PEOPLE VS. JUDGE AYSON [175 SCRA 216; G.R. NO. 85215; 7 JUL 1989]

Tuesday, February 10, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Felipe Ramos was a ticket freight clerk of the Philippine Airlines, assigned at its Baguio City station. It was alleged that he was involved in irregularities in the sales of plane tickets, the PAL management notified him of an investigation to be conducted. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. A letter was sent by Ramos stating his willingness to settle the amount of P76,000. The findings of the Audit team were given to him, and he refuted that he misused proceeds of tickets also stating that he was prevented from settling said amounts. He proffered a compromise however this did not ensue. Two months after a crime of estafa was charged against Ramos. Ramos pleaded not guilty. Evidence by the prosecution contained Ramos’ written admission and statement, to which defendants argued that the confession was taken without the accused being represented by a lawyer. Respondent Judge did not admit those stating that accused was not reminded of his constitutional rights to remain silent and to have counsel. A motion for reconsideration filed by the prosecutors was denied. Hence this appeal.

Issue: Whether or Not the respondent Judge correct in making inadmissible as evidence the admission and statement of accused.

Held: No. Section 20 of the 1987 constitution provides that the right against self-incrimination (only to witnesses other than accused, unless what is asked is relating to a different crime charged- not present in case at bar).

This is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is not to "be compelled to be a witness against himself.” It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed,

or to refuse to testify altogether. It is a right that a witness knows or should know. He must claim it and could be waived.

Rights in custodial interrogation as laid down in miranda v. Arizona: the rights of the accused include:

1) he shall have the right to remain silent and to counsel, and to be informed of such right.

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him.

3) any confession obtained in violation of these rights shall be inadmissible in evidence.

The individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such rights and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

People v Baloloy

FACTS: At the waterfalls of Barangay Inasagan, Aurora, Zamboanga del Sur, on the evening

of August 3, 1996, the dead body of an 11-year-old girl Genelyn Camacho was found. Autopsy

reports found that Genelyn was raped before she was drowned. The one who caused its

discovery was accused-appellant Juanito Baloloy himself, who claimed that he had caught sight

of it while he was catching frogs in a nearby creek. While in the wake of Genelyn, Juanito

confessed to the Barangay Captain that he only wanted to frighten the girl but ended up raping

and throwing her body in the ravine. While in the custody of the authorities, he was asked

incriminating questions by Judge Dicon who justified his actions saying that Juanito was not yet in

custodial investigation. Based on his alleged extrajudicial confession, coupled with circumstantial

evidence, the trial court found Juanito guilty of rape with homicide and sentenced him to death.

On appeal, Juanito maintains that the trial court violated Section 12(1) of Article III of the

Constitution when it admitted in evidence his alleged extrajudicial confession to Barangay

Captain Ceniza and Judge Dicon. According to him, the two failed to inform him of his

constitutional rights before they took it upon themselves to elicit from him the incriminatory

information. It is of no moment that Ceniza and Dicon are not police investigators, for as public

officials it was incumbent upon them to observe the express mandate of the Constitution. While

these rights may be waived, the prosecution failed to show that he effectively waived his rights

through a written waiver executed in the presence of counsel. He concludes that his extrajudicial

confession is inadmissible in evidence.

ISSUE:

(1) Whether or not Juanito’s extrajudicial confession before the barangay captain was

admissible.

(2) Whether or not Juanito’s extrajudicial confession before the judge was admissible.

HELD:

(1) YES. As to his confession with the Baragay Captain Ceniza, it has been held that the

constitutional provision on custodial investigation does not apply to a spontaneous statement, not

elicited through questioning by the authorities but given in an ordinary manner whereby the

suspect orally admits having committed the crime. Neither can it apply to admissions or

confessions made by a suspect in the commission of a crime before he is placed under

investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or

confessions. In the instant case, Juanito voluntarily narrated to Ceniza that he raped GENELYN

and thereafter threw her body into the ravine. This narration was a spontaneous answer, freely

and voluntarily given in an ordinary manner. It was given before he was arrested or placed under

custody for investigation in connection with the commission of the offense. Moreover, Juanito did

not offer any evidence of improper or ulterior motive on the part of Ceniza, which could have

compelled her to testify falsely against him.

(2) NO. However, there is merit in Juanito’s claim that his constitutional rights during

custodial investigation were violated by Judge Dicon when the latter propounded to him

incriminating questions without informing him of his constitutional rights. It is settled that at the

moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial

investigation is deemed to have started. So, he could not thenceforth be asked about his

complicity in the offense without the assistance of counsel. Judge Dicon's claim that no complaint

has yet been filed and that neither was he conducting a preliminary investigation deserves scant

consideration. The fact remains that at that time Juanito was already under the custody of the

police authorities, who had already taken the statement of the witnesses who were then before

Judge Dicon for the administration of their oaths on their statements.

PEOPLE VS. DEL ROSARIO [234 SCRA 246; G.R. NO. 109633; 20 JUL 1994]

Wednesday, February 04, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Accused was charged and convicted by the trial court of illegal possession of firearms and illegal possession and sale of drugs, particularly methamphetamine or shabu. After the issuance of the search warrant, which authorized the search and seizure of an undetermined quantity of methamphetamine and its paraphernalia’s, an entrapment was planned that led to the arrest of del Rosario and to the seizure of the shabu, its paraphernalia’s and of a .22 caliber pistol with 3 live ammunition.

Issue: Whether or Not the seizure of the firearms was proper.

Held: No. Sec 2 art. III of the constitution specifically provides that a search warrant must particularly describe the things to be seized. In herein case, the only objects to be seized that the warrant determined was the methamphetamine and the paraphernalia’s therein. The seizure of the firearms was unconstitutional.

Wherefore the decision is reversed and the accused is acquitted

People v ordono

The 2 accused were convicted of the special complex crime of rape with homicide attended with conspiracy on the bases of their extra judicial confession. An interview with a radio announcer was also done where the 2 accused accepted responsibility for the crime. They now assail their conviction as their confession was attended by infirmities’ i.e. mainly the lack of counsel to assist them during custodial investigation.

HELD:

The absence of counsel renders the extra judicial confession inadmissible. The presence of the mayor, municipal judge and the family of the accused during the confession did not cure the defect. However, statements spontaneously made by a suspect to a news reporter on televised interview are deemed voluntary and are admissible in evidence. By analogy, statements made by herein accused to a radio announcer should likewise be held admissible. The interview was not in the nature of an investigation, and thus, the uncounselled confession did not violate accused’s constitutional rights.

PEOPLE OF THE PHILIPPINES vs. AMESTUZO, et al.

[G.R. No. 104383, July 12, 2001]

KAPUNAN, J:

FACTS: On February 26, 1991, four days after a reported robbery with multiple rape, a group

of policemen together with accused Federico Ampatin, who was then a suspect, went to the

handicrafts factory in NIA Road, Pasay City where accused-appellant was working as a stay-in

shell cutter. They were looking for a certain "Mario" and "searched the first and second floors of

the building. Failing to find said Mario, the police hit Ampatin at the back of his neck with a gun

and uttered, "Niloloko lang yata tayo ng taong ito" and "Magturo ka ng tao kahit sino." It was at

this juncture that Ampatin pointed to accused-appellant Bagas as he was the first person Ampatin

chanced to look upon.

Thereafter, Bagas was arrested and made to board the police vehicle together with

accused Ampatin. They were brought to the Urduja Police Station in Kalookan City and placed

under detention together with the other two accused, Amestuzo and Viñas.

When the complainants arrived, accused-appellant was brought out, instructed to turn to

the left and then to the right and he was asked to talk. Complainant Lacsamana asked him if he

knew accused Amestuzo and Viñas. Accused-appellant answered in the negative. The

policemen told the complainants that accused-appellant was one of the suspects. This incited

complainants to an emotional frenzy, kicking and hitting him. They only stopped when one of the

policemen intervened.

Accused-appellant alleges that the trial court committed a serious error when it deprived

him of his constitutional right to be represented by a lawyer during his investigation. His singular

presentation to the complainants for identification without the benefit of counsel, accusedappellant

avers, is a flagrant violation of the constitutional prerogative to be assisted by counsel

to which he was entitled from the moment he was arrested by the police and placed on detention.

He maintains that the identification was a critical stage of prosecution at which he was as much

entitled to the aid of counsel as during the trial proper.

ISSUES:

(1) Whether or not appellant’s right to counsel was violated.

(2) Whether or not there was a valid out-of-court identification of appellant to the complainants.

HELD:

(1) NO. Herein accused-appellant could not yet invoke his right to counsel when he was

presented for Identification by the complainants because the same was not yet part of the

investigation process. Moreover, there was no showing that during this identification by thecomplainants, the police investigators sought to elicit any admission or confession from accusedappellant.

In fact, records show that the police did not at all talk to accused-appellant when he

was presented before the complainants. The alleged infringement of the constitutional rights of

the accused while under custodial investigation is relevant and material only to cases in which an

extrajudicial admission or confession extracted from the accused becomes the basis of his

conviction. In the present case, there is no such confession or extrajudicial admission.

(2) YES. The out-of-court identification of herein accused-appellant by complainants in the

police station appears to have been improperly suggestive. Even before complainants had the

opportunity to view accused-appellant face-to-face when he was brought out of the detention cell

to be presented to them for identification, the police made an announcement that he was one of

the suspects in the crime and that he was the one pointed to by accused Ampatin as one of

culprits.

People v. Endino 352 SCRA 307 [2001]

An Information for the murder of DennisAquino was filed against Edward Endino andaccused-appellant Gerry Galgarin and warrantswere issued for their arrest. However, as bothaccused remained at large, the trial courtissued on 26 December 1991 an order puttingthe case in the archives without prejudice to itsreinstatement upon their apprehension. GerryGalgarin was arrested.On their way to the airport, theystopped at the ABS-CBN television stationwhere accused Galgarin was interviewed byreporters. Video footages of the interview weretaken showing Galgarin admitting his guilt whilepointing to his nephew Edward Endino as thegunman. Galgarin appealed for Edward to givehimself up to the authorities. His interview wasshown over the ABS-CBN evening newsprogram

TV Patrol

. The case against accused-appellant Gerry Galgarin was establishedthrough the testimony of Clara Agagas who saidthat she was with the victim Dennis Aquinostanding outside the

Soundlab RecordingStudio

, a barhouse owned by him, whenGalgarin suddenly approached them andwithout any prior warning stabbed Dennis.Dennis tried to run away, but Edward, aspurned lover who harbored ill-feelings towardsher and Dennis, shot Dennis. She recognizedEdward and Gerry because the street wassufficiently lighted.Accused-appellant disowned theconfession which he made over

TV Patrol

andclaimed that it was induced by the threats of the arresting police officers. He asserted thatthe videotaped confession was constitutionallyinfirmed and inadmissible under the

exclusionary rule provided in Sec.12, Art. III, of the Constitution. The trial court howeveradmitted the video footages on the strength of the testimony of the police officers that no forceor compulsion was

exerted on accused-appellant and upon a finding that his confessionwas made before a group of newsmen thatcould have dissipated any semblance of hostility towards him. The court gave credenceto the arresting officers' assertion that it waseven accused-appellant who pleaded with themthat he be allowed to air his appeal on nationaltelevision for Edward to surrender.Issue: Whether the public admission on TV isadmissible as evidence.Ruling: Yes. Apropos the court

a quo's

admission of accused-appellant's videotapedconfession, we find such admission proper. Theinterview was recorded on video and it showedaccused-appellant unburdening his guiltwillingly, openly and publicly in the presence of newsmen. Such confession does not form partof custodial investigation as it was not given topolice officers but to media men in an attemptto elicit sympathy and forgiveness from thepublic. Besides, if he had indeed been forcedinto confessing, he could have easily soughtsuccor from the newsmen who, in all likelihood,would have been symphatetic with him. As thetrial court stated in its Decision.However, the court would like to defer. Aword of counsel then to lower courts: we shouldnever presume that all media confessionsdescribed as voluntary have been freely given.This type of confession always remains suspectand therefore should be thoroughly examinedand scrutinized. Detection of coercedconfessions is admittedly a difficult and arduoustask for the courts to make. It requirespersistence and determination in separatingpolluted confessions from untainted ones. Wehave a sworn duty to be vigilant and protectiveof the rights guaranteed by the Constitution.

PEOPLE OF THE PHILIPPINES, appellee, vs. ERIC GUILLERMO y GARCIA, appellant.

FACTS:

For automatic review is the judgment of the Regional Trial Court (RTC) of Antipolo City, Branch 73, dated March 7, 2001, in Criminal Case No. 98-14724, finding appellant Eric Guillermo y Garcia guilty of murder and sentencing him to suffer the penalty of death. Apellant is accused of murdering his employer, Victor Francisco Keyser. Appellant contends that his conviction was based on inadmissible evidence. He points out that there is no clear showing that he was informed of his constitutional rights nor was he made to understand the same by the police investigators.

ISSUE: If it is a Sunday and no lawyer is available, can this be waived?

RULING:

No. While the investigating officer was aware of the appellant’s right to be represented by counsel, the officer exerted no effort to provide him with one on the flimsy excuse that it was a Sunday. Despite the absence of counsel, the officer proceeded with said investigation. Moreover, the record is bare of any showing that appellant had waived his constitutional rights in writing and in the presence of counsel. As well said in People v. Dano, even if the admission or confession of an accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given.

Under Article III of the Constitution, a confession to be admissible must satisfy the following requisites: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and (d) the confession must be in writing.

