surrendered the
same to SPO4 Gonzales personally. And why not POI Liza Aliposa who
took custody of the said items since she was the one who marked the
same.
In people vs. Allan Nazareno, GR No. 174771, September 11, 2007,

the Supreme Court reversed the conviction of the accused because of
the failure to observe the mandatory requirements stated in Section 21
of R. A. 9165. It cited the case of People vs. Lim, 435 Phil. 640, 659
(2002).
The Supreme Court held:

"x x x Any apprehending team having initial custody and control
of said drugs and/or paraphernalia, should immediately after seizure
and confiscation, have the same physically inventoried and
-6-
photographed in the presence of the accused. If there be any, and or his

representative who shall be required to sign the copies of the inventory
and be given a copy thereof. The failure of the agents to comply with
such requirement raises a doubt whether what was submitted for
laboratory examination and presented in Court was actually recovered
from appellants. It negates the presumption that official duties have
been regularly performed by PAOCTF agents."
The Honorable Court erred in believing/accepting as gospel

truth the testimonies of the arresting officer
The accused and her only witness testified that the five (5)
elongated plastic sachets and the two (2) small plastic sachets did not
belong to her but from a certain Marlene, who surrendered the same of
SPO4 Gonzales. While the prosecution, through the testimony of POI
Liza Aliposa testified that the said items were personally surrendered
by the accused to SPO4 Gonzales, after informing and showing to her the
Search Warrant. The said surrender of the items and preparation of
inventory happened before the Barangay Officials arrived.(TSN, May 4,
2006, pages 33-36) In short, there was no witness of the surrender and
preparation of inventory because the inventory was signed by the
witnesses only after the conduct of Search in the house of the accused,
where they have not recovered anything.
The testimony of POI Liza Aliposa is quite illogical and deserves

not to be taken as gospel truth. Because, she is a police officer and
performing her duties as such, her testimonies are full proof and beyond
question. She was not the one who received or presented that shabu on
top of the table, it was SPO4 Gonzales. The items were accordingly
surrendered by Marlene personally to SPO4 Gonzales because she was
afraid that the accused will be charged of no bail offense. When such
items were surrendered by Marlene, POI Aliposa was not yet around
because she was in the neighborhood also conducting raid in the house
of Nima Delma. SPO4 Gonzales was the competent witness of the
prosecution, however, the said person was not presented in court,
hence, he cannot be cross-examined. The same is true with PO2
Grijaldo, who took custody and safekept the items which were
accordingly marked by POI Aliposa. Those are the points that need to
be clarified by the prosecution.
The accused and SPO4 Gonzales knew each other prior to the
arrest or raid on April 26, 2005. It is highly impossible for the accused
to surrender the five (5) elongated plastic sachets and two
-7-
(2) small plastic sachets of shabu to SPO4 Gonzales knowing fully well
that Gonzales is a police officer and even if the items were surrendered
voluntarily, it is still a crime to speak up. It cannot also be said that
accused surrendered the items out of fear. She has nothing inside her
house and in fact, the police officers had not recovered something,
hence, the testimonies of Aliposa deserve to have a second look.
In the case of People vs. Archie Distrito, September 1992, G.R. No.
L-055-40, the trial court convicted the accused on the basis of the
business with the arresting officer whom he knew was a policeman.
PRAYER

this Honorable Court that the decision dated April 16, 2012 (Annex "A"
case.

Bacolod City, for Cebu City Philippines, September 20, 2013.

PTR # 0140952 – 1/31/13
IBP # 732038 - 2/3/13
Roll No. 33660/p.232
MCLE IV-00001992-6/1/11
-8-
Copy Furnished:


RTC, Branch 47
Bacolod City
The Director
National Bilibid Prisons
1770 Muntinlupa City
x- - - - - - - - - - - - - - - - - - - - - - - -x





NICANDRO A. AGUILAR
Affiant

Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2013.
ORIGINAL
SUBJECT INDEX
PAGE
ISSUES 4
ARGUMENTS 4-7
RELIEF/PRAYER 7

ORDER)
AUTHORITIES CITED:

435 Phil. 640, 659 (2002) and

G.R. No. L-055-4
ORIGINAL

COURT OF APPEALS
CEBU CITY
Complainant/Appellee,
CA- G.R. CR-

NO. 02216
-versus-
Regional Trial Court, 54
Bacolod City
RTC No. 08-31081
RADGE GONZALES Y NICOR,

