Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

141669 February 28, 2005

JAIME DICO, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION CHICO-NAZARIO, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the Decision1 of the Court of Appeals dated 30 September 1999 and its Resolution2 dated 11 January 2000 denying petitioners motion for reconsideration. Accused Jaime Dico, now petitioner, was charged on 28 March 1994 with three (3) counts of violation of Batas Pambansa Bilang 22 (B.P. Blg. 22), docketed as Criminal Cases No. 38254-R to No. 38256-R, before the Municipal Trial Court in Cities (MTCC), Branch 7, Cebu City. The accusatory portion of the Information in Criminal Case No. 38254-R reads: That on or about the 12th day of May, 1993 and for sometime subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, knowing at the time of issue of the check she/he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, with deliberate intent, with intent of gain and of causing damage, did then and there issue, make or draw Far East Bank and Trust Co. Check No. 364903 dated May 12, 1993 in the amount of P100,000.00 payable to Equitable Banking Corp. which check was issued in payment of an obligation of said accused, but when said check was presented with said bank, the same was dishonored for reason Account Closed and despite notice and demands made to redeem or make good said check, said accused failed and refused, and up to the present time still fails and refuses to do so, to the damage and prejudice of said Equitable Card Network Inc. in the amount of P100,000.00 Philippine Currency.3 The two other Informations are similarly worded except for the number, date, and amount of the checks. The pertinent data in the other informations are as follows: Case No. Check No. 38255-R 369404 38256-R 369380 Date Amount

June 12, 1993 P200,000.004 Jan. 15, 1993 P296,736.275

When arraigned on 11 January 1995, accused pleaded "not guilty" to each of the charges. Upon

agreement of the parties, pre-trial of the cases was waived.6 The cases were consolidated and were jointly heard. The prosecution presented Lily Canlas,7 Collection Manager of Equitable Card Network, Inc., as its sole witness. On the other hand, the defense presented two witnesses Debbie Dy, Manager of Equitable Card Network, Inc., Cebu Branch, as a hostile witness, and the petitioner himself. The facts, as summarized by the MTCC, are quoted by the Court of Appeals: The evidence of the prosecution adduced thru the testimony of Lily Canlas, collection manager of the complainant Equitable Card Network, Inc. show that the accused is a credit card holder of the said network; that the complainant filed these cases because the three (3) checks which the accused issued in its favor, and in payment of his obligation to the complainant card network all bounced, for reason "Account Closed" (Exhs. "A," "B," "C," "A-1," "B-1," and "C-1"). That the complainant sent a letter to the accused to redeem or pay the amounts of the checks but the accused refused to comply, hence, the filing of these cases in Court. (Exhs. "2," "3" and "4"). On cross-examination, Ms. Canlas testified that in 1993, the credit line of the accused with the complainant Equitable Card Network was P499,000.00; that the accused had a good record with the complainant until he issued the bouncing checks above-mentioned; that the outstanding obligation of the accused to the complainant Equitable Card Network including interests and charges thereon is P1,035,590.28 (Exh. "D" and "D-1"); and that the obligation of the accused to the complainant rose to a million because the accused abused his credit card; that in January, 1993, the accused applied with the complainant for an increase of his credit line to P699,000.00 but this was rejected by the complainant (Exh. "1"), because the amount of P499,000.00 is the highest credit line that the complainant can give the accused, and besides, the current obligation of the accused has not yet been settled. For his defense, the accused presented Ms. Debbie Dy, Branch Manager of the local branch of the complainant Equitable Card Network as his hostile witness who testified that she is familiar with the accounts of the accused with the complainant; that including interests and other charges, the total obligation of the accused to the complainant is P1,035,590.31; that the credit line of the accused with the complainant is P499,000.00; and the accuseds application for an increase of his credit line P699,000.00 was rejected by the complainant; and that the total amount of the three (3) checks issued by the accused in favor of the complainant in three (3) cases is P596,736.27. The accused Jaime Dico testifying on direct examination admits having issued in favor of the complainant Equitable Card Network FEBTC Check No. 369380 dated January 15, 1993 in the amount of P296,736.27 (Exh. "A"); FEBTC Check No. 369403 dated May 12, 1993 in the amount of P100,000.00 (Exh. "B") and FEBTC Check No. 369404 dated June 12, 1993 in the amount of P200,000.00 (Exh. "C"). That due to the conflicts and inconsistencies in the billings made upon him by the complainant with regard(s) to amounts reflected in his accounts, he advised the Branch Manager then, Bernard Chua not to present to the bank the checks that he has issued until all the said conflicts and inconsistencies in his accounts shall have been reconciled. That since 1985, he is a credit card holder of the complainant Equitable Card Network, Inc., and when he issued the checks in question, he was holding the position of sales manager of the Yap Auto Supply, Cebu City; and because of the nature of his work which is to travel in the Visayas and

Mindanao, he needed a credit card in his trips. That as of January, 1993, his credit limit with the complainant was exactly P499,000.00; and the reconciliation of his billings which he has asked the complainant over the years [was] not heeded; that because P596,736.27 is quite a big amount, he did not redeem the checks he issued because he wanted to be sure that he would be paying the right amount. That with respect to the check (Exh. "B") dated May 12, 1993, in the amount of P100,000.00, he issued said check on April 7, 1993; and because of the inconsistencies in his billings, and because he was billed every month, he proposed to the Branch Manager then, Bernard Chua that pending reconciliation of his accounts, he will issue four (4) checks; the three (3) of which are the checks marked as the prosecutions Exhs. "A," "B," and "C" and subject of these cases, and another check; that he issued above-mentioned four (4) checks in addition to his cash payment of P100,000.00 which he has paid to Bernard Chua; that in his proposal dated April 7, 1993 (Exh. "12"), he included the above-mentioned four (4) post dated checks as a sign of good faith; and as a way of commitment to pay his outstanding balance to the complainant which is to [be] amortized as follows: May 12, 1993 P100,000.00; June 12, 1993 - P200,000.00; July 12, 1993 P300,000.00; and on August 12, 1993 P300,000.00; but his proposal was rejected by the complainants top management in Manila; that based on Exh. "8" which is the Summary furnished by Debbie Dy, incumbent Branch Manager of the complainant network in Cebu City, his outstanding balance to the complainant is P752,389.19, but with the payment of P100,000.00 he made on April 7, 1993, his balance to the complainant is P652,389.19. That he does not understand why his total obligation to the complainant has already reached P1,035,589.28 when his credit line is only P499,000.00; hence, he approached the complainants manager to reconcile his accounts and find out where the complainant was mistaken; that even if his accounts were reconciled, he cannot admit that his obligation to the complainant has already reached millions; and that the problem with the complainant is that it did not return to him the checks which he sent to the complainant together with his proposal to reconcile his accounts. On cross-examination, the accused testified that on April 6, 1993, he made a cash payment of P100,000.00 to the complainant; then on January 15, 1993, he issued the check Exh. "A"; then on April 7, 1993, he issued the checks Exhs. "B" and "C"; and then on April 30, 1993, he issued two (2) other checks to the complainant; and the total out of these five (5) checks which he has issued in favor of the complainant is P1,881,000.12. That on May 31, 1993, he filed a Petition For Insolvency with the Regional Trial Court, Cebu City (Exh. "B"); that attached to the said Petition is Schedule "A" which contains a Statement of his Assets and Liabilities; that as reflected in the Schedule of Creditors (Exh. "E-3"), one of his creditors is the Equitable Card Network (Exh. "E-3-A") which is the complainant in these cases; and the nature of his obligation to the said creditor is a loan in the amount of P1,888,181.29 (Exh. "B-3-A"). It is also confirmed by the accused that in the Schedule List of Check issued (Exh. "E-4"), the seven (7) checks mentioned therein (Exh. "E-4-A") include the checks which issued to the complainant in these cases and marked as Exhs. "A," "B," and "C." The accused further testified on cross-examination that although he could not agree on his outstanding obligation to the complainant, he nevertheless placed his total liability to the complainant in his Petition, because he was made to understand in the insolvency proceedings that he has to list down the checks that he has issued but were never returned to him; and since the complainant did not return to him the checks subject of these cases, he has to include said checks in

his assets and liabilities in his petition for insolvency.8 In a decision dated 19 June 1996, Amado B. Bajarias, Sr., Presiding Judge of the MTCC, Branch 7, Cebu City, convicted petitioner of the crimes charged. The dispositive portion of which reads: WHEREFORE, the Court finds the accused Jaime Dico guilty beyond reasonable doubt of the crime of violation of BP Blg. 22 as defined and penalized under Sec. 1 of the said law and as charged in the above-entitled three (3) Informations, and hereby imposes upon the accused; the following penalties: 1) For Crim. Case No. 38254-R, to suffer imprisonment of six (6) months, and to indemnify the complainant, the sum of P100,000.00; 2) For Crim. Case No. 38255-R, to suffer imprisonment of six (6) months, and to indemnify the complainant, the sum of P200,000.00; and 3) For Crim. Case No. 3856-R,9 to suffer imprisonment of six (6) months, and to indemnify the complainant the sum of P296,736.27.10 On 25 July 1996, petitioner filed a Motion for Reconsideration11 which the prosecution opposed.12 In an order dated 26 August 1996, the motion was denied.13 On 30 August 1996, petitioner appealed to the Regional Trial Court (RTC) by filing a notice of appeal.14 In a Judgment dated 20 February 1997, Ferdinand J. Marcos, Presiding Judge of the RTC of Cebu City, Branch 20, affirmed en toto the decision of the MTCC.15 Petitioner moved for its reconsideration16 which was opposed by the prosecution.17 On 23 June 1997, the motion for reconsideration was denied.18 By way of Petition for Review, accused Dico went up to the Court of Appeals seeking the reversal of the Judgment of the RTC which affirmed the decision of the MTCC.19 In its Comment to the Petition for Review, the Office of the Solicitor General asked for the dismissal of the petition on the ground that the same had no merit.20 In its Decision dated 30 September 1999, the Court of Appeals, in acquitting petitioner in one of the cases, said: However, with respect to subject FEBTC Check No. 369380 dated January 15, 1993, which was dishonored when presented for payment on May 17, 1993 or beyond ninety (90) days from date thereof, no such prima facie evidence of knowledge of insufficiency of funds or credit exists. Hence, it is incumbent upon the prosecution to adduce evidence to prove that petitioner has "knowledge of the insufficiency of his funds or credit at the time he issued FEBTC Check No. 369380 dated January 15, 1993." Unfortunately, the prosecution failed to present evidence to establish such "knowledge of insufficiency of funds or credit on the part of the petitioner" regarding the said check, as the record is bereft of any evidence to prove the existence thereof. Perforce, petitioner cannot be convicted of violation of B.P. Blg. 22 with respect to subject FEBTC Check No. 369380 dated January 15, 1993. This, notwithstanding, the petitioner is nevertheless liable to pay private complainant Equitable the amount of P296,736.27 appearing on the face of said check as it was preponderantly proven in the civil aspect of the case that said check was one of the unpaid checks

