ELECTRONIC EVIDENCENATIONAL POWER CORPORATION, Petitioner, vs.HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents.CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed the Petition for Certiorari filed by the National Power Corporation seeking to set aside the Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying admission and excluding from the records plaintiff’s (herein petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings.

On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioner’s Power Barge 209 which was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages caused on petitioner’s power barges.

Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent of Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was subsequently denied by public respondent Judge in an Order dated 20 October 1998. Bangpai Shipping Co. likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order issued on 24 January 2003.

Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked portions thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc. filed their respective objections to petitioner’s formal offer of evidence.

On 16 November 2004, public respondent judge issued the assailed order denying the admission and excluding from the records petitioner’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. According to the court a quo:

The Court finds merit in the objections raised and the motion to strike out filed respectively by the defendants. The record shows that the plaintiff has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies offered are equivalent to the original of the document" on the basis of the Electronic Evidence (Comment to Defendant Wallem Philippines’ Objections and Motion to Strike). But as rightly pointed out in defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:

"(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. For the purpose of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".

The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence.

The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly identified by any competent witness, the loss of the principals thereof was not established by any competent proof.

WHEREFORE, plaintiff’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from the records. However, these excluded evidence should be attached to the records of this case to enable the appellate court to pass upon them should an appeal be taken from the decision on the merits to be rendered upon the termination of the trial of this case.

Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the witness who brought these pictures expressly admitted that he was not present when the photos were taken and had not knowledge when the same where taken.3

Upon denial of petitioner’s Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings.

On 9 November 2005, the appellate court issued a Decision dismissing petitioner’s petition for certiorari, the pertinent portions of which elucidate:

After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence which are applicable in the premises, we have come up with a finding that the petition for certiorari filed in this case is not meritorious.

It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of judgment as would be equivalent to lack of jurisdiction x x x.

In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed order, dated November 16, 2004, in Civil Case No. CEB-18662.

Indeed, it appears that the pieces of petitioner’s documentary evidence which were denied admission by the respondent judge were not properly identified by any competent witness. As pointed out by the respondent Bangpai Shipping Company in its comment on the petition filed in this case which reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of and participation in the preparation and making of the pieces of documentary evidence denied admission by respondent judge x x x. In other words, there was lack of proper identification of said pieces of documentary evidence. x x x.

Then another ground for denying admission of petitioner’s Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent judge is that said pieces of documentary evidence were merely photocopies of purported documents or papers. There is no gainsaying the fact that the respondent judge acted within the pale of his discretion when he denied admission of said documentary evidence. Section 3 of Rule 130 of the Rules of Court of the Philippines is very explicit in providing that, when the subject of inquiry are the contents of documents, no evidence shall be admissible other than the original documents themselves, except in certain cases specifically so enumerated therein, and the petitioner has not shown that the non-presentation or non-production of its original documentary pieces of evidence falls under such exceptions. As aptly pointed out by the respondent judge in the order issued by him on November 16, 2004:

"x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced said originals."

So, the petitioner has only itself to blame for the respondent judge’s denial of admission of its aforementioned documentary evidence.

Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to the original documents that it sought to offer in evidence, based on the Rules on Electronic Evidence which were in force and effect since August 1, 2001. However, such a contention is devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB-18662 which were denied admission by the respondent judge do not actually constitute as electronic evidence as defined in the Rules on Electronic Evidence. The informations therein were not received, retrieved or produced electronically. The petitioner has not adequately established that its documentary evidence were electronic evidence. it has not properly authenticated such evidence as electronic documents, assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said documentary evidence.

Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of discretion in denying admission of the aforementioned documentary evidence of petitioner.

But even if it be granted just for the sake of argument that the respondent judge committed an error in denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed in this case must fail. Such error would at most be only an error of law and not an error of jurisdiction. In

Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case of an error of law. x x x.

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the petition filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case No. CEB-18662.4

Aggrieved by the aforequoted decision, petitioner filed the instant petition.

The focal point of this entire controversy is petitioner’s obstinate contention that the photocopies it offered as formal evidence before the trial court are the functional equivalent of their original based on its inimitable interpretation of the Rules on Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it presented as documentary evidence actually constitute electronic evidence based on its own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on Electronic Evidence is not limited to information that is received, recorded, retrieved or produced electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes of written expression that is produced electronically, such as photocopies, as included in the section’s catch-all proviso: "any print-out or output, readable by sight or other means".

We do not agree.

In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following documents offered as evidence by the petitioner, to wit:

1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED" stamped thereon, together with a handwritten date;

2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioner’s power barges 207 and 209 prepared by Hopewell Mobile Power Systems Corporation and manually signed by Messrs. Rex Malaluan and Virgilio Asprer;

3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received;

4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the Jurat were handwritten, and manually signed by the Notary Public;

5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received;

6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.;

7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received, and other handwritten notations;

8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it was received by the party;

9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance agreement between petitioner and Hopewell, containing handwritten notations and every page containing three unidentified manually placed signatures;

10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C. Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it was received. The sub-markings also contain manual signatures and/or handwritten notations;

11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer and manually signed by Jaime S. Patino. The sub-markings contain manual signatures and/or handwritten notations;

12. Exhibit "O" is the same photocopied document marked as Annex C;

13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista and by the Notary Public, with other handwritten notations;

14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public, together with other handwritten notations.

On the other hand, an "electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.5 It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document.6

The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents.7 However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a person’s signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts

were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law.

Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the records petitioner’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best evidence rule and are therefore of no probative value being incompetent pieces of evidence. Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and the withholding of the originals.8 But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law.9 The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best evidence rule.10

Moreover, as mandated under Section 2, Rule 130 of the Rules of Court:

"SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the contents of which is the subject of inquiry, other than the original writing itself, except in the following cases:

(a) When the original has been lost, destroyed, or cannot be produced in court;

(b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original is a record or other document in the custody of a public officer;

(d) When the original has been recorded in an existing record a certified copy of which is made evidence by law;

(e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole."

When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.11 The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents;12 (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or

places.13 However, in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions as enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the photocopies offered by petitioner as documentary evidence.

Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by the trial court for it to present the originals of the photocopies it presented yet comes before us now praying that it be allowed to present the originals of the exhibits that were denied admission or in case the same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner presented the originals of the documents to the court instead of the photocopies it obstinately offered as evidence, or at the very least laid the predicate for the admission of said photocopies, this controversy would not have unnecessarily been brought before the appellate court and finally to this Court for adjudication. Had it not been for petitioner’s intransigence, the merits of petitioner’s complaint for damages would have been decided upon by the trial court long ago. As aptly articulated by the Court of Appeals, petitioner has only itself to blame for the respondent judge’s denial of admission of its aforementioned documentary evidence and consequently, the denial of its prayer to be given another opportunity to present the originals of the documents that were denied admission nor to lay the predicate for the admission of secondary evidence in case the same has been lost.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against petitioner.

MCC INDUSTRIAL SALES CORPORATION, petitioner, vs.SSANGYONG CORPORATION, respondents.

