G.R. No. 125901 March 8, 2001

EDGARDO A. TIJING and BIENVENIDA R TIJING, petitioners, vs.COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents.

QUISUMBING, J.:

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

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

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

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

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

Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan.

Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.1 She avers that Angelita refused to return to her the boy despite her demand to do so.

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

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

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

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

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

SO ORDERED.6

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

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

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

SO ORDERED.10

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

I

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

II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test19 for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.20 Of course, being a novel scientific technique, the use of DNA test as evidence is still open to

challenge.21 Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.22 Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent.

G.R. No. 144656 May 9, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant.

PER CURIAM:

This is an appeal from the decision1 of the Regional Trial Court, Branch 88, Cavite City, sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged:

"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused, with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the latter's will and while raping the said victim, said accused strangled her to death."

"CONTRARY TO LAW."2

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim's mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorney's Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim.

The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their neighbor's house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her lessons. Aimee's house, where accused-appellant was also staying, is about four to five meters away from Daisy's house. Ma. Nida saw her daughter go to the house of her tutor. She was wearing pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were looking for a book which accused-appellant could copy to make a drawing or a poster that Daisy would submit to her teacher. After finding the book, Daisy and accused-appellant went back to the latter's house. When Ma. Nida woke up at about 5:30 o'clock after an afternoon nap, she noticed that Daisy was not yet home. She started looking for her daughter and proceeded to the house of Aimee, Daisy's tutor. Aimee's mother told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy with her lessons because Aimee was not feeling well as she had her menstrual period. Ma. Nida looked for Daisy in her brother's and sister's houses, but she was not there, either. At about 7:00 o'clock that evening, Ma. Nida went back to her neighbor's house, and there saw accused-appellant, who told her that Daisy had gone to her classmate's house to borrow a book. But, when Ma. Nida went there, she was told that Daisy had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30 o'clock in the afternoon. Jessiemin Mataverde

2

also told Ma. Nida that Daisy was playing in front of her house that afternoon and even watched television in her house, but that Daisy later left with accused-appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday, until the early morning of the following day, June 11, 1999, a Sunday, but their search proved fruitless. Then, at about 10:00 o'clock in the morning of June 11, 1999, she was informed that the dead body of her daughter was found tied to the root of an aroma tree by the river after the "compuerta" by a certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police. The other barangay officers fetched accused-appellant from his house and took him to the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since he was with the victim when she was last seen alive.3

Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the afternoon of that day, she saw Daisy playing with other children outside her house. She asked Daisy and her playmates to stop playing as their noise was keeping Jessiemin's one-year old baby awake. Daisy relented and watched television instead from the door of Jessiemin's house. About five minutes later, accused-appellant came to the house and told Daisy something, as a result of which she went with him and the two proceeded towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her daughter were in front of a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro cigarette. Accused-appellant had only his basketball shorts on and was just holding his shirt. They noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.4

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o'clock in the afternoon of July 10, 1999, while she and her husband and children were walking towards the "compuerta" near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who said that it was a good day for catching milkfish (bangus). For this reason, according to this witness, they decided to get some fishing implements. She said they met accused-appellant Gerrico Vallejo near the seashore and noticed that he was uneasy and looked troubled. Charito said that accused-appellant did not even greet them, which was unusual. She also testified that accused-appellant's shorts and shirt (sando) were wet, but his face and hair were not.5

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived, Daisy's body was already in the barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie Quinto was fishing near the compuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Esting, were also taken into custody because they were seen with accused-appellant in front of the store in the late afternoon of July 10 1999. Later, however, the two were released. Based on the statements of Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-appellant at about 4:00 o'clock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball shorts, with the number 9 printed on it, worn by accused-appellant the day before. The shirt and shorts, which were bloodstained, were turned over to the NBI for laboratory examination.6

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock in the evening of July 11, 1999, he conducted a physical examination of accused-appellant. His findings7 showed the following:

"PHYSICAL FINDINGS:

"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms."Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm."Lacerations, left ring finger, posterior aspect, 0.3 cm."(Living Case No. BMP-9902, p. 101, records)"

At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem findings:8

"Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue protruding, bloating of the face and blister formation.