issued by petitioner to settle his standing obligation which up to the present remains unpaid.21 The Decision disposes: WHEREFORE, premises considered, the challenged decision via petition for review is MODIFIED to read as follows: (1) Petitioner Jaime Dico is ACQUITTED in Criminal Case No. 38256-R but is, nevertheless, ordered to indemnify private complainant the sum of P296,736.27 representing his unpaid obligation covered by FEBTC Check No. 369380 dated January 15, 1993. (2) The judgment convicting Petitioner Jaime Dico in Criminal Cases Nos. 38254-R and 38255-R and penalizing him to suffer imprisonment of six (6) months in each of the said cases and ordering him to indemnify private complainant in the amount of P100,000.00 and P200,000.00 representing his unpaid obligation covered by FEBTC Check Nos. 369403 (dated May 12, 1993) and 369404 (dated June 12, 1993) is AFFIRMED in toto.22 On 11 January 2000, the Court of Appeals denied23 the Motion for Reconsideration24 filed by petitioner. On 14 February 2000, accused Dico filed the instant petition.25 He prays that the decision and resolution of the Court of Appeals be reversed and set aside, and that he be acquitted in Criminal Cases No. 38254-R and No. 38255-R, or in the alternative, the penalty of imprisonment be deleted, and in lieu thereof, a fine be imposed. The petition makes the following submissions: I THE COURT OF APPEALS VERDICT CONVICTING PETITIONER IN TWO OF THE THREE VIOL. OF B.P. 22 CASES VIOLATES PETITIONERS RIGHT AGAINST NONIMPRISONMENT FOR A DEBT, AS SUBJECT CHECKS ARE BEYOND THE APPLICATION OF B.P. 22 IN THAT: A. ELEMENT NO. 2 (KNOWLEDGE OF INSUFFICIENCY OF FUNDS OR CREDIT) OF B.P. 22 IS OSTENSIBLY ABSENT; AND B. THERE ARE ABUNDANT UNCONTRADICTED YET MISAPPRECIATED EVIDENCE EFFECTIVELY BELYING THE EXISTENCE OF ELEMENT NO. 1 OF B.P. 22 THAT THE CHECKS WERE ISSUED TO APPLY TO ACCOUNT OR FOR VALUE. II IT WAS HIGHLY ERRONEOUS FOR THE COURT OF APPEALS TO RELY ON PETITIONERS/ACCUSEDS OWN EVIDENCE, DESPITE THE PROSECUTIONS SCANT AND WEAK EVIDENCE, TO SUPPORT HIS CONVICTION. III THE COURT OF APPEALS FAILED TO APPLY THE BENEFIT OF AN OBVIOUS CLOUD OF

DOUBT IN FAVOR OF PETITIONER/ACCUSED. IV THE PENALTY OF IMPRISONMENT IS A HARSH AND CRUEL PENALTY CONSIDERING THE ATTENDANT CIRCUMSTANCES.26 The resolution of the cases revolves around the question: Was the prosecution able to prove all the elements of B.P. Blg. 22? The essential elements of the offense penalized under Section 1, B.P. Blg. 22 are as follows: (1) the making, drawing and issuance of any check to apply to account or for value; (2) the knowledge of the maker, drawer or issuer that at the time of issue he does not have sufficient funds or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.27 The prosecution has the burden to prove all the elements of the crime beyond reasonable doubt. Failure to do so will necessarily result in exoneration. In the cases at bar, petitioner argues that the first and second elements of the crime are not present. Re: Criminal Case No. 38254-R It is axiomatic that where an accused appeals the decision against him, he throws open the whole case for review and it then becomes the duty of the Supreme Court to correct any error as may be found in the appealed judgment, whether it was made the subject of assignment of errors or not.28 In the information filed by Felipe C. Belcia, Prosecutor II, the check involved is described as Far East Bank and Trust Company (FEBTC) Check No. 364903 dated 12 May 1993 in the amount of P100,000 payable to Equitable Banking Corporation.29 However, after going over the records of the case, the parties, including the courts, overlooked the fact that the check being identified in court was different from that described in the information. The prosecution marked as its Exhibit "B" FEBTC Check No. 369403 dated 12 May 1993 in the amount of P100,000 payable to Equitable Banking Corporation. The issue as to the identity of the check, though not raised as an error, should be considered in favor of the petitioner. The variance in the identity of the check nullifies petitioners conviction. The identity of the check enters into the first element of the offense under Section 1 of B.P. Blg. 22 that a person draws or issues a check on account or for value. There being a discrepancy in the identity of the checks described in the information and that presented in court, petitioners constitutional right to be informed of the nature of the offense charged will be violated if his conviction is upheld. In the case of Alonto v. People,30 this Court had this to say when there was a variance involving the date as regards the check described in the information and that adduced in evidence: This Court notes, however, that under the third count, the information alleged that petitioner issued a check dated 14 May 1992 whereas the documentary evidence presented and duly marked as Exhibit "I" was BPI Check No. 831258 in the amount of P25,000 dated 05 April 1992. Prosecution witness Fernando Sardes confirmed petitioners issuance of the three BPI checks (Exhibits G, H, and I), but categorically stated that the third check (BPI Check No. 831258) was dated 14 May 1992, which was contrary to that testified to by private complainant Violeta Tizon, i.e., BPI check No. 831258

dated 05 April 1992. In view of this variance, the conviction of petitioner on the third count (Criminal Case No. Q-93-41751) cannot be sustained. It is on this ground that petitioners fourth assignment of error is tenable, in that the prosecutions exhibit, i.e., Exhibit "I" (BPI Check No. 831258 dated 05 April 1992 in the amount of P25,000) is excluded by the law and the rules on evidence. Since the identity of the check enters into the first essential element of the offense under Section 1 of B.P. 22, that is, that a person makes, draws or issues a check on account or for value, and the date thereof involves its second element, namely, that at the time of issue the maker, drawer or issuer knew that he or she did not have sufficient funds to cover the same, there is a violation of petitioners constitutional right to be informed of the nature of the offense charged in view of the aforesaid variance, thereby rendering the conviction for the third count fatally defective. As the FEBTC Check No. 369403 dated 12 May 1993 in the amount of P100,000.00 was the check adduced in evidence and used as payment for petitioners unpaid obligation to Equitable Card Network, Inc., petitioner cannot be held civilly liable therefor considering that this is not the check described in the information.31 Re: Criminal Case No. 38255-R As regards FEBTC Check No. 36940432 dated 12 June 1993 which was deposited on 14 June 1993, petitioner maintains that the notice of dishonor given for said check was not the one required by law since said notice was given before the check became due and before it was deposited. The record of the case shows the only letter received by petitioner involving the three checks subject of these cases was the one dated 08 June 1993.33 This letter sent by the counsel of private complainant asked petitioner to make good the checks within five (5) days from receipt thereof, otherwise, criminal charges for violation of B.P. Blg. 22 will be filed against him. From the evidence presented, it has been proved that FEBTC Check No. 369404 was dishonored when presented for payment on the ground of "Account Closed." To hold a person liable under B.P. Blg. 22, the prosecution must not only establish that a check was issued and that the same was subsequently dishonored, it must further be shown that accused knew at the time of the issuance of the check that he did not have sufficient funds or credit with the drawee bank for the payment of such check in full upon its presentment. This knowledge of insufficiency of funds or credit at the time of the issuance of the check is the second element of the offense. Inasmuch as this element involves a state of mind of the person making, drawing or issuing the check which is difficult to prove, Section 2 of B.P. Blg. 22 creates a prima facie presumption of such knowledge. Said section reads: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. For this presumption to arise, the prosecution must prove the following: (a) the check is presented within ninety (90) days from the date of the check; (b) the drawer or maker of the check receives notice that such check has not been paid by the drawee; and (c) the drawer or maker of the check

fails to pay the holder of the check the amount due thereon, or make arrangements for payment in full within five (5) banking days after receiving notice that such check has not been paid by the drawee. In other words, the presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment.34 The presumption or prima facie evidence as provided in this section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period.35 A notice of dishonor received by the maker or drawer of the check is thus indispensable before a conviction can ensue. The notice of dishonor may be sent by the offended party or the drawee bank.36 The notice must be in writing.37 A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for the prosecution. The requirement of notice, its sending to, and its actual receipt by, the drawer or maker of the check gives the latter the option to prevent criminal prosecution if he pays the holder of the check the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that the check has not been paid. This Court, in Ting v. Court of Appeals,38 citing Lao v. Court of Appeals, said: . . . [W]e emphasized that "the full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic postulate of fairness require that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22." As already stated above, the only notice received by petitioner for the three checks involved in these cases was that dated 08 June 1993. There is no dispute that there was indeed a demand letter from the counsel of Equitable Card Network, Inc., but the same was received by petitioner before the checks maturity or due date on 12 June 1993. As testified to by prosecution witness Lily Canlas, the demand letter was sent to petitioner on 08 June 199339 and the check was deposited on 14 June 1993.40 The demand letter was sent four days before the date of the check and six days before said check was deposited. This Court rules that as regards FEBTC Check No. 369404,41 petitioner did not receive the notice of dishonor contemplated by the law. There was no valid notice of dishonor to speak of. The term "notice of dishonor" denotes that a check has been presented for payment and was subsequently dishonored by the drawee bank. This means that the check must necessarily be due and demandable because only a check that has become due can be presented for payment and subsequently be dishonored. A postdated check cannot be dishonored if presented for payment before its due date. The failure of Equitable Card Network, Inc., to send another letter demanding that FEBTC Check No. 369404 be paid within five days after it has been dishonored prevents the disputable presumption - that petitioner had knowledge of the insufficiency of his funds at the time he issued the check - from arising. Absent such presumption, the burden of evidence shifts to the prosecution to prove such knowledge.42 There being no evidence presented by the prosecution to show that petitioner had knowledge of the

insufficiency of his funds at the time he issued the check, the second element of the offense was not satisfied. Accordingly, having failed to prove all the elements of B.P. Blg. 22, petitioner must, perforce, be acquitted in Criminal Case No. 38255-R. The decisions convicting petitioner of violation of B.P. Blg. 22 before the Court of Appeals, the RTC and the MTCC are reversed and set aside. The evidence on record, both testimonial and documentary, shows that petitioner still has an outstanding balance on his credit card with Equitable Card Network, Inc. We, therefore, sustain the finding of the Court of Appeals holding petitioner liable for the amount of P200,000 which is the amount reflected on FEBTC Check No. 369404 representing part of his unpaid obligation to Equitable Card Network, Inc. He is ordered to pay Equitable Card Network, Inc., the amount of P200,000.00 with 12% legal interest per annum, from the filing of the information until the finality of this decision, the sum of which, inclusive of interest shall be subject thereafter to 12% per annum interest until the amount is fully paid.43 WHEREFORE, the Court of Appeals Decision dated 30 September 1999 and Resolution dated 11 January 2000 affirming the 19 June 1996 Decision of the Municipal Trial Court in Cities, Branch 7, Cebu City, and the 20 February 1997 Decision of the Regional Trial Court, Branch 20, Cebu City, in Criminal Cases No. 38254-R and No. 38255-R, convicting petitioner JAIME DICO of violation of B.P. Blg. 22 are hereby REVERSED and SET ASIDE, and another one entered ACQUITTING petitioner of the crimes charged on the ground that his guilt has not been proved beyond reasonable doubt. Petitioner is ordered to pay Equitable Card Network, Inc., the amount of P200,000.00, representing the face value of FEBTC Check No. 369404, with 12% legal interest per annum, from the filing of the information until the finality of this decision, the sum of which, inclusive of interest shall be subject thereafter to 12% per annum interest until the amount is fully paid. Costs de oficio. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

EN BANC

PEOPLE OF THE PHILIPPINES, Appellee,

Plaintiff- G.R. Nos

. 138874-75

Present:

DAVIDE, JR., C.J.

- versus -

PUNO,

PANGANIBAN,
QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO,

FRANCISCO JUAN LARRAAGA alias "PACO"; JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY"; ALBERTO CAO alias "ALLAN PAHAK"; ARIEL BALANSAG, DAVIDSON VALIENTE RUSIA alias "TISOY TAGALOG"; JAMES ANTHONY UY alias "WANGWANG"; and JAMES ANDREW UY alias "MM", Accused-Appellants.

AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, NAZARIO, and GARCIA, JJ.