Facts: On April 13, 2000, the petitioner MCC Industrial Steel Corp., a domestic corporation engaged in the importation and wholesale of stainless steel in the country, contracted with the herein private respondent, Ssangyon Corporation, a manufacturer of stainless steel with a head office in Seoul South Korea. MCC ordered 220 metric ton of stainless steel for $1,860 metric ton. It was arranged that the respondent will issue the sales invoices through fax, and once the petitioner conforme to such then MCC through its general manager and president George Chan, the latter has to fax the same with his signature. On the time the petitioner had a hard time to open the latters of credit, Ssangyong decided to negotiate with its mother company in korea to grant MCC a discount and to extend for a while the opening of letters of credit. Such request was accede by respondent. The first $70,000 letter of credit was issued by MCC but the remaining $170,000 was not. On this note, the respondent was compelled to filed a complaint for breach of contract and prayer for damages. The lower court acceded with the prayer of the respondent, that indeed petitioner failed comply with their contract despite discounts given as well as extension for opening of letter of credit, under the strong protest of the petitioner that the fax copies presented as document cannot be relied upon as the best evidence.

Issue: Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and admissible as such?

Held: Electronic Commerce Act of 2000 (R.A. No. 8792) vis-à-vis the Rules on Electronic Evidence.

Although the parties did not raise the question whether the original facsimile transmissions are "electronic data messages" or "electronic documents" within the context of the Electronic Commerce Act (the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile transmissions), we deem it appropriate to determine first whether the said fax transmissions are indeed within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are covered by the law. In any case, this Court has ample authority to go beyond the pleadings when, in the interest of justice or for the promotion of public policy, there is a need to make its own findings in order to support its conclusions.

Admissibility of Pro FormaInvoices; Breach of Contractby AppellantsTurning first to the appellants' argument against the admissibility of the Pro Forma Invoices with Reference Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F", pp. 215-218, Records), appellants argue that the said documents are inadmissible (sic) being violative of the best evidence rule.

The argument is untenable.

The copies of the said pro-forma invoices submitted by the appellee are admissible in evidence, although they are mere electronic facsimile printouts of appellant's orders. Such facsimile printouts are considered Electronic Documents under the New Rules on Electronic Evidence, which came into effect on August 1, 2001. (Rule 2, Section 1 [h], A.M. No. 01-7-01-SC).

"(h) 'Electronic document' refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term 'electronic document' may be used interchangeably with 'electronic data message'.

An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)

The ruling of the Appellate Court is incorrect. R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, considers an electronic data message or an electronic document as the functional equivalent of a written document for evidentiary purposes. The Rules on Electronic Evidence regards an electronic document as admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner prescribed by the said Rules. An electronic document is also the equivalent of an original document under the Best Evidence Rule, if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Thus, to be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document."

The Electronic Commerce Act of 2000 defines electronic data message and electronic document as follows:Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as follows:xxxc. "Electronic Data Message" refers to information generated, sent, received or stored by electronic, optical or similar means.xxxf. "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic Evidence, at first glance, convey the impression that facsimile transmissions are electronic data messages or electronic documents because they are sent by electronic means. The expanded definition of an "electronic data message" under the IRR, consistent with the UNCITRAL Model Law, further supports this theory considering that the enumeration "xxx [is] not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." And to telecopy isto send a document from one place to another via a fax machine.

Indeed the court proved that it was within the intention of the framers of the law to consider that original printout or the electronic data store in computer or electronic gadget reduced in a readable form, will be considered as written instrument provided that proper authentication be made and proved, to which the respondent managed to do so.The high court ruled in favor of the respondent.

Nuez vs Cruz-ApaoAM CA 04-18-P, April 12, 2005

Facts: This is an administrative case for Dishonesty and Grave Misconduct against the respondent, Executive Assistant II of the Acting Division Clerk of Court of the 15th Division, Court of Appeals. The complaint arose out of respondent’s solicitation of P1Million from complainant Zaldy Nuez in exchange for a speedy and favorable decision of the latter’s pending case. This led to the conduct of an entrapment operation by elements of the PAOCTF and the apprehension of the respondent by the PAOCTF agents in the course of the entrapment operation.Complainant’s case referred to had been pending with the CA for more than 2 years. Desiring for an expeditious decision of his case, complainant sought the assistance of respondent. Through phone conversation and series of text messages exchanged via SMS, complainant informed respondent of the particulars of his case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case. It turned out that respondent told complainant that a favorable and speedy disposition of his case was attainable but the person who was to draft the decision was in return asking for P1Million Pesos.Complainant negotiated to reduce the amount but respondent held firm asserting that the price had been set, not by her, but by the person who was going to make the decision. With the help of

Imbestigador and the PAOCTF, an entrapment operation was set which led to the apprehension of respondent.Issue: Whether or not what transpired was instigation and not entrapment which led to the apprehension of the respondent.

Held: Complainant’s narration of the incidents which led to the entrapment operation are ore in accord with the circumstances that actually transpired and are more credible that respondent’s version.Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented that the latter asked for 1Million Pesos in exchange for a favorable decision of the former’s pending case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules of Evidence.Under Section 2, Rule 11of the Rules on Electronic Evidence, “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof….” In this case, complainant was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. In administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof off respondent in this case.Respondent found guilty of Grave Misconduct. Dismissed from service.G.R. No. 164273 March 28, 2007

EMMANUEL B. AZNAR, Petitioner,vs.CITIBANK, N.A., (Philippines), Respondent.

Facts: The herein petitioner, Emmanuel B. Aznar, is a prominent businessman and entrepreneur in Cebu. He decided to treat his wife together with their grandchildren for an Asian Tour using his Citibank credit card. He deposited P485,000 to his account to increase his ordinary credit limit from P150,000 to P635,000. He bought tickets to Kuala Lumpur amounting to P235,000. When they were in Kuala Lumpur, they decided to purchases things to which the credit card was dishonoured for over the limit. Eventually the agency further dishonoured the card and even mentioned that the petitioner be a swindler. In that note, they decided to go back Philippines and instantly filed a complaint for damages. The lower court initially dismissed the complaint on the ground that their was no proper authentication as to the print out of the computer generated document presented as evidence before the court. The petitioner filed a motion for the re-raffle of the case, raising the contention that the judge was also a holder of Citibank credit card. The judge later acceded with the contention of petitioner and ordered for the company to pay enormous amount of damages to the plaintiff. When the case was elevated before the CA the latter denied such.

Issue: Whether or not the print out of the computer generated document was properly authenticated to be admissible before the court?

Held: No, the Supreme Court mentioned the following: Section 5, Rule 10 of the Rules of Civil Procedure cannot be excluded as it qualifies as electronic evidence following the Rules on Electronic Evidence which provides that print-outs are also originals for purposes of the Best Evidence Rule;

Section 20 of Rule 132 of the Rules of Court. It provides that whenever any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker.

Pertinent sections of Rule 5 read:Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule.Section 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means:(a) By evidence that it had been digitally signed by the person purported to have signed the same;(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or(c) By other evidence showing its integrity and reliability to the satisfaction of the judge.

Indeed there was no proper authentication of the electronic evidence presented by the petitioner before the court which is the print out of the computer generated document where on it printed that the card was over the limit. During the trial the petitioner mentioned that desk officer phoned someone and eventually the hard copy was given to him signed by one named Nubi, however such was not witnessed by the petitioner or he does not have personal knowledge of such authentication.The high court denied the petition.

DNA EVIDENCETijing vs CA

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners.

Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila.

According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry.

When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelita’s house in Tondo, Manila, but did not find them there. Angelita’s maid told Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to Angelita’s house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance.

Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts.

Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to do so.

Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.[2] The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3]

For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989.

On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof.

Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez.

SO ORDERED.[6]

Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.[8]

On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,[9] and disposed of the case, thus:

IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein.

SO ORDERED.[10]

Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging:

I

THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS’ ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN.

II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR “HABEAS CORPUS” AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11]

In our view, the crucial issues for resolution are the following:

(1) Whether or not habeas corpus is the proper remedy?