Accused- Appellant.
x-------------------------------------------x
APPELLANT'S BRIEF


COURT OF APPEALS
CEBU CITY
Complainant/Appellee,
CA G.R CEB-CR NO. 02216
-versus-
RADGE GONZALES Y NICOR,

Accused- Appellant.
x-------------------------------------------x
APPELLANT'S BRIEF

1. The Honorable Court erred in holding that accused was legally

arrested without warrant of arrest issued by competent court;
2. That the Honorable Court failed to observe that there was no

evidence in the records of this case to prove that the accused has
intent to possess the alleged firearm and ammunitions; and
3. The Honorable Court erred in holding that the prosecution was

able to prove the allegation in the information dated January 9,
2008 that accused had in his possession and custody one (1)
improvised shotgun (sulpak) with one (1) live ammo. inside and
another one (1) live ammo. in his pouch.
=2=

Presidential Decree No. 1866 as amended by Republic Act No. 8294
(Possession of firearms and ammunition) in an information filed by the
City Prosecutors Office of Bacolod City, alleging among others “that on
or about the 7th day of January, 2008, in the City of Bacolod, Philippines,
and within the jurisdiction of this Honorable Court, the herein accused,
did, then and there willfully, unlawfully and feloniously have in his
possession and under his custody one (1) improvised shotgun (sulpak)
with one (1) live ammunition inside and another one (1) live
ammunition in his pouch, without a permit and/or authority duly and
legally issued for that purpose, in violation of the aforementioned law.”
The accused was arraigned on June 23, 2008 and pleaded not
guilty to the crime charged against him. On August 12, 2008, pre-trial
was conducted, wherein the prosecution and the defense agreed on the
following stipulation of facts as embodied in the Pre-Trial Order:
1. The jurisdiction of the Honorable Court over the case is

admitted;
2. The identity of the accused is admitted; and
3. That on January 7, 2008, the accused was apprehended in

Bacolod city.

their respective cases, the Honorable Court rendered a decision on April
25, 2013, convicting the accused, the dispositive portion reads:
"WHEREFORE, finding the accused guilty beyond reasonable

doubt for violation of the Second Paragraph of Section 1 of PD 1866 as
amended by R. A. 8294, or illegal
possession of high-powered firearm, accused is hereby sentenced to
suffer the penalty of imprisonment-
*the minimum of which is the indeterminate sentence of prision

correccional maximum or 4 years, 2 months & 1
=3=
day to 6 years; and the maximum is the impossible penalty of Prision

Mayor Minimum, or 6 years & 1 day to 8 years; and
*payment of fine in the sum of P30,000.00.
The improvised shotgun (sulpak) and 2 pieces 12 gauge live

ammos are forfeited in favor of the government, the same shall be
disposed of in accordance with law.

Not contented with the aforesaid decision, hence, this instant
appeal.
As clearly established by the testimonies of the accused-appellant

and his lone witness Rolly Samillano, accused together with two (2)
companions, namely: Arvin Jhon Janayan and Joseph were standing in
front of the sari-sari store located at corners Tupas-de la Rama Streets,
City Heights Subdivision, Bacolod City at around 9:00 to 9:30 o’clock in
the evening because accordingly, they bought something. While
standing there, police officers, namely: Mario Aurelio Alisbo (team
leader). POI Sy (Driver) and POI Deles (Investigator), who were riding
the police Terrano Vehicle from Police Station 6 arrived and the accused
together with his two (2) companions were immediately frisked and
arrested. They were boarded to the terrano vehicle and when they were
about to leave from the premises Police Inspector, Ulyses Ortiz, chief of
the Police Station 6, who was riding his personal vehicle arrived to the
area and ordered his men to rummage the garbage bin. While
rummaging the garbage bin, police officers found a steel pipe and upon
examining it, it was found to be a homemade shotgun (sulpak). The
accused with his companion were made to stand and the black pouch in
the waist of the accused which contains his cell phone and money in the
amount of P150.00 was forcibly pulled and taken by Chief Inspector
Ortiz. After that, they were brought to Police Station 6, where the
accused was accordingly made to kneel above the plastic chair. While
he
=4=
was kneeling, Inspector Ortiz paddled his sole by a baseball bat, which
caused him excruciating pain. Accused was surprised and taken aback
when he was informed that his black pouch contains One (1) live
ammunition of a shotgun.
ARGUMENTS