Promulgated:

July 21, 2005

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

RESOLUTION

PER CURIAM:

At bar are four (4) motions for reconsideration separately filed by appellants (1) Francisco Juan Larraaga, (2) Josman Aznar, (3) Rowen Adlawan, Alberto Cao and Ariel Balansag, and (4) James Anthony Uy and James Andrew Uy, assailing our Decision dated February 3, 2004 convicting them of the crimes of (a) special complex crime of kidnapping and serious illegal detention and (b) simple kidnapping and serious illegal detention, the dispositive portion of which reads:

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU-45303 and 45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection; (2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the crime of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM; (4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral damages, and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. SO ORDERED.

Appellants anchor their motions on the following grounds:

A. LARRAAGA

I THE COURT A QUO ERRED IN BARRING LARRAAGA AND THE NATIONAL BUREAU OF INVESTIGATION (NBI) REGIONAL DIRECTOR FLORENCIO VILLARIN FROM TESTIFYING; II THE POLICE PLANTED EVIDENCE ON APPELLANTS; III LARRAAGA SUFFICIENTLY PROVED HIS ALIBI; IV THE TRIAL COURT PREVENTED THE INTRODUCTION OF KEY DEFENSE EVIDENCE; V THE CORPSE FOUND IN THE RAVINE WAS NOT THAT OF MARIJOY; AND

VI PROSECUTION WITNESS RUSIA WAS A COACHED WITNESS.[1]

B. AZNAR I THE HONORABLE COURT ERRED IN FINDING THAT THE TRIAL COURT DID NOT VIOLATE THE RIGHTS OF THE ACCUSED TO DUE PROCESS OF LAW. II

THE HONORABLE COURT ERRED IN (A) DISCHARGING DAVID RUSSIA AS STATE WITNESS; AND (B) CONVICTING THE APPELLANTS MAINLY ON THE BASIS OF THE TESTIMONY OF RUSIA.

III THE HONORABLE COURT ERRED IN REJECTING THE DEFENSE OF APPELLANT AZNAR. IV THE HONORABLE COURT ERRED IN IMPOSING THE DEATH PENALTY ON THE APPELLANTS.[2]

C. ADLAWAN, BALANSAG, CAO I PROSECUTION WITNESS RUSIA IS NOT QUALIFIED TO BE A STATE WITNESS UNDER PARAGRAPHS (D) AND (E), SECTION 17 OF THE REVISED RULES OF CRIMINAL PROCEDURE.

II RUSIAS TESTIMONY AND THAT OF THE OTHER PROSECUTION WITNESSES WERE INCREDIBLE, INCONSISTENT, AND UNWORTHY OF BELIEF.

III BIAS AND PREJUDICE AGAINST THE DEFENSE WERE GLARINGLY DISPLAYED BY THE COURT A QUO WHICH GREATLY AFFECTED THE OUTCOME OF THE CASE. IV

THE GUILT OF THE ACCUSED-APPELLANTS FOR THE CRIME CHARGED HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.[3]

D. JAMES ANDREW AND JAMES ANTHONY UY I ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997; II THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TANAWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING;[4]

In his supplemental motion for reconsideration dated

March 25, 2004, Larraaga submitted a

separate study of Dr. Racquel Del Rosario-Fortun, Forensic Pathologist, to show that the examination conducted by the prosecution expert witnesses on the body found in Tan-awan, Carcar is inadequate.

In a similar supplemental motion for reconsideration[5], Aznar submitted to this Court the Affidavit dated February 27, 2004 of Atty. Florencio Villarin, Regional Director of the National Bureau of

Investigation, Central Visayas, to show that: (1) the police investigation of this case was flawed; (2) he (Aznar) was arrested in 1997 not because of his involvement in this case but because he had in his possession a pack of shabu and firearms; and (3) David Rusia is not a credible witness.

On July 15, 2004, the Solicitor General filed a consolidated comment[6] praying that the four (4) motions for reconsideration be denied with finality, there being no new argument raised. He responded to appellants assignments of errors by exhaustively quoting portions of our challenged Decision.

In his consolidated comment[7] to Aznars supplemental motion for reconsideration, the Solicitor General enumerated the grounds why On Atty. Villarins Affidavit should not be given consideration.

February 15, 2005, Aznar filed a reply alleging that the Solicitor General read out of context He argued that the

certain portions of the Affidavit.

Affidavit only exposes the flawed investigation of the Chiong case and that, at the time of his arrest, there was no evidence against him. On March 4, 2005, the Solicitor General filed a

rejoinder stating that Aznars reply actually supports the undersigned counsels (Solicitor Generals) position that Atty. Villarins Affidavit is utterly inadequate to prove his innocence or at least even acquit them on reasonable doubt, thus, it would be useless to call for new trial on the basis of such Affidavit. On March 29, 2005, Aznar filed a sur-rejoinder insisting

that the Affidavit should be given due consideration.

Except for the motion filed by appellants Uy brothers with respect to James Andrews alleged minority, we find all the motions bereft of merit.

At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on us the obligation to discuss and rule again on the grounds relied upon by the movant which are mere reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision being questioned. In Ortigas and Company Limited Partnership vs. Velasco,[8] we ruled that, "this would be a useless formality of ritual invariably involving merely a reiteration of the reasons already set forth in the judgment or final order for rejecting the arguments advanced by the movant."

The foregoing principle applies squarely to the motions filed by appellants Larraaga, Aznar, Adlawan, Cao and Balansag, it being apparent that the points raised therein are not neoteric matters demanding new judicial determination. They are mere rehash of the arguments set forth in their respective briefs

which we already considered, weighed and resolved before we rendered the Decision sought to be reconsidered.

However, in view of the severity of the penalties for the crimes charged, we deem it necessary to stress once more our basis in convicting appellants.

The following is a prcis of the issues submitted by appellants in their motions:

This Court erred

first, in according credence to Rusias testimony;

second, in rejecting appellants alibi;

third, in holding that the trial court did not violate their right excluded the testimony of other defense witnesses; and

to due process when it

fourth, in holding that the body found in Tan-awan, Carcar was not that of Marijoy.

In deciding a criminal case, the policy of the courts is always to look at the case in its entirety.

The

totality of the evidence presented by both the prosecution and the defense are weighed, thus, averting general conclusions from isolated pieces of evidence. This means that an appeal of a criminal case opens its entire records for review.[9]

Appellants vigorously contend that we should not have sustained Rusias testimony hook, line and sinker, owing to his tainted record and reputation. However, it must be stressed that Rusias testimony was not viewed in isolation. In giving credence to Rusias testimony, the trial court took into consideration the physical evidence and the corroborative testimonies of other witnesses. Thus, we find no reason why we should not uphold the trial courts findings.

We reiterate our pronouncement in our Decision that what makes Rusias testimony worthy of belief is its striking compatibility with the physical evidence. Physical evidence is one of the highest degrees of proof. It speaks more eloquently than all witnesses put together.[10] The presence of Marijoys

ravished body in a deep ravine at Tan-awan, Carcar with tape on her mouth and handcuffs on her wrists certainly

bolstered Rusias testimony on what actually took place from Ayala Center to Tan-awan. Indeed, the details he supplied to the trial court are of such nature and quality that only a witness who actually saw the commission of the crimes could furnish. Reinforcing his testimony is its corroboration by several other witnesses who saw incidents of what he narrated. Rolando Dacillo and Mario Minoza witnessed Jacquelines two failed attempts to escape from appellants near Ayala Center. Benjamin Molina and Miguel Vergara recognized Rowen as the person who inquired from them where he could find a vehicle for hire on the evening of July 16, 1997. Alfredo Duarte saw Rowen when he bought barbeque and Tanduay at Nenes Store while the white van, driven by Cao, was waiting on the side of the road and he heard voices of quarreling male and female emanating from the van. And lastly, Manuel Camingao and Rosendo Rio testified on the presence of Larraaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997. All these bits and pieces of story form part of

Rusias narration. Now, with such strong anchorage on the physical evidence and the testimonies of disinterested witnesses, why should we not accord credence to Rusias testimony? Even assuming

that his testimony standing alone might indeed be unworthy of belief in view of his character, it is not so when considered with the other evidence presented by the prosecution.

II

Appellants likewise claimed that we should have not sustained the trial courts rejection of their alibi. Settled is the rule that the defense of alibi is inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters.[11] Being evidence that is negative in nature and self-serving, it cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence.[12] On top

of its inherent weakness, alibi becomes less plausible as a defense when it is corroborated only by relatives or close friends of the accused.[13]

This case presents to us a balance scale whereby perched on one end is appellants alibi supported by witnesses who were either their relatives, friends or classmates, while on the other end is the positive identification of the herein appellants by the prosecution witnesses who were not, in any way, related to the victims. With the above jurisprudence as guide, we

are certain that the balance must tilt in favor of the latter.

Besides, a thorough examination of the evidence for the prosecution shows that the appellants failed to meet the requirements of alibi, i.e., the requirements of time and place.[14] They failed to establish by clear and convincing evidence that it was physically

impossible for them to be at the Ayala Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997.

Not even Larraaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the hearing, it was shown that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and evening. Indeed, Larraagas presence in Cebu City on July 16, 1997 was proved to be not only a possibility but a reality. Four (4) witnesses

identified Larraaga as one of the two men talking to Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening,

she saw Larraaga approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of Jacquelines prior story that he was Marijoys admirer. Shiela confirmed that she knows Larraaga since she had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 oclock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized the two (2) men as Larraaga and Josman, having seen them several times at Glicos, a game zone, located across her office at the third level of Ayala Center. Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van.[15] And over and above all,

Rusia categorically Larraaga as one of the participes criminis.

Taking the individual testimonies of the above witnesses in relation with that of Rusia, we are convinced that Larraaga was indeed in Cebu City at the time of the commission of the crimes and was one of the principal perpetrators thereof.

At this juncture, it bears mentioning that this case is not the first time that Larraaga was charged with or complained of pruriently assaulting young female students in Cebu. Months before the abduction of Marijoy and Jackie, the parents of a certain Rochelle Virtucio, complained about Larraagas attempt to snatch their young daughter and drag her in a black, stylish Honda Civic. It happened just near the gate of Rochelles school, thus, showing his impudence. We quote a portion of the transcript of stenographic notes dated September 23, 1998, thus:
ATTY. HERMOSISIMA: Your Honor please, this is a . Inspector Era handed to this representation a copy of a Letter dated September 25, 1996, addressed to the Student Affairs Office, University of San Carlos,P. del Rosario Street, Cebu City, and this is signed by Leo Abayan and Alexander Virtucio and noted by Mrs. Aurora Pacho, Principal, University of San Carlos, Girls High School, and for the record, I will read the content: TO WHOM THIS MAY CONCERN: We the parents and guardians of Rochelle Virtucio, a first year high school student of your University of San Carlos-Girls High School, are writing your good office about an untoward incident involving our daughter and another student of your school. x x x x x x

That last Monday at around 5:00 PM, Rochelle and other classmates, Michelle Amadar and Keizaneth Mondejar, while on their way to get a ride home near the school campus, a black Honda Civic with five young male teenagers including the driver, suddenly stopped beside them, and simultaneously one of them, which was later identified as FRANCISCO JUAN LARRANAGA, a BSHRM I student of your school, grabbed Rochelle by her hand to try to get Rochelle to their vehicle. She resisted and got away from him. Sensing some people were watching what they were doing, they hurriedly sped away.

We are very concerned about Rochelles safety. Still now, she is suffering the shock and tension that she is not supposed to experience in her young life. It is very hard for us parents to think about what shed been through.[16]

The presence of such complaint in the record of this case certainly does not enhance Larraagas chance of securing an acquittal.