(2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners?

We shall discuss the two issues together since they are closely related.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.[13] It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person.

In this case, the minor’s identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minor’s biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor.

True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts.

A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr.

First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted.

Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring.

Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.[16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a “common-law wife”.[17] This false entry puts to doubt the other data in said birth certificate.

Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.[18] Needless to stress, the trial court’s conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned.

Fifth, Lourdes Vasquez testified that she assisted in Bienvenida’s giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners.

All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child.

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.[20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.[22] Though it is not necessary in this case to resort to DNA

testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent.Admissibility of DNA Evidence in Philippine Courts The Supreme Court first recognized to the existence and availability of DNA technology in resolving disputed parentage cases in Tijing v Diamante et al5. In this case, the couple Tijing and a Mrs. Angelita Diamante, simultaneously claimed to be the parents of a child. Based on other evidence already presented such as information on the child’s birth and the apparent inability of the respondent Diamante to bear a child, the Supreme Court affirmed the decision of the Regional Trial Court and reversed the ruling of the Court of Appeals by granting custody of the child to Edgardo A. Tijing and Bienvenida R. Tijing. In addition, the Supreme Court included the option of DNA testing if the respondent Diamante chooses to further her appeal for the custody of the child. In the decision, it stated:Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Sciences Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. ...For it was said that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in (the) future it would be useful to all concerned in the prompt resolution of parentage and identity issues.However, it is in the landmark case of People v Vallejo6 where the Supreme Court first admitted DNA evidence previously presented at trial. Vallejo was convicted of raping and later killing a 9-year old child. The analysis used did not employ the basic principles of parentage testing as DNA extracted from crime scene evidence was directly compared to the DNA of a known suspect (direct matching). In Vallejo, DNA obtained from vaginal swabs taken from the child was found to be consistent with that of the accused. Although statistical evaluation of the weight of matching DNA evidence, e.g. random match probability value that provides a certain measure of the strength of the DNA match over random chance, was not reported, the Supreme Court admitted the DNA evidence and subsequently used it together with other evidence to convict the accused. This decision paved the way for the general admissibility of DNA evidence in Philippine courts although the relevancy and the integrity of data generated must be studied on a case by case basis. In the decision, the Supreme Court laid down the essential admissibility requirements that must be established to render DNA evidence admissible: In assessing the probative value of DNA evidence, therefore the courts should consider, among other things, the following data: how samples were collected, how they were handled, the possibility of contamination of samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.It was the case People v Yatar7 where the Supreme Court admitted DNA evidence in parentage cases, albeit the use of this type of analysis was not immediately evident. People v Yatar is a rape-homicide case wherein biological samples collected from the body of the 16-year old victim were kept for two years prior to the conduct of DNA tests. To generate the DNA profile of the victim, bloodstains on her clothing that were found at the crime scene were submitted for laboratory testing. In addition, a reverse paternity DNA test was performed using reference samples collected from her parents to verify that the DNA profile generated from the bloodstain was that of the victim and not due to contamination because of prolonged storage. Knowledge of the correct DNA profile of the victim was essential because the vaginal swab collected from her were composed of more than one DNA profile. Hence generation of a

reference victim’s DNA profile facilitated the identification of the non-victim DNA on the vaginal swab which is that of the perpetrator, provided the evidence was properly handled and not contaminated. Moreover, the victim’s DNA profile confirmed that the slides containing the vaginal smear stored at room temperature in the local hospital were part of the set of evidence relevant to the case. The Supreme Court admitted the procedures and the interpretation of DNA evidence presented at the Regional Trial Court, and highlighted the utility of DNA evidence, when properly collected, handled and stored, to assist in the prompt and fair resolution of cases:Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the US has proven instructive.

In Daubert v Merrell Dow, it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology.Although the resolution of questioned paternity is normally a civil issue, it may also play an important role in criminal cases such as those involving rape when the victim also claims that the accused is the father of her child born out of the rape (criminal paternity). The first such case where DNA evidence was used was People v Paras8 where blood typing and DNA profiling results conclusively excluded the accused from being the father of the victim’s child. To the trial court, the date of the last incidence of rape stated by the victim is important since the child was born 10 months after the said date. According to the trial court, “these facts would be in violation of the rule of nature.”9 This situation was further reinforced by the results derived from DNA analysis.The results of the laboratory examination, the inconsistencies of the victim’s testimony and the testimony of the victim’s mother as well as other evidences presented by the defense in Court on the whereabouts of the accused during the stated time and dates of the incidences of rape cast a very serious doubt in the mind of the court as to the guilt of the accused, Victoriano Paras, on the five information(s) of rape filed against him.

WHEREFORE, premises considered, this court on reasonable doubt, acquits, Victoriano Paras, on the five information(s) of rape filed against him. Cost de oficio.

This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined by his son, petitioner-relator June de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the basis for the imprisonment of petitioner Reynaldo de Villa; and second, that petitioner be granted a new trial.[1] These reliefs are sought on the basis of purportedly exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing on samples allegedly collected from the petitioner and a child born to the victim of the rape.

By final judgment dated February 1, 2001, in People of the Philippines v. Reynaldo de Villa,[2] we found petitioner guilty of the rape of Aileen Mendoza, his niece by affinity; sentenced him to suffer the penalty of reclusión perpetua; and ordered him to pay the offended party civil indemnity, moral damages, costs of the suit, and support for Leahlyn Corales Mendoza, the putative child born of the rape. Petitioner is currently serving his sentence at the New Bilibid Prison, Muntinlupa City.

As summarized in our Decision dated February 1, 2001, Aileen Mendoza charged petitioner Reynaldo de Villa with rape in an information dated January 9, 1995, filed with the Regional Trial Court of Pasig City. When arraigned on January 26, 1995, petitioner entered a plea of “not guilty.”[3]

During the trial, the prosecution established that sometime in the third week of April 1994, at about 10:00 in the morning, Aileen Mendoza woke up in her family’s rented room in Sagad, Pasig, Metro Manila, to find petitioner on top of her. Aileen was then aged 12 years and ten months. She was unable to shout for help because petitioner covered her mouth with a pillow and threatened to kill her. Aileen could not do anything but cry. Petitioner succeeded in inserting his penis inside her vagina. After making thrusting motions with his body, petitioner ejaculated. This encounter allegedly resulted in Aileen’s pregnancy, which was noticed by her mother, Leonila Mendoza, sometime in November 1994. When confronted by her mother, Aileen revealed that petitioner raped her. Aileen’s parents then brought her to the Pasig Police Station, where they lodged a criminal complaint against petitioner.[4]

Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight months pregnant and found in her hymen healed lacerations at the 5:00 and 8:00 positions. On December 19, 1994, Aileen gave birth to a baby girl whom she named Leahlyn Mendoza.[5]

In his defense, petitioner alleged that, at the time of the alleged rape, he was already 67 years old. Old age and sickness had rendered him incapable of having an erection. He further averred that Aileen’s family had been holding a grudge against him, which accounted for the criminal charges. Finally, he interposed the defense of alibi, claiming that at the time of the incident, he was in his hometown of San Luis, Batangas.[6]

The trial court found petitioner guilty beyond reasonable doubt of the crime of qualified rape, and sentenced him to death, to indemnify the victim in the amount of P50,000.00, to pay the costs of the suit and to support the child, Leahlyn Mendoza.[7]

On automatic review,[8] we found that the date of birth of Aileen’s child was medically consistent with the time of the rape. Since it was never alleged that Aileen gave birth to a full-term nine-month old baby, we gave credence to the prosecution’s contention that she prematurely gave birth to an eight-month old baby by normal delivery.[9] Thus, we affirmed petitioner’s conviction for rape, in a Decision the dispositive portion of which reads:

WHEREFORE, the judgment of the Regional Trial Court, finding accused-appellant guilty beyond reasonable doubt of the crime of rape, is AFFIRMED with the MODIFICATIONS that he is sentenced to suffer the penalty of reclusión perpetua and ordered to pay the offended party P50,000.00 as civil indemnity; P50,000.00 as moral damages; costs of the suit and to provide support for the child Leahlyn Corales Mendoza.