PEOPLE OF THE PHILIPPINES, Appellee, v. SANTIAGO PERALTA y POLIDARIO (at large), ARMANDO DATUIN JR. y GRANADOS (at large), ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORESy CRUZ and ANTONIO LOYOLAy SALISI,accused, ULYSSES GARCIA y TUPAS, MIGUELITO DE LEONy< LUCIANO, LIBRANDO FLORES y CRUZ and ANTONIO LOYOLA y SALISI, Appellants.

D E C I S I O N

PANGANIBAN, J.:

The right of the accused to counsel demands effective, vigilant and independent representation. The lawyers role cannot be reduced to being that of a mere witness to the signing of an extra-judicial confession.

The Case

Before the Court is an appeal from the August 21, 2000 Decision1 of the Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-112322. Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-accused -- Santiago Peralta y Polidario and Armando Datuin Jr. y Granados -- were convicted therein of qualified theft. The dispositive portion of the Decision reads:

WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, are hereby convicted of the crime of qualified theft of P194,190.00 and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law, and to pay the costs. Moreover, all the accused are ordered to pay the Central Bank of the Philippines, now Bangko Sentral ng Pilipinas, actual

damages in the sum of P194,190.00 with interest thereon at the legal rate from the date of the filing of this action, November 9, 1992, until fully paid.2

In an Information dated November 9, 1992,3 appellants and their co-accused were charged as follows:

That sometime in the year 1990 and including November 4, 1992, in the City of Manila, Philippines, the said accused, conspiring and confederating with others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, with intent to gain and without the knowledge and consent of the owner thereof, take, steal and carry away punctured currency notes due for shredding in the total amount of P194,190.00, belonging to the Central Bank of the Philippines as represented by Pedro Labita y Cabriga, to the damage and prejudice of the latter in the aforesaid sum of P194,190.00 Philippine currency;

That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and Antonio Loyola y Salisi committed said offense with grave abuse of confidence they being at the time employed as Currency Reviewers, Driver, Currency Assistant I and Money Counter of the offended party and as such they had free access to the property stolen.4

Garcia was arrested on November 4, 1992; and his co-accused, on November 9, 1992. Appellants, however, obtained two Release Orders from RTC Vice Executive Judge Corona Ibay-Somera on November 9 and 10, 1992, upon their filing of a cash bond to secure their appearance whenever required by the trial court.5

During their arraignment on May 4, 1993, appellants, assisted by their respective counsels, pleaded not guilty.6 On September 30, 1998, the trial court declared that Datuin Jr. and Peralta were at large, because they had failed to appear in court despite notice.7

After trial in due course, they were all found guilty and convicted of qualified theft in the appealed Decision.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows:

About 10:00 oclock in the morning of November 4, 1992, Pedro Labita of Central Bank of the Philippines (CBP) [now Bangko Sentral ng Pilipinas (BSP)] went to the Theft and Robbery Section of Western Police District Command (WPDC), and filed a complaint for Qualified Theft against Santiago Peralta, Armando Datuin, Jr., Ulysses Garcia, Miguelito de Leon, Librando Flores and Antonio S. Loyola.

Pedro Labita submitted to SPO4 Cielito Coronel, the investigating officer at WPDC, punctured currency notes in P100.00 and P500.00 bills with a face value of Php194,190.00. Said notes were allegedly recovered by the BSP Cash Department during its cash counting of punctured currency bills submitted by different banks to the latter. The punctured bills were rejected by the BSP money counter machine and were later submitted to the investigation staff of the BSP Cash Department.As a result of the investigation, it was determined that said rejected currency bills were actually punctured notes already due for shredding. These currency bills were punctured because they were no longer intended for circulation. Before these notes could be shredded, they were stolen from the BSP by the above-named accused.

On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was apprehended in front of Golden Gate Subdivision, Las Pias City, while he was waiting for a passenger bus on his way to the BSP. Garcia was brought to the police station for investigation.

On November 4, 5 and 6, 1992, while in the custody of the police officers, Garcia gave three separate statements admitting his guilt and participation in the crime charged. He also identified the other named accused as his cohorts and accomplices and narrated the participation of each and everyone of them.

On the basis of Garcias sworn statements, the other named accused were invited for questioning at the police station and were subsequently charged with qualified theft together with Garcia.8 (Citations omitted)

Version of the Defense

The defense states its version of the facts in the following manner:

Accused-appellant Garcia served as a driver of the armored car of the Central Bank from 1978 to 1994.

On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who had identified himself as a police officer arrested accused-appellant Garcia while waiting for a passenger bus in front of the Golden Gate Subdivision, Las Pias City. He was arrested without any warrant for his arrest. The police officer who had arrested accused-appellant Garcia dragged the latter across the street and forced him to ride x x x a car.

While inside the car, he was blindfolded, his hands were handcuffed behind his back, and he was made to bend with his chest touching his knees. Somebody from behind hit him and he heard some of the occupants of the car say that he would be salvaged if he would not tell the truth. When the occupants of the car mentioned perforated notes, he told them that he does not know anything about those notes.

After the car had stopped, he was dragged out of the car and x x x up and down x x x the stairs. While being dragged out of the car, he felt somebody frisk his pocket.

At a safe house, somebody mentioned to him the names of his co-accused and he told them that he does not know his co-accused x x x. Whenever he would deny knowing his co-accused, somebody would box him on his chest.Somebody poured water on accused-appellant Garcias nose while lying on the bench. He was able to spit out the water that had been poured on his nose [at first], but somebody covered his mouth. As a result, he could not breath[e].

When accused-appellant Garcia realized that he could not bear the torture anymore, he decided to cooperate with the police, and they stopped the water pouring and allowed him to sit down.

Accused-appellant Garcia heard people talking and he heard somebody utter, may nakikinig. Suddenly his two ears were hit with open palm[s] x x x. As he was being brought down, he felt somebody return his personal belongings to his pocket. Accused-appellant Garcias personal belongings consisted of [his] drivers license, important papers and coin purse.

He was forced to ride x x x the car still with blindfold. His blindfold and handcuffs were removed when he was at the office of police officer Dante Dimagmaliw at the Western Police District, U.N. Avenue, Manila.

SPO4 Cielito Coronel asked accused-appellant Garcia about the latters name, age and address. The arrival of Mr. Pedro Labita of the Cash Department, Central Bank of the Philippines, interrupted the interview, and Mr. Labita instructed SPO4 Coronel to get accused-appellant Garcias wallet and examine the contents thereof. SPO4 Coronel supposedly found three pieces of P100 perforated bill in accused-appellant Garcias wallet and the former insisted that they recovered the said perforated notes from accused-appellants wallet. SPO4 Coronel took down the statement of Mr. Labita.

It was actually Mr. Labita, and not accused-appellant Garcia, who gave the answers appearing in accused-appellant Garcias alleged three sworn statements dated November 4, 1992, November 5, 1992 and x x x November 6, 1992.

At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia was brought to the cell of the Theft and Robbery Section of the WPD. At or about 8:00 p.m., he was brought to the office of Col. Alladin Dimagmaliw where his co-accused were also inside. He did not identify his co-accused, but he merely placed his hands on the shoulders of each of his co-accused, upon being requested, and Mr. Labita took x x x pictures while he was doing the said act.

Accused-appellant Garcia came to know Atty. Francisco Sanchez of the Public Attorneys Office on November 4, 1992, at the office of police officer Dante Dimagmaliw, when SPO4 Coronel introduced Atty. Sanchez to accused-appellant Garcia and told him that Atty. Sanchez would be his lawyer. However, accused-appellant Garcia did not agree to have Atty. Sanchez to be his lawyer. Atty. Sanchez left after talking to SPO4 Coronel, and accused-appellant Garcia had not met Atty. Sanchez anymore since then. He was not present when Atty. Sanchez allegedly signed x x x the alleged three (3) sworn statements.

During the hearing of the case on April 6, 2000, Atty. Sanchez manifested in open court that he did not assist accused-appellant Garcia when the police investigated accused-appellant Garcia, and that he signed x x x the three (3) sworn statements only as a witness thereto.

Accused-appellant Garcia signed the alleged three sworn statements due to SPO4 Coronels warning that if he would not do so, he would again be tortured by water cure.

SPO[4] Coronel caused the arrest without any warrant of accused appellants De Leon, Loyola, [Flores] on the basis of the complaint of Mr. Pedro Labita, and which arrest was effected on November 5, 1992, by SPO1 Alfredo Silva and SPO1 Redelico.

SPO4 Coronel, in his letter dated November 6, 1992, forwarded the case to the Duty Inquest Prosecutor assigned at the WPDC Headquarters.9 (Citations omitted)

Ruling of the Trial Court

The trial court found that all the accused used to work for the BSP. Garcia was a driver assigned to the Security and Transport Department; while Peralta, Datuin Jr., De Leon, Flores and Loyola were laborers assigned to the Currency Retirement Division. Their main task was to haul perforated currency notes from the currency retirement vault to the basement of the BSP building for shredding.

On several occasions, during the period 1990-1992, they handed to Garcia perforated currency notes placed in a coin sack that he, in turn, loaded in an armored escort van and delivered to someone waiting outside the premises of the building. The trial court held that the coordinated acts of all the accused unerringly led to the conclusion that they had conspired to pilfer the perforated currency notes belonging to the BSP.

The RTC rejected the disclaimer by Garcia of his own confessions, as such disclaimer was an eleventh hour concoction to exculpate himself and his co-accused. The trial court found his allegations of torture and coerced confessions unsupported by evidence. Moreover, it held that the recovery of three pieces of perforated P100 bills from Garcias wallet and the flight of Peralta and Datuin Jr. were indicative of the guilt of the accused.

Hence, this appeal.10

Issues

In his Brief, Garcia raises the following issues:

1

The trial court erred in admitting in evidence the alleged three Sworn Statements of Accused-appellant Garcia and the alleged three pieces of P100 perforated notes

2

The trial court erred in finding the accused-appellant guilty of qualified theft.11

In their joint Brief, De Leon, Loyola and Flores interpose this additional assignment of errors:

1

The trial court erred in admitting in evidence the alleged three sworn statements of Accused Ulysses Garcia (Exhibits I, J and K) and the alleged three pieces of P100 perforated notes (Exhibits N to N-2) over the objections of the accused- Appellants.

2

The trial court erred in denying the demurrer to evidence of Accused-appellants De Leon, Loyola and Flores;

3

The trial court erred in denying the Motion for Reconsideration of the Order denying the demurrer to evidence;

4

The trial court erred when it failed to consider the evidence adduced by the accused-appellants, consisting of exhibits 1, 2 to 2-B, 3 and 4 and the testimony of their witness, State Auditor Esmeralda Elli;

5

The trial court erred in finding the accused-appellants guilty of qualified theft.12

Simplified, the issues are as follows: (1) the sufficiency of the evidence against appellants, including the admissibility of Garcias confessions and of the three perforated P100 currency notes; and (2) the propriety of the denial of their demurrer to evidence.

The Courts Ruling

The appeal has merit.

First Issue:

Sufficiency of Evidence

The trial court convicted appellants mainly on the strength of the three confessions given by Garcia and the three perforated P100 currency notes confiscated from him upon his arrest.Appellants, however, contend that these pieces of evidence are inadmissible.

Extrajudicial Confessions

Appellants aver that the alleged three Sworn Statements of Garcia were obtained without the assistance of counsel in violation of his rights under Article III, Section 12 (1) and (2) of the 1987 Constitution, which provides thus:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incomunicado, or other similar forms of detention are prohibited.

On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez III of the Public Attorneys Office, duly assisted Garcia during the custodial investigation.

It is clear from a plain reading of the three extrajudicial confessions13 that Garcia was not assisted by Atty. Sanchez. The signature of the latter on those documents was affixed after the word SAKSI. Moreover, he appeared in court and categorically testified that he had not assisted Garcia when the latter was investigated by the police, and that the former had signed the Sworn Statement only as a witness.14

The written confessions, however, were still admitted in evidence by the RTC on the ground that Garcia had expressed in writing his willingness and readiness to give the Sworn Statements without the assistance of counsel. The lower courts action is manifest error.

The right to counsel has been written into our Constitution in order to prevent the use of duress and other undue influence in extracting confessions from a suspect in a crime. The basic law specifically requires that any waiver of this right must be made in writing and executed in the presence of a counsel.

In such case, counsel must not only ascertain that the confession is voluntarily made and that the accused understands its nature and consequences, but also advise and assist the accused continuously from the time the first question is asked by the investigating officer until the signing of the confession.

Hence, the lawyers role cannot be reduced to being that of a mere witness to the signing of a pre-prepared confession, even if it indicated compliance with the constitutional rights of the accused.15 The accused is entitled to effective, vigilant and independent counsel.16

A waiver in writing, like that which the trial court relied upon in the present case, is not enough. Without the assistance of a counsel, the waiver has no evidentiary relevance.17 The Constitution states that [a]ny confession or admission obtained in violation of [the aforecited Section 12] shall be inadmissible in evidence x x x. Hence, the trial court was in error when it admitted in evidence the uncounseled confessions of Garcia and convicted appellants on the basis thereof. The question of whether he was tortured becomes moot.

Perforated Currency Notes

Appellants contend that the three P100 perforated currency notes (Exhibits N to N-2) allegedly confiscated from Garcia after his arrest were fruits of the poisonous tree and, hence, inadmissible in evidence.

The solicitor general evades the issue and argues, instead, that appellants waived the illegality of their arrest when they entered a plea. He further contends that the exclusion from the evidence of the three punctured currency bills would not alter the findings of the trial court.