III

Larraaga and Aznar bewail our refusal to overturn the trial courts exclusion of Professor Jerome Bailen and Atty. Florencio Villarin, NBI, Regional Director, as defense witnesses. Professor Bailen

was properly excluded. First, he is not a finger-print expert but an archaeologist. And second, his report consists merely of the results of his visual inspection of the exhibits already several months old. Anent Atty. Villarins failure to testify before the trial court, suffice it to say that his belated Affidavit, which Aznar submitted via his supplemental motion for reconsideration dated May 5, 2004, raises nothing to change our findings and conclusions. What clearly appears in said Affidavit is a man trying to impress people that he was the one responsible for solving the Chiong case and for that, he deserves a promotion. The trial court, at the onset, must have seen such immateriality in his intended testimony. Indeed, we agree with the Solicitor Generals observation that such Affidavit is neither helpful nor encouraging to Aznars cause. We quote his keen reflection on the matter:

Third. Atty. Villarins affidavit, in paragraphs 19 and 20 thereof, acknowledged that the body found in the Carcar ravine was that of Marijoy. This assertion immediately conflicts with accused-appellant Aznars claim in his Motion for Reconsideration that the corpse was not Marijoys. Surely, something is amiss in accused-appellant Aznars recollection of his defense. Fourth. Atty. Villarin confirmed in paragraph 24 of his affidavit that accusedappellant Francisco Larranaga was a suspect in the subject crimes. Evidently, this statement completely supports this Honorable Courts findings in its Decision dated February 3, 2004. Fifth. In paragraph 30 of Atty. Villarins affidavit, he stated that: The arrest of Juzman Aznar was the major breakthrough in the investigation of the case because witnesses came out and identified Juzman Aznar as one of those allegedly seen talking to the victims on the night they disappeared. Hence, accused-appellant Aznar was in the beginning already a first-grade suspect in the Chiong sisters celebrated abduction and killing. Sixth. Atty. Villarin admitted in paragraph 36 of his affidavit that: x x x I did not take this against [Supt. Labra] for preempting our next move to get Juzman Aznar as we were already placing him under surveillance because I knew [Supt. Labra] did it in his honest desire to help solve the crime x x x. Clearly, this statement is not an indictment of the investigation that the police undertook in the subject crimes. Seventh. Paragraphs 37 to 40 are nothing but personal tirades against alleged influence peddling by Mrs. Thelma Chiong, mother of the victims, and the purportedly undue promotions of the lawyers and police officers who unearthed the evidence against accused-appellants and successfully prosecuted the latter. In executing the affidavit, it appears that Atty. Villarin would want to impress that he, rather than those promoted, deserved the promotion. Eighth. Atty. Villarins inability to testify in the criminal cases was not due solely to the prosecutions action. Whether he ought to testify or not was an argument openly discussed in court. Hence, for the resulting inability, Atty. Villarin has no one to blame but the defense lawyers who did everything to make a mockery of the criminal proceedings. And lastly, there is nothing in Atty. Villarins affidavit of the quality of a smoking gun that would acquit accused-appellants of the crimes they have been convicted. For he did not finish the police investigation of the subject crimes; this is the long and short of his miniscule role in the instant case. Indeed, judging by the substance of his affidavit, he would not be testifying in case a new trial is held on anything that has not been said and rejected heretofore, except his own unsubstantiated opinions (i.e. not facts as required by

evidentiary rules), his self-congratulatory remarks, and his unmitigated frustration over failing to get a promotion when almost everyone else did.[17]

Neither can we entertain at this late stage Dr. Fortuns separate study to show that the examination conducted on the body found in Tan-awan, Carcar is inadequate. Such study cannot be

classified as newly-discovered evidence warranting belated reception. Obviously, Larraaga could have produced it during trial had he wished to.

IV

Knowing that the prosecutions theory highly rests on the truth of Rusia testimony, appellants endeavor to destroy it by claiming that the body found at the foot of a deep ravine in Tan-awan, Carcar was not that of Marijoy. We must reiterate the reasons why we cannot give our assent to such argument. First, Inspector Edgardo Lenizo,[18] a fingerprint expert, testified that the fingerprints of the corpse match those of Marijoy.[19] Second, the packaging tape and the handcuff found on the dead body were the same items placed on Marijoy and Jacqueline while they were being detained.[20] Third, the body had the same clothes worn by Marijoy on the day she was abducted.[21] And fourth, the members of the Chiong family personally identified the corpse to be that of Marijoy[22] which they eventually buried. They erected commemorative markers at the ravine, cemetery and every place which mattered to Marijoy. As a matter of fact, at this very moment, appellants still Surely,

fail to bring to the attention of this Court any person laying a claim on the said body.

if the body was not that of Marijoy, other families who had lost someone of similar age and gender as Marijoy would have surfaced and claimed the body. The above circumstances only bolster Rusias narration that Rowen and Ariel pushed Marijoy into the deep ravine, following Josmans instruction "to get rid" of her.

On the issue raised by appellants Uy brothers that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed, the records bear that on March 1, 1999, James Andrews birth certificate was submitted to the trial court as part of the Formal Offer of Additional Evidence,[23] with the statement March 18, 1999, appellants filed that he was eighteen (18) years old. On

a Manifestation of Erratum correcting in part the Formal Offer of

Additional Evidence by alleging that James Andrew was only seventeen (17) years old.[24]

Now, James Andrew begs leave and prays that this Court admits at this stage of the proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. He prays that his penalty be reduced, as in the case of his brother James Anthony.

The entry of James Andrews birth in the Birth Certificate is not legible, thus it is extremely difficult for us to determine the veracity of his claim. However, considering that minority is a significant factor in the imposition of penalty, we find it proper to require the Solicitor General (a) to secure from the Local Civil Registrar of Cotobato City, as well as the National Statistics Office, a clear and legible copy of James Andrews Birth Certificate, and

thereafter, (b) to file an extensive comment on the motion for reconsideration filed by James Andrew and James Anthony Uy, solely on James Andrews claim of minority.

Insofar as James Anthony is concerned, we maintain his conviction and penalty, there being nothing in his motion which warrants a reconsideration of our Decision.

In resolving the instant motions, we have embarked on this painstaking task of evaluating every piece and specie of evidence presented before the trial court in response to appellants plea for the reversal of their conviction. But, even the element of reasonable doubt so seriously sought by appellants is an ignis fatuus which has eluded any intelligent ratiocination of their submissions. Verily, our conscience can rest easy on our affirmance of the verdict of the trial court, in light of appellants clear culpability which demands retribution.

WHEREFORE, the motions for reconsideration filed by appellants Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag are hereby DENIED. The Solicitor General is DIRECTED (a) to secure from the Local Civil Registrar of Cotobato City, as well as the National Statistics Office, a clear and legible copy of James Andrews Birth Certificate, and (b) within ten (10) days therefrom, to file an extensive comment on the motion for reconsideration filed by James Andrew and James Anthony Uy, solely on James Andrews claim of minority. The motion is likewise DENIED insofar as James Anthony Uy is concerned.

SO ORDERED.

HILARIO G. DAVIDE, JR. Chief Justice

REYNATO S. PUNO Associate Justice

ARTEMIO V. PANGANIBAN Associate Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA CHICO-NAZARIO Associate Justice

CANCIO C. GARCIA Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR. Chief Justice

G.R. Nos. 131799-801

February 23, 2004

THE PEOPLE OF THE PHILIPPINES, appellee vs. FELICIANO ULIT y TAMPOY, appellant. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision1 dated December 17, 1997 of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-388 finding appellant Feliciano Ulit y Tampoy guilty beyond reasonable doubt of two counts of qualified rape.2 In the same decision, the appellant was convicted of two counts of acts of lasciviousness. For each count of rape, the trial court sentenced him to suffer the supreme penalty of death, while for each count of acts of lasciviousness, the appellant was sentenced to suffer imprisonment "from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum." The appellant was, likewise, ordered to indemnify the victim Lucelle Serrano, the amount of P50,000 for each count of rape and P20,000 for each count of acts of lasciviousness. The Indictments Upon the sworn complaint of the victim Lucelle Serrano, four Informations were filed against her uncle, the appellant. The docket number and the accusatory portion of each Information reads: Criminal Case No. 97-385

That sometime in the month of November 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, who is the uncle of the complainant LUCELLE SERRANO y ULIT, hence, her relative by consanguinity within the third civil degree, while armed with a knife, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.3 Criminal Case No. 97-386 That sometime in the month of February 1997, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, who is the uncle of complainant LUCELLE SERRANO y ULIT, hence her relative by consanguinity within the third civil degree, while armed with a knife, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.4 Criminal Case No. 97-387 That sometime in the month of December 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with lewd design by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, by then and there kissing her and touching her sexual organ, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.5 Criminal Case No. 97-388 That on or about the 2nd day of March 1997, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with lewd design by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, by then and there dragging her inside a bathroom and repeatedly kissing her on her checks [sic], without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.6 The appellant, assisted by counsel, pleaded not guilty during the arraignment. Joint trial of all the cases ensued. In the meantime, Lucelle was undergoing psychiatric treatment at the Philippine General Hospital. On May 5, 1997, the prosecution presented her as its first witness. On direct examination, Lucelle testified that she was born on February 19, 1986.7 In November 1996, her uncle, the appellant, did something to her. When the prosecution asked her what happened, Lucelle did not answer. When asked if she wanted to continue with her testimony, again, she did not respond. The trial was reset to June 2 and 9, 1997. When trial resumed on June 9, 1997, Lucelle was questioned by the prosecution on direct

examination, but still, she gave no answer. She cried profusely in open court. When asked by the court if she wanted to proceed with the trial, she remained silent. The trial was reset anew to July 9 and 14, 1997. In the meantime, the trial court ordered that Lucelle be subjected to physical and psychological examinations at the National Center for Mental Health (NCMH). Dr. Rochelflume Samson examined Lucelle and submitted her Report dated August 29, 1997 with the following remarks and recommendation: Based on clinical history, mental status examination and psychological evaluation, this patient is suffering from Post-Traumatic Stress Disorder. This illness is characterized by intense fear and feeling of helplessness whenever she recalls her traumatic experience of being raped. It causes her intense psychological distress whenever asked to talk about the rape scene or incident. Thus, she avoids recollections of the trauma. At present, she is still manifesting symptoms described above. She would be having difficulties testifying in court because of this. She requires psychiatric treatment at the Out-Patient Section.8 During the trial on July 14, 1997, Lucelle refused to take the witness stand. The trial was reset to July 21, 1997. During the hearing on October 20, 1997, the prosecution presented Lucelle anew to continue with her testimony on direct examination. She declared that the appellant raped her in November 1996 and many other times thereafter in her residence at No. 7104 San Maximo Street, Makati City. Instead of asking questions to elicit the facts and circumstances before and during the commission of the crimes, the prosecutor asked Lucelle to identify her signature in her sworn statement9 and to affirm the truth of its contents. She did so. The public prosecutor then marked the sworn statement in evidence as Exhibit "H," and then manifested to the court that he had no more questions for the witness on direct examination. On clarificatory questions by the court, Lucelle testified that she was born on February 19, 1986. The appellant mounted her, removed her pants, poked a knife at her and threatened her.10 On cross-examination, Lucelle testified that the appellant was her mothers older brother. In November 1996, she was not enrolled in any school. Her father was working at a construction firm, the appellant was employed at the Department of Environment and Sanitation in Makati City, while her grandmother, who lived with her, worked as a maid in Bel Air Subdivison. Her mother worked for one of her fathers cousins. On re-direct examination, the prosecution elicited from Lucelle that the appellant raped her in November 1996 at 11:00 p.m. inside the room of her aunt Marina in her grandmothers house at No. 7104 San Maximo Street, Olympia, Makati City, and that her aunt, Marina, and her Ate Sharon were inside the room. When asked where her aunt and Ate Sharon were when she was being raped in her aunts room, Lucelle did not respond. When asked why she did not respond to the questions propounded to her during the previous hearings and why she had been crying in open court, Lucelle replied that she was afraid of her uncle, the appellant. In her sworn statement,11 Lucelle alleged that sometime in November 1996, she was sleeping in a room in the house. It was about 6 oclock in the evening. She was awakened when she felt someone kissing her on the cheek. When she opened her eyes, she saw her uncle, the appellant, armed with a bladed weapon (balisong). He poked the weapon on the left side of her neck. He warned her that if she told her parents, he would kill her. He removed her panties, undressed himself and mounted her. He then inserted his penis into her vagina. She felt pain in her private part and cried. The appellant, thereafter, left the room. Also during the month of November 1996, the appellant continued kissing her whenever her parents were out of the house. In December 1996, Lucelle was in the room when the appellant entered and kissed her and mashed her private parts. Sometime in February 1997, the appellant again abused her (sinalbahe) while she was in the same room. It was about 11 oclock in the evening. He again warned her not to divulge to her parents what he did to her. At 9:00 p.m. on March 2, 1997, Lucelle urinated in the bathroom and when she was about to go out, the appellant entered, pushed her inside and kissed her on her cheeks several times.