SO ORDERED.[10]

Writ of Habeas Corpus for Reynaldo de VillaThree years after the promulgation of our Decision, we are once more faced with the question of Reynaldo de Villa’s guilt or innocence.

Petitioner-relator in this case, June de Villa, is the son of Reynaldo. He alleges that during the trial of the case, he was unaware that there was a scientific test that could determine once and for all if Reynaldo was the father of the victim’s child, Leahlyn. Petitioner-relator was only informed during the pendency of the automatic review of petitioner’s case that DNA testing could resolve the issue of paternity.[11] This information was apparently furnished by the Free Legal Assistance Group (FLAG) Anti-Death Penalty Task Force, which took over as counsel for petitioner.

Thus, petitioner’s brief in People v. de Villa sought the conduct of a blood type test and DNA test in order to determine the paternity of the child allegedly conceived as a result of the rape.[12] This relief was implicitly denied in our Decision of February 21, 2001.

On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the Decision, wherein he once more prayed that DNA tests be conducted.[13] The Motion was denied with finality in a Resolution dated November 20, 2001.[14] Hence, the Decision became final and executory on January 16, 2002.[15]

Petitioner-relator was undaunted by these challenges. Having been informed that DNA tests required a sample that could be extracted from saliva, petitioner-relator asked Billy Joe de Villa, a grandson of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask Leahlyn to spit into a new, sterile cup.[16] Leahlyn readily agreed and did so. Billy Joe took the sample home and gave it to the petitioner-relator, who immediately labeled the cup as “Container A.”

Petitioner-relator then gathered samples from four grandchildren of Reynaldo de Villa. These samples were placed in separate containers with distinguishing labels and temporarily stored in a refrigerator prior to transport to the DNA Analysis Laboratory at the National Science Research Institute (NSRI).[17] During transport, the containers containing the saliva samples were kept on ice.

Petitioner-relator requested the NSRI to conduct DNA testing on the sample given by Leahlyn Mendoza, those given by the grandchildren of Reynaldo de Villa, and that given by Reynaldo de Villa himself. The identities of the donors of the samples, save for the sample given by Reynaldo de Villa, were not made known to the DNA Analysis Laboratory.[18]

After testing, the DNA Laboratory rendered a preliminary report on March 21, 2003, which showed that Reynaldo de Villa could not have sired any of the children whose samples were tested, due to the absence of a match between the pertinent genetic markers in petitioner’s sample and those of any of the other samples, including Leahlyn’s.[19]

Hence, in the instant petition for habeas corpus, petitioner argues as follows:

DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.[20]

x x x x x x x x x

A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW OF THE RESULTS OF THE DNA TESTS CONDUCTED.[21]

Considering that the issues are inter-twined, they shall be discussed together.

In brief, petitioner relies upon the DNA evidence gathered subsequent to the trial in order to re-litigate the factual issue of the paternity of the child Leahlyn Mendoza. Petitioner alleges that this issue is crucial, considering that his conviction in 2001 was based on the factual finding that he sired the said child. Since this paternity is now conclusively disproved, he argues that the 2001 conviction must be overturned.

In essence, petitioner invokes the remedy of the writ of habeas corpus to collaterally attack the 2001 Decision. The ancillary remedy of a motion for new trial is resorted to solely to allow the presentation of what is alleged to be newly-discovered evidence. This Court is thus tasked to determine, first, the propriety of the issuance of a writ of habeas corpus to release an individual already convicted and serving sentence by virtue of a final and executory judgment; and second, the propriety of granting a new trial under the same factual scenario.

The extraordinary writ of habeas corpus has long been a haven of relief for those seeking liberty from any unwarranted denial of freedom of movement. Very broadly, the writ applies “to all cases of illegal confinement or detention by which a person has been deprived of his liberty, or by which the rightful custody of any person has been withheld from the person entitled thereto”.[22] Issuance of the writ necessitates that a person be illegally deprived of his liberty. In the celebrated case of Villavicencio v. Lukban,[23] we stated that “[a]ny restraint which will preclude freedom of action is sufficient.”[24]

The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an individual’s liberty is restrained via some legal process, the writ of habeas corpus is unavailing. Concomitant to this principle, the writ of habeas corpus cannot be used to directly assail a judgment rendered by a competent court or tribunal which, having duly acquired jurisdiction, was not deprived or ousted of this jurisdiction through some anomaly in the conduct of the proceedings.

Thus, notwithstanding its historic function as the great writ of liberty, the writ of habeas corpus has very limited availability as a post-conviction remedy. In the recent case of Feria v. Court of Appeals,[25] we ruled that review of a judgment of conviction is allowed in a petition for the issuance of the writ of habeas corpus only in very specific instances, such as when, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[26]

In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of conviction, without, however, providing a legal ground on which to anchor his petition. In fine, petitioner alleges

neither the deprivation of a constitutional right, the absence of jurisdiction of the court imposing the sentence, or that an excessive penalty has been imposed upon him.

In fine, petitioner invokes the remedy of habeas corpus in order to seek the review of findings of fact long passed upon with finality. This relief is far outside the scope of habeas corpus proceedings. In the early case of Abriol v. Homeres,[27] for example, this Court stated the general rule that the writ of habeas corpus is not a writ of error, and should not be thus used. The writ of habeas corpus, whereas permitting a collateral challenge of the jurisdiction of the court or tribunal issuing the process or judgment by which an individual is deprived of his liberty, cannot be distorted by extending the inquiry to mere errors of trial courts acting squarely within their jurisdiction.[28] The reason for this is explained very simply in the case of Velasco v. Court of Appeals:[29] a habeas corpus petition reaches the body, but not the record of the case. [30] A record must be allowed to remain extant, and cannot be revised, modified, altered or amended by the simple expedient of resort to habeas corpus proceedings.

Clearly, mere errors of fact or law, which did not have the effect of depriving the trial court of its jurisdiction over the case and the person of the defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be corrected on certiorari or on appeal, in the form and manner prescribed by law.[31] In the past, this Court has disallowed the review of a court’s appreciation of the evidence in a petition for the issuance of a writ of habeas corpus, as this is not the function of said writ.[32] A survey of our decisions in habeas corpus cases demonstrates that, in general, the writ of habeas corpus is a high prerogative writ which furnishes an extraordinary remedy; it may thus be invoked only under extraordinary circumstances.[33] We have been categorical in our pronouncements that the writ of habeas corpus is not to be used as a substitute for another, more proper remedy. Resort to the writ of habeas corpus is available only in the limited instances when a judgment is rendered by a court or tribunal devoid of jurisdiction. If, for instance, it can be demonstrated that there was a deprivation of a constitutional right, the writ can be granted even after an individual has been meted a sentence by final judgment.