The police arrested Garcia without a warrant, while he had merely been waiting for a passenger bus after being pointed out by the Cash Department personnel of the BSP. At the time of his arrest, he had not committed, was not committing, and was not about to commit any crime. Neither was he acting in a manner that would engender a reasonable ground to suspect that he was committing a crime. None of the circumstances justifying an arrest without a warrant under Section 5 of Rule 113 of the Rules of Court was present.

Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the matter before entering his plea, he is deemed to have waived the illegality of his arrest. Note, however, that this waiver is limited to the arrest. It does not extend to the search made as an incident thereto or to the subsequent seizure of evidence allegedly found during the search.

The Constitution proscribes unreasonable searches and seizures18 of whatever nature. Without a judicial warrant, these are allowed only under the following exceptional circumstances: (1) a search incident to a lawful arrest, (2) seizure of evidence in plain view, (3) search of a moving motor vehicle, (4) customs search, (5) stop and frisk situations, and (6) consented search.19

Where the arrest was incipiently illegal, it follows that the subsequent search was similarly illegal.20 Any evidence obtained in violation of the constitutional provision is legally inadmissible in evidence under the exclusionary rule.21 In the present case, the perforated P100 currency notes were obtained as a result of a search made without a warrant subsequent to an unlawful arrest; hence, they are inadmissible in evidence.

Moreover, untenable is the solicitor generals argument that Appellants De Leon, Flores and Loyola waived the illegality of the arrest and seizure when, without raising objections thereto, they entered a plea of guilty. It was Garcia who was unlawfully arrested and searched, not the aforementioned three Appellants. The legality of an arrest can be contested only by the party whose rights have been impaired thereby. Objection to an unlawful search and seizure is purely personal, and third parties cannot avail themselves of it.22

Indeed, the prosecution sufficiently proved the theft of the perforated currency notes for retirement. It failed, however, to present sufficient admissible evidence pointing to appellants as the authors of the crime.

The evidence presented by the prosecution shows that there were other people who had similar access to the shredding machine area and the currency retirement vault.23 Appellants were pinpointed by Labita because of an anonymous phone call informing his superior of the people allegedly behind the theft; and of the unexplained increase in their spending, which was incompatible with their income. Labita, however, did not submit sufficient evidence to support his allegation.

Without the extrajudicial confession and the perforated currency notes, the remaining evidence would be utterly inadequate to overturn the constitutional presumption of innocence.

Second Issue:

Demurrer to Evidence

Appellants contend that the trial court seriously erred when it denied the demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not one of the documents offered by the prosecution and admitted in evidence by the RTC established the alleged qualified theft of perforated notes, and not one of the pieces of evidence showed appellants participation in the commission of the crime.

On the exercise of sound judicial discretion rests the trial judges determination of the sufficiency or the insufficiency of the evidence presented by the prosecution to establish a prima facie case against the accused. Unless there is a grave abuse of discretion amounting to lack of jurisdiction, the trial courts denial of a motion to dismiss may not be disturbed.24

As discussed earlier, the inadmissibility of the confessions of Garcia did not become apparent until after Atty. Francisco had testified in court. Even if the confiscated perforated notes from the person of the former were held to be inadmissible, the confessions would still have constituted prima facie evidence of the guilt of Appellants. On that basis, the trial court did not abuse its discretion in denying their demurrer to evidence.

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Appellants are hereby ACQUITTED and ordered immediately RELEASED, unless they are being detained for any other lawful cause. The director of the Bureau of Corrections is hereby directed to submit his report on the release of the appellant or the reason for his continued detention within five (5) days from notice of this Decision. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, andAzcuna, JJ., concur.

People vs. Lamsing

1995, G.R. No. 105316

Nature of the Case: This is an appeal from the decision rendered by the Regional

Trial Court, Branch 88, Quezon City, finding accused-appellant guilty of the sp

ecial complex crime of robbery with homicide and sentencing him accordingly.

Facts: The case arose from the killing in the early hours of November 1, 1989 of

Winnie Cabunilas, a security guard, while on duty at the construction site of a

Synergy building on Aurora Boulevard, Cubao, Quezon City.

Four days after the killing, accused-appellant was arrested by policemen, while

in a drinking spree with friends at a basketball court near the scene of the cri

me. He was detained and in a police lineup, was identified by witnesses as one o

f those responsible for the death of Winnie Cabunilas.

On November 9, 1989, an information was filed against him and a John Doe for the

special complex crime of robbery with homicide.

Upon being arraigned, accused-appellant pleaded not guilty. As the other accused

was at large, trial proceeded against accused-appellant alone.

The prosecution evidence is the testimony of the witness Elizabeth de los Santos

.The witness said that at dawn of November 1, 1989, she was roused from her sleep�

by the cries of a distressed person calling for his "mama". She got up, partly

opened the door and saw, at a distance of about one meter, two male persons, one

of them holding Winnie Cabunilas and the other one stabbing him. She identified

the person who stabbed Cabunilas as the accused-appellant.

Appellant denied involvement in the crime. However, the trial court found the te

stimony of Elizabeth de los Santos credible.

Issue: Whether or not the accused was denied due process.

Ruling: That Elizabeth De los Santos' testimony was uncorroborated does not make

it less worthy of credit. Uncorroborated testimony can stand alone if, as in th

is case, it is intrinsically credible and there is no showing that it was improp

erly or maliciously motivated. So long as it is credible and trustworthy and is

sufficient to support a finding of guilt, its probative value is not diminished

and corroborative testimony of another eyewitness becomes dispensable.

On the other hand, accused-appellant's defense consists merely of alibi which wa

s correctly rejected by the trial court. Alibi is the weakest of all defenses be

cause it is easy to fabricate it while it is difficult to disprove it. It cannot

prevail over the positive identification by the witness, especially where it is

not physically impossible for the accused to be present at the place of the cri

me or its vicinity at the time of its commission. Positive identification by an

independent witness who has not been shown to have any reason or motive to testify falsely must prevail over simple denials and unacceptable alibis of the accus

ed.

The accused complains that he was made to join a police lineup where he was iden

tified by three persons, including Elizabeth De los Santos, without the assistan

ce of counsel. It was settled in Gamboa v. Cruz, however, that the right to coun

sel guaranteed in Art. III, Section 12(1) of the Constitution does not extend to

police lineups because they are not part of custodial investigations. The reaso

n for this is that at that point, the process has not yet shifted from the inves

tigatory to the accusatory. The accused's right to counsel attaches only from th

e time that adversary judicial proceedings are taken against him.

PEOPLE VS. LUCERO [244 SCRA 425; G.R. NO.97936; 29 MAY 1995]

Tuesday, February 10, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Alejandro Lucero, Bienvenido Echavez, Balbino Echavez, Peter Doe, Richard Doe and John Doe were charged with the crime of robbery with homicide.

The prosecution:

Accused-appellant (alighted from a gray-reddish car), armed with handgun, blocked the way of the said complainant who was on board a Mercedes Benz passing along Road 14, Mindanao Avenue, Pag-asa, QC, rob and carry away cash money; one gold necklace with cross pendant, 7 karat; one gold Rolex watch; one 3 karat gold ring; one 2 karat gold ring, domino style; one solid gold bracelet; all worth P363,600.00, belonging to DR. DEMETRIO Z. MADRID. Accused shot LORENZO BERNALES y ALERIA, a driver of the said offended party, thus inflicting upon him mortal wounds, which resulted to the instantaneous death of ALERIA.

Only the accused Echavez brothers and Alejandro Lucero were apprehended.

When Lucero told him that he had no lawyer, in due time, Atty. Diosdado Peralta conferred with Lucero. He apprised Lucero of his constitutional rights. He observed no reaction from Lucero. Nonetheless, Atty. Peralta gathered the impression that Lucero understood his advice.

When the investigator started asking the preliminary questions, Atty. Peralta left to attend the wake of his friend. The next morning, Lucero was accompanied by CIS agents to Atty. Peralta's house. The extrajudicial statement of Lucero was presented to Atty. Peralta. It was already signed by Lucero.

The three accused denied complicity in the crime charged.

Appellant Lucero's defense is alibi. He testified that he was at his house in Caloocan City.

He said he was surprised when several unidentified men accosted him while he was walking towards his house. They chased him, handcuffed and blindfolded him and pushed him into a jeep. He was

blindfolded the whole night and did not know where he was taken. The men turned out to be police officers.

The next day, he learned he was in Camp Crame. He claimed that he was tortured. He was not informed of the offense for which he was being investigated. Neither did they reveal the identity of the complainant.

Lucero denied knowing Dr. Madrid, the Echavez brothers and the other accused in this case. He said he only met Dr. Madrid at the CIS Office during the police line-up. He was made to line-up four (4) times before Dr. Madrid finally identified him on the fourth time.

Lucero also claimed he signed the extrajudicial confession under duress. He denied engaging the services of Atty, Peralta. He likewise confirmed that Atty. Peralta was not present during his actual custodial interrogation.

After trial, the court a quo acquitted the Echavez brothers for insufficient evidence. The trial court, however, convicted accused Lucero GUILTY as principal by direct participation of Robbery with Homicide and sentenced to suffer an imprisonment term of RECLUSION PERPETUA.

Issue: Whether or Not the lower court erred in convicting accused-appellant.

Held: Appellant's conviction cannot be based on his extrajudicial confession.

Constitution requires that a person under investigation for the commission of a crime should be provided with counsel. The Court have constitutionalized the right to counsel because of hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions can render them inadmissible.

The records show that Atty. Peralta, who was not the counsel of choice of appellant. Atty. Peralta himself admitted he received no reaction from appellant although his impression was that appellant understood him. More so, it was during his absence that appellant gave an uncounselled confession.

Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilant counsel. The circumstances clearly demonstrate that appellant received no effective counseling from Atty. Peralta.

Whereof, Decision convicting appellant Alejandro Lucero y Cortel is hereby reversed.

PEOPLE OF THE PHILIPPINES vs. BENJAMIN SAYABOC y SEGUBA, et. al.

FACTS:

Before the Court is the decision of 9 November 2000 of the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 2912 finding appellant Benjamin Sayaboc guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of death; and (2) finding appellant Marlon Buenviaje guilty as principal and appellants Miguel Buenviaje and Patricio Escorpiso guilty as accomplices in the crime of homicide.

On December 2, 1994, in the Municipality of Solano, Province of Nueva Vizcaya, Philippines and the accused attacked, and assaulted Joseph Galam y Antonio, inflicting upon him mortal wounds which were the direct and immediate cause of his death thereafter, to the damage and prejudice of his heirs.

The appellants argue that the extrajudicial confession of Sayaboc may not be admitted in evidence against him because the PAO lawyer who was his counsel during the custodial investigation, was not a competent, independent, vigilant, and effective counsel. He was ineffective because he remained silent during the entire proceedings. He was not independent, as he was formerly a judge in the National Police Commission, which was holding court inside the PNP Command of Bayombong, Nueva Vizcaya.

ISSUE: Did the accused validly waive his right to counsel? Did the police afford the accused the right to be informed?

RULING:

No. Beginning with the admissibility of Sayaboc’s extrajudicial confession, the Court held that such cannot be used in evidence in this case. Jurisprudence provides that extrajudicial confessions are presumed to be voluntary. The condition for this presumption, however, is that the prosecution is able to show that the constitutional requirements safeguarding an accused’s rights during custodial investigation have been strictly complied with, especially when the extrajudicial confession has been denounced. The rationale for this requirement is to allay any fear that the person being investigated would succumb to coercion while in the unfamiliar or intimidating environment that is inherent in custodial investigations. Therefore, even if the confession may appear to have been given voluntarily since the confessant did not file charges against his alleged intimidators for maltreatment, the failure to properly inform a suspect of his rights during a custodial investigation renders the confession valueless and inadmissible.

In Sayaboc’s case, apart from the absence of an express waiver of his rights, the confession contains the passing of information of the kind held to be in violation of the right to be informed under Section 12, Article III of the Constitution. The stereotyped "advice" appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of a "legal form" or model. Police investigators either automatically type it together with the curt "Opo" as the answer or ask the accused to sign it or even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free, and unconstrained giving up of a right is missing.

The right to be informed requires "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." It should allow the suspect to consider the effects and consequences of any waiver he might make of these rights. More so when the suspect is one like Sayaboc, who has an educational attainment of Grade IV, was a stranger in Nueva Vizcaya, and had already been under the control of the police officers for two days previous to the investigation, albeit for another offense.

People vs. Andan, G.R. No. 116437, March 3, 1997

Under these circumstances, it cannot be successfully claimed that appellant's confession before the mayor is inadmissible. It is true that a municipal mayor has "operational supervision and control" over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12 (1) and (3) of Article III of the Constitution. However, appellant's confession to the mayor was not made in response to any interrogation by the latter. In fact, the mayor did not question appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a confidant and not as a

law enforcement officer, his uncounseled confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. Hence we hold that appellant's confession to the mayor was correctly admitted by the trial court.

Appellant's confessions to the media were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINODOMANTAY, @ "JUNIOR OTOT," accused-appellant.FACTS:

Appellant, 29 years old, was charged with rape with homicide for the death of Jennifer Domantay, a 6-year old girl whose body was found in abamboo grove with 38 stab wounds at the back and whose hymen wascompletely lacerated on the right side, though found fully clothed in blueshorts and white shirt. The trial court found appellant guilty as charged andwas sentenced to death.Conviction was based primarily on the testimonies of SPO1 Espinoza andCelso Manuel, a radio reporter. SPO1 Espinoza testified that appellantconfessed to the killing of Jennifer and disclosed to him the location of thebayonet used which was submitted as evidence for the prosecution.According to him, appellant waived assistance of counsel but the waiver wasnot put in writing nor made in the presence of counsel. On the other hand,Manuel declared that appellant, in an interview, admitted the brutal killing of Jennifer; that he was just outside the cell when he interviewed appellantaccompanied by his uncle inside the jail, that the nearest policemen wereabout 2-3 meters from him and that no lawyer assisted appellant during theinterview. Also presented as a witness was Dr. Bandonill, medico-legalexpert of the NBI, who testified that it was possible that the lacerations onthe victim could have been caused by something blunt other than the maleorgan.