Celso Serrano, Lucelles father, testified that sometime in November 1996, at dawn, he was in bed and noticed that the appellant was in the bedroom of his cousin-in-law. Sometime later, he went to the bathroom. He then heard his wife ask the appellant where he had come from and the latter replied that he just came from the roof of the house. On another occasion, one early Sunday morning, he noticed blood stains on Lucelles short pants. When she declared that she had her monthly period, he gave her P5.00 with which to buy sanitary napkins. Lucelle refused to accept the money. He suggested that she wash herself but she just nodded her head. When he asked her why she refused to accept the money, Lucelle replied that she was afraid to tell him because she might be killed. Lourdes Serrano testified that she was Lucelles mother. Lucelle was born on February 19, 1986.12 She and her husband Celso Serrano and their daughter Lucelle resided with her mother, Guadalupe Ulit, at No. 7104 San Maximo Street, Olympia, Makati City. Her sister Marina and the appellant, her brother, also resided in the same house. The family slept together in the evenings in the sala of the house while Marina slept in her bedroom. At times, Marina allowed her niece Lucelle to sleep in her bedroom. At 11:00 p.m. on February 19, 1997, Lourdes noticed that Lucelle was not at her side. The appellant, who usually also slept in the sala, was not there either. Lourdes went to Marinas bedroom and saw Lucelle in bed (papag), covered with a blanket. Beside her was the appellant who was wearing a pair of short pants and undershirt. When the appellant saw Lourdes, he slid down from the bed, went under the papag, and furtively left the room. When Lourdes removed the blanket, she saw Lucelle lying sideways with her knees up to her chin (nakabaluktot). Lucelle was trembling with fear. When Lourdes asked Lucelle what happened, she did not respond. Lourdes left the room and went back to the sala. She wanted to talk to the appellant but decided against it when she saw him seated in the sala, playing with his balisong. Lourdes further testified that at 9:00 p.m. on March 2, 1997, she and her husband were having dinner when she noticed that Lucelle was nowhere to be found. She looked for her daughter in the house, but failed to find her. She then asked her cousin Nita if she had seen Lucelle. Nita replied in the negative. When Lourdes asked Nita if Lucelle was inside the bathroom, Nita responded that the appellant was using it. Momentarily, Lourdes saw the appellant emerge from the bathroom. He was in his short pants and his shirt was on his shoulder. He was perspiring profusely. Lourdes was flabbergasted when she saw Lucelle come out of the bathroom after the appellant. Lucelle was crying and looked pale. When Lourdes asked Lucelle why she was crying, she told her mother that she had just urinated. The appellant later told her sister Lourdes that he did not do anything to Lucelle. Believing that the appellant had been abusing their daughter, Celso and Lourdes brought Lucelle on March 5, 1997, to Barangay Chairman Romeo Medina. On their way, Lucelle adamantly refused to tell her parents what the appellant did to her. However, when they reached the barangay headquarters, Lucelle told the barangay chairman that the appellant sexually abused her. Thereafter, Lourdes filed a complaint with the barangay chairman against the appellant for sexually molesting Lucelle. Barangay Tanod Fernando David testified that on March 6, 1997, the barangay chairman ordered him and Barangay Tanod Antonio Echavez to invite and bring the appellant to the barangay hall. The barangay chairman asked the appellant if he raped Lucelle and the latter replied that he did. A Sinumpaang Salaysay was prepared in the Office of the Barangay Chairman in which the appellant admitted that he raped Lucelle in February 1997, and on March 2, 1997, despite her resistance, and that he threatened to kill her and her family if she divulged the incidents to her parents.13 The appellant signed his statement in the presence of the barangay chairman and the barangay tanods. From the barangay headquarters, the appellant was brought to the Makati City Police Headquarters where Celso, Lourdes and Lucelle filed a complaint against him for rape and acts of laciviousness. SPO4 Lilia Hogar of the Womens Desk Unit took the sworn statements of Lourdes and Lucelle.14 She conducted a custodial investigation of the appellant who was without counsel during which the latter admitted having raped the victim. SPO4 Hogar also prepared a report on her investigation of the victims complaint.15

On July 28, 1997, Dr. Armie M. Soreta-Umil, NBI Medico-Legal Officer, testified that on March 12, 1997, she conducted genital and vaginal examinations on Lucelle and submitted Living Case Report No. MG-97-355 which contained the following findings: GENERAL PHYSICAL EXAMINATION: Height: 141 cm. Weight: 78 lbs. Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developing, conical, firm. Areolae, light-brown, 2.6 cms. in diameter. Nipples, light-brown, protruding, 0.8 cm. in diameter. No extragenital physical injuries noted. GENERAL EXAMINATION: Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated. Fourchette, lax. Vestibular mucosa, pinkish. Hymen, tall, thick, intact, distensible. Hymenal orifice, admits a tube 2.5 cms. in diameter. Vaginal walls, lax. Rugosities, shallow. CONCLUSIONS 1.) No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination. 2.) Hymen, intact but distensible, and its orifice wide (2.5 cms. in diameter) as to allow complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.16 When the prosecution offered in evidence the appellants Sinumpaang Salaysay before the barangay chairman17 as part of the testimony of Barangay Tanod Fernando David, the appellant objected to its admission on the ground that the appellant was not assisted by counsel and that, he was forced and coerced into signing the same. Nevertheless, the trial court admitted the statement as part of Davids testimony. The appellants counsel, likewise, objected to the admissibility of Lucelles sworn statement on the ground that she was incompetent to give the same because of her mental illness. The trial court admitted the sworn statement of Lucelle in evidence as part of her testimony. After the prosecution had rested its case, the trial court reset the hearing to November 5, 1997 for the appellant to adduce his evidence. When the case was called for trial on that date, his counsel manifested to the court that the appellant was changing his plea in Criminal Cases Nos. 97-385 and 97-387 from "not guilty" to "guilty." He also manifested that he would no longer adduce any evidence in his defense in Criminal Cases Nos. 97-386 and 97-388 because the prosecution failed to prove his guilt beyond reasonable doubt for the crimes charged therein. The trial court suspended the proceedings and gave the appellant forty-five minutes to confer with his counsel. When trial resumed, the appellant reiterated his earlier manifestation. When told by the court that he could be sentenced to death for the rape charges, the appellant stood pat on his decision to plead guilty in Criminal Cases Nos. 97-385 and 97-387, and to no longer present any evidence in his defense in the other two cases. The appellant was re-arraigned in Criminal Cases Nos. 97-385 and 97-387 with the assistance of the same counsel and entered his plea of guilty to the charges.

On December 15, 1997, the trial court rendered judgment convicting the appellant of all the crimes charged. The decretal portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case Nos. 97-385 and 97-386, for rape, the prosecution has proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in the two counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code, as amended. He is hereby declare[d] CONVICTED in each of the cases. Accordingly he is sentenced to suffer the supreme penalty [of] DEATH in each of the two cases; and indemnify the victim LUCELLE SERRANO, in the amount of P50,000 as moral damages for each of the cases; 2. In Criminal Case Nos. 97-387 and 97-388, for acts of lasciviousness, the prosecution has proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in two counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5(b) of R.A. 7610. He is hereby declared CONVICTED in each of the two cases; and, accordingly, he is sentenced to suffer in each of the cases an indeterminate prison term from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum; and, indemnify the victim, LUCELLE SERRANO, in the amount of P20,000 as moral damages for each of the cases. SO ORDERED.18 The trial court declared that even prescinding from the appellants plea of guilty, the prosecutor adduced proof beyond reasonable doubt of the guilt of the appellant for qualified rape in Criminal Cases Nos. 97-385 and 97386. The trial court ruled that although Lucelle did not testify on the contents of her sworn statement19 the same were admissible in evidence as part of the res gestae. The appellant did not appeal from the decision in Criminal Cases Nos. 97-387 and 97-388. In view of the trial courts imposition of the death penalty on the appellant in Criminal Cases Nos. 97-385 and 97-386, the said cases were brought to this Court on automatic appeal. The appellant assails the decision of the trial court with the lone assignment of error, to wit: THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT.20 The appellant does not contest his conviction for rape in Criminal Cases Nos. 97-385 and 97-386, and the validity of the proceedings in the said cases in the trial court. He pleads, however, that he be spared the death penalty. He asserts that he was so remorseful for the crimes he committed and that he pleaded guilty in Criminal Cases Nos. 97-385 and 97-387; he no longer presented any evidence in Criminal Case No. 97-388 so that the proceedings before the court would be shortened and simplified. Nevertheless, the appeal in a criminal case is a review de novo and the court is not limited to the assigned errors.21 An appeal thus opens the whole case for review, and the appellate tribunal may consider and correct errors though unassigned and even reverse the decision of the trial court on the grounds other than those the parties raised as errors.22 Appellants Plea of Guilty in Criminal Case No. 97-385 was Imprudently Made.

In Criminal Case No. 97-385, the appellant was charged with qualified rape, i.e., the rape of his niece, who was a minor, punishable by death under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Undoubtedly, the appellant was charged with a capital offense. When the appellant informed the trial court of his decision to change his plea of "not guilty" to "guilty," it behooved the trial court to conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea as mandated by Section 6, Rule 116 of the Revised Rules of Criminal Procedure. In People vs. Camay,23 this Court enumerated the following duties of the trial court under the rule: 1. The court must conduct a searching inquiry into the voluntariness and full comprehension [by the accused] of the consequences of his plea; 2. The court must require the prosecution to present evidence to prove the guilt of the accused and precise degree of his culpability; and 3. The court must require the prosecution to present evidence in his behalf and allow him to do so if he desires.24 The raison detre for the rule is that the courts must proceed with extreme care where the imposable penalty is death, considering that the execution of such sentence is irrevocable. Experience has shown that even innocent persons have at times pleaded guilty. Improvident pleas of guilty to a capital offense on the part of the accused must be averted since by admitting his guilt before the trial court, the accused would forfeit his life and liberty without having fully understood the meaning, significance and the dire consequences of his plea.25 There is no hard and fast rule as to how the trial judge may conduct a searching inquiry. It has been held, however, that the focus of the inquiry must be on the voluntariness of the plea and the full or complete comprehension by the accused of his plea of guilty so that it can truly be said that it is based on a free and informed judgment. In People vs. Aranzado,26 we formulated the following guidelines as to how the trial court may conduct its searching inquiry: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. These the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. Not infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions. (5) Require the accused to fully narrate the incident that spawned the charges against him or make him reenact the manner in which he perpetrated the crime, or cause him to supply missing details or significance.27

In People vs. Ostia,28 we held that the trial court is also required to probe thoroughly into the reasons or motivations, as well as the facts and circumstances for a change of plea of the accused and his comprehension of his plea; explain to him the elements of the crime for which he is charged as well as the nature and effect of any modifying circumstances attendant to the commission of the offense, inclusive of mitigating and aggravating circumstances, as well as the qualifying and special qualifying circumstances, and inform him of the imposable penalty and his civil liabilities for the crime for which he would plead guilty to.29 In this case, the trial court failed to make a searching inquiry into the appellants voluntariness and full comprehension of his plea of guilty. This is evident by the transcript of stenographic notes taken on November 5, 1998: ATTY. MANALO Your Honor, at todays reception of defense evidence, accused informed this representation that he will no longer present evidence and instead willing to change his plea from not guilty to that of guilty. This accuseds representation is therefore praying that he be allowed to change his plea from that of not guilty to guilty. COURT You better confer with your client and explain to him the consequences of his intended change of plea from not guilty to that of guilty. ATTY. MANALO Yes, Your Honor. COURT (to the accused) Is your counsels manifestation true, that you would like to change your plea from not guilty to that of guilty and that you are no longer presenting evidence in Criminal Cases Nos. 97-386 and 97-388? ACCUSED Yes, Your Honor. COURT (to the accused) You talk with your lawyer and think twice before asking the court to change your plea of not guilty to that of guilty. The Court will call your case again. COURT (to the accused) Mr. Ulit, earlier your counsel informed the court that you would like to change your plea from not guilty to that of guilty, in Criminal Case No. 97-385, for rape and Criminal Case No. 97-387, for Acts of Lasciviousness, do you affirm the manifestation of your counsel?