"Washerwoman's hands and feet.

"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect.

"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

"Fracture, tracheal rings.

"Hemorrhages, interstitial, neck, underneath, nailmarks. "Petechial hemorrhages, subendocardial, subpleural.

"Brain and other visceral organs are congested.

"Stomach, contains ½ rice and other food particles.

"CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

"GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 o'clock positions, edges with blood clots." [Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder at past 10:00 o'clock in the evening of June 11, 1999. The mayor said he immediately proceeded to the municipal jail, where accused-appellant was detained, and talked to the latter. Accused-appellant at first denied having anything to do with the killing and rape of the child. The mayor said he told accused-appellant that he could not help him if he did not tell the truth. At that point, accused-appellant started crying and told the mayor that he killed the victim by strangling her. Accused-appellant claimed that he was under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and took him to the police station about 11:00 o'clock that evening.9

Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving at the police station, he asked accused-appellant if he wanted his services as counsel in the investigation. After accused-appellant assented, Atty. Leyva testified that he "sort of discouraged" the former from making statements as anything he said could be used against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the investigator, informed accused-appellant of his constitutional rights to remain silent and to be assisted by counsel and warned him that any answer he gave could and might be used against him in a court of law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication that accused-appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed to killing the victim by strangling her to death, but denied having molested her.10

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from accused-appellant in his office for laboratory examination to determine his blood type. Likewise, the basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victim's clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite police for the purpose of determining the presence of human blood and its groups.11

The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to Group "O". The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches "Grizzlies" in front and "SAMARTINO" at the

3

back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small "Hello Kitty" T-shirt with reddish brown stains; (4) one (1) "cut" pink short pants with reddish brown stains; (5) one (1) "cut" dirty white small panty with reddish brown stains, were all positive for the presence of human blood showing the reactions of Group "A".12

Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accused-appellant during which the latter admitted that he had raped and later killed the victim by strangulation and stated that he was willing to accept the punishment that would be meted out on him because of the grievous offense he had committed. Mr. Buan observed that accused-appellant was remorseful and was crying when he made the confession in the presence of SPO1 Amoranto at the NBI laboratory.13

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had executed inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only that he killed the victim but that he had before that raped her. Accused-appellant said he laid down the victim on a grassy area near the dike. He claimed that she did not resist when he removed her undergarments but that when he tried to insert his penis into the victim's vagina, she struggled and resisted. Accused-appellant said he panicked and killed the child. He then dumped her body in the shallow river near the "compuerta" and went home.14

Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon of July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his confession. Atty. Agbunag read the document, informed accused-appellant of his constitutional rights, and warned him that the document could be used against him and that he could be convicted of the case against him, but, according to her, accused-appellant said that he had freely and voluntarily executed the document because he was bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the document and swore to it before Prosecutor Itoc.15

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples from the parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of the NBI for examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-appellant and the victim.16

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo. Their testimonies show that at about 1:00 o'clock in the afternoon of July 10, 1999, accused-appellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to ask accused-appellant to draw her school project. After making the request, Daisy left.17 Accused-appellant did not immediately make the drawing because he was watching television. Accused-appellant said that he finished the drawing at about 3:00 o'clock in the afternoon and gave it to the victim's aunt, Glory. He then returned home to watch television again. He claimed he did not go out of the house until 7:00 o'clock in the evening when he saw Ma. Nida, who was looking for her daughter. Accused-appellant said he told her that he had not seen Daisy. After that, accused-appellant said he went to the "pilapil" and talked with some friends, and, at about 8:00 o'clock that evening, he went home.