Thus, in the case of Chavez v. Court of Appeals,[34] the writ of habeas corpus was held to be available where an accused was deprived of the constitutional right against self-incrimination. A defect so pronounced as the denial of an accused’s constitutional rights results in the absence or loss of jurisdiction, and therefore invalidates the trial and the consequent conviction of the accused. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus.[35] Later, in Gumabon v. Director of the Bureau of Prisons,[36] this Court ruled that, once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention.[37] Although in Feria v. Court of Appeals[38] this Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, we laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.[39]

In the recent case of Calvan v. Court of Appeals,[40] we summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked by the attendance of a special circumstance that requires immediate action. In such situations, the inquiry on a writ of habeas

corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention.[41] It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus.

Upon a perusal of the records not merely of this case but of People v. de Villa, we find that the remedy of the writ of habeas corpus is unavailing.

First, the denial of a constitutional right has not been alleged by petitioner. As such, this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of habeas corpus. Much as this Court sympathizes with petitioner’s plea, a careful scrutiny of the records does not reveal any constitutional right of which the petitioner was unduly deprived.

We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus in order to test claims that a defendant was denied effective aid of counsel.[42] In this instance, we note that the record is replete with errors committed by counsel, and it can be alleged that the petitioner was, at trial, denied the effective aid of counsel. The United States Supreme Court requires a defendant alleging incompetent counsel to show that the attorney’s performance was deficient under a reasonable standard, and additionally to show that the outcome of the trial would have been different with competent counsel.[43] The purpose of the right to effective assistance of counsel is to ensure that the defendant receives a fair trial.[44]

The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of counsel, one must examine whether counsel’s conduct undermined the proper functioning of the adversarial process to such an extent that the trial did not produce a fair and just result.[45] The proper measure of attorney performance is “reasonable” under the prevailing professional norms, and the defendant must show that the representation received fell below the objective standard of reasonableness.[46] For the petition to succeed, the strong presumption that the counsel’s conduct falls within the wide range or reasonable professional assistance must be overcome.[47]

In the case at bar, it appears that in the middle of the appeal, the petitioner’s counsel of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his appearance as counsel, giving the sole explanation that he was “leaving for the United States for an indefinite period of time by virtue of a petition filed in his favor.”[48] In the face of this abandonment, petitioner made an impassioned plea that his lawyer be prevented from this withdrawal in a handwritten “Urgent Motion for Reconsideration and Opposition of Counsel’s Withdrawal of Appearance with Leave of Court” received by this Court on September 14, 1999.[49] Petitioner alleged that his counsel’s withdrawal is an “untimely and heartbreaking event”, considering that he had placed “all [his] trust and confidence on [his counsel’s] unquestionable integrity and dignity.”[50]

While we are sympathetic to petitioner’s plight, we do not, however, find that there was such negligence committed by his earlier counsel so as to amount to a denial of a constitutional right. There is likewise no showing that the proceedings were tainted with any other jurisdictional defect.

In fine, we find that petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the records of People v. de Villa, without asserting any legal grounds therefor. For all intents and purposes, petitioner seeks a reevaluation of the evidentiary basis for his conviction. We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks to present to this Court. This relief is outside the scope of a habeas corpus petition. The petition for habeas corpus must, therefore, fail.

Coupled with the prayer for the issuance of a writ of habeas corpus, petitioner seeks a new trial to re-litigate the issue of the paternity of the child Leahlyn Mendoza.

It must be stressed that the issue of Leahlyn Mendoza’s paternity is not central to the issue of petitioner’s guilt or innocence. The rape of the victim Aileen Mendoza is an entirely different question, separate and distinct from the question of the father of her child. Recently, in the case of People v. Alberio,[51] we ruled that the fact or not of the victim’s pregnancy and resultant childbirth are irrelevant in determining whether or not she was raped. Pregnancy is not an essential element of the crime of rape. Whether the child which the victim bore was fathered by the purported rapist, or by some unknown individual, is of no moment in determining an individual’s guilt.

In the instant case, however, we note that the grant of child support to Leahlyn Mendoza indicates that our Decision was based, at least in small measure, on the victim’s claim that the petitioner fathered her child. This claim was given credence by the trial court, and, as a finding of fact, was affirmed by this Court on automatic review.

The fact of the child’s paternity is now in issue, centrally relevant to the civil award of child support. It is only tangentially related to the issue of petitioner’s guilt. However, if it can be conclusively determined that the petitioner did not sire Leahlyn Mendoza, this may cast the shadow of reasonable doubt, and allow the acquittal of the petitioner on this basis.

Be that as it may, it appears that the petitioner once more relies upon erroneous legal grounds in resorting to the remedy of a motion for new trial. A motion for new trial, under the Revised Rules of Criminal Procedure, is available only for a limited period of time, and for very limited grounds. Under Section 1, Rule 121, of the Revised Rules of Criminal Procedure, a motion for new trial may be filed at any time before a judgment of conviction becomes final, that is, within fifteen (15) days from its promulgation or notice. Upon finality of the judgment, therefore, a motion for new trial is no longer an available remedy. Section 2 of Rule 121 enumerates the grounds for a new trial:

SEC. 2. Grounds for a new trial.—The court shall grant a new trial on any of the following grounds:

(a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;

(b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.

In the case at bar, petitioner anchors his plea on the basis of purportedly “newly-discovered evidence”, i.e., the DNA test subsequently conducted, allegedly excluding petitioner from the child purportedly fathered as a result of the rape.

The decision sought to be reviewed in this petition for the issuance of a writ of habeas corpus has long attained finality, and entry of judgment was made as far back as January 16, 2002. Moreover, upon an examination of the evidence presented by the petitioner, we do not find that the DNA evidence falls within the statutory or jurisprudential definition of “newly- discovered evidence”.

A motion for new trial based on newly-discovered evidence may be granted only if the following requisites are met: (a) that the evidence was discovered after trial; (b) that said evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) that it is material, not merely cumulative, corroborative or impeaching; and (d) that the evidence is of such weight that that, if admitted, it would probably change the judgment.[52] It is essential that the offering party exercised reasonable diligence in seeking to locate the evidence before or during trial but nonetheless failed to secure it.[53]

In this instance, although the DNA evidence was undoubtedly discovered after the trial, we nonetheless find that it does not meet the criteria for “newly-discovered evidence” that would merit a new trial. Such evidence disproving paternity could have been discovered and produced at trial with the exercise of reasonable diligence.

Petitioner-relator’s claim that he was “unaware” of the existence of DNA testing until the trial was concluded carries no weight with this Court. Lack of knowledge of the existence of DNA testing speaks of negligence, either on the part of petitioner, or on the part of petitioner’s counsel. In either instance, however, this negligence is binding upon petitioner. It is a settled rule that a party cannot blame his counsel for negligence when he himself was guilty of neglect.[54] A client is bound by the acts of his counsel, including the latter’s mistakes and negligence.[55] It is likewise settled that relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence, or to a mistaken mode of procedure.[56]

Even with all of the compelling and persuasive scientific evidence presented by petitioner and his counsel, we are not convinced that Reynaldo de Villa is entitled to outright acquittal. As correctly pointed out by the Solicitor General, even if it is conclusively proven that Reynaldo de Villa is not the father of Leahlyn Mendoza, his conviction could, in theory, still stand, with Aileen Mendoza’s testimony and positive identification as its bases.[57] The Solicitor General reiterates, and correctly so, that the pregnancy of the victim has never been an element of the crime of rape.[58] Therefore, the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa should be discharged. Although petitioner claims that conviction was based solely on a finding of paternity of the child Leahlyn, this is not the case. Our conviction was based on the clear and convincing testimonial evidence of the victim, which, given credence by the trial court, was affirmed on appeal.