ACCUSED Yes, Your Honor. COURT (to accused) Do you know that you are accused here for the crime of rape, a capital offense which carries with it a capital punishment? ACCUSED Yes, Your Honor. COURT (to accused) Despite your knowledge that you are charged with a capital offense which carries with it a capital penalty you still insists that you are pleading guilty? ACCUSED Yes, Your Honor. COURT (to accused) Was there anyone who forced you to change your plea of not guilty to that of guilty? ACCUSED None, Your Honor. COURT (to accused) Do you know that by pleading guilty you will be sentenced in accordance with [what] the law provides? ACCUSED Yes, Your Honor. COURT (to accused) Do you know that the penalty provided for by law is death penalty because the Information states that the victim is eleven years old and your niece and that you used a deadly weapon in the commission of the rape?

ACCUSED Yes, Your Honor. I am willing to plead guilty. COURT Alright, arraign the accused.30 First. The trial court did not ask the appellant his reasons for changing his plea, from not guilty to that of guilty, and the cogent circumstances that led him to decide to do so. Second. It appears in the Informations filed by the Public Prosecutor that the appellant opted not to avail himself of his right to a regular preliminary investigation and refused to execute a waiver under Article 125 of the Revised Penal Code. The records also show that the appellant executed a Sinumpaang Salaysay while detained at the barangay hall where he confessed to having raped the victim in February 1997 and March 2, 1997. However, the trial court did not ask the appellant whether he was assisted by counsel when he was brought to the Office of the Public Prosecutor for inquest investigation. Neither did the court a quo inquire about the circumstances and the appellants reasons for refusing to execute the said waiver. The records show that when the prosecution offered the appellants Sinumpaang Salaysay in evidence to prove that he confessed to having raped the victim in February 1997 and March 2, 1997, the appellant objected thereto on the ground that he was not assisted by counsel and that he was coerced into signing the same. Third. The trial court also failed to ascertain from the appellant whether he was assisted by counsel when he executed his Sinumpaang Salaysay while detained at the barangay hall; and, if he was not so assisted by counsel, whether he had waived his right thereto, before and when he signed his Sinumpaang Salaysay. Fourth. The trial court failed to ask the appellant why he was pleading guilty to a rape committed in November 1996, when in his Sinumpaang Salaysay,31 he confessed to having raped the victim only in February 1997 and March 2, 1997. The appellant did not admit having raped her in November 1996 as alleged in the Information in Criminal Case No. 97-385. The trial court did not even inquire from the appellant who prepared and typed his Sinumpaang Salaysay and if the contents of his statement were explained to him before he signed the same. Fifth. The trial court did not explain the following to the appellant, in plain and simple terms so as to be understood by him: (a) the elements of the crime of qualified rape; (b) the circumstances of relationship and the minority of the victim; and (c) that his plea of guilty to qualified rape would not mitigate the penalty for the crime in light of Article 63 of the Revised Penal Code. Sixth. It was not explained to the appellant that if convicted of qualified rape, he would be civilly liable to the victim in the amount of P50,000 as moral damages and P75,000 as civil indemnity ex delicto. Seventh. Neither did the trial court inquire from the appellants counsel whether the meaning and the consequences of a guilty plea were explained to the appellant in a language or dialect known to and understood by him. Eight. The trial court failed to delve into and ascertain from the appellant his age, educational attainment and socio-economic status.

Ninth. The trial court failed to ask the appellant to narrate the facts and circumstances surrounding the incident of qualified rape as charged in Criminal Case No. 97-385. Tenth. The appellant was not asked if he desired to adduce evidence in Criminal Case No. 97-385 in spite of his plea of guilty. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of the improvidence thereof, and when such plea is the sole basis of the condemnatory judgment.32 However, where the trial court receives, independently of his plea of guilty, evidence to determine whether the accused committed the crimes charged and the precise degree of his criminal culpability therefor, he may still be convicted if there is ample proof on record, not contingent on the plea of guilty, on which to predicate conviction.33 In this case, the prosecution had already rested its case when the appellant decided to change his plea. In fact, the trial court granted the prosecutions motion that the evidence it had presented be considered proof of the degree of culpability of the appellant. It is, thus, incumbent upon this Court to determine whether the evidence adduced by the prosecution in Criminal Case No. 97-385 is sufficient to establish beyond reasonable doubt the appellants guilt for qualified rape. In determining the guilt of the accused in rape cases, the Court is guided by the following considerations: (a) that an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.34 It, likewise, bears stressing that in all criminal prosecutions, without regard to the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish his guilt beyond reasonable doubt.35 The Prosecution Adduced Proof of the Appellants Guilt Beyond Reasonable Doubt of the Crime of Rape in Criminal Case No. 97-385 We have reviewed the evidence on record and we are convinced that the prosecution adduced proof beyond reasonable doubt that the appellant raped the victim in November 1996. The victim declared in her sworn statement, on direct examination and her testimony on clarificatory questions made by the trial court, that indeed, the appellant raped her in November 1996. Quoted hereunder is the testimony of Lucelle on direct and on re-direct examination: Fiscal Q So, matapos mong ituro ang tiyuhin mo, ano ang ginawa niya sa iyo? A Ginahasa niya ako. Q Ilang ulit kang ginahasa? A Marami po. Q Kailan ka ginahasa ng tiyuhin mo?

A November po. Q 19? A 1996, po. Q Saan ka ginahasa? A 7104 San Maximo St., Makati City, po.36 Fiscal Q Humigit-kumulang, anong oras ng gabi nang gahasain ka ng Tito Ely mo noong Nobyembre 1996? A Alas onse po ng gabi. Q Samakatuwid, hindi na siya nagtratrabaho, wala na siya sa trabaho? A Wala na po. Q Saang lugar ka ginahasa? A Sa 7104 San Maximo St. Q Sa loob ba ng bahay? A Opo. Q Saang parte ng bahay ka ginahasa ng Tito mo? A Sa kuwarto po.37 ... COURT Q Noong Nobyembre 1996, ayon sa iyo ay ginahasa ka ng iyong Tito. Saan ka ginahasa ng Tito mo? A Sa 7104 San Maximo St., po. Q Doon din sa bahay na iyong tinitirhan? A Opo.38 In her Sworn Statement,39 Lucelle narrated in detail how the appellant ravished her: 06. T: Kailan ka unang senalbahe ng iyong TITO ELY?

S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa, mga bandang 6:00 ng gabi po nang ako ay natutulog sa loob po ng kuwarto ay nagising na lang po ako nang maramdaman ko na may humahalik sa aking pisngi, at nang ako po ay magising ay nakita ko po si TITO ELY na may hawak na balisong na humigit kumulang po sa 10 pulgada ang haba na nakatutok sa aking kaliwang leeg habang humahalik po sa aking pisngi at ang sabi ay kung ako daw po ay magsusumbong sa aking magulang ay papatayin po niya (TITO ELY) ako. Pagkatapos po ay hinubaran po ako ng panty at naghubad na rin po si TITO ELY ng kanyang short pants at pumatong na po sa akin. Ipinasok po ni TITO ELY and kanyang (TITO ELY) ari sa aking "PEPE" at ako po ay nasaktan at umiyak na lang po ako at nang makaraos po si TITO ELY ay umalis na lang .40 We do not agree with the ruling of the trial court that the contents of the sworn statement of Lucelle are hearsay, simply because she did not testify thereon and merely identified her signatures therein. By hearsay evidence is meant that kind of evidence which does not derive its value solely from the credence to be attributed to the witness herself but rests solely in part on the veracity and competence of some persons from whom the witness has received the information.41 It signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which, consequently, is not subject to cross-examination.42 The basis for the exclusion appears to lie in the fact that such testimony is not subject to the test which can ordinarily be applied for the ascertainment of truth of testimony, since the declarant is not present and available for crossexamination. In criminal cases, the admission of hearsay evidence would be a violation of the constitutional provision while the accused shall enjoy the right to confront and cross-examine the witness testifying against him.43 Generally, the affidavits of persons who are not presented to testify on the truth of the contents thereof are hearsay evidence.44 Such affidavit must be formally offered in evidence and accepted by the court; otherwise, it shall not be considered by the court for the simple reason that the court shall consider such evidence formally offered and accepted.45 In this case, Lucelle testified on and affirmed the truth of the contents of her sworn statement which she herself had given. As gleaned from the said statement, she narrated how and when the appellant raped and subjected her to lascivious acts. She was cross-examined by the appellants counsel and answered the trial courts clarificatory questions. The prosecution offered her sworn statement as part of her testimony and the court admitted the same for the said purpose without objection on the part of the appellant. The Prosecution Proved Beyond Reasonable Doubt that the Appellant Raped the Victim in February 1997 The trial court convicted the appellant of rape in Criminal Case No. 97-386 on the basis of Lucelles sworn statement,46 the testimony of her mother, Lourdes Serrano, the appellants statement47 executed in the Barangay Chairmans Office, and the testimony of Dr. Armie Soreta-Umil. We agree with the trial courts findings and conclusion. First. In Lucelles sworn statement,48 she declared that the appellant subjected her to sexual abuse. Second. Lourdes saw Lucelle in bed (papag) in Marinas room, covered with a blanket beside the appellant who was wearing a pair of short pants and undershirt. He slid down from the papag, went under the bed and slipped outside. When Lourdes removed the blanket, she saw Lucelle trembling with fear, lying sidewise, her knees near her chin (nakabaluktot). Third. The appellant admitted to the barangay chairman on March 5, 1997, that he raped Lucelle in February 1997: Na, noong isang araw ng PEBRERO 1997, sa loob ng kuwarto ng aking kapatid na babae, pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag na anyong natutulog. Lumapit ako sa kanya at pinaghihipuan sa maseselang parte ng kanyang katawan at nang siyay magising tinakot ko siyang huwag