ACCUSED WAS LEGALLY ARRESTED WITHOUT WARRANT OF
ARREST ISSUED BY COMPETENT COURT
From the facts obtaining in the present case, it is beyond question

that the accused was arrested on January 7, 2008 without the existence
of warrant of arrest.
It is also beyond question, that the police officers headed by SPO1
Alisbo, who arrested the accused together with the two (2) companions
went to the City Heights Subdivision, Barangay Taculing, Bacolod City,
to respond to a concerned citizen asking for police assistance through
the desk officer of the Police Station 6, Barangay Taculing, Bacolod City,
by radio dispatch.
When the police officers arrived at the City Heights Sudbivision,

Barangay Taculing, Bacolod City, they “saw three (3) persons stand by
at the sari sari store and then our desk officer dispatched us that there
were three suspicious person standby there with the one was wearing
red bandana or scarf, the identity of the three persons who were at the
sari sari store “ (page 7, TSN dated 11/17/08, direct testimony of SPO1
Alisbo ). The description given corresponded to the persons that they
saw in front of the sari sari store.
SPO1 Alisbo further testified in this manner ( Pages 8 and 9, TSN

dated 11/17/08):
PROS. CALVEZ: And when you saw this person described by the
base control as one of the suspect, what did you do?
=5=
WITNESS: When we arrived there, Ma’am. I identified the suspect

person positively by wearing the red bandana and then at the same time
we approached them to stay at the same place and then , I saw one who
was holding the steel pipe and I am about to frisk him the steel pipe he
put it beside at the garbage , only one meter at his side;
Xxxx
PROS CALVEZ: Considering that there were three of you whom

there were also three persons that you saw who were reportedly were
the suspects , were the three of you manning each one of the three or
what did you do, the three of you?
WITNESS: Three of us get outside of our terrano and then

collared the three persons.
Xxxxx
PROS CALVEZ: And, in your particular case to whom did you

concentrate your attention among the three?
WITNESS: To the one Ma’am who is wearing red bandana.

Xxxx
And on Page 10, TSN dated 11/17/08 , SPO1 Alisbo finally

testified:
PROS CALVEZ: And when you saw him holding a steel pipe, what
did you do?
WITNESS: After that Ma’am , we brought them to our station for

investigation.
Xxxx
It was very clear from the above testimony of SPO1 Alisbo that
upon arrival in front of the sari-sari store of City Heights Subdivision,
Barangay Taculing, Bacolod city, the three of them got outside of the
terrano vehicle and effected the arrest of the three (3) persons together
with the accused who was wearing a red bandana. In short, acting on
the desk officers description of the three suspicious persons in front of
the sari sari store, the police officers , namely:
=6=
SPO1 Alisbo, PO1 Sy and PO1 Deles immediately alighted from the
Terrano Vehicle and arrested the Three persons, who was on standby in
front of the sari sari store and not committing an offense. Police officers
did not personally know that the three persons have committed a crime,
actually committing a crime and about to commit a crime.
The only instance that a police officer can validly and legally
arrest a person is when he has probable cause that the persons have
committed , actually committing a and about to commit a crime .
Sec. 5 , Rule 113 of the Revised Rules on Criminal Procedure laid

down the rules on how to arrest a person without a warrant:
a. When, in his presence, the person to the arrested has

committed , is actually committing or is attempting to commit
an offense;
b. When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the persons to be arrested has committed
it; and
c. When the person to be arrested is a prisoner who has escaped
from a penal establishment or is temporarily confined while
his case is pending, or has escaped while being transferred
from one confinement to another.
In this case , nothing of the foregoing rules is applicable in order for the
Three (3) police officers can validly and legally arrest the accused and
his two (2) companions without the required warrant of arrest.
The arresting police officers must have personal knowledge of

facts indicating that the person to be arrested has committed an offense.
(See Go vs. CA, 206 SCRA 138)
“Personal knowledge of facts” in arrest without a warrant must be