At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his house and took him to the barangay hall, where he was asked about the disappearance of Daisy. He claimed that he did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00 o'clock that morning, policemen came and invited him to the police headquarters for questioning. His mother went with him to the police station. There, accused-appellant was asked whether he had something to do with the rape and killing of Daisy. He denied knowledge of the crime.

At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his house to get the basketball shorts and shirt he was wearing the day before, which were placed together with other dirty clothes at the back of their house. According to accused-appellant, the police forced him to admit that he had raped and killed Daisy

and that he admitted having committed the crime to stop them from beating him up. Accused-appellant claimed the police even burned his penis with a lighted cigarette and pricked it with a needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the investigation room of the police station and told him that they would help him if he told the truth. Atty. Leyva asked him whether he wanted him to be his counsel, and accused-appellant said he answered in the affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was because the police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that he had been tortured because the policemen were around and he was afraid of them. It appears that the family of accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by residents of their barangay.18 According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when he gave his confession to the police and signed the same. Accused-appellant claims that although Exhibit "N" was in his own handwriting, he merely copied the contents thereof from a pattern given to him by the police.19

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense charged. The dispositive portion of its decision reads:

"WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is directed to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages.

"SO ORDERED."20

Hence this appeal. Accused-appellant contends that:

"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.

"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL ASSISTANCE."

We find accused-appellant's contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed the crime.21 In rape with homicide, the evidence against an accused is more often than not circumstantial. This is because the nature of the crime, where only the victim and the rapist would have been present at the time of its commission, makes the prosecution of the offense particularly difficult since the victim could no longer testify against the perpetrator. Resort to circumstantial evidence is inevitable and to demand direct evidence proving the modality of the offense and the identity of the perpetrator is unreasonable.22

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if:

"(a) there is more than one circumstance;

"(b) the facts from which the inferences are derived are proven; and

"(c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt."23

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of accused-appellant:

1. The victim went to Aimee Vallejo's house, where accused-appellant was residing, at 1:00 o'clock in the afternoon of July 10, 1999, for tutoring.

4

2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went together to the latter's house to get a book from which the former could copy Daisy's school project. After getting the book, they proceeded to accused-appellant's residence.

3. From accused-appellant's house, Daisy then went to the house of Jessiemin Mataverde where she watched television. Accused-appellant thereafter arrived and whispered something to Daisy, and the latter went with him towards the "compuerta."

4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-appellant coming out of the "compuerta," with his clothes, basketball shorts, and t-shirt wet, although his face and hair were not. According to these witnesses, he looked pale, uneasy, and troubled (balisa). He kept looking around and did not even greet them as was his custom to do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite) was docked by the seashore.

6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw accused-appellant buying a Marlboro cigarette from a store. Jessiemen also noticed that accused-appellant's clothes were wet but not his face nor his hair.

7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by accused-appellant that Daisy had gone to her classmate Rosario's house. The information proved to be false.

8. Daisy's body was found tied to an aroma tree at the part of the river near the "compuerta."

9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused by the thorns of an aroma tree.

10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on accused-appellant's clothes and on Daisy's clothes were found positive of human blood type "A."

11. Accused-appellant has blood type "O."

12. The vaginal swabs from Daisy's body contained her DNA profile as well as that of accused-appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been that of the victim as the victim's blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both accused-appellant's and the victim's clothing yielded bloodstains of the same blood type "A".24 Even if there was no direct determination as to what blood type the victim had, it can reasonably be inferred that the victim was blood type "A" since she sustained contused abrasions all over her body which would necessarily produce the bloodstains on her clothing.25 That it was the victim's blood which predominantly registered in the examination was explained by Mr. Buan, thus:26

"ATTY. ESPIRITU

Q: But you will agree with me that more probably than not, if a crime is being committed, and it results in a bloody death, it is very possible that the blood of the victim and the blood of the assailant might mix in that particular item like the t-shirt, shorts or pants?

A: It is possible when there is a huge amount of blood coming from the victim and the suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which will register. For example, if there is more blood coming from the victim, that blood will be the one to register, on occasions when the two blood mix.