sisigaw, habang siya ay aking hinuhubaran ng "Short" na kasama pati ang kanyang "panty." Nagpupumiglas siya habang ako ay nakadagan sa kanya na noon din ay hinuhubad ko ang aking "brief." Pinaghahalikan ko po siya habang siya ay nagpupumiglas at umiiyak at noon din ay aking pinasok ang aking ari sa kanyang ari. Umiiyak siya habang ang aking ari ay labas masok sa kanyang ari. Nang ako ay makaraos ay tinakot ko siyang huwag magsusumbog sa kanyang mga magulang.49 Although the appellant was not assisted by counsel at the time he gave his statement to the barangay chairman and when he signed the same, it is still admissible in evidence against him because he was not under arrest nor under custodial investigation when he gave his statement.50 The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers "investigation conducted by police authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government."51 The barangay chairman52 is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellants statement before the barangay chairman is inadmissible. The Sufficiency of Evidence on Lucelles Relationship with the Appellant, her Minority, and the Propriety of the Imposition of the Death Penalty The appellants conviction for two counts of rape having been duly established by the prosecution, we now come to the question of the penalty to be meted upon him. Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, which was the law in effect at the time of the commission of the subject rapes, provides in part: ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. ... The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. ... The qualifying circumstances of minority and relationship must concur. More importantly, they must be both alleged and proved, in order to qualify the crime of rape and warrant the imposition of the death penalty.53 In addition to the requirement that the qualifying and aggravating circumstance must be specifically alleged in the information, it must be established with certainty that the victim was below eighteen (18) years of age or that she was a minor at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.54 The relationship between the appellant and the victim has been adequately established. The allegations in both Informations that the appellant is the victims "uncle," "a relative by consanguinity within the third civil degree" is specific enough to satisfy the special qualifying circumstance of relationship. In People v. Ferolino,55 we said In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy the special qualifying circumstances of relationship. If the offender is merely a relation - not a parent, ascendant, stepparent, or guardian or common law spouse of the mother of the victim - it must be alleged in the information that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree." That relationship by consanguinity or affinity was not alleged in the informations in these cases. Even if it was, it was still necessary to further allege that such relationship was within the third civil degree.56 The prosecutions evidence has also shown that the appellant is the victims uncle, being the older brother of the victims mother, a fact that the appellant himself admitted. The same cannot, however, be said with respect to the age of the victim. In People v. Pruna,57 the Court, after noting the divergent rulings on proof of age of the victim in rape cases, set out certain guidelines in appreciating age, either as an element of the crime or as qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim.58 In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Lucelles age. While the victim testified that she was born on February 19, 1986, therefore 11 years old when the appellant twice raped her, the same will not suffice as the appellant did not expressly and clearly admit the same as required by Pruna. The corroboration of Lucelles mother as to her age is not sufficient either, as there is no evidence that the said certificate of birth was lost or destroyed or was unavailable without the fault of the prosecution. The fact that there was no objection from the defense regarding the victims age cannot be taken against the appellant since it is the prosecution that has the burden of proving the same. Moreover, the trial court did not make a categorical finding of the victims minority, another requirement mandated by Pruna. Another issue that needs to be settled is the third paragraph of Article 335 of the Revised Penal Code, as amended, which provides that, "[w]henever rape is committed with the use of a deadly weapon or by two or more persons, the imposable penalty shall be reclusion perpetua to death." The evidence on record shows that the appellant raped Lucelle with the use of a deadly weapon in both rape incidents as alleged in both informations, and under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, the imposable penalty for the crime is reclusion perpetua to death. In the determination of whether the death penalty should be imposed on the appellant, the presence of an aggravating circumstance in the commission of the crime is crucial. In the cases at bar, although the relationship of uncle and niece between the appellant and the victim has been duly proven, the alternative circumstance of relationship under Article 15 of the Revised Penal Code cannot be appreciated as an aggravating circumstance against the appellant. While it is true that the alternative circumstance of relationship is always aggravating in crimes against chastity, regardless of whether the offender is a relative of a higher or lower degree of the offended party, it is only taken into consideration under Article 15 of the Revised Penal Code "when the offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister, or relative by affinity in the same degree of the offender." The relationship of uncle and niece is not covered by any of the relationships mentioned.59 Hence, for the prosecutions failure to prove the age of the victim by any means set forth in Pruna, and considering that the relationship of uncle and niece is not covered by any of the relationships mentioned in Article 15 of the Revised Penal Code, as amended, the appellant can only be convicted of rape in its aggravated form, the imposable penalty for which is reclusion perpetua to death. There being no modifying circumstances attendant to the commission of the crimes, the appellant should be sentenced to suffer reclusion perpetua for each count of rape, conformably to Article 69 of the Revised Penal Code. The victim is entitled to moral damages without need of proof other than the fact of the rape itself because it is assumed that the victim has suffered moral injuries entitling her to such an award.60 We find the trial courts award of P50,000 as moral damages to the victim in each rape to be in order.

However, the trial court erred in not awarding civil indemnity to the victim in each case, the same being mandatory upon the finding of the fact of rape.61 Thus, this Court awards the victim the sum of P50,000 as civil indemnity for each count of rape. In addition to this, appellant is ordered to pay the victim P25,000 as exemplary damages, the qualifying aggravating circumstance of use of a deadly weapon having attended the commission of the crime.62 WHEREFORE, the Decision of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97385 to 97-388 is AFFIRMED with MODIFICATION. The appellant Feliciano Ulit y Tampoy is found GUILTY beyond reasonable doubt of two counts of rape in Criminal Cases Nos. 97-385 and 97-386, and in each case, is hereby sentenced to suffer the penalty of reclusion perpetua and ordered to pay the victim, Lucelle Serrano, P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 111313-14 January 16, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIE VILLAMOR, a.k.a. "JULITO VILLAMOR" and "JULIO VILLAMOR", ARMANDO ESCALANTE and JOSEPITO "LOCLOC" GAMIL, accused, JULIE VILLAMOR, accused-appellant.

PANGANIBAN, J.: In denying this appeal, the Court reiterates some well-known doctrines: (1) the trial court's assessment of the witnesses and their credibility deserves great respect; (2) delay in reporting a crime and in identifying the culprits, when sufficiently explained, does not necessarily taint an eyewitness' account; and (3) awards of actual and moral damages must be justified by adequate proof. The Case Before us in an appeal from the Joint Decision 1 dated July 8, 1993 of the Regional Trial Court of Surigao City, Branch 30, rendered in Criminal Case Nos. 3846 and 3847, convicting

Appellant Julie Villamor of two counts of murder and sentencing him to reclusion perpetua for each count. Two separate amended Informations, both dated October 29, 1992, were filed by Second Assistant Surigao City Prosecutor Danilo C. Menor against Appellant Julie Villamor and his coaccused. The first amended Information, docketed as Criminal Case No. 3846, charged appellant with murder, committed as follows: 2
That on or about [the] 8th day of February, 1987 in the City of Surigao, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another armed with firearms and deadly weapons, with intent to kill Benigno Tenajeros, without any justifiable cause did then and there willfully, unlawfully and feloniously and with treachery and taking advantage of superior strength, shoot and stab Benigno Tenajeros with the use of a firearms (sic) and a knife, thereby inflicting upon Benigno Tenajeros mortal wounds which caused his death, to the damage and prejudice of the heirs of Benigno Tenajeros in such sum as may be allowed by law. Contrary to law, with the qualifying circumstances of treachery and taking advantage of superior strength.

The second amended Information, docketed as Criminal Case No. 3847, also charged appellant and his co-accused with another count of murder, committed as follows: 3
That on or about the 8th day of January, 1987 in the City of Surigao, Philippines, and within the jurisdiction of this Honorable [C]ourt, the above-named accused, conspiring and confederating together and mutually helping one another, armed with firearms and knife, with intent to kill Lito Edo without any justifiable cause, did then and there wilfully, unlawfully and feloniously and with treachery and taking advantage of superior strength, shoot and stab Lito Edo with the use of the said firearms and knife, thereby inflicting upon said Lito Edo mortal wounds which caused his death, to the damage and prejudice of the heirs of Lito Edo in such sum as may be allowed by law. Contrary to law, with the qualifying circumstance of treachery and taking advantage of superior strength.

Only Appellant Julie Villamor was apprehended by the Surigao Police; his co-accused Armando Escalante and Josepito "Locloc" Gamil were at large. Consequently, appellant alone was arraigned on March 4, 1993. With the assistance of counsel, he entered a plea of "not guilty" to both counts. 4 The case against Gamil and Escalante was archived, but a separate trial for appellant was conducted. In due course, the trial court rendered the assailed Joint Decision, the decretal portion of which reads: 5
WHEREFORE, this Court finds accused Julie Villamor, also known as Julito Villamor and Julio Villamor, GUILTY beyond reasonable count, as charged in both Criminal Cases Nos. 3846 and 3847, for the crime of Murder, defined and penalized in Article 248 of the Revised Penal Code, metes out the penalty of reclusion perpetua in each case: 1. To indemnify the widow and children of victim Benigno Tenajeros the sum of Thirty Thousand (P30,000.00) Pesos; in addition, to pay moral damages of P5,000.00; lose [sic] of earning capacity of P180,000.00 for five (5) years, at the rate of P3,000.00 per month; funeral expenses of P6,000.00. 2. To indemnify the heirs of victim Lito Edo the sum of Thirty Thousand (P30,000.00) Pesos; in addition, to pay moral damages of P5,000.00; lose [sic] of earning capacity, for five (5) years, at the rate of P50.00 daily; funeral expenses of P3,000.00; Without subsidiary imprisonment, in case of insolvency;

3. To suffer the accessory penalty, provided for by law; and, 4. To pay one/third [sic] (1/3) of the cost in both cases. The cases with respect to accused Armando Escalante and Josepito "Locloc" Gamil are hereby placed in ARCHIVE, to be revived only upon their apprehension. In the meantime, let an alias warrant issue for the arrest of said two (2) accused.

Hence, this appeal. 6 The Facts Version of the Prosecution The facts of this case, as culled from the testimonies of the prosecution witnesses, were synthesized by the solicitor general as follows: 7
In the evening of January 8, 1987, around 7:00 o'clock, Eduardo Escalante was sent by his father to buy food for the workers who [would] work on their ricefield the following day. He walked from their house at Sitio Looc, Barangay Luna, Surigao City, toward the highway to wait for a ride (TSN, March 18, 1993, p. 4). At the highway, he met appellant Julie Villamor, and his first cousins Armando Escalante and Josepito "Locloc" Gamil (TSN, March 18, 1993, p. 5), all residents of Sitio Looc. Gamil asked him about his destination and Eduardo Escalante replied that he was going to Surigao City. Thereupon, appellant declared "we will go together". (TSN, March 18, 1993, p. 6) Then the tricycle of Benigno Tenajeros, with Lito Edo on board, arrived. The four boarded the vehicle. Eduardo Escalante described the seating arrangement as follows: Q Your said that you and the three other persons you mentioned, namely, Julie Villamor, Armando Escalante and Locloc Gamil boarded the motorized tricycle . . . boarded already with Lito Edo, where did Armando Escalante sit? A At the front seat beside Lito Edo. Q On the outer or near the driver . . . beside the driver or not? A Outer side, sir. Q How about Julie Villamor, where did he seat? A Right at the back of the driver. Q How about Josepito Locloc Gamil, where did he seat? (sic) A At the back of Armando Escalante at the backseat. Q How about you, where did you sit? A At the side of Locloc Gamil. Q And you were seated opposite Julie Villamor? A Yes, sir.' (TSN, March 18, 1993, p. 7)