based upon probable cause, which means an actual belief or reasonable
grounds of suspicion. (People vs. Mahusay, 282, SCRA 80; Cadua vs. CA,
312 SCRA 703; People vs. Mendoza, 392 SCRA 443, Posadas vs.
Ombudsman, 341 SCRA 388; People vs. Cubcubin jr., 360 SCRA 690).
=7=
However, personal gathering of information is different from

personal knowledge. The rule requires that the arrest immediately
follows the commission of the offense. (People vs. Manlulu , 231 SCRA
701)
The police officers who arrested the accused together with his
other two (2) companions, tried to justify their illegal arrest by
testifying in court, as follows:
SPOI Alisbo (Page I, TSN dated 11/17/08 x x x “I saw one who was
holding the steel pipe and I am about to frisk him the steel pipe he put it
beside at the garbage, only one meter at his side.”
POI Sy also testified during the direct examination that “upon

reaching in front of the store where the three there, the suspect Radge
Gonzales holding a steel pipe and threw it in the garbage can.”
He further testified as follows:
PROS. CALVEZ: How far were you and your team when you
allegedly saw that the person accused Radge Gonzales threw the lead
pipe that he was holding?
WITNESS: Around ten (10) meters upon reaching them.
PROS. CALVEZ: Where were you at that time where you still on
board the terrano or were you already alighted from the terrano
service?
WITNESS: Inside the terrano driving the terrano ma’am.

(Page 8, TSN dated 10/5/10 of POI Sy)
Xxxx
PO1 Deles also testified as follows:
PROS. CALVEZ: And where particular part of City Heights

subdivision?
WITNESS: Along Amethyst Street ma’am.
=8=
PROS. CALVEZ: Is that the place referred to you by the call from
your station?
WITNESS: Yes Ma’am.
PROS. CALVEZ : So you said you proceeded to the place pointed by

the bystanders. Were you able to arrive thereat?
WITNESS: Yes ma’am.
PROS. CALVEZ : Upon arrival , what did you do?
WITNESS: while we were about to turn to De la Rama street , we

saw the three (3)persons.
PROS. CALVEZ : So upon seeing these three (3) persons when you
turned at De la Rama Street , what did you and your team do?
WITNESS: SPO1 Alisbo saw that the person wearing bandana has
thrown something in the garbage container.
PROS. CALVEZ : Now after that incident , what did you and your
companion do after?
WITNESS: We went nearer to the persons and SPO1 Alisbo

alighted from vehicle and went directly to the person wearing red
bandana.
Xxxxx
PROS. CALVEZ : From where you were situated , can you see what
was Alisbo doing?
WITNESS: Yes ma’am.

PROS. CALVEZ : What did you see?
WITNESS: SPO1 Alisbo went nearer to the garbage container.
PROS. CALVEZ: And what did you see that Alisbo did when he
approached the garbage container?
=9=
WITNESS: He got a steel pipe from the garbage container.
PROS. CALVEZ : Was it inside or outside?
WITNESS: Inside the garbage.
(Pages 34, 35, 36, 37 and 38, TSN dated. 10/5/10 of PO1 Deles)
However, during the cross-examination conducted by Atty.

Tionko, counsel for the defense, it was admitted by SPOI Alisbo that he
did not see the steel pipe from the hands of the accused Radge Gonzales.
He testified in the following manner:
ATTY. TIONKO: And, is it not a fact that you search the garbage?
WITNESS: (SPOI ALISBO)

Sir, I searched the garbage because when I approached . . . .
ATTY. TIONKO: Just answer my question. Yes or no, did you

search the garbage?
WITNESS: Yes, sir.
ATTY. TIONKO: And, you had to remove the garbage from the
garbage container before you found this, am I right?
WITNESS: No, sir. When we inspect the garbage we saw it

already. It can be seen because it was stainless and reflected by the light
of the store.
ATTY. TIONKO: So, you saw this in the garbage can?
WITNESS: Yes, sir.
ATTY. TIONKO: Not at the hand of the accused, am I right?
WITNESS: Yes sir, because he . . .