Q: But in these specimens number 1 to 5, it is very clear now that only type A and no type O blood was found?

A: Yes, sir."

Accused-appellant also questions the validity of the method by which his bloodstained clothes were recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore the day before. Thereafter, they took him to his house and accused-appellant accompanied them to the back of the house where dirty clothes

were kept.27 There is no showing, however, that accused-appellant was coerced or forced into producing the garments. Indeed, that the accused-appellant voluntarily brought out the clothes sought by the police becomes more convincing when considered together with his confessions. A consented warrantless search is an exception to the proscription in Section 2 of Article III of the Constitution. As we have held, the consent of the owner of the house to the search effectively removes any badge of illegality.28

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-appellant. He argues that the prosecution failed to show that all the samples submitted for DNA testing were not contaminated, considering that these specimens were already soaked in smirchy waters before they were submitted to the laboratory.

DNA is an organic substance found in a person's cells which contains his or her genetic code. Except for identical twins, each person's DNA profile is distinct and unique.29

When a crime is committed, material is collected from the scene of the crime or from the victim's body for the suspect's DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim.30

The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample.31 The samples collected are subjected to various chemical processes to establish their profile.32 The test may yield three possible results:

1) The samples are different and therefore must have originated from different sources (exclusion). This conclusion is absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source (inclusion).33 In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the Similarity.34

In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the smears taken from the victim as well as the strands of hair and nails taken from her tested negative for the presence of human DNA,35 because, as Ms. Viloria-Magsipoc explained:

"PROSECUTOR LU:

Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim and of the accused gave negative results for the presence of human DNA. Why is it so? What is the reason for this when there are still bloodstains on the clothing?

A: After this Honorable Court issued an Order for DNA analysis, serological methods were already conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew of this case, and we also interviewed the mother who came over to the laboratory one time on how was the state of the specimens when they were found out. We found that these specimens were soaked in smirchy water before they were submitted to the laboratory. The state of the specimens prior to the DNA analysis could have hampered the preservation of any DNA that could have been there before. So when serological methods were done on these specimens, Mr. Byron could have taken such portion or stains that were only amenable for serological method and were not enough for DNA analysis already. So negative results were found on the clothings that were submitted which were specimens no. 1 to 5 in my report, Sir.

Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also proved negative for human DNA, why is it so?

5

A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide was very, very dry and could have chipped off. I already informed Dr. Vertido about it and he confirmed the state of the specimen. And I told him that maybe it would be the swab that could help us in this case, Sir. And so upon examination, the smears geared negative results and the swabs gave positive results, Sir.

Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show negative results for DNA?

A: The hair samples were cut hair. This means that the hair did not contain any root. So any hair that is above the skin or the epidermis of one's skin would give negative results as the hair shaft is negative for DNA. And then the nails did not contain any subcutaneous cells that would be amenable for DNA analysis also, Sir.

Q: So it's the inadequacy of the specimens that were the reason for this negative result, not the inadequacy of the examination or the instruments used?

A: Yes, Sir."

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the samples had been contaminated, which accounted for the negative results of their examination. But the vaginal swabs taken from the victim yielded positive for the presence of human DNA. Upon analysis by the experts, they showed the DNA profile of accused-appellant:36

"PROSECUTOR LU:

Q: So based on your findings, can we say conclusively that the DNA profile of the accused in this case was found in the vaginal swabs taken from the victim?

A: Yes, Sir.

Q: That is very definite and conclusive?

A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court.37 This is how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written confessions presented as evidence against him. He alleges that the oral confessions were inadmissible in evidence for being hearsay, while the extrajudicial confessions were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:

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

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

"(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him."

There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coerced confessions, the product of third degree methods such as torture, force, violence, threat, and intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same section.38

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as these were made by one already under custodial investigation to persons in authority without the presence of counsel. With respect to the oral confessions, Atty. Leyva testified:39

"PROSECUTOR LU:

Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him?