ISSUE:

W/N the two confessions made before SPO1 Espinoza and Manuelwhich appellant claimed to have been obtained from him were admissible.

HELD:

The right to counsel of a person under custodial investigation can bewaived only in writing and with assistance of counsel and that confessions or admissions obtained in violation thereof are inadmissible in evidence.

However, this prohibition does not apply to confessions or admissionsmade to private individuals, such as radio reporters.

For an extrajudicial confession to be admissible, it must satisfy the followingrequirements: (1) it must be voluntary; (2) it must be made with theassistance of competent and independent counsel; (3) it must be express;and (4) it must be in writing.In the case at bar, when accused-appellant was brought to the Malasiquipolice station in the evening of October 17, 1996, he was already a suspect,in fact the only one, in the brutal slaying of Jennifer Domantay. He was,therefore, already under custodial investigation and the rights guaranteed inArt. III, §12 (1) of the Constitution applied to him. . . . But though he waivedthe assistance of counsel, the waiver was neither put in writing nor made inthe presence of counsel. For this reason, the waiver is invalid and hisconfession is inadmissible. SPO1 Espinoza's testimony on the allegedconfession of accused-appellant should have been excluded by the trialcourt. So is the bayonet inadmissible in evidence, being, as it were, the "fruitof the poisonous tree."However, the SC agreed with the Solicitor General that accused-appellant'sconfession to the radio reporter, Celso Manuel, is admissible. In People v.Andan, the accused in a rape with homicide case confessed to the crimeduring interviews with the media. In holding the confession admissible,despite the fact that the accused gave his answers without the assistance of counsel, this Court said: [A]ppellant's

[oral] confessions to the newsmenare not covered by Section 12 (1) and (3) of Article III of theConstitution. The Bill of Rights does not concern itself with the relationbetween a private individual and another individual. It governs therelationship between the individual and the State. The prohibitionstherein are primarily addressed to the State and its agents.

EN BANC

[G.R. No. 127755. April 14, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JOSELITO DEL ROSARIO y PASCUAL, accused-appellant.

D E C I S I O N

BELLOSILLO, J.:

ON AUTOMATIC REVIEW is the decision of the court a quo finding accused Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with Homicide and sentencing him to death and to pay the heirs of the victim Virginia Bernas P550,000.00 as actual damages and P100,000.00 as moral and exemplary damages.[1

Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio Santos alias Boy Santos and John Doe alias Dodong were charged with special complex crime of Robbery with Homicide for having robbed Virginia Bernas, a 66-year

old businesswoman, of P200,000.00 in cash and jewelry and on the occasion thereof shot and killed her.[2

While accused Joselito del Rosario pleaded not guilty,[3 Virgilio Boy Santos and John Doe alias Dodong remained at large. Ernesto Jun Marquez was killed in a police encounter. Only Joselito del Rosario was tried.

These facts were established by the prosecution from the eyewitness account of tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the evening, Alonzo stopped his tricycle by the side of Nitas Drugstore, General Luna St., Cabanatuan City, when three women flagged him. Parked at a distance of about one and a-half (1) meters in front of him was a tricycle driven by accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman grappling for possession of a bag. After taking hold of the bag one of the two men armed with a gun started chasing a man who was trying to help the woman, while the other snatcher kicked the woman sending her to the ground. Soon after, the armed man returned and while the woman was still on the ground he shot her on the head. The bag taken by the man was brought to the tricycle of accused del Rosario where someone inside received the bag. The armed man then sat behind the driver while his companion entered the sidecar. When the tricycle sped away Alonzo gave chase and was able to get the plate number of the tricycle. He also recognized the driver, after which he went to the nearest police headquarters and reported the incident.[4

Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in the afternoon he was hired for P120.00[5 by a certain Boy Santos,[6 his co-accused. Their original agreement was that he would drive him to cockpit at the Blas Edward Coliseum.[7 However, despite their earlier arrangement boy Santos directed him to proceed to the market place to fetch Jun Marquez and Dodong Bisaya. He (del Rosario) acceded.[8 Marquez and Bisaya boarded in front of the parking lot of Merced Drugstore at the public market.[9 Subsequently, he was asked to proceed and stop at the corner of Burgos and General Luna Sts. where Bisaya alighted on the pretest of buying a cigarette. The latter then accosted the victim Virginia Bernas and grappled with her for the possession of her bag. Jun Marquez alighted from the tricycle to help Dodong Bisaya.[10 Accused del Rosario tried to leave and seek help but Boy Santos who stayed inside the tricycle prevented him from leaving and threatened in fact to shoot him.

Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but before boarding the tricycle Jun Marquez mercilessly shot the victim on the head while she was lying prone on the ground. After the shooting, Dodong Bisaya boarded the sidecar of the tricycle while Jun Marquez rode behind del Rosario and ordered him to start the engine and drive towards Dicarma. While inside his tricycle, del Rosario overheard his passengers saying that they would

throw the bag at Zulueta St. where there were cogon grasses.[11 Upon arriving at Dicarma, the three (3) men alighted and warned del Rosario not to inform the police authorities about the incident otherwise he and his family would be harmed.[12 Del Rosario then went home.[13 Because of the threat, however, he did not report the matter to the owner of the tricycle nor to the barangay captain and the police.[14

As earlier stated, the court a quo found accused Joselito del Rosario guilty as charged and sentenced him to death. He now contends in this automatic review that the court a quo erred in: (1) Not finding the presence of threat and irresistible force employed upon him by his co-accused Virgilio Boy Santos, Ernesto Jun Marquez and Dodong Bisaya; (2) Not considering his defense that he was not part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not considering the violations on his constitutional rights as an accused; and, (4) Not considering that there was no lawful warrantless arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court.[15

The conviction of del Rosario must be set aside. His claim for exemption from criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible force must be sustained. He was then unarmed and unable to protect himself when he was prevented at gunpoint by his co-accused from leaving the crime scene during the perpetration of the robbery and killing, and was only forced to help them escape after the commission of the crime.[16

But the trial court ruled that his fear was merely speculative, fanciful and remote, hence, could not be considered uncontrollable; and that a gun pointed at him did not constitute irresistible force because it fell short of the test required by law and jurisprudence.[17

We disagree. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat.[18

As a rule, it is natural for people to be seized by fear when threatened with weapons, even those less powerful that a gun, such as knives and clubs.

People will normally, usually and probably do what an armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario was threatened with a gun. He could not therefore be expected to flee nor risk his life to help a stranger. A person under the same circumstances would be more concerned with his personal welfare and security rather than the safety of a person whom he only saw for the first time that day.[19

Corollary with defense of del Rosario, we hold that the trial court erred when it said that it was Boy Santos who left the tricycle to chase the companion of the victim and then shot the victim on the head, instantly killing her.[20 A careful and meticulous scrutiny of the transcripts and records of the case, particularly the testimonies of the witness Alonzo and del Rosario himself, reveals that it was Jun Marquez who ran after the victims helper and fired at the victim. Witness Alonzo testified on direct examination -

Q: What was that unusual incident that transpired in that place at that time?

A: I saw two men and a lady grappling for the possession of a bag, sir x x x x

Q: What happened after the bag of the lady was grabbed by the two men?

A: One helper of the lady was chased by the other man, sir.

Q: Who was that man who chased the helper of the lady?

A: He was the one holding the gun, sir x x x x

Q: What happened when the bag of the woman was already taken by the two men who grappled the same from her?

A: The man who chased the helper of the lady returned to the scene while the other man was then kicking the lady who in turn fell to the ground, sir.

Q: What happened to the lady who to the ground?

A: The man who chased the helper of the lady returned and then shot the woman who was then lying on the ground, sir x x x x

Q: What about the bag, what happened to the bag?

A: The bag was taken to a motorcycle, sir.

Q: Will you please state before the Court what you noticed from the tricycle which was at a distance of about one and a half meter?

A: There was a passenger inside the tricycle, sir x x x x

Q: What happened to that woman that was shot by the man who grappled for the possession of the bag?

A: She was no longer moving and lying down, sir.

Q: After the shooting by one of the two men of the woman what else happened?

A: They went away, sir x x x x

Q: Will you please tell the Court in what portion of the tricycle did these men sit in the tricycle?

A: The man who was holding the gun sat himself behind the driver while the other man entered the sidecar, sir.[21

On the continuation of his direct examination, after an ocular inspection on the crime scene conducted by the trial court, witness Alonzo categorically stated

Q: Will you please tell us where in particular did you see the accused who was then holding the gun fired at the victim?

A: At the time one man was kicking the victim it was then his other companion holding the gun chased the helper of the deceased going towards Burgos Avenue, sir.

Q: What happen (sic) afterwards?

A: The man with the gun returned and then while the victim was lying down in this spot the man holding the gun shot the victim, sir.[22

On cross-examination, the same witness further clarified

Q: So, you saw the two other accused returned back to the tricycle?

A: Yes, sir.

Q: And one of their companion was already inside the tricycle?

x x x x

Court: There was somebody inside the tricycle where the handbag was given.

x x x x

A: Yes, sir.

Q: And the one who sat at the back of the tricycle driver was the person with the gun?

A: Yes, sir.[23

On the other hand, accused Del Rosario declared during the direct examination that

Q: x x x x On the evening of May 13, 1996 you were the driver of the tricycle as testified to by Eduardo Nalagon?

A: Yes, sir.

Q: Now, you also heard that there was a shoot out near the Cathedral and the Nitas Drugstore at Gen. Tinio St.?

A: Yes, sir.

x x x x

Court: At that time you were seated at the tricycle, which tricycle was used by the assailants?

A: Yes, sir.

Q: Then what did you do?

A: I tried to escape, sir, but I was stopped by them.

Q: When you said they to whom are you referring?

A: Boy Santos and Jun Marquez, sir.

Q: And at that time where was Boy Santos?

A: He was inside the tricycle, sir.

Q: And what about Jun Marquez?

A: He alighted from the tricycle and helped him grabbed (sic) the bag of the victim .

Q: And was the bag grabbed and by whom?

A: Yes, sir, by Dodong Visaya was able to grab the bag.

Q: And after that what happened?

A: Both of them rode inside my tricycle, sir.

Court: Did you not see any shooting?

A: There was, sir.

Q: Who was shot?

A: Jun Marquez shot the woman, sir x x x x

Q: When the bag of the woman was being grabbed you know that what was transpiring was wrong and illegal?

A: Yes, sir.

Q: But you did not try to leave?

A: I tried to leave but Boy Santos who was inside my tricycle prevented me.

Q: During that time before you leave (sic) how many firearms did you see?

A: Two firearms, sir, one in the possession of Boy (Jun?) Marquez and one in the possession of Boy Santos x x x x

Q: And at the time when the shooting took place where was Boy Santos?

A: He was still inside my tricycle, sir.

Q: And during the shooting when Boy Santos was inside the tricycle and when you tried to escape that was the time when Boy Santos threatened you if you will escape something will happen to your family?

A: Yes, sir.

Q: After the shooting who first boarded the tricycle, Boy (Jun?) Marquez or Dodong Visaya?

A: Dodong Visaya, sir.

Q: And immediately thereafter Jun Marquez boarded your tricycle sitting at your back?

A: Yes, sir.[24

On cross-examination, accused further stated

Q: After shopping in that place for one minute what else happened?

A: I saw Dodong Bisaya grabbing the bag of the woman, sir.

Q: How about your two companions, what are (sic) they doing while Dodong Bisaya was grabbing the bag of the woman?

A: Jun Marquez was helping Dodong Bisaya, sir.

Q: What happened after Jun Marquez helped Dodong Bisaya?

A: I heard a gunshot and I saw the woman lying down x x x x

Q: You could have ran away to seek the help of the police or any private persons?

A: I was not able to ask for help because Boy Santos pointed his gun to me, sir.

Q: Was the gun being carried by Boy Santos, is the one that is used in shooting the old woman?

A: No, sir x x x x.

Q: Where was Boy Santos when Dodong Bisaya and Jun Marquez were grappling for the possession of the handbag?

A: He was then inside the tricycle, sir x x x x[25

Q: Mr. Witness, you testified that the reason why you just cannot leave the area where the incident occurred is because a gun was pointed to you by Boy Santos and he was telling you that you should not do anything against their will, they will kill you and your family will be killed also, is that correct?

A: Yes, sir.

Q: Now, is it not a fact that at the time you stop (sic) your tricycle which was loaded by your other three co-accused in this case, all of them alighted and that Boy Santos ran after a helper of the victim going towards the public market along Burgos Street?

A: He did not alight from the tricycle, sir.

Court: Are you quite sure of that?

A: Yes, sir.[26

Del Rosario maintains that Boy Santos never left the tricycle and that the latter pointed his gun at him and threatened to shoot if he tried to escape. He also asserted that it was Jun Marquez who shot the victim and sat behind him in the tricycle.