=10=
(Page 29, TSN dated 11/17/08 of SPOI Alisbo)
It was very clear from the said testimony of SPOI Alisbo that he
did not see the firearms from the hands of the accused, Radge Gonzales,
but he saw it inside the garbage bin because it was stainless and
reflected by the light of the store. This testimony of SPOI Alisbo was
corroborated by the testimony of the defense witness, Rolly Samillano,
when he testified in the following manner:
ATTY. TIONKO: What did the policemen do when they alighted

from their patrol car?
WITNESS: When the three (3) policemen alighted from their car,
they checked or inspected the three persons.
ATTY. TIONKO: Can you tell us the names of these persons whom
the policemen checked?
WITNESS; Yes sir.
ATTY. TIONKO: Please tell us.
WITNESS: Radge Gonzales, Alvin Anayan and alias Bobot.
ATTY. TIONKO: You said that those policemen checked those

three persons standing outside the store, how did they check those
three persons?
WITNESS: When they alighted from their vehicle, they directly

frisked the three persons.
ATTY. TIONKO: How many policemen were there?
WITNESS: There were four (4) policemen.
ATTY. TIONKO: Were those policemen able to get anything from

any of those three persons when the frisked them?
WITNESS: None, sir.
=11=
ATTY. TIONKO: How about this Radge Gonzales, were those four
policemen able to get anything from him while or after he was frisked?
WITNESS: None, sir.
(Pages 5 and 6, TSN dated February 14, 2011 of Rolly Samillano)
It is crystal clear from the foregoing testimonies of SPOI Alisbo

and Rolly Samillano that nothing was taken or seen from the hands of
the accused when he was frisked and arrested on January 7, 2008.
“Warrantless arrest is lawful where the suspect is caught in

flarante delicto” (in actual act or red handed) (see: People vs. Delos
Santos, 200 SCRA 431)
“As Applied to in flagrante delicto arrests, it has been held that

“reliable information” alone absent any overt act indicative of a
felonious enterprise in the presence and within the view of the
arresting officers, is not sufficient to constitute the probable cause that
would justify an in flagrante delicto arrest.” (People vs. Chua, 396 SCRA
657; People vs. Molina , 352, SCRA 174).
In view of the foregoing circumstances and evidences, it is

respectfully submitted by the accused that the arrest made by the three
police officers against him on January 7, 2008 at City Heights
Subdivision, Barangay Taculing, Bacolod City, be declared unlawful and
illegal.
II
THAT THE HONORABLE COURT FAILED TO OBSERVE THAT

THERE WAS NO EVIDENCE IN THE RECORDS OF THIS CASE TO
PROVE THAT THE ACCUSED HAS INTENT TO POSSESS THE
ALLEGED FIREARM AND AMMUNITIONS
Verifications of the records of this case disclosed that

there was no evidence submitted by the prosecution to prove that there
was intent on the part of the accused to possess the subject firearm and
ammunitions. As earlier
=12=
shown, the said firearms were neither seen from the hands of the
accused Radge Gonzales nor actually taken from his possession.
In all criminal prosecution, no less than the constitution mandates

that an accused shall be presumed innocent until the contrary is proved.
The quantum of evidence required to overturn this presumption is
proof beyond reasonable doubt. It is that proof which produces moral
certainty in an unprejudiced mind. In a long line of cases, the Supreme
Court has held consistently that where the inculpatory facts admit of
several interpretations, one consistent with the innocence of the
accused and another with his guilt, the evidence thus adduced fails to
meet the test of mortal certainty.
It is incumbent upon the prosecution to prove, first, that a crime

has been committed and second, that the accused is responsible
therefore. “While mere possession without criminal intent is sufficient
to convict a person for illegal possession of firearm, it must still be
shown that there was animus possidendi or an intent to possess on the
part of the accused. . . Concomitantly, a temporary, or incidental, casual
or harmless possession or control of a firearm cannot be considered a
violation of a statute prohibiting the possession of this kind of weapon.”
(People vs. de Gracia, 233 SCRA 716).
In this particular case, the alleged shotgun (sulpak) was found by

the police officers inside the garbage bin, which we cannot conclude, in
the absence of evidence, that the said area is under the direct control
and supervision of the accused especially that they merely passed by
and bought something in the sari-sari store located at City Heights
Subdivision, Barangay Taculing, Bacolod City. Accused is not a resident
of City Heights Subdivision.
III