On the way to the "City", near the junction of Bernadette Village, appellant suddenly drew a revolver with his left hand from his right hip. (TSN, March 18, 1993, p. 8). Eduardo Escalante cowered in fear and heard appellant's gun fire. As he glanced back, he saw Locloc Gamil pull a knife and cut the front part of Tenajeros' neck. Tenajeros fell from the tricycle which itself fell into a nearby canal (TSN, March 18, 1993, p. 10). As Eduardo Escalante emerged from the tricycle, he saw Lito Edo running towards the ricefield while Armando Escalante and Julie Villamor took turns shooting . . . him (Lito Edo), who finally fell down. Appellant and his cohorts approached Edo to find out if he was dead. After that, appellant, Armando Escalante and Locloc Gamil escorted Eduardo back to his house with a warning that they would kill him if he reports the incident to the authorities (TSN, March 18, 1993, pp. 12-13). Dra. Alice Ensomo Gonzaga, Assistant City Health Officer, Surigao City described the injuries sustained by the victim as follows: On Benigno Tenajeros: 1). Wound 21 cm. x 6 cm. large gaping in size with irregular edges, located at the anterior neck length extending from the medial tip of the left clavicle to the right side of the neck to the anterior tip of the right scapule back affecting skin, subcutaneous tissues, muscles of the neck, hitting the major vessels of the neck, trachea separated between the 2nd and 3rd ring, esophagus; 2). Wound (gunshot-entrance) 1/2 cm. x 1/2 cm. in size with contussed and inverted edges, located at anterior left mid cheek, affecting skin; subcutaneous tissues; muscles of the cheek to communicate with wound no. 3; and 3). Wound (gunshot-exit) 1/2 cm. 1/2 cm. in size with everted edges, located at the mid right occipito temporal aspect of the head, to communicate with wound no. 2. Cause of Death: Shock due to internal hemorrhage secondary to gunshot and stab wounds. (Records, p. 37) On Lito Edo: 1). Contussion Hematoma 4 x 3 cm. in diameter, located below left eye; 2). Wound (gunshot-entrance) 1/2 x 1 cm. in size, with contussed and inverted edges, located at the nape 3 cm. right lateral to the midline (occipito) affecting skin; subcutaneous tissues, muscles of the neck; major vessels of the neck (right side); and, 3). Wound (lacerated) 2 x 1 cm. in size, located at the left lateral side of the chest; level of the 4th intercostal space, affecting skin, subcutaneous tissues, muscles of the chest to hit the left lung. Cause of Death: Shock due to internal hemorrhage secondary to gunshot and stab wounds. (Records, p. 36) (Joint Decision, pp. 5-6)

Version of the Defense Appellant denied any involvement in the crime, interposing alibi. His counterstatement of the fact is as follows: 8
On the evening of 08 January 1987, accused-appellant Julie Villamor was in the company of Jesus Tesaluna in the latter's house at Songkoy, Looc, Luna, Surigao City, where they drank "tuba", wine from a coconut tree. They spent together the whole night in that house. (TSN, 15 April 1993, pp. 18-21; TSN, 31 March 1993, pp. 29-34 & 40-43)

When accused-appellant returned to his house on the following day, policemen came over to his surprise and brought him to the Surigao City Police Station. (TSN, 15 April 1993, pp. 22-23) Unknown to him, Benigno Tenajeros and his friend Lito Edo were killed along the National Highway, Luna, Surigao City, on the evening of 08 January 1987. Sometime in September of 1992, or after more than five years from the alleged occurrence of the killing incident, a witness, Eduardo Escalante, emerged and revealed to the police authorities that accusedappellant was one of the authors thereof. Said witness had decided to disclose what he knew about the incident for fear that he would be jailed, being one of the suspects, should he refuse to do so. (TSN, 18 March 1993, pp. 14-17).

Ruling of the Trial Court Relying largely on Eduardo's eyewitnesss account, the trial court convicted appellant of two counts of murder. According to the trial court, Eduardo's testimony "vividly made a positive detailed narration" of the two victim's slaying at the hands of appellant and his cohorts. Aside from that, the report of the medico-legal expert regarding the nature and the location of the wounds sustained by the victims confirmed Eduardo's testimony. The trial court held that the testimony of a single eyewitness, corroborated in its material points by the medical findings, was sufficient to establish the guilt of the assailants. The trial court also ruled that the killings were "qualified by alevosia and aggravated by taking advantage of superior strength." 9 Assignment of Error Appellant submits this lone assignment of error: 10
The trial court erred in finding the accused-appellant guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 3846 in connection with the death of Benigno Tenajeros and in Criminal Case No. 3847 in connection with the death of Lito Edo and in sentencing said accused-appellant to suffer the penalty of reclusion perpetua and to indemnify the heirs of said victims specified sums of money in both cases.

In fine, appellant argues that the prosecution eyewitness' testimony was accorded precipitate credulity despite the fact the (1) it was from a "polluted source," (2) it was contrary to human experience, and (3) it was given only after a five-year delay. Alternatively, the defense insists that appellant could be convicted only of two counts of homicide, not murder, because alevosia and abuse of superior strength were not sufficiently proven. The Court's Ruling The appeal is bereft of merit. Credibility of the Eyewitness Not a Polluted Source In view of his admission that he rode with appellant and his cohorts in the tricycle driven by one of the victims, the eyewitness was initially included by the local police in its lists of suspects in the double murder. This fact, however, does no ipso facto taint his credibility. Presence at the crime scene does not automatically make one the author of the crime. 11 As explained by Eduardo, he met the accused on his way to the city purely by chance. That he rode with them in the tricycle does not constitute conspiracy; this fact, by itself, does not show

a decision on his part to participate in the crime. 12 In fact, the record is bereft of any evidence that he acted in union with appellant and his group. In this light, his testimony cannot be viewed as a means of extricating himself from criminal liability. The implication advanced by appellant is, at best, speculative and insufficient to overturn the trial court's assessment of his testimony. Delay in Reporting An eyewitness account cannot be disregarded on account of the delay in its reporting, so long as the delay is justified. 13 In this particular case, Witness Eduardo tarried in reporting what he witnessed that fateful night for fear of reprisal. We agree with this explanation of the trial court:
14

The fact that Eduardo Escalante took some time, more than four (4) years, to reveal his knowledge about the crime, was satisfactorily explained, because of the threat to his life. It was not until accused Julie Villamor was apprehended and the said witness was summoned by the police authorities, when he revealed what he saw since he was even one of those four (4) persons, suspected by the police, to wit: xxx xxx xxx Prosecutor Menor: xxx xxx xxx Q You said that after Julie Villamor was apprehended by the police authorities, you were summoned by the police authorities. Did you heed the summons? A I went to the police. Q When you arrived at the police station, did you learn the purpose of the police authorities in summoning you? A Yes, sir. Q What was the purpose of the police authorities in summoning you? A Because I was included in the four suspects, as one of the four suspects. Q And what did the police authorities tell you? A I was told by the police that "you are one of the four suspects who killed those two there the area with motorized tricycle" and then I answered the policeman, "no, sir, I did not do it, sir". Q And it was then that you decided to reveal to the police authorities what you witnessed in the evening of January 8, 1987? A Yes, sir, because if I will not reveal the incident . . . the truth regarding the incident, I will be jailed since I have no fault or offense. I will be confined in jail despite the fact that I have not done wrong. Q And you executed an affidavit in connection with these cases? A Yes, sir.

It should also be noted that Eduardo, after overcoming his initial fear, testified for the prosecution despite further threats to his own life. Said the trial court: 15
After deciding to reveal everything he knew, not even the veiled threats of the accused, wife Virginia, and his own relative Pedro Escalante deterred him from testifying, to wit: xxx xxx xxx Prosecutor Menor: xxx xxx xxx Q Pedro Escalante, defense witness, testified that you have visited the accused Julie Villamor in the city jail for many times since his detention there, what can you say about that? A I went to the police on February 18, in order to report the matter that the wife of Julie Villamor went to my residence. Q Why did you have to report that incident? A Because they threatened me. They told me not to testify in these cases and it is better, "you will leave this place and go to Manila and we will give you money, for something might happen to you". Q Were you able to report that incident to the police station? A I was not able to report that incident because that policewoman should not taken any responsibility regarding that report because she might be admonished because I could not present witness in my behalf. Q While you were in the police station, do you remember if you called . . . if you were called by Julie Villamor? A Yes, sir. Q What transpired when you and Julie Villamor had a talk? A "If you continue to be a witness in this case, it is up to you, you might be in trouble".

In Accord with Human Experience Appellant insists that it was utterly unbelievable that he and his cohorts would take along a bystander to witness their crime, only to warn him later, under threat, to keep silent about it. The Court is not persuaded. On the contrary, it was but natural for the eyewitness to ride with appellants and his co-accused considering that the city, to where Eduardo was headed, was from Sitio Looc. Besides, Accused Armando Escalante and Locloc Gamil were his first cousins. In the final analysis, the argument is merely a rehash of the insinuation that the eyewitness is a polluted source. It is a desperate attempt to force the prosecution to establish appellant's motive for killing the two victims. However, it is well-settled that motive is not necessary when there is a clear and positive identification of the perpetrators of the crime. 16 At bottom, the Court finds no cogent reason to deviate from the well-established doctrine that absent any arbitrariness, oversight or misappreciation of a fact which would otherwise affect

the disposition of the case, the trial court's assessment of the credibility of a witness is accorded respect by appellate courts. 17 Establishing Alevosia Eduardo testified that appellant and his co-accused, presenting themselves as passengers, rode in the victim's tricycle. Upon reaching Bernadette Village, appellant and his cohorts suddenly attacked the tricycle driver and one of the passengers. Appellant shot the driver from behind while Gamil slashed his neck. Then, appellant and Armando Escalante alternately shot Edo, who tried to flee. The speed with which the killings were perpetrated tended directly and specially to ensure their execution and afforded the victims no chance to put up any defense. 18 Clearly, alevosia was established in this case. Abuse of superior strength, which the trial court appreciated as a generic aggravating circumstance, need not be established, for it is absorbed in the qualifying circumstance of treachery. 19 Award of Damages Proof must support any award of damages. The grant of burial expenses to the heirs of the two victims is not established by competent evidence. No receipts or other credible evidence were presented. Rosa Tenajeros 20 (widow of Benigno Tenajeros), and Bago Edo, 21 father of Lito Edo, merely estimated the expenses allegedly incurred. Furthermore, actual damages of thirty thousand pesos, awarded separately by the trial court to the heirs of the two victims, appear to have been arbitrarily set. The moral damages awarded by the trial court are similarly unsubstantiated, as the heirs did not even testify to any fact or circumstance that would have entitled them to the award. While not proof of pecuniary loss is necessary, it is essential that the claimant should satisfactorily provide factual basis for the alleged moral injury. 22 The award for loss of earning capacity is also arbitrary. In support of the claim, the widow of Tenajeros testified that her husband used to earn P3,000 monthly as a truck driver, supplemented by earnings from plying his tricycle. 23 The trial court then fixed the amount of P180,000, equivalent to his earnings for five years at the monthly rate of P3,000. On the other hand, Bago Edo testified that his deceased son used to give him P50 a day. 24 The trial court then held that the young Edo's lost earnings should be computed at P50 a day for five years. The trial court's computations are bereft of legal basis. This Court has held that an award for loss of earnings should be computed as follows: 25 80 age of victim at reasonable portion of the 2/3 x the time of death x annual net income which would have been received as support by heirs The Court finds P1,000 to be a reasonable estimate of the living and other incidental expenses to be deducted from the gross income of Tenajeros. Applying the foregoing formula, his lost earnings should be computed as follows: = 2/3 x [80 - 37] x [{P3,000 - P1,000} x 12] = 2/3 x 43 x P24,000 = P688,000.

In the case of Lito Edo, the records do not show the actual amount of his income. The amount of P50, as testified to by his father, represented not his daily income but the daily support he had been giving his family. Hence, his lost earnings should be computed as follows: = 2/3 x [80 - 22] x [P50 x 30 x 12] = 2/3 x 58 x P18,000 = P69,600 The trial court also awarded civil indemnity of thirty thousand pesos. In line with current jurisprudence, 26 the civil indemnity should be increased to fifty thousand pesos (P50,000). WHEREFORE, the appeal is hereby DENIED and the challenged Joint Decision is AFFIRMED. However, the monetary awards are MODIFIED as follows: the grant of moral damages and funeral expenses is DELETED for lack of factual basis; to the heirs of Benigno Tenajeros, appellant is ordered to pay the amounts P688,000 representing loss of earning capacity and 50,000 as civil indemnity; to the heirs of Lito Edo, the amount of 69,600 representing loss of earning capacity and P50,000 as civil indemnity. Costs against appellant. SO ORDERED. Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.