From the narration of witness Alonzo, these events stood out: that after the bag of the victim was grabbed, her male helper was chased by a man holding a gun; that the gunwielder returned and shot the victim and then sat behind the driver of the tricycle; and, the bag was given to a person who was inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition with the testimony of del Rosario, it can be deduced that Jun Marquez was the person witness Alonzo was referring to when he mentioned that a helper of the lady was chased by the other man and that this other man could not be Boy Santos who stayed inside the tricycle and to whom the bag was handed over. This conclusion gives credence to the claim of del Rosario that Boy Santos never left the tricycle, and to his allegation that Boy Santos stayed inside the tricycle precisely to threaten him with violence and prevent him from fleeing; that there could have been no other plausible reason for Boy Santos to stay in the tricycle if the accused was indeed a conspirator; that Boy Santos could have just left the tricycle and helped in the commission of the crime, particularly when he saw the victim grappling with Dodong Bisaya and resisting the attempts to grab her bag; and, that Boy Santos opted to remain inside the tricycle to fulfill his preordained role of threatening del Rosario and insuring that he would not escape and leave them behind.[27

Even if the tricycle of del Rosario was only parked one meter and a half (1) in front of the tricycle of witness Alonzo, the latter still could not have totally seen and was not privy to events that were transpiring inside the vehicle, i.e., the pointing of the gun by Boy Santos at del Rosario simultaneously with the robbing and shooting of the victim. From the exhibits submitted by the prosecution panel the back of the sidecar of del Rosario tricycle was not transparent.[28

There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at him was real and imminent. Such fear rendered him immobile and subject to the will of Boy Santos, making him for the moment of automaton without a will of his own. In other words, in effect, he could not be any more than a mere instrument acting involuntarily an against his will. He is therefore exempt from criminal liability since by reason of fear of bodily harm he was compelled against his will to transport his co-accused away from the crime scene.

On the issue of conspiracy, the trial court anchored del Rosarios conviction on his participation in the orchestrated acts of Boy Santos, Jun Marquez and Dodong Bisaya. According to the trial court, del Rosario facilitated the escape of the other malefactors from the crime scene and conspiracy between accused and his passengers was evident because while the grappling of the bag, the chasing of the helper of the victim and the shooting that led to the death of Virginia Bernas were happening, accused Joselito del Rosario was riding on his tricycle and the engine of the motor was running;[29 that the

accused did not deny that the tricycle driven by him and under his control was hired and used by his co-accused in the commission of the crime; neither did he deny his failure to report to the authorities the incident of robbery, killing and fleeing away from the scene of the crime.[30

We disagree with the trial court. A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The objective of the conspirators is to perform an act or omission punishable by law. That must be their intent. There is need for concurrence of wills or unity of action and purpose or for common and joint purpose and design. Its manifestation could be shown by united and concerted action.[31

Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed an implied conspiracy.[32 Nevertheless, mere knowledge, acquiescence or approval of the act, without the cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy, but that there must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. In fact, the same degree of proof necessary to establish the crime is required to support a finding of the presence of a criminal conspiracy, which is, proof beyond reasonable doubt.[33

In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver of the getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that he had no inkling of the malevolent design of his co-accused to rob and kill since he was not given any briefing thereof. He was merely hired by Boy Santos to drive to an agreed destination and he was prevented at gunpoint from leaving the scene of the crime since he was ordered to help them escape.

In this case, the trial court stated that "there is no evidence that the accused came to an agreement concerning the commission of the felony and decided to commit the same."[34 Therefore, in order to convict the accused, the presence of an implied conspiracy is required to be proved beyond reasonable

doubt. However, the fact that del Rosario was with the other accused when the crime was committed is insufficient proof to show cabal. Mere companionship does not establish conspiracy.[35 The only incriminating evidence against del Rosario is that he was at the scene of the crime but he has amply explained the reason for his presence and the same has not been successfully refuted by the prosecution. As stated earlier, he feared for his safety and security because of the threat made by his co-accused that he would, be killed should he shout for help. No complicity can be deduced where there is absolutely no showing that the accused directly participated in the overt act of robbing and shooting although he was with the persons who robbed and killed the victim.[36

That del Rosario did not disclose what he knew about the incident to the authorities, to his employer or to the barangay captain does not affect his credibility. The natural hesitance of most people to get involved in a criminal case is of judicial notice.[37 It must be recalled that del Rosario was merely a tricycle driver with a family to look after. Given his quite limited means, del Rosario understandably did not want to get involved in the case so he chose to keep his silence. Besides, he was threatened with physical harm should he squeal.

Del Rosario further contends that there was violation of his right to remain silent, right to have competent and independent counsel preferably of his own choice, and right to be informed of these rights as enshrined and guaranteed in the Bill of Rights.[38 As testified to by SP04 Geronimo de Leon, the prosecution witness who was the team leader of the policemen who investigated the 13 May incident, during his cross-examination -

Upon finding the name of the owner of the tricycle, they proceeded to Bakod Bayan in the house of the barangay captain where the owner of the tricycle was summoned and who in turn revealed the driver's name and was invited for interview. The driver was accused Joselito del Rosario who volunteered to name his passengers on May 13, 1996. On the way to the police station, accused informed them of the bag and lunch kit's location and the place where the hold-uppers may be found and they reported these findings to their officers, Capt. Biag and Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma composed of 15 armed men where a shoot-out transpired that lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief encounter, they went inside the house where they found Marquez dead holding a magazine and a gun. While all of these were happening, accused del Rosario was at the back of the school, after which they went back to the police station. The investigator took the statement of the accused on May 14,1996, and was only subscribed on May 22,1996. All the while, he was detained in the police station as ordered by the Fiscal. His statements were only signed on May 16, 1996. He also executed a waiver of his detention. His Sinumpaang Salaysay was done with the assistance of Ex-Judge Talavera.[39

A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma, del Rosario was handcuffed by the police because allegedly they had already gathered enough evidence against him and they were afraid that he might attempt to escape.[40

Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements. It is well-settled that it encompasses any question initiated by law enforcers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.[41 This concept of custodial investigation has been broadened by RA 7438[42 to include "the Practice of issuing an 'invitation' to a person who is investigated in connection with an offense he is suspected to have committed." Section 2 of the same Act further provides that -

x x x x Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known and understood by him of his right to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

From the foregoing, it is clear that del Rosario was deprived of his rights during custodial investigation. From the time he was "invited" for questioning at the house of the barangay captain, he was already under effective custodial investigation, but he was not apprised nor made aware thereof by the investigating officers. The police already knew the name of the tricycle driver and the latter was already a suspect in the robbing and senseless slaying of Virginia Bernas. Since the prosecution failed to establish that del Rosario had waived his right to remain silent, his verbal admissions on his participation in the crime even before his actual arrest were inadmissible against him, as the same transgressed the safeguards provided by law and the Bill of Rights.

Del Rosario also avers that his arrest was unlawful since there was no warrant therefor. Section 5, Rule 113 of the Rules of Court provides:[43

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and, (c) When the person to be arrested is a prisoner who has escaped from penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People vs Sucro[44 we held that when a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and

proceeds at once to the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught immediately after the consummation of the act. The arrest of del Rosario is obviously outside the purview of the aforequoted rule since he was arrested on the day following the commission of the robbery with homicide.

On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested had committed it. Hence, there must be a large measure of immediacy between the time the offense was committed and the time of the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that the person making the arrest must have personal knowledge of certain facts indicating that the person to be taken into custody has committed the crime.[45 Again, the arrest of del Rosario does not comply with these requirements since, as earlier explained, the arrest came a day after the consummation of the crime and not immediately thereafter. As such, the crime had not been "just committed" at the time the accused was arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the person to be arrested had committed the offense since they were not present and were not actual eyewitnesses to the crime, and they became aware of his identity as the driver of the getaway tricycle only during the custodial investigation.

However the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court a quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional defect and any objection thereto is waived when the person arrested submits to arraignment without any objection, as in this case.[46

A transgression of the law has occurred. Unfortunately, an innocent person lost her life and property in the process. Someone therefore must be held accountable, but it will not be accused Joselito del Rosario; we must acquit him. Like victim Virginia Bernas, he too was a hapless victim who was forcibly used by other persons with nefarious designs to perpetrate a dastardly act. Del Rosario's defense of "irresistible force" has been substantiated by clear and convincing evidence. On the other hand, conspiracy between him and his co-accused was not proved beyond a whimper of a doubt by the prosecution, thus clearing del Rosario of any complicity in the crime charged.

WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with Homicide and sentencing him to death, is REVERSED and SET ASIDE, and the accused is ACQUITTED of the crime charged. His immediate RELEASE from confinement is ordered unless held for some other lawful cause. In this regard, the Director of Prisons is directed to report to the Court his compliance herewith within five (5) days from receipt hereof.

SO ORDERED.

EN BANC

[G.R. Nos. 138934-35.  January 16, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTHONY ESCORDIAL, accused-appellant.

D E C I S I O N

MENDOZA, J.:

These cases are before this Court for review from the decision, dated February 26, 1999, of the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant Anthony Escordial guilty of robbery with rape and sentencing him to death and to pay private complainant Michelle Darunday the amounts of P3,650.00 representing the amount taken by him, P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs.

In Criminal Case No. 97-18117, the information against accused-appellant charged him with the crime of rape committed as follows:

That on or about the 27th day of December, 1996, in the City of  Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused armed with a deadly weapon, a knife, by means of force, violence and intimidation, did, then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant Michelle Darunday y Jintula, against the latter’s will.

All contrary to law and with the aggravating circumstance that the said offense was committed in the dwelling of the said party during nighttime while [she] was asleep inside her room.

Act contrary to law.

In Criminal Case No. 97-18118, the information charged accused-appellant with robbery with rape as follows:

That on or about the 27th day of December, 1996, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a deadly weapon, a knife,

with intent of gain and by means of violence and intimidation on the person, did, then and there willfully, unlawfully and feloniously take from Michelle Darunday y Jintula the sums of P3,650.00, belonging to said offended party and [on] the occasion thereof have carnal knowledge with the complainant Michelle Darunday y Jintula, against her will, and inside her room wherein she was temporarily residing as a boarder.

All contrary to law and with aggravating circumstance that the said offense was committed inside the dwelling of the offended party and during nighttime the latter not having given provocation for the offense.

Act contrary to law.

When arraigned on February 25, 1997, accused-appellant pleaded not guilty to the charges, whereupon the two cases were jointly tried.

The prosecution presented eight witnesses, namely, Jason Joniega, Mark Esmeralda, Erma Blanca, Dr. Joy Ann Jocson, PO3 Nicolas Tancinco, Leo Asan, Ma. Teresa Gellaver, and Michelle Darunday.  Their testimonies are as follows:

Jason Joniega and Mark Esmeralda testified that at around 8 o’clock in the evening of December 27, 1996, they and Mark Lucena were playing inside a jeepney parked in front of a boarding house owned by Pacita Aguillon at No. 17 Margarita Extension, Libertad St., Purok Amelia 2, Barangay 40, Bacolod City.  As one of them hit his head on the rails of the jeepney, the boys were told by a man sitting inside the jeepney to go home lest they would meet an accident.   The man was later identified by Jason Joniega and Mark Esmeralda as accused-appellant.

Living in a boarding house in front of which the jeepney was parked were Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver.   They stayed in a bedroom on the ground floor.  That same night, December 27, 1996, Teresa went to sleep at around 9:30 p.m., while Michelle and Erma watched television for a while before going to bed.  They slept beside each other on two beds placed side by side, with Teresa nearest the wall, Michelle in the middle, and Erma on the other side.

While the three were asleep, Erma was awakened by the presence of a man.  The man had his head covered with a t-shirt to prevent identification and carried a knife about four inches long.  He warned Erma not to shout or he would kill her.  He then asked Erma where her money was, and the latter pointed to the wall where she had hung the bag which contained her money.  Michelle, who by then was already awake, told Erma to give the man her money so he would leave.   Erma gave the man P300.00, but the latter said to give him all her money.  He told Erma that he would look for more money and, if he found more, he would kill her.  For this reason, Erma gave the rest of her money.  Afterwards, she was told to lie on her side facing the wall. The man then turned to Michelle and Teresa.  Michelle gave him her money, but Teresa said her money was in the other room.  However, she was not allowed to leave the bedroom.  The man was able to get P500.00 from Erma and P3,100.00 from Michelle.

After getting their money, the man gave a t-shirt to Erma to blindfold Teresa and another to Michelle to blindfold Erma.  He blindfolded Michelle himself and then began touching her in different parts of her body.  He ordered her to take off her t-shirt, threatening to kill her if she did not do as he commanded.  He then went on top of Michelle and tried to insert his penis into her vagina. As he had difficulty doing so, he instead inserted his two fingers.  He tried once more to insert his penis, but again failed.  The man then rose from the bed and took some soapy water, which he proceeded to insert into Michelle’s vagina.  He finally succeeded in inserting his penis into Michelle’s vagina.  Michelle felt great pain and pleaded with the man to stop, but the man paid no heed, and only stopped after satisfying his lust.

Michelle said that although she was blindfolded and could not see, she could feel that the man had no cover on his face when he was raping her.  She felt that his chest was rough and had some scars.  When he placed her hands on his nape, she felt that it was also rough.

On the other hand, Erma claimed she was able to see through her blindfold and that she saw the man’s face because of the light coming from the lamp post outside the boarding house.  Their bedroom window had panes through which the light filtered in.

After he had finished raping Michelle, the man sat on the bed and talked to the three women.  He told Michelle that he used to make catcalls at her and called her a beautiful girl whenever she passed by his place but Michelle had ignored him.  He told them that he was from Hinigaran, but later took back his statement when Teresa told him that she was from Binalbagan, which was near Hinigaran. Michelle then told him that she worked at the City Engineer’s Office and graduated from the Central Mindanao University.  The man cussed when he learned that Michelle was from Mindanao.  As he spoke to Michelle, he leaned over the bed and mashed the breasts of Erma and Teresa.