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as a lawyer during that investigation?

A: I did, as a matter of fact, I asked him whether he would like me to represent him in that investigation, Sir.

Q: And what was his answer?

A: He said "yes".

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against him, so it's a sort of discouraging him from making any statement to the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows:40

Q: You stated that you personally read this recital of the constitutional rights of the accused?

A: Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not inform the accused that the statement that he will be giving might be used against him in a court of justice?

A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY ESPIRITU

The only thing that is stated here is that "Maaaring gamitin pabor o laban sa iyo."

COURT

Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the truth."

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,41 it is also confirmed by accused-appellant who testified as follows:42

"ATTY. ESPIRITU:

Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are supposed to have executed and signed?

A: Yes, Sir.

Q: What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I know about this case, Sir.

6

Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement?

A: Yes, Sir.

Q: And did he tell you that what you would be giving is an extra-judicial confession?

A: Yes, Sir."

Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the statements he was to make as well as the written confessions he was to execute. Neither can he question the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. Indeed, counsel should not prevent an accused from freely and voluntarily telling the truth.43

Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva before the latter acted as his defense counsel.44 And counsel who is provided by the investigators is deemed engaged by the accused where the latter never raised any objection against the former's appointment during the course of the investigation but, on the contrary, thereafter subscribed to the veracity of his statement before the swearing officer.45 Contrary to the assertions of accused-appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato Abutan.46

Accused-appellant contends that the rulings in People vs. Andan47 and People vs. Mantung48 do not apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In all these cases, the accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial confessions were held admissible in evidence, being the spontaneous, free, and voluntary admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan was never objected to by the defense.

Indeed, the mayor's questions to accused-appellant were not in the nature of an interrogation, but rather an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testified:49

"PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell you?

A: At first he said that he did not do that. That was the first thing he told me. Then I told him that I will not be able to help him if he will not tell me the truth.

Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what exactly did he tell you about the incident?

A: I asked him, "Were you under the influence of drugs at that time"?

Q: What else did he tell you?

A: I told him, "What reason pushed you to do that thing?" x x x

Q: Please tell us in tagalog, the exact words that the accused used in telling you what happened.

A: He told me that he saw the child as if she was headless at that time. That is why he strangled the child, Sir. ("Ang sabi niya po sa 'kin, nakita niya raw 'yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya.")

x x x x x x x x x

COURT:

Q: When you told the accused that you will help him, what kind of help were you thinking at that time?

A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor."

In People vs. Mantung,50 this Court said:

"Never was it raised during the trial that Mantung's admission during the press conference was coerced or made under duress. As the records show, accused-appellant voluntarily made the statements in response to Mayor Marquez' question as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even proceeded to explain that he killed the victims because they made him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides, he could have chosen to remain silent or to do deny altogether any participation in the robbery and killings but he did not; thus accused-appellant sealed his own fate. As held in People v. Montiero, a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience."

And in People vs. Andan, it was explained:

"Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not prevent him from freely and voluntarily telling the truth."51

For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would have this Court exclude this confession on the ground that it was uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was part of the NBI. The issue concerning the sufficiency of the assistance given by Atty. Leyva has already been discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan testified:52

"PROSECUTOR LU:

Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination, we talk to them for me to add knowledge on the case, Sir.

Q: What did you talk about during your conversation?

A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.

Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?

A: I remember that while asking him, he was crying as if feeling remorse on the killing, Sir.

. . . .

Q: And it was you who initiated the conversation?

A: Yes, Sir.

Q: Do you usually do that?

A: Yes, Sir. We usually do that.

7

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any information either on the victim or from the suspect will help me personally. It's not an SOP, Sir."