WHEREFORE, in view of the foregoing, the instant petition for habeas corpus and new trial is DISMISSED for lack of merit.

Herrera vs Alba

In May 1998, Armi Alba, mother of minor Rosendo Alba filed a suit against Rosendo Herrera in order for the latter to recognize and support Rosendo as his biological son. Herrera denied Armi’s allegations. In the year 2000, the trial court ordered the parties to undergo a (deoxyribonucleic acid )DNA testing to establish whether or not Herrera is indeed the biological father of Rosendo Alba. However, Herrera questioned the validity of the order as he claimed that DNA testing has not yet garnered widespread acceptance hence any result therefrom will not be admissible in court; and that the said test is unconstitutional for it violates his right against self-incrimination.

ISSUE: Whether or not Herrera is correct.

HELD: No. It is true that in 1997, the Supreme Court ruled in Pe Lim vs CA that DNA testing is not yet recognized in the Philippines and at the time when he questioned the order of the trial court, the prevailing doctrine was the Pe Lim case; however, in 2002 there is already no question as to the acceptability of DNA test results as admissible object evidence in Philippine courts. This was the decisive ruling in the case of People vs Vallejo (2002).

In the Vallejo Case, the Supreme Court recognized DNA analysis as admissible evidence. On the other hand, as to determining the weight and probative value of DNA test results, the Supreme Court provides, which is now known as the Vallejo Guidelines:

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data:

how the samples were collected,how they were handled,the possibility of contamination of the samples,the procedure followed in analyzing the samples,whether the proper standards and procedures were followed in conducting the tests,and the qualification of the analyst who conducted the tests.The above test is derived from the Daubert Test which is a doctrine adopted from US jurisprudence (Daubert v. Merrell Dow Pharmaceuticals, Inc.) The Daubert Test is a test to be employed by courts before admitting scientific test results in evidence. More specifically, the Daubert Test inquires:

Whether the theory or technique can be tested,Whether the proffered work has been subjected to peer review,Whether the rate of error is acceptable,Whether the method at issue enjoys widespread acceptance

In this case, the Supreme Court declared that in filiation cases, before paternity inclusion can be had, the DNA test result must state that the there is at least a 99.9% probability that the person is the biological father. However, a 99.9% probability of paternity (or higher but never possibly a 100% ) does not immediately result in the DNA test result being admitted as an overwhelming evidence. It does not automatically become a conclusive proof that the alleged father, in this case Herrera, is the biological father of the child (Alba). Such result is still a disputable or a refutable evidence which can be brought down if the Vallejo Guidelines are not complied with.

What if the result provides that there is less than 99.9% probability that the alleged father is the biological father?Then the evidence is merely corroborative.Anent the issue of self-incrimination, submitting to DNA testing is not violative of the right against self-incrimination. The right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. There is no “testimonial compulsion” in the getting of DNA sample from Herrera, hence, he cannot properly invoke self-incrimination.

Tecson vs ComelecFacts: Victorino X. Fornier, petitioner initiated a petition before the COMELEC to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent.

Issue: Whether or Not FPJ is a natural born Filipino citizen.

Held: It is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate.

But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code.

People v. Rufino Umanito26 Oct 2007 / Tinga /

FACTSAround 9PM, private complainant AAA was accosted by a young male (whom she later knew as Umanito). He waited for her by the creek, and he pointed as knife at her abdomen. He dragged her into the Home Economics Building of Daramuangan Elementary School. He undressed her while still holding the knife. He set her down on a bench, put down the knife, and had sex with her. He dressed up and threatened to kill her if she reported the incident. Six months later, AAA ’ s mother noticed the prominence on her stomach, and it was then that she divulged to her mother the alleged rape. Her mother brought her to the police station. (Umanito’ s alibi: He was at home all day. Re: AAA, he admitted that he courted her but she spurned him. He conjectured that she had a crush on him since she frequently visited him.) RTC rendered judgment against Umanito and sentenced him to suffer reclusion perpetua. Umanito ’s appeal was transferred to the CA for intermediate review (as per Mateo ruling), and CA affirmed RTC. Umanito seeks acquittal on reasonable doubt, with the belated filing of the case and AAA ’ s questionable credibility as grounds. He also said that AAA filed the complaint only upon her mother ’s insistence; this supports his claim that AAA had sex with another (a married man). Also, he claimed that there were several inconsistencies in her assertions.

CASE IS REMANDED TO THE RTC FOR RECEPTION OF DNA EVIDENCE

RATIOThe fact that AAA bore a child because of the purported rape may provide the definitive key to Umanito ’ s absolution, since it can now be determined with reasonable certainty WON he is the father of her child. AAA and her child are directed to submit themselves to DNA testing under the aegis of the New Rule on DNA Evidence (AM No. 06-11-5-SC) which took effect on 15 Oct 2007 (a few days before promulgation of this case). DNA print / identification technology is now recognized as a uniquely effective means to link a suspect to a crime, or to absolve one erroneously accused, where biological evidence is available. The groundwork for acknowledging the strong weight of DNA testing was first laid out in Tijing v. CA . Herrera v. Alba discussed DNA analysis as evidence and traced the development of its admissibility in our jurisdiction. Tecson v. COMELEC said that in case proof of filiation or paternity would be unlikely to establish, DNA testing could be resorted to. The determination of WON Umanito is the father (through DNA testing) is material to the fair and correct adjudication of his appeal. Under Sec. 4 of AM No. 06-11-5-SC, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. However, since SC is not a trier of facts, it would be more appropriate that the case be remanded to RTC for reception of evidence.The hearing should be confined to ascertaining the feasibility of DNA testing with due regard to the standards set. RTC should order the DNA testing if it finds it to be feasible in this case. RTC shall determine the institution to undertake the testing, and the parties are free to manifest their comments on the choice. After the DNA analysis is obtained, it shall be incumbent upon the parties who wish to avail of the same to offer the results in accordance with the rules of evidence, which shall be assessed by RTC in keeping with Sections 7 (Assessment of probative value of DNA evidence) and 8 (Reliability of DNA testing methodology). RTC is also enjoined to observe confidentiality and preservation of DNA evidence.

To facilitate the execution of this resolution, although the parties are primarily bound to bear the expenses for DNA testing, such costs may be advanced by SC if needed.