After a while, the man told Michelle he wanted to have sex with her again.  Michelle pleaded with him, but the man threatened to call his companions and said it would be worse for her if his companions would be the ones to rape her. He ordered Michelle to lie on her stomach and then inserted his penis into her anus.  When he was through, he gave Michelle a blanket to cover herself and returned to her a pair of earrings which he had taken from her.  He then left, but not before warning the women not to report the matter to anyone or he would kill them.

Mark Esmeralda testified that he was in his bedroom on the second floor of their house, toying with a flashlight, when he saw from his bedroom window a man wearing denim shorts coming out of the boarding house.  It was around 12:30 in the morning then.  The man was nibbling something.  Mark saw the man jump over the fence. After 30 minutes, Mark went down from his room and told his parents what he had seen.  His parents then went out to check what had happened. Mark identified accused-appellant as the man he saw that night.

Michelle, Erma, and Teresa were so frightened that they were not able to ask for help until 30 minutes after the man had left.  They told their neighbor, Tiyo Anong, that a man had come to the house and robbed them.  They also called up Allan Aguillon, the son of the owner of the boarding house, who in turn reported the incident to the police.  When the policemen arrived, they asked Michelle to describe the assailant, but she told them that she could only identify his

voice and his eyes.  Accompanied by the police, the three women looked for the man around the Libertad area, but they did not find him. Michelle, Erma, and Teresa were taken to the police station at Bac-Up 6 for investigation.  But, at Michelle’s request, Erma and Teresa did not tell the others that Michelle had been raped by their attacker.

Upon returning home, Michelle found her aunt and uncle. She embraced her aunt and told her about her ordeal.  Michelle was again taken to the police headquarters, where she was referred to the Women’s Desk to report the rape.  They were able to go home to the house of Michelle’s aunt at around 5 to 6 o’clock in the evening.

PO3 Nicolas Tancinco, one of the policemen who responded to the report shortly after the commission of the crime, also testified for the prosecution.  He said that the assailant was described to him as wearing long hair and having a rough projection on the back of his neck, small eyes, a slim body, and a brown complexion.  Later on, Michelle Darunday, accompanied by Allan Aguillon, returned to the police station to report the rape committed against her.  Tancinco entered her complaint in the police blotter and referred Michelle to the Women’s Desk.

In the morning of December 28, 1996, Tancinco returned to the boarding house.  He found that the intruder was able to gain entry to the house through the window of the bathroom.  He noticed that the room beside those of the three women had been ransacked, with the cabinets opened and the clothes in disarray.

The following day, on December 29, 1996, Tancinco went around  Margarita Extension and learned about the children playing on the street around the time the intruder entered the boarding house.  He was told by Mark Esmeralda and Jason Joniega that they saw a man inside the jeepney where they were playing at the time of the incident. Tancinco was likewise informed by Esmeralda that the person he saw inside the jeepney was the same person he saw coming out of the boarding house later that night.  According to Tancinco, the children said that they could identify the man if he was shown to them.   At around 8 o’clock that evening, Tancinco questioned a certain Tiyo Anong and Ramie about the identity of the suspect.  Ramie said that the description of the suspect fitted that of a worker at a café called Coffee Break Corner, about two houses away from the boarding house.

Thus, on January 2, 1997, Tancinco and some companions proceeded to the Coffee Break Corner and interviewed the security guard, who told them that a certain Fidel Hinolan owned the café.  When interviewed by Tancinco and his companions, Fidel Hinolan told them that accused-appellant was his helper and that the latter had gone home on December 27, 1996 to Barangay Miranda, Pontevedra, Negros Occidental.

Based on the information furnished by Hinolan, Tancinco and his fellow police officers, Michelle Darunday, Allan Aguillon, and Pacita Aguillon went to Barangay Miranda, Pontevedra, Negros Occidental at around 10 o’clock in the morning of January 3, 1997 and asked the assistance of the police there to locate accused-appellant.  PO2 Rodolfo Gemarino asked one of his colleagues at the Pontevedra police to accompany Tancinco and his companions.  They found accused-appellant at the basketball court and “invited” him to go to the police station for questioning.

Michelle Darunday remained at the Pontevedra police station.  When accused-appellant was brought there, he saw Michelle and blushed.   Michelle looked at him and recognized him as the man who had robbed and raped her on December 27, 1996.  Accused-appellant was asked to take off his t-shirt.  Michelle said that she just kept quiet while accused-appellant tried to talk to her.  However, according to Tancinco, Michelle confirmed to him that accused-appellant was the man who had attacked her, identifying him through a rough projection, or a keloid, on the back of his neck and his voice.  At the time of his arrest, accused-appellant had a short haircut.  He was transferred to the Bacolod police station for further investigation. Allan Aguillon took a picture of accused-appellant (Exh. F) at the Pontevedra police station.

At the Bacolod police station, Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda were asked whether accused-appellant was the same person they saw on the night of the incident. They were taken one by one to the jail cell and asked to point to the person that they had seen that night. They picked accused-appellant out of four people who were inside the jail cell.

Michelle Darunday executed an affidavit, dated January 4, 1997, identifying accused-appellant as the person who had robbed and raped her. She testified that she and her friends had gone to the Coffee Break Corner sometime in September or October 1996. On the way home, she was approached by accused-appellant.  He asked Michelle what her name was, and she gave it to him, albeit reluctantly. She usually passed by the said café when going home and accused-appellant would often whistle at her and call her a beautiful girl.  Michelle had simply ignored him and gone on her way.

Dr. Joy  Ann C. Jocson, Medical Officer IV of the Bacolod City Health Department, examined Michelle Darunday and made the following findings and remarks:

1.  Abrasions noted on the right and left Labia Minora and on the posterior fourchette.

2.  New Lacerations noted on the hymenal ring on the following location 1 o’clock position, 3 o’clock position, and 9 o’clock position.

3.  Vaginal introitus admits 2 fingers but with pain.

4.  Presently, patient with menstruation.

In my opinion, the patient would need a urinalysis (since she complains of pain upon urination) and possible Medical treatment if necessary, for about 7 to 10 days. And if necessary, psychiatric evaluation & management is also recommended.

Testifying in court, Dr. Jocson said there was penetration of the victim’s vagina as shown by the fact that the hymenal rim had lacerations at the 1, 3, and 9 o’clock positions. Since the edges of the lacerations were sharp, she concluded that these lacerations were less than a week old at the time of the examination.  According to Dr. Jocson, these were caused by abrasions due to force or pressure applied on the vaginal area.  When asked during cross-examination whether the victim had abrasions or contusions on her body at the time of her examination, Dr. Jocson said

that she could not remember.  She could not remember either whether there was sperm in the victim’s vagina when she examined the latter.  She said that no sperm specimen had been taken from the victim.  She testified that it could not be determined how many times the victim had previously engaged in sexual intercourse because this would depend on the elasticity of the victim’s hymen.  She opined, however, that it would be less than 10 times in the case of the victim.   Dr. Jocson stated it was possible the victim agreed to have sexual intercourse voluntarily based on the lack of marks of violence on the latter, although it was also possible that she was merely forced to have sex because she was threatened. On re-direct examination, she stated it was possible that seminal fluid was not found on the victim’s private parts because the victim was having her monthly period.  She said the lacerations on the victim’s vagina would result whether the sexual intercourse was voluntary or involuntary on the part of the victim.

Leo Asan, an employee at the City Health Office in Bacolod, testified that the medical certificate presented by the prosecution, which was undated, was a faithful reproduction of what was written by Dr. Joy Ann Jocson on January 3, 1997 in the logbook.

The defense presented as its witnesses Elias Sombito, Aaron Lavilla, PO2 Rodolfo Gemarino, Ricardo Villaspen, Nestor Dojillo, accused-appellant Anthony Escordial, Jerome Jayme, and Lucila Jocame.  These witnesses gave a different account of the events that led to the arrest of accused-appellant.  Their version is as follows:

Accused-appellant testified that he was employed by Fidel Hinolan on January 21, 1996.  He said he started on August 6, 1996 as a dishwasher and was later made cashier.  Accused-appellant said that he went home to Pontevedra, Negros Occidental on December 24, 1996, arriving there at 2 o’clock in the afternoon.  Hinolan paid him P500.00, which he gave to his mother as his Christmas gift.   He dropped by the house of Aaron Lavilla.  At 5:30 p.m., he returned to Coffee Break Corner in Bacolod City.

In the evening of December 26, 1996, accused-appellant asked permission from Hinolan to go home to Pontevedra to stay there until January 1997 as the restaurant would be closed anyway during this period.  Hinolan gave accused-appellant his permission and paid the latter his salary of P600.00 as well as a P200.00 bonus.  Hence, at 2 o’clock in the afternoon of December 27, 1996, accused-appellant took the bus home, arriving in Barangay Miranda, Pontevedra, Negros Occidental an hour later.  He went straight home to his mother and gave her P600.00, telling her to use P400.00 for New Year’s Day.

Accused-appellant also saw Elias Sombito, who told him to look for Aaron Lavilla because a cockfight derby was being held that day in their barangay.   Accused-appellant, therefore, looked for Aaron Lavilla and found him at the basketball court. Aaron’s mother asked accused-appellant to help her bring to the cockpit some cases of beer which she planned to sell there. Accused-appellant obliged.

At the cockpit, Elias Sombito asked him to take care of his cocks. Accused-appellant asked Aaron Lavilla to go with him to the cockpit, but the latter continued playing basketball and only proceeded to the cockpit after the game was finished.  The derby ended at around 9 o’clock in the evening.

At about 10 o’clock that night, accused-appellant and Aaron Lavilla went to the latter’s house and slept there.  The following day, December 28, 1996, accused-appellant helped Aaron Lavilla’s mother with the household chores, cutting the grass and feeding the cocks.  He stayed in Barangay Miranda until January 3, 1997. Accused-appellant’s testimony as to his whereabouts from December 27, 1996 to January 3, 1997 was corroborated by  Elias Sombito and Aaron Lavilla.

As to the circumstances of accused-appellant’s arrest, PO2 Rodolfo Gemarino and Ricardo Villaspen testified that at around 11 o’clock in the morning of January 3, 1997, three members of the Bacolod police, led by PO3 Nicolas Tancinco, went to the headquarters of the Pontevedra police to ask for help in locating a person named Anthony Escordial, said to be a resident of Barangay Miranda, Pontevedra, Negros Occidental, who was wanted in connection with a case for robbery with rape.  Although Tancinco and his companions showed their mission order to Gemarino, they did not show a warrant for accused-appellant’s arrest. Nonetheless, Gemarino told PO2 Gella of the Pontevedra police and Ricardo Villaspen, the tanod commander of Barangay Miranda, to help the Bacolod policemen look for accused-appellant.  The group left the police station, although Tancinco’s other companions, Michelle Darunday and Pacita Aguillon, stayed in the headquarters.

The arresting party, composed of  Tancinco, PO2 Gella, and Villaspen, proceeded to the house of accused-appellant in Barangay Miranda, but the latter was not there.  They found accused-appellant at the basketball court watching a game.  After informing him that he was a suspect in a robbery case, the group invited accused-appellant to go with them to the police headquarters.

Nestor Dojillo, the barangay captain of Barangay Miranda, was at the police station. He testified that when accused-appellant, together with Tancinco and his companions, arrived at the police station, he (Nestor Dojillo) followed them to the investigating room.  Inside the room were Michelle Darunday, three members of the Bacolod police, Villaspen, and Gemarino.  Gemarino asked Michelle if she could identify accused-appellant as her attacker, but the latter said that she could do so only if she could see a lump on his back.  Gemarino told accused-appellant to take off his t-shirt. When accused-appellant did as Gemarino ordered, Michelle looked at his back  for identifying marks, while Allan Aguillon took his photograph. Gemarino then asked Michelle whether accused-appellant was her attacker, but she replied that she was not sure because the attacker was wearing a mask when she was raped. The Bacolod policemen requested Gemarino to allow them to bring accused-appellant to Bacolod City as they still had some witnesses who could identify the suspect there.  Accused-appellant was allowed to go with them after Dojillo and Gemarino asked the Bacolod policemen not to harm him. Dojillo’s testimony was corroborated by the testimonies of PO2 Rodolfo Gemarino, Ricardo Villaspen, and accused-appellant.

Accused-appellant further testified that on the way to Bacolod City, PO3 Tancinco began beating him and hitting him with the butt of a shotgun to force him to admit liability for the crime. Because accused-appellant refused to do so, he was taken by Tancinco and his  companions to a lodging house where he was subjected to torture. Accused-appellant was told to take off his clothes and to lie down. PO3 Tancinco and his companions then proceeded to hit him with a belt. Afterwards, they covered his mouth and took him to the bathroom.  Tancinco put a knife to his

neck, telling him that he would be killed if he refused to admit that he was the culprit.  As he continued to deny liability for the crime, accused-appellant was subjected to further torture. Later on, the driver entered the room and brought with him a child, whose head was covered, who was instructed to identify accused-appellant. The child, however, did not react upon seeing accused-appellant, who was thus brought back to the headquarters where he was again maltreated. Accused-appellant said that he was left alone in his cell and tied to a chair.  He also said that at around 8 o’clock that evening, two of the complainants arrived and the police told them to identify accused-appellant as their attacker. But these two complainants just kept looking at accused-appellant and even asked the policemen if he was the suspect.