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is, therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the ground that these were extracted from him by means of torture, beatings, and threats to his life. The bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient. The standing rule is that "where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim," all these will be considered as indicating voluntariness.53 Indeed, extrajudicial confessions are presumed to be voluntary, and, in the absence of conclusive evidence showing that the declarant's consent in executing the same has been vitiated, the confession will be sustained.54

Accused-appellant's claim that he was tortured and subjected to beatings by policemen in order to extract the said confession from him is unsupported by any proof:55

"ATTY. ESPIRITU:

Q: Did they further interrogate you?

A: Yes, sir.

Q: What else did they ask you?

A: They were asking me the project, Sir.

Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?

A: The investigator, Sir.

Q: How many were they inside that room?

A: Five, Sir.

Q: They are all policemen?

A: Yes, Sir.

x x x x x x x x x

Q: Until what time did they keep you inside that room?

A: Up to 11:00 in the evening, Sir.

Q: Between 10:30 in the morning up to 11:00 o'clock in the evening, what did you do there?

A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.

Q: The 5 of them?

A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning?

A: Yes, Sir.

Q: In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.

Q: Who is this Mercado?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.

Q: Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time, Sir.

Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.

Q: What?

A: They boxed me, Sir.

Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette butt?

A: It was painful, Sir.

Q: In what part of your body were you pricked by a needle?

A: At my private part, Sir."

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in the municipal hall from 10:00 o'clock in the morning until 11:00 o'clock that night of July 10, 1999, during which time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 o'clock in the evening of the same day. While the results show that accused-appellant did sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified:56

"PROSECUTOR LU:

Q: What were your findings when you conducted the physical examination of the suspect?

A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I also found hematoma on the left ring finger, posterior aspect and at the same time, a laceration on the left ring finger.

x x x x x x x x x

Q: In your findings, it appears that the accused in this case suffered certain physical injuries on his person like this abrasion on the thigh, right anterior lateral aspect lower third of the knee, what could have caused this injury?

8

A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir. Hematoma are usually caused by a blunt instrument or object and laceration is the forcible contact of the skin from that blunt object.

Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect and laceration left ring finger posterior aspect, what could have caused those injuries on the accused?

A: My opinion to these hematoma and laceration found on the said left ring finger was that it was caused by a bite, Sir."

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found more than mere abrasions and hematoma on his left finger. Dr. Vertido's findings are more consistent with the theory that accused-appellant sustained physical injuries as a result of the struggle made by the victim during the commission of the rape in the "compuerta."

At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt. The prosecution witnesses presented a mosaic of circumstances showing accused-appellant's guilt. Their testimonies rule out the possibility that the crime was the handiwork of some other evil mind. These witnesses have not been shown to have been motivated by ill will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to corroborate his claim. The defense presented only accused-appellant's sister, Aimee Vallejo, to corroborate his story. We have held time and again that alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons.57 It is well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult to disprove. For this reason, this Court looks with caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives or friends of the accused.58

Article 266-B of the Revised Penal Code provides that "When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death."59 Therefore, no other penalty can be imposed on accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power.

G.R. No. 136736 April 11, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JIMMY MARQUEZ Y BACAY, accused-appellant.

MENDOZA, J.:

This is an automatic review of the decision,1 dated October 26, 1998, of the Regional Trial Court, Fourth Judicial Region, Branch 32, San Pablo City, finding accused-appellant guilty of the complex crime of robbery with homicide and sentencing him to suffer the penalty of death and to pay damages to the heirs of the victim Pampilo Aclan.

Accused-appellant Jimmy Marquez, together with four John Does, was charged with Robbery with Homicide under Art. 294, par. 1, in an information docketed as Criminal Case No. 10069-SP, in which it was alleged -

That on or about September 22, 1995, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, with intent to gain, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously take, steal and carry away jewelries worth P2.5 million and cash of P300,000.00, Philippine Currency, belonging to one PAMPILO ACLAN, and that in furtherance of and on the occasion of said robbery to accused the taking of said items, accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and [shoot] Pampilo Aclan with a gun, with which the accused were then conveniently provided, thereby inflicting mortal wounds upon said offended party which caused his immediate death.