Nover Bryan Salvador vs PeopleThis is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by petitioner Nover Bryan Salvador y De Leon, assailing the Court of Appeals (CA) Decision[1] dated February 26, 2004 which affirmed the Regional Trial Court[2] (RTC) Decision[3] dated October 26, 2001. Likewise assailed is the appellate court’s Resolution[4] dated July 6, 2004 denying petitioner’s motion for reconsideration. The facts of the case follow: Spouses Ernesto and Margarita Zuñiga had three daughters, namely: Marianne, Mary Ann and the victim Arlene. Mary Ann was married to the petitioner herein. The Zuñiga family, including Mary Ann and the petitioner were living together at 550 Coloong I, Valenzuela City. Their residence had three bedrooms – one for the Zuñiga spouses; the other for Marianne and Arlene; and the last for Mary Ann and the petitioner. On September 20, 1997, the Zuñiga spouses, together with Marianne, went to Bulacan to attend the wake of Ernesto’s mother; while Mary Ann with her new born child, and Arlene, stayed at their Valenzuela home. Petitioner, at that time, asked permission to attend a birthday party.[5] At about 9:00 in the evening, petitioner, accompanied by Eduardo Palomares, returned home to get some karaoke tapes to be used at the birthday party. They thereafter went back to the party and stayed there until 12 midnight before heading back home. At 4:30 in the morning, the following day, the Zuñiga spouses and Marianne arrived home. They opened the main door which was then locked. After preparing for sleep, Marianne proceeded to the room which she was sharing with Arlene. There she saw Arlene, who suffered stab wounds, already dead. After seeing Arlene’s body, the Zuñiga spouses rushed to the room of Mary Ann and the petitioner. While Mary Ann proceeded to Arlene’s room, petitioner stayed at the sala and cried. He was later seen embracing Mary Ann and telling her that he was innocent.[6] At around 5:00 in the morning, police investigators arrived. The police found no forcible entry into the house; no valuables were missing; and no bloodstains in other parts of the house except Arlene’s room. They likewise discovered, on top of the kitchen table, petitioner’s underwear (briefs), gray t-shirt and short pants.[7] They further found hair strands on Arlene’s bed. These pieces of evidence were brought to the laboratory for examination. On September 21, 1997, Dr. Noel Minay (Dr. Minay), a medico-legal of the National Bureau of Investigation (NBI) conducted an autopsy of the deceased.[8] He found that Arlene suffered 21 stab wounds produced by a pointed instrument, one side of which was sharp like a balisong or a kitchen knife. He further declared the possibility that Arlene struggled with the assailant before she died.[9] The NBI Forensic Biologist also examined petitioner’s briefs, t-shirt and short pants, and found that the briefs and shirt were positive of type “O” human blood, Arlene’s blood type.[10] The NBI Forensic Chemist, subsequently, conducted DNA Analysis on the following specimens: 1. One (1) dirty white Hanford brief[s];

2. One (1) light gray t-shirt with DKNY print infront;3. Several strands of hair allegedly recovered in the bedroom of [the] victim;4. Buccal swabs taken from the following:a. ERNESTO ZUÑIGA (victim’s father)b. MARGARITA ZUÑIGA (victim’s mother)c. NOVER BRYAN SALVADOR (suspect)[11] The examination of specimen no. 1 yielded a negative result for the presence of human DNA; while specimen nos. 2, 3, and 4 a-c, yielded positive results.[12] Petitioner was thus charged with Homicide in an Information dated April 8, 1998, the accusatory portion of which reads: That on or about the 20th day of September, 1997, in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously assault and stab one ARLENE ZUÑIGA, hitting on the different parts of her body, which led to the death of said Arlene Zuñiga. CONTRARY TO LAW.[13] The aforementioned facts were established during the prosecution’s presentation of evidence. It was further testified to by the witnesses that – petitioner owned a knife otherwise known as balisong, which he usually brought every time he went out. Ill motive was shown by petitioner’s previous act of peeping through the bathroom and Arlene’s room on two occasions – while she was taking a bath and while she was inside the room with Marianne. For his part, all that the petitioner could offer was bare denial of the accusations against him. On October 26, 2001, the RTC rendered a Decision finding the petitioner guilty of homicide. The dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused NOVER BRYAN SALVADOR y DE LEON guilty beyond reasonable doubt and as principal of the crime of homicide as defined and penalized under Article 249 of the Revised Penal Code, without any attending mitigating or aggravating circumstance, and, applying the Indeterminate Sentence Law, hereby sentences him to an indeterminate penalty of EIGHT (8) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as maximum. The accused is further sentence (sic) to indemnify Spouses Ernesto and Margarita Zuñiga the amount of P50,000.00 for the death of Arlene Zuñiga and another amount of P50,000.00 as moral damages, both without subsidiary imprisonment in case of insolvency. The accused is further sentenced to pay the costs of suit. SO ORDERED.[14] The RTC considered the following circumstantial evidence sufficient to establish petitioner’s guilt:

(1) The perpetrator did not use any force or destroy any portion of the house to get inside the house. This implies that the perpetrator is an occupant of the house. The accused was, during the time material to this case, residing with his in-laws. The allegation of the accused that the main door of the house was open when he returned to get the tape is difficult to believe. It is unthinkable that the remaining occupants of the house, namely, Arlene and Mary Ann, who are both female, would not take the necessary precaution for their own protection such as locking the door of the house. It is as difficult to suppose that the perpetrator of the crime would go to the house where his intended victim was sleeping without being sure that he could gain entry to the house or have the necessary instruments to open the door. (2) There were no personal belongings missing in the house. This shows that the person who entered the room of the victim had no intention to steal. This fact can better be appreciated if we consider the evidence that the accused was caught many times peeping at Arlene during her lifetime; and that [bloodstains] were found not in the short pants of the accused but in his Hanford brief and T-shirt. (3) The absence of [bloodstains] or spots in any other part of the house except the room of the victim. This indicates that the assailant must have cleaned the traces of blood inside the house. The facility and time to clean the area is more available to an assailant who was an occupant of the house or a member of the household. (4) Prior to and up to the date of the commission of the crime on September 20 or 21, 1997[,] the accused was seen by his parents-in-law Ernesto and Margarita Zuñiga and her sister-in-law Marianne and his friend Dondy Hiponia in many occasions to have in [his] possession a ‘balisong” or “beinte (sic) nueve.” A “balisong” or “beinte (sic) nueve” is the tagalong name for a knife with folding blade. There is no reason for the Court to doubt the testimonies of said witnesses. Being close relatives and friend of the accused[,] they have no motive to fabricate a story against the accused or to implicate him to the commission of the crime charged. The claim of the accused that his father-in-law Ernesto Zuñiga is trying to implicate him [for] the killing of Arlene because his father-in-law disapproved his marrying Mary Ann, and that he accompanied his mother-in-law to the house of the mistress of his father-in-law is not supported by the facts of the case. The accused was allowed to stay in the house of the Zuñigas, an indication that he was acceptable to the family. The alleged mistress of Ernesto was not shown to exist, nor her supposed address revealed by the accused. The disappearance of said bladed weapon and the denial by the accused that he ever owned the same are intriguing because, according to expert testimony, the stab wounds sustained by the victim were produced by a pointed instrument one side of which is sharp like a “balisong” or “beinte (sic) nueve.” (5) The presence of human blood with type “O” in the t-shirt and brief of the accused, the finding that the blood type of the victim belongs to groupd (sic) “O,” and the circumstance that the accused had suffered no scratches or wound from which to come blood to stain his T-shirt and brief are revealing and could only lead to the conclusion that the victim was the source of the blood found in the T-shirt and brief of the accused. (6) The conclusion arrived at by Magsipoc that the DNA Profile of the [bloodstain] in the light gray t-shirt and the DNA Profile on the hair strands could come from the accused and the victim.