After the two women had left, PO3 Tancinco took accused-appellant to a house so that he could be identified by another complainant.  But this complainant likewise said that he was not the assailant, as the latter had a heavier build and longer hair.  Accused-appellant was returned to the police headquarters.

At the headquarters, PO3 Tancinco talked to accused-appellant and told him that he would help him if accused-appellant confessed to the crime.  But accused-appellant again refused because he said he had not done anything wrong.  The police then began beating him up again.  PO3 Tancinco burnt accused-appellant’s lips and tongue with a lighted cigarette.

At around 12:00 noon of January 6, 1997, Gemarino, Dojillo, and Villaspen, together with accused-appellant’s grandfather, a certain Inspector Tamayo, and reporters from Bombo Radyo, went to the Bacolod police station to visit accused-appellant.  They found him tied to a chair. When they entered the cell, accused-appellant, thinking that they were members of the Bacolod police, held up his hands and asked for pity.  The visitors assured accused-appellant that they would not hurt him.  Accused-appellant had a limp because his feet were injured.  For this reason, Dojillo and his companions asked the Bacolod police to let them take accused-appellant to the hospital for treatment. Accused-appellant was thus brought to the provincial hospital in Bacolod for x-ray and medical treatment.  He was taken back to the police station thereafter.

Lucila Jocame, Records Officer of the Corazon Locsin Montelibano Memorial Regional Hospital (CLMMH), identified in court the medical certificate (Exh. 12) issued by the said hospital, showing the injuries sustained by accused-appellant, to wit:

# 5 CM LINEAR ABRASION WITH CONTUSION HEMATOMA LEFT SCAPULAR AREA.

# 1 CM LINEAR ABRASION RIGHT SCAPULAR AREA.

# 4 x 2 CM CONTUSION HEMATOMA LEFT LATERAL CHEST LEVEL OF T12.

# 2 x 2  CM  CONTUSION  HEMATOMA  M/3  RIGHT LEG ANTERIOR ASPECT.

# 2 x 4 CM CONTUSION HEMATOMA RIGHT KNEE LATERAL ASPECT.

# 3 x 3 CM SWELLING AND TENDER LEFT ANKLE.

# 1 x 1 CM CONTUSION HEMATOMA D/3 RIGHT LEG POSTERIOR ASPECT.

# 1 x 1 CM CONTUSION HEMATOMA M/3 RIGHT THIGH POSTERIOR ASPECT.

# 2 x 2 CM CONTUSION HEMATOMA RIGHT PERI AURICULAR AREA.

X-RAY # 280 dated January 6, 1997:  SKULL APL: CHEST BUCKY RIGHT THIGH: APL: RIGHT AND LEFT FOOT APO.

“No Radiographic evidence of fracture in this examination.”

The last witness presented by the defense was Jerome Jayme, General Manager of Royal Express Transport, Inc., who testified that the last bus trip from Kabankalan to Bacolod on December 27, 1996 left at 6 o’clock in the evening.  The trip from Kabankalan to Barangay Miranda, Pontevedra, Negros Occidental would take one hour.  On cross-examination, Jayme stated that the said bus would reach Bacolod City by 7:40 to 8:00 p.m. if it left Kabankalan at 6:00 p.m.  His company’s buses were not allowed to pick up passengers along the way  to Bacolod City because of the incidence of highway robbery. Jayme identified in court a certification (Exh. 12-a) he issued which stated that the last bus trip of their company on December 27, 1996 was at 6:00 p.m.

On February 26, 1999, the trial court rendered a decision, the dispositive portion of which stated:

WHEREFORE, it is the well-considered view of this court, after a thorough, painstaking and exhaustive review and examination of the evidence adduced in this case, that the accused ANTHONY ESCORDIAL y GALES, is GUILTY, beyond a reasonable doubt of the crime of Robbery with Rape, punished under Art. 294, paragraph 1 of the Revised Penal Code, as amended. The commission of the crime was attended by three aggravating circumstances of nighttime, that the crime was committed in the dwelling of the offended party, and that craft, fraud and disguise were employed by the accused in the commission of the crime under paragraphs 3, 6, and 14 of Art. 14 of the Revised Penal Code. There is no mitigating circumstance. Applying Article 63, paragraph 1, the accused is hereby sentenced to the maximum penalty of DEATH.

He is also condemned to pay private complainant the sum of P3,650.00, representing the money taken by the accused; P50,000.00 as moral damages, P30,000.00 as exemplary damages, and the costs.

SO ORDERED.

Hence this appeal.  Accused-appellant contends that:

1.  THE COURT A QUO ERRED IN DISREGARDING THE DEFENSE OF THE ACCUSED TO THE EFFECT THAT ANTHONY ESCORDIAL CAN NEVER BE THE ROBBER-RAPIST WHO RAVISHED MICHELLE DARUNDAY ON THAT FATEFUL NIGHT OF

DECEMBER 27, 1996, AS THE FORMER (ESCORDIAL) DID NOT HAVE THE QUALITIES, CHARACTER AND EXPERTISE OF THE LATTER (ROBBER-RAPIST).

2.  THE COURT A QUO ERRED IN CONCLUDING THAT THE DESCRIPTION OF THE ASSAILANT AS DESCRIBED BY THE COMPLAINANT AND HER WITNESSES FIT WITH THAT OF HEREIN ACCUSED, THE TRUTH OF THE MATTER IS THAT THERE WAS NO DESCRIPTION OF THE ASSAILANT EVER MADE BY ANYBODY PRIOR TO THE “WARRANTLESS ARREST” OF THE ACCUSED.  THE AFFIDAVITS OF THE COMPLAINANT AND HER WITNESSES WERE IN FACT DRAFTED, EXECUTED AND SIGNED ONLY SEVERAL DAYS AFTER THE ACCUSED WAS BROUGHT INTO THE CUSTODY OF THE BACOLOD POLICE.

3.  THE COURT A QUO ERRED IN DISREGARDING THE TESTIMONIES OF WITNESSES PO2 RODOLFO GEMARINO (DEP. CHIEF OF POLICE OF PONTEVEDRA), BRGY. CAPT. NESTOR DOJILLO (BRGY. CAPT. OF MIRANDA AND THEN MEMBER OF THE SANGGUNIANG BAYAN OF PONTEVEDRA), AND RICARDO VILLASPEN (THEN COMMANDER OF BARANGAY TANOD IN PONTEVEDRA) TO THE EFFECT THAT MICHELLE DARUNDAY FAILED TO IDENTIFY THE ACCUSED DURING THEIR ENCOUNTER IN PONTEVEDRA POLICE STATION.

4.  THE COURT A QUO ERRED IN NOT EXCLUDING ALL EVIDENCES, TESTIMONIAL AND DOCUMENTARY, OBTAINED BY THE PROSECUTION DURING THE WARRANTLESS ARREST OF THE ACCUSED AND THE LATTER’S SUBJECTION TO CUSTODIAL INVESTIGATION WITHOUT LETTING HIM KNOW OF HIS CONSTITUTIONAL RIGHTS, PARTICULARLY HIS RIGHT TO COUNSEL OF CHOICE.

5.  THE COURT A QUO ERRED IN CONCLUDING THAT PROSECUTION WITNESSES WERE ABLE TO POSITIVELY IDENTIFY THE ACCUSED IN A POLICE LINE UP DESPITE THE FACT THAT OF THE PERSONS BEING LINED UP ONLY THE ACCUSED WAS HANDCUFFED.

6.  THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES TO THE EFFECT THAT THEY WERE ABLE TO IDENTIFY THE ASSAILANT BY FACE THAT VERY EVENING OF DECEMBER 27, 1996 AMIDST THE IMPOSSIBILITY OF DOING THE SAME, GIVEN THE DISTANCE, THE INTENSITY OF LIGHT, AND THE TERRIFYING SITUATION, WHICH ALL OBSCURE, IF NOT DESTROY, THE CLARITY OF HUMAN MEMORY AND PERCEPTION.

7.  THE COURT A QUO ERRED IN CONCLUDING THAT THE DEFENSE FAILED TO SHOW THE IMPOSSIBILITY OF ACCUSED TO GO TO BACOLOD THAT EVENING OF DECEMBER 27, 1996, DESPITE OVERWHELMING EVIDENCE SUBMITTED, BY SIMPLY RELYING ON THE POSSIBILITY OF THE ACCUSED TAKING A CARGO TRUCK FROM PONTEVEDRA TO BACOLOD.

8.  THE COURT A QUO ERRED IN CONCLUDING THAT ACCUSED ANTHONY ESCORDIAL HAD MOTIVE TO COMMIT THE CRIME CHARGED BASED ON A

WRONG PREMISE THAT THE DEFENSE ALLEGEDLY DID NOT REFUTE THE ALLEGATIONS OF THE COMPLAINANT THAT ACCUSED ATTEMPTED TO BE ACQUAINTED WITH THE COMPLAINANT AND WHISTLED AT THE LATTER SEVERAL TIMES.

The issues raised by accused-appellant concern (1) the alleged violations of his constitutional rights and the consequent admissibility of the evidence against him and (2) the credibility of the prosecution witnesses.

I.  Alleged Violations of Accused-appellant’s Constitutional Rights

A.  Accused-appellant questions the legality of his arrest without a warrant.  Indeed, PO3 Nicolas Tancinco admitted that he and his companions had arrested accused-appellant without any warrant issued by a judge. Art. III, §2 of the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

To implement this provision, Rule 113, §5 of the Revised Rules of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a person only under the following circumstances:

(a)            When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b)            When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c)            When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

The cases at bar do not fall under paragraphs (a) or (c) of the  aforequoted rule.  At the time of his arrest, accused-appellant was watching a game in a basketball court in Barangay Miranda, Pontevedra, Negros Occidental.  He was not committing or attempting to commit a crime when he was arrested by the police on that day.  Nor was he an escaped prisoner whose arrest could be effected even without a warrant.

The question is whether these cases fall under paragraph (b) because the police officers had personal knowledge of facts and circumstances that would lead them to believe that accused-

appellant had just committed a crime. The phrase “personal knowledge” in paragraph (b) has been defined in this wise:

Personal knowledge of facts in arrests without a warrant under Section 5(b) of Rule 113 must be based upon “probable cause” which means “an actual belief or reasonable grounds of suspicion.” The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.  A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officer making the arrest.

In these cases, the crime took place on December 27, 1996. But, accused-appellant was arrested only on January 3, 1997, a week after the occurrence of the crime.  As the arresting officers were not present when the crime was committed, they could not have “personal knowledge of the facts and circumstances of the commission of the crime” so as to be justified in the belief that accused-appellant was guilty of the crime.  The arresting officers had no reason for not securing a warrant.

However, the records show that accused-appellant pleaded not guilty to the crimes charged against him during his arraignment on February 25, 1997 without questioning his warrantless arrest. He thus waived objection to the legality of his arrest. As this Court has held in another case:

[The accused] waived objections based on the alleged irregularity of their arrest, considering that they pleaded not guilty to the charges against them and participated in the trial.  Any defect in their arrest must be deemed cured when they voluntarily submitted to the jurisdiction of the court.  For the legality of an arrest affects only the jurisdiction of the court over the person of the accused.  Consequently, if objections based on this ground are waived, the fact that the arrest was illegal is not a sufficient cause for setting aside an otherwise valid judgment rendered after a trial, free from error.  The technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to the culpability of the accused.

B.  Accused-appellant invokes Art. III, §12(1) of the Constitution which provides that “[a]ny person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.  If the person cannot afford the services of counsel, he must be provided with one.  These rights cannot be waived except in writing and in the presence of counsel.” He contends that he was subjected to custodial interrogation without being informed of his right to remain silent and to have independent counsel preferably of his choice.  Hence, he contends, the trial court erred in not excluding evidence obtained from him during such interrogation for violation of accused-appellant’s rights under this provision.

While it cannot be denied that accused-appellant was deprived of his right to be informed of his rights to remain silent and to have competent and independent counsel, he has not shown that, as

a result of his custodial interrogation, the police obtained any statement from him – whether inculpatory or exculpatory - which was used in evidence against him.  The records do not show that he had given one or that, in finding him guilty, the trial court relied on such statement. In fact, accused-appellant testified that at no point, even when subjected to physical torture, did he ever admit committing the crime with which he was charged.  In other words, no uncounseled statement was obtained from accused-appellant which should have been excluded as evidence against him.

C.  Of greater significance is the fact that accused-appellant was never assisted by counsel, whether of his own choice or provided by the police officers, from the time of his arrest in Pontevedra, Negros Occidental to the time of his continued detention at the Bacolod police station. Although accused-appellant made no statement during this time, this fact remains important insofar as it affects the admissibility of the out-of-court identification of accused-appellant by the prosecution witnesses, namely, Michelle Darunday, Erma Blanca, Ma. Teresa Gellaver, Mark Esmeralda, and Jason Joniega.

As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest. However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police.

An out-of-court identification of an accused can be made in various ways.  In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose. During custodial investigation, these types of identification have been recognized as “critical confrontations of the accused by the prosecution” which necessitate the presence of counsel for the accused.  This is because the results of these pre-trial proceedings “might well settle the accused’s fate and reduce the trial itself to a mere formality.” We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him.

Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest.   Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these  identifications should have been held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’”

Be that as it may, as the defense failed to object immediately when these witnesses were presented by the prosecution or when specific questions regarding this matter were asked of them, as required by Rule 132, §36 of the Rules on Evidence, accused-appellant must be deemed to have waived his right to object to the admissibility of these testimonies.