PROSECUTION WAS ABLE TO PROVE THE ALLEGATIONS IN THE
INFORMATION DATED JANUARY 9, 2008 THAT ACCUSED HAD IN
HIS POSSESSION AND CUSTODY ONE(1) IMPROVISED SHOTGUN
(SULPAK)
=13=
WITH ONE (1) LIVE AMMUNITION INSIDE AND ONE (1) LIVE
AMMUNITION IN HIS POUCH
The information in the above-entitled case stated, as follows:
“That on or about the 7 th day of January, 2008, in the City of

Bacolod, Philippines, and within the jurisdiction of this Honorable
Court, the herein accused, did, then and there willfully, unlawfully and
feloniously have in his possession and under his custody one (1)
improvised shotgun (sulpak) with one (1) live ammo. inside and
another one (1) live ammo. in his pouch, without a permit and/or
authority duly and legally issued for that purpose, in violation of the
aforementioned law.”
However, the evidence presented by the prosecution failed to
prove the foregoing allegations of the information because as earlier
stated, SPOI Alisbo and the two accompanying police officers did not see
that the accused Radge Gonzales was in possession of the alleged
improvised shotgun (sulpak). It was seen by SPOI Alisbo inside the
garbage bin, when it was shining due to the light coming from the store.
The testimonies of POI Sy and Deles, were originally coming from SPOI
Alisbo. How could POI Sy saw accused Ten (10) meters away when in
fact he was driving the Terrano Vehicle. The testimony of POI Deles was
derived from the testimony of SPOI Alisbo, which did not come from his
personal knowledge.
In short, at the time the accused was arrested on January 7, 2008,

he was not caught red handed or in custody and control of the said
improvised shotgun or sulpak since it was found in the garbage bin.
Lastly, the Affidavit of the arresting officer, SPOI Alisbo dated

January 9, 2008 which was made the basis for the filing of the
information was not submitted in evidence. In fact, the allegations in the
said Affidavit and the testimony of SPOI Alisbo during the trial of this
case contain serious inconsistencies which should be looked into by the
Honorable Court.
=14=
PRAYER

this Honorable Court that the decision dated April 25, 2013 (Annex "A"
case.

Bacolod City, for Cebu City Philippines, April 2,2014.

PTR # 0140952 – 1/31/14
IBP # 732038 - 2/3/14
Roll No. 33660/p.232
MCLE IV-00001992-6/1/11
Copy Furnished:


RTC, Branch 54
Bacolod City
The Director
National Bilibid Prisons
1770 Muntinlupa City

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

That I am the counsel for the accused-appellant in CA G.R -CR-

NO. 02216, entitled People of the Philippines, Complainant-Appellee
vs. Radge Gonzales y Nicor, Accused-Appellant pending before the Court
of Appeals, Cebu City.
That on April 22, 2014, I served two (2) copies of the appellant's
brief in the said case in accordance with Rule 124, Sec. 7 of the Revised
Rules on Criminal Procedure 2000 (as amended) in relation to A.M. No.
11-9-4-SC (Efficient Use of Paper Rule), by depositing copies thereof in
the Post Office in a sealed envelope, plainly addressed to Office of the
Solicitor General, 134 Amorsolo St., Legaspi Village, 1229 Makati City
with postage fully pre -paid as evidenced by Registry Receipt No. ________
dated April 22, 2014 hereto attached, with instruction to the postmaster
to return the mail to the sender after Ten (10) days if undelivered, and
filed Three (3) copies thereof, One (1) original (properly marked) with
original duplicate copy of the decision as annex “A” (clear copy) and
Two (2) copies with legible annexes in the same manner with the Court
of Appeals, Cebu City.

IN WITNESS THEREOF, I have hereunto set my hand this 22nd

day of April, 2014, at Bacolod City, Philippines.
NICANDRO A. AGUILAR
Affiant
SUBSCRIBED AND SWORN to before me this 22nd day of April,

Doc. No. _________;

Page No. _________;
Book No. _________;
Series of 2014..
SUBJECT INDEX
PAGE
ARGUMENTS 4-13
RELIEF/PRAYER 14

DECISION)
AUTHORITIES CITED:
1. Section 5, Rule 113 of the Revised Rules on Criminal Procedure;
2. Go vs. CA, 206 SCRA 138;
3 .People of the Philippines vs. Mahusay, 282 SCRA 80;Cadua vs.