(7) The unusual behavior of the accused after the discovery of the dead body of Arlene betrayed the accused. Ernesto and Margarita Zuñiga testified that soon after the discovery of the death of Arlene[,] they immediately went to the room of the accused and his wife Mary Ann; that it took Margarita a hard time to awaken the accused; and that upon being awakened, the accused did not get (sic) inside the room where Arlene was and instead stayed and cried in the sala telling his wife that he was innocent even if nobody yet at that time was pointing to him as the suspect. The actuation of the accused then was that of a perpetrator of the crime with troubled conscience.[15] On appeal, the CA affirmed petitioner’s conviction.[16] Hence, the present petition for review on certiorari anchored on the following grounds: I THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR WHEN IT RULED THAT THE MOST CONVINCING EVIDENCE OF THE PROSECUTION IS THE RESULT OF THE DNA ANALYSIS CONDUCTED BY THE NBI FORENSIC CHEMIST. II. THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR WHEN IT RULED THAT BY MEANS OF CIRCUMSTANTIAL EVIDENCE, IT WAS PROVEN AND ESTABLISHED BEYOND REASONABLE DOUBT THAT ACCUSED-APPELLANT WAS THE ONE RESPONSIBLE FOR THE DEATH OF ARLENE ZUÑIGA. III. THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF HOMICIDE.[17] The petition lacks merit. Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community.[18] Section 4, Rule 133 of the Rules of Court, provides that circumstantial evidence is sufficient for conviction if the following requisites are complied with: (1) There is more than one circumstance;(2) The facts from which the inferences are derived are proven; and(3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[19]

All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. Thus, conviction based on circumstantial evidence can be upheld, provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person.[20] In the present case, both the trial and appellate courts considered these pieces of evidence in finding petitioner’s guilt: 1) the non-employment of force in entering the scene of the crime; 2) no missing personal belongings; 3) the absence of bloodstains in other parts of the house except Arlene’s room; 4) petitioner’s ownership of a balisong, the same weapon used in stabbing the victim; 5) the presence of type “O” human blood on petitioner’s T-shirt and briefs; 6) the positive result of the DNA analysis using the bloodstains found in petitioner’s shirt and briefs; and 7) petitioner’s unusual behavior after the discovery of the victim’s lifeless body.[21] In his appeal before the CA and likewise in this present petition, petitioner questions the sufficiency of each and every circumstance enumerated above. He specifically points out the inconsistent findings of the NBI Forensic Chemist and those of the NBI Forensic Biologist.[22] As to the circumstance that there was no forcible entry to the house, he insists that the main door was not locked; and he, in fact, faults Arlene for not locking the door to her bedroom.[23] Petitioner adds that the connection between the alleged “peeping incident” and intent to kill was so remote; and thus insufficient to convict him.[24] He also persuades this Court to give credence to his testimony that he owned a samurai (double-bladed knife) and not a balisong (single-bladed) which thus negates his authorship of the crime, since it would be contrary to the medico-legal’s findings that the weapon used was an instrument one side of which was sharp.[25] Petitioner further asserts that the absence of scratches, wounds and bruises on his body were more consistent with his innocence rather than his guilt, if we follow the court’s conclusion that Arlene had a chance to struggle with him prior to his death.[26] Lastly, petitioner claims that if we were to believe the prosecution’s version, it would be hard to imagine that Mary Ann (petitioner’s wife), who was then in the other room, was not awakened.[27] Prior to the fateful night when Arlene’s lifeless body was discovered, several witnesses saw petitioner in possession of a balisong. The NBI autopsy report, in turn, stated that the wounds sustained by Arlene were inflicted with the use of a weapon only one side of which was sharp (such as a balisong). After the discovery of the crime, the balisong was nowhere to be found. Hence, the trial court was correct in its conclusion that the balisong previously seen in petitioner’s possession was the very weapon used in stabbing the victim. While petitioner admitted owning a different kind of weapon, he failed to produce it in court. As such, it remained a self-serving allegation that cannot be considered to exonerate him from liability. As to petitioner’s shirt and briefs, as correctly held by the trial court (and as affirmed by the appellate court), they were found to be stained with type “O” blood (the victim’s blood type). Instead of questioning the absence of proof that he was not of the same blood type as the victim, petitioner should have presented evidence that he indeed has type “O” blood. The fact remains that petitioner offered no explanation why his shirt and briefs contained bloodstains. It is, therefore, correct to conclude that they were stained with the victim’s blood. Moreover, the absence of scratches and bruises on petitioner’s body parts does not negate the trial court’s conclusion that the victim had the chance to struggle with the petitioner. This is so because, at the time the petitioner attacked the victim between 1:00 and 4:00 in the morning, she was most likely

asleep and was only awakened by the petitioner; she was, therefore, not in a position to offer strong resistance. This explains why such struggle produced no bruises and scratches. The presence of petitioner’s wife inside the house at that time does not likewise negate the commission of the crime. Considering that his wife was a nursing mother who definitely had sleepless nights, she could not be expected to be conscious of everything that happened outside her room. More importantly, intent to kill was duly established by the witnesses when they testified relative to the “peeping incident.” Although there was no evidence or allegation of sexual advances, such incident manifested petitioner’s evil motive. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.[28] Motive and intent may be considered one and the same, in some instances, as in the present case. Lastly, the DNA analysis made by the NBI expert placed the petitioner at the scene of the crime. Such evidence was considered, together with the other circumstances discussed earlier. The individual pieces of evidence may not be sufficient to point to the accused as the author of the crime. However, when taken together, they are more than enough to establish beyond reasonable doubt that petitioner committed the crime of homicide. We would like to emphasize at this point that the peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more like a puzzle which, when put together, reveals a remarkable picture pointing towards the conclusion that the accused is the author of the crime.[29] The prosecution’s evidence, especially the testimonies of the witnesses who happen to be the victim’s relatives, was not weakened by the fact of such relationship. The Court notes that petitioner himself is a relative of the witnesses, albeit by affinity, being the husband of the victim’s sister. It is unnatural for a relative, who is interested in vindicating the crime, to accuse somebody else other than the real culprit. For her/him to do so is to let the guilty go free.[30] Where there is nothing to indicate that witnesses were actuated by improper motives on the witness stand, their positive declarations made under solemn oath deserve full faith and credence.[31] We also reiterate the well-settled rule that this Court accords great weight and a high degree of respect to factual findings of the trial court, especially when affirmed by the CA, as in the present case. Here, the RTC was unequivocally upheld by the CA, which was clothed with the power to review whether the trial court’s conclusions were in accord with the facts and the relevant laws.[32] The credibility given by the trial courts to prosecution witnesses is an important aspect of evidence which appellate courts can rely on, because of the trial courts’ unique opportunity to observe the witnesses, particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsels.[33] In view of the foregoing, petitioner was correctly convicted of homicide punishable by reclusion temporal. Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty, absent any modifying circumstances, shall be taken from the full range of prision mayor and the maximum of which shall be taken from the medium period of reclusion temporal.[34] Specifically, the indeterminate penalty that should be imposed is within the range of 6 years and 1 day to 12 years of prision mayor, as minimum; to 14 years, 8 months and 1 day to 17 years and 4 months of reclusion temporal, as maximum. Hence, a modification of the penalty imposed by the trial court is in order.

Instead of 8 years, 8 months and 1 day, the minimum term of the indeterminate penalty shall be 8 years and 1 day of prision mayor;[35] while the maximum term shall be that imposed by the trial court. An appeal in a criminal proceeding throws the whole case open for review. It then becomes the duty of this Court to correct any error in the appealed judgment, whether or not included in the assignment of errors.[36] We affirm the award of P50,000.00 by way of indemnity ex delicto to the Zuñiga spouses. When death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity for death without need of any evidence or proof of damages.[37] The court likewise correctly awarded P50,000.00 as moral damages because of their mental anguish and moral suffering caused by Arlene’s death. The trial and appellate courts did not award actual damages, obviously because the victim’s heirs failed to present proof of the expenses they incurred. However, it has been repeatedly held by this Court that where the amount of actual damages cannot be determined because of the absence of receipts to prove the same, temperate damages may be fixed at P25,000.00.[38] WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Court of Appeals dated February 26, 2004 in CA-G.R. CR No. 26048 is AFFIRMED with MODIFICATIONS. Petitioner Nover Bryan Salvador y De Leon is hereby sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. In addition to civil indemnity and moral damages, petitioner is ordered to pay spouses Ernesto and Margarita Zuñiga the sum of P25,000.00 as temperate damages. SO ORDERED.