Furthermore, the inadmissibility of these out-of-court identifications does not render the in-court identification of accused-appellant inadmissible for being the “fruits of the poisonous tree.” This in-court identification was what formed the basis of the trial court’s conviction of accused-appellant.  As it was not derived or drawn from the illegal arrest of accused-appellant or as a consequence thereof, it is admissible as evidence against him. However, whether or not such prosecution evidence satisfies the requirement of proof beyond reasonable doubt is another matter altogether.

II.  Credibility of the Prosecution Witnesses

Accused-appellant contends that: (1) he does not possess the character, qualities, and expertise of the assailant who robbed and raped Michelle Darunday, Erma Blanca, and Ma. Teresa Gellaver; (2) the records are bereft of any description of the assailant made by these prosecution witnesses prior to his arrest as the affidavits of Darunday, Blanca, Joniega, and Esmeralda were executed only after his arrest; (3) the testimonies of the defense witnesses, namely, PO2 Rodolfo Gemarino, Barangay Captain Nestor Dojillo, and Ricardo Villaspen, show that Michelle Darunday failed to identify accused-appellant when the latter was presented to her at the Pontevedra police station; (4) Tancinco’s testimony that Michelle Darunday properly identified accused-appellant at the Pontevedra police station could not be believed as the said witness had motive to testify falsely against accused-appellant; (4) the identification of accused-appellant at the Bacolod police station was tainted because only accused-appellant was handcuffed among the persons presented to the prosecution witnesses; and (5) it was highly improbable for the prosecution witnesses to identify the assailant by face considering the distance, the intensity of light, and the circumstances at the time of the commission of the crime.

A.  Jason Joniega and Mark Esmeralda pointed to accused-appellant as the man they saw on the night of December 27, 1996 and the person they identified inside a jail cell at the Bacolod police station.  Erma Blanca, on the other hand, testified that she saw through her blindfold accused-appellant raping Michelle Darunday.  She identified accused-appellant in court as their assailant and as the man whom she saw inside the jail cell at the Bacolod police station. Ma. Teresa Gellaver and Michelle Darunday identified accused-appellant as the suspect brought before them at the Bacolod police station and the Pontevedra police station, respectively.

The test is whether or not the prosecution was able to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the line-up identification. As held in United States v. Wade:

We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455, 83 S Ct 407, “‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt 221 (1959).” See also Hoffa v United States, 385 US 293, 309, 17 L ed 2d 374, 386, 87 S Ct 408.  Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any pre-line-up description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of

the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.  It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.

We now consider whether the testimonies of the prosecution witnesses meet the test as laid down in that case.

1.  Michelle Darunday testified that her assailant’s face was covered with cloth when he entered the room and that she was blindfolded when she was raped. She could thus only see the assailant’s eyes, which Michelle described as chinito (chinky), although she testified that she could also identify his voice. Otherwise, Michelle did not see her attacker.  Yet, she testified that she immediately recognized accused-appellant as the assailant when she saw him at the Pontevedra police station.  Michelle stated:

PROS. CARDINAL:       Madam Witness, a few days thereafter, can you recall any development of your case?

WITNESS:       That was in January 3, when somebody told us to identify a suspect in the City Hall of Pontevedra.

PROS. CARDINAL:       Who was with you when you went to Pontevedra?

WITNESS:       My aunt and my uncle and the police investigators.

. . . .

PROS. CARDINAL:       Upon arrival at Pontevedra, what happened?

WITNESS:       We waited for a while because they will find the suspect and I was there in the room of the police sitting.

. . . .

PROS. CARDINAL:       So, you stayed behind and the policemen pick up the suspect?

WITNESS:       I and my aunt waited in the police of the policemen, and then later the suspect arrived.

PROS. CARDINAL:

       When that suspect arrived inside the room where you were, can you tell us what was the reaction of the suspect?

WITNESS:       When the suspect arrived, at first, he was not able to see me because I was behind the desk after the door, and then he was so fresh saying that he was a good man, but when he saw me he blushed and moving his head asking, “Ano ang sala ko sa imo? (What did I do to you?), I did not do anything.”  But when I looked at his eyes and heard his voice, I was sure that he was the man.

PROS. CARDINAL:       When that person said, what did I do to you, I did not do anything, what was [your] reaction?

WITNESS:       I just looked at him and he was so fresh that he has not done anything, but the policeman said that his case is rape.  Then, he was asked to take off his t-shirt and I just looked at him and then later, the policeman asked to borrow the man for investigation and while the policeman was recording, that suspect approached me and told me that, “You do not know me.”, and asked, “Do you know me?”

PROS. CARDINAL:       What was your reaction?

WITNESS:       I just [kept] quiet but my aunt reacted by saying, “You think you cannot be identified because you covered yourself?”

PROS. CARDINAL:       And then what did he answer?

WITNESS:       He just stand outside while we went ahead to go back to our home.

A show-up, such as what was undertaken by the police in the identification of accused-appellant by Michelle Darunday, has been held to be an underhanded mode of identification for “being pointedly suggestive, generat[ing] confidence where there was none, activat[ing] visual imagination, and, all told, subvert[ing] their reliability as [an eyewitness].” In these cases, Michelle knew that she was going to identify a suspect when she went to Pontevedra.  Upon seeing accused-appellant escorted by Tancinco and his colleagues in the Bacolod police, she knew that he was the suspect she was supposed to identify.  When accused-appellant was thus shown to her, there could be no doubt as to what was expected of her.  Further aggravating the situation were the reply of the policeman to accused-appellant’s protestations of innocence that he was being held for rape and Michelle’s aunt’s obvious assumption of his guilt. Michelle’s immediate conclusion, therefore, that accused-appellant was her attacker was understandable. As has been explained:

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

Finally, witnesses are highly motivated to behave like those around them.  This desire to conform produces an increased need to identify someone in order to show the police that they, too, feel that the criminal is in the lineup, and makes the witnesses particularly vulnerable to any clues conveyed by the police or other witnesses as to whom they suspect of the crime. . .

Coupled with the failure of Michelle to see the face of her assailant, the apparent suggestiveness of the show-up places in doubt her credibility concerning the identity of accused-appellant. The possibility that her identification of accused-appellant was merely planted in her mind both by the circumstances surrounding the show-up and her concomitant determination to seek justice cannot be disregarded by this Court.

Michelle’s identification of accused-appellant is further rendered dubious by the disparity between her description of her attacker and the appearance of accused-appellant.  In her affidavit, dated January 4, 1997, Michelle described her attacker as follows:

P -   Sadtong tinion nga ginahimoslan ikaw sining suspetsado nakita mo bala ang iya hitsura?  (At the time that you were abused by the suspect, did you see what he looked like?)

S-    Wala, kay tungod nga may tabon ang akon mata, apang matandaan ko guid ang iya tingog, mata, ang iya malaka nga biguti, ang structure sang iya lawas, ang supat sang iya kamot, ang iya bibig, ang madamo nga “kelloid” sa iya lawas kag ang iya baho.  (No, because I was blindfolded but I can remember his voice, his eyes, his thin mustache, his body structure, the smoothness of his hands, his mouth, and the numerous keloids on his body, and his smell.)

Michelle’s affidavit clearly indicated that she felt the keloids on the back of her assailant when the latter was raping her.  But, when she testified in court, Michelle admitted that she did not see keloids on accused-appellant although she said that his skin was rough. This is corroborated by the testimony of PO2 Rodolfo Gemarino who said that he did not see any lump on the back of accused-appellant when he tried to look for it. In fact, it would appear that accused-appellant had no such markings on his back but had only small patches which could not even be readily seen.

In dismissing the disparity between accused-appellant’s appearance and Michelle’s description of her attacker, the trial court dwelt on the apparent roughness of accused-appellant’s skin and the probability that Michelle might have felt only the arch of the spinal cord of her assailant. However, mere speculations and probabilities cannot take the place of proof beyond reasonable doubt required by law to be established by the prosecution. Michelle Darunday was a civil engineer in the City Engineer’s Office in Bacolod City.  Considering her educational attainment and professional status, it is improbable that she was mistaken as to what she felt on her

attacker’s back at the time she was raped.  A mere protrusion on the back of the neck of the assailant could not possibly have been mistaken for keloids.

Another circumstance casting doubt on the credibility of Michelle’s identification is her lack of reaction upon seeing accused-appellant at the Pontevedra police headquarters. Defense witnesses PO2 Rodolfo Gemarino, Ricardo Villaspen, and Nestor Dojillo testified that Michelle failed to see any identifying marks on accused-appellant and that she showed hesitation in pinpointing the latter as the culprit. With Gemarino being a policeman, Villaspen a barangay tanod, and Dojillo a barangay captain, these witnesses were all, in one form or another, connected with law enforcement. The prosecution having failed to ascribe any ill motive on the part of these defense witnesses, who are without doubt respectable members of the community, their testimonies that Michelle showed no reaction in seeing accused-appellant at the show-up in Pontevedra police station deserve greater credence than the testimony of Tancinco that Michelle confirmed to him that accused-appellant was her attacker.  The defense evidence established that Tancinco was an abusive policeman who had made up his mind as to accused-appellant’s guilt and who had no compunction in doing whatever means necessary, legal or illegal, to ensure his conviction. We note further that the testimonies of these defense witnesses coincide with Michelle’s testimony that she kept quiet when she saw accused-appellant at the Pontevedra police station on January 3, 1997.  This being so, her reaction to the show-up at the Pontevedra police station upon seeing accused-appellant, the man who supposedly raped her twice in an ignominious manner, is contrary to human nature. It may be that she was filled with rage so that upon seeing accused-appellant she was unable to show any emotion. But it is equally possible that, as defense witnesses Gemarino, Villaspen, and Dojillo testified, Michelle did not immediately recognize accused-appellant as her attacker and only pointed to him as her assailant upon promptings by the police and her companions. “[W]here the circumstances shown to exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence, while the other or others may be compatible with the finding of guilt, the court must acquit the accused: for the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction.”

For the foregoing reasons, we find both the out-of-court and in-court identification of Michelle Darunday to be insufficient to establish accused-appellant as the person who robbed and raped her and her companions on the night of December 27, 1996.

2. Erma Blanca testified that she saw through her blindfold the assailant when he was raping Michelle Darunday. She identified accused-appellant in open court as the person whom she saw that night. Certain circumstances in these cases lead us to believe, however, that Erma Blanca did not really see the assailant and that her testimony otherwise was a mere afterthought.  These are:

First, the police blotter, dated December 28, 1996, prepared by PO3 Nicolas Tancinco, referred to an “unknown suspect” who allegedly entered the boarding house of Pacita Aguillon and robbed Ma. Teresa Gellaver and Michelle Darunday.  This casts doubt on Erma’s credibility because she testified that she had known accused-appellant for a long time prior to December 27, 1996.  During her testimony, Erma claimed that accused-appellant approached her and Michelle sometime in September or October 1996 to ask for the name of the latter.  In addition, Erma said she had seen accused-appellant whenever he passed by their boarding house or stayed in her

Tiyo Anong’s store nearby. It would thus seem that Erma was familiar with accused-appellant. But, if she had actually seen him on that night of the robbery, why did she not report this to the police immediately?  Being a victim herself, Erma had every motive to reveal the identity of the robber that same night the crime was committed.  But she did not do so.   We are therefore left with the conclusion that the police blotter referred to an unknown suspect because the identity of the assailant had not been determined at the time the crime was reported to the police.

Second, Erma was not the one who accompanied the Bacolod police when the latter sought accused-appellant in Pontevedra, Negros Occidental. PO3 Tancinco testified that he took Michelle Darunday along with his other companions when they went to Pontevedra, Negros Occidental so that she could identify if the suspect was the person who had raped her.  But Michelle admitted that she did not see the face of the assailant.  Erma Blanca, who claimed she recognized accused-appellant, was not taken along by the police to Pontevedra, Negros Occidental.  Why not?  Why did they bring instead Michelle Darunday?

Third, the affidavit of Erma Blanca was prepared on January 4, 1997, a day after the arrest of accused-appellant. This delay belies Erma’s claim that she saw the assailant through her blindfold on the night of the incident.  For the normal reaction of one who actually witnessed a crime and recognized the offender is to reveal it to the authorities at the earliest opportunity. In these cases, the crime took place on December 27, 1996, but Erma Blanca executed her affidavit only on January 4, 1997, more than a week after the occurrence of the crime.  Delay in reporting the crime or identifying the perpetrator thereof will not affect the credibility of the witness if it is sufficiently explained. But here, no explanation was given by the prosecution why Erma Blanca executed her affidavit one week after the crime took place and one day after accused-appellant’s arrest.  The most likely explanation for such lapse is that Erma Blanca was used merely to corroborate what would otherwise have been a weak claim on the part of Michelle Darunday.  The same may be said of the testimonies of Jason Joniega and Mark Esmeralda.

B. Accused-appellant’s testimony that he was at the cockpit in Barangay Miranda, Pontevedra, Negros Occidental on December 27, 1996 is corroborated by Aaron Lavilla, Elias Sombito, and Nestor Dojillo. Considering the improbabilities and uncertainties surrounding the testimonies of the prosecution witnesses, the defense of alibi by accused-appellant deserves credence.

To summarize, we find that the prosecution failed to meet the degree of proof beyond reasonable doubt required in criminal cases.  The acquittal of accused-appellant is thus in order.

WHEREFORE, the decision of the Regional Trial Court, Branch 53, Bacolod City, finding accused-appellant guilty of robbery with rape and sentencing him to death, is hereby REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt.   Accused-appellant is ordered immediately released unless there are other legal grounds for his continued detention.

The Director of Prisons is directed to implement this Decision and to report to the Court immediately the action taken hereon within five (5) days from receipt hereof.

SO ORDERED.