CONTRARY TO LAW.2

Accused-appellant was likewise charged with violation of Presidential Decree No. 1866 (Illegal Possession of Firearm and Ammunition) under a separate information docketed as Criminal Case No. 10193-SP.

When arraigned on August 29, 1996, accused-appellant entered a plea of not guilty, whereupon a joint trial of the two cases was held.

The prosecution presented four witnesses: Rizza Cervantes and Jerwin Aclan, eyewitnesses; SPO2 Rolito Alinea, the investigating policeman; and Dr. Azucena I. Bandoy, Assistant City Health Officer of San Pablo City, who prepared the Necropsy Report. Their testimonies are as follows:

The victim, Pampilo Aclan,3 was a businessman engaged in the buying and selling of jewelry, for which he had a store in the market of San Pablo City. Before leaving for home at around 5:00 p.m. on September 22, 1995, Aclan placed the jewelry in two (2) boxes. Then, with his son Jerwin4 and salesgirl Rizza Cervantes, he went home carrying the two boxes and a shoulder bag containing cash. The three took a tricycle driven by Jimmy Soriso.5 Aclan, who held the two boxes, occupied the main seat inside the tricycle, while Rizza sat on the small seat to the left of the main seat. Jerwin took a seat behind Jimmy. As the tricycle was negotiating a curve near the entrance to their residence in Francisco Terrace, it was blocked by five armed men, who ordered the driver to stop. Stating that it was a hold-up, accused-appellant pointed his gun at Aclan and demanded that he hand over the bag. When Aclan refused to part with the bag, one of the hold-uppers grabbed it, and a struggle ensued.6

Rizza tried to help the victim keep the bag, but one of the hold-uppers pushed her inside the tricycle and succeeded in getting the bag. When the victim tried to run after the hold-upper, accused-appellant shot him. The victim fell to the ground, and the hold-uppers fled with the bag and the two boxes on board the tricycle.7

Jerwin Aclan testified that a hold-upper poked a fan knife (balisong) at his back. When his attacker was distracted, he punched him, but in the course of the fight he was stabbed on the right arm. Jerwin said he ran to the nearest store, leaving his father and one of the hold-uppers fighting for the possession of the bag. Then a shot rang out.

9

When he turned around, Jerwin said he saw accused-appellant with his gun, standing over the fallen body of his father. Accused-appellant then fled on board the tricycle with his companions, carrying with them the two boxes containing the jewelry and his father’s bag. Jerwin rushed to his father and, with the help of his elder brother Jomar, took him to the hospital. However, Pampilo Aclan died shortly after.8

SPO2 Rolito Alinea, leader of the investigating team, testified that accused-appellant was apprehended in Batangas City and taken to the Batangas City Provincial Command where he was identified by both Rizza Cervantes and Jerwin Aclan from a police line-up, consisting of accused-appellant and four civilian employees.9

Dr. Azucena I. Bandoy prepared a Necropsy Report (Exh. B) with the following findings:

A fairly developed male cadaver measuring 162 cm. in length in rigor mortis condition over dependent portion of the body with wound described as:

Gunshot wound - thru and thru with the point of entrance measuring 1 x 1 cm. lateral surface neck left directed infero-anteriorward to the right and posteriorward to the right lacerating the jugular vessels and thoracic aorta with the point of exit measuring 1.5 x 1.5 suprascapular region right.

CAUSE OF DEATH: SHOCK AND HEMORRHAGE DUE TO GUNSHOT WOUND INVOLVING THE JUGULAR VESSELS AND THORACIC AORTA.

Dr. Bandoy later explained her findings,10 thus -

DIRECT EXAMINATION BY PROSECUTOR SUNEGA:

Q I am showing Exhibit B to you, and please inform the Court in layman’s language as appearing in the necropsy report?

A The wound inflicted was [a] gun shot wound and this is located at the left side of the neck and goes to the right and lacerates the vessel which was the point of exit.