CA, 312 SCRA 703; People vs. Mendoza, 392 SCRA 443, Posadas vs.
Ombudsman, 341 SCRA 388; People vs. Cubcubin Jr., 360 SCRA 690;
4. People vs. Manlulu, 231 SCRA 701;

5. People vs. de los Santos, 200 SCRA 431;
10. People vs. Chua, 396 SCRA 657; People vs. Molina, 352 SCRA
174; and
7. People vs. de Gracia, 233 SCRA 716.

appeLLANTS MEMORANDUM ROLLY NEW

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appeLLANTS MEMORANDUM ROLLY NEW

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REPUBLIC OF THE PHILIPPINES)

AFFIDAVIT OF STATEMENT AS TO THE WHEREABOUTS OF THE

I, ATTY. NICANDRO A. AGUILAR, of legal age, Filipino, married

That I am the counsel for the accused-appellant in CA G.R CR-HC-

That both Accused-Appellants are presently detained at the

That I am executing this Affidavit of Statement as to the

IN WITNESS THEREOF, I have hereunto set my hand this 19th day

SUBSCRIBED AND SWORN to before me this 19th day of

Doc. No. _________;

ASSIGNMENT OF ERRORS 1-2

ANNEX"A" (ORIGINAL DUPLICATE OF THE QUESTIONED ORDER)

1. Section 8, Rule 126 of the Revised Rules of Court;

2. People of the Phils. Vs. Benny Go, G. R. No. 144639,

PEOPLE OF THE PHILIPPINES, CA- G.R. CR-HC NO. 03936

Regional Trial Court

RANDY HAMANTOC y TRINIDAD

ATTY. NICANDRO A. AGUILAR

I, ATTY. NICANDRO A. AGUILAR, of legal age, Filipino, married

That I am the counsel for the accused-appellant in CA G.R CR-HC-

That on November 19, 2021, I served two (2) copies of the

I served and filed the appellant's brief by registered mail as it is

IN WITNESS THEREOF, I have hereunto set my hand this 19th day

SUBSCRIBED AND SWORN to before me this 19th day of November,

Doc. No. _________;

I, ATTY. NICANDRO A. AGUILAR, of legal age, Filipino, married

That I am the counsel for the accused-appellant in CA G.R CR-HC-

That on September 7, 2021, I served two (2) copies of the

I served and filed the appellant's brief by registered mail as it is

IN WITNESS THEREOF, I have hereunto set my hand this 7th day

SUBSCRIBED AND SWORN to before me this ____ day of September,

Doc. No. _________;

AFFIDAVIT OF STATEMENT AS TO THE WHEREABOUTS OF THE

I, ATTY. NICANDRO A. AGUILAR, of legal age, Filipino, married

That I am the counsel for the accused-appellant in CA G.R CR- NO.

That the Accused-Appellant, who is bonded, is presently residing

That I am executing this Affidavit of Statement as to the

IN WITNESS THEREOF, I have hereunto set my hand this 14th day

SUBSCRIBED AND SWORN to before me this ____ day of April,

Doc. No. _________;

ANNEX"A" (ORIGINAL DUPLICATE OF THE QUESTIONED ORDER)

1. People of the Philippines vs. Nuñez. G.R. No. 209342; and

2. Melky Concha and Romeo Managuelod, petitioners, vs.

PEOPLE OF THE PHILIPPINES, CA- G.R. CR- NO. 04170

Regional Trial Court

NELSON DELA PAZ y PINEDA,

ATTY. NICANDRO A. AGUILAR

PEOPLE OF THE PHILIPPINES,

-versus- CA- G.R. CR-NO. 04170

Regional Trial Court

NELSON DELA PAZ y PINEDA,

COMES NOW accused/appellant by counsel and to this Honorable

1) The Honorable Court erred in holding that accused was

2) The Honorable Court failed to appreciate the facts that

3) The Honorable Court failed to appreciate facts that the

BRIEF STATEMENT OF THE CASE

This is a case filed against the accused-appellant for violation of

“That on or about the 10th of April 2011, in the City of Bacolod,

1. 3 bundles betting stubs;

In violation of the aforementioned law.

Act contrary to law”

1. The jurisdiction of the Honorable Court and the identification

2. That the Accused was in the vicinity of Lopez Jaena-Malaspina

4. That after his arrest, Accused was brought by the police

5. That a recording of the incident was made at the Police Station