Q Do you recall having drawn an anatomical sketch to show the location of the wound you just described?

A I have with me the anatomical sketch.

Q Now in this anatomical sketch, did you indicate which wound was that you just described?

A The point of entry goes to the right and turn to the point of exit which is the back, which is the right scapular area. (witness pointing to the left side of the neck of the sketch)

Q May we have the anatomical sketch marked as Exhibit "C"; and the point of entry as indicated by the witness to be marked as Exhibit C-1; the point of exit as Exhibit C-2. Can you describe the point of exit with respect to the part of the body at the back?

A Scapular area is the point of exit.

Q Your finding as to the cause of death is shock and hemorrhage due to gunshot wound involving the jugular vessel [and thoracic aorta], by that do we mean Dra. the jugular vessel as well as [thoracic aorta] were [traversed] by the bullet?

A Yes, sir.

CROSS-EXAMINATION BY ATTY. BELARMINO:

Q I am showing to you Exhibit C, do we understand from your testimony that the entrance of the bullet is located at the portion of the body which is the left neck?

A Yes, sir.

Q And the exit of the bullet proceeded at the back lower portion right side of the body of the deceased, is that correct?

A Yes, sir.

Q So much so your confirmation that the entrance of the bullet is higher in trajection than the exit?

A Yes, sir.

Q Could you say Dra. that the position of the assailant is of the higher lane than the position of the deceased when he was shot?

A The assailant may be taller than the victim.

Q And the portion of the entrance [was] on the left side would say with confirmation they [were] not face to face? May we [move] that the tagalog answer be placed on the record.

COURT:

Place it on record.

Answer of the witness

A Nakatagilid.

ATTY. BELARMINO:

Q In other words the assailant’s position was on the left side of the deceased?

A Yes, sir.

Q Could you say that the victim was [seated] at the time he was shot by the assailant, who was then standing?

A Probably.

The parties stipulated, subject to the sound discretion of the Court, that the pieces of jewelry and the cash stolen from the victim were worth P2.5 million.11

Accused-appellant Jimmy Marquez’s defense was alibi. On September 18, 1995, he said he went to his brother Arcadio Marquez’s house in Taguig, Metro Manila to borrow money because he needed capital in buying and selling of fruits. Arcadio allegedly told him that the money would come from his wife’s salary which would be paid on September 24, 1995 yet. Accused-appellant, therefore, decided to stay and in the meantime help his brother in the construction of a septic tank. Jimmy Marquez stayed in his brother’s house from September 18 to September 25, 1995.12 After receiving the money from his brother, accused-appellant said he left for Mabini, Batangas.

To reinforce his alibi, accused-appellant claimed that while in Taguig on September 22, 1995, the date of the crime in question, he in fact participated in the settlement of a case between the spouses Marayan. Although he was not a member of the Barangay Council, accused-appellant said he acted as one of the witnesses in the settlement.13

Barangay officials and other individuals who, together with accused-appellant, claimed to have participated in the settlement of dispute in their barangay corroborated accused-appellant’s alibi. Cesar Gobrin, purok leader and member of the Lupong Tagapamayapa of Western Bicutan, Taguig, and Clemente de Latade testified that accused-appellant was present during the signing of the settlement between the Marayan spouses. In fact, he said accused-appellant was the only person who was not a member of the team in their place who signed as a witness to the document. However, Gobrin admitted that there was no logbook where settlements are entered but only a compilation of the same.14 On the other hand, Mariano Aclan testified that accused-appellant talked to him on October 26, 1997 and asked him to testify that accused-appellant was in Taguig on September 25, 1995. Mariano Aclan said he saw the document, which he signed, only when he was brought to Court when he attended the hearing prior to the one wherein he gave his testimony.15

Rodolfo Guiyab, barangay chairman of Western Bicutan, Taguig, testified that the alleged document of settlement in the case in which accused-appellant allegedly acted as a witness, was submitted to him unsigned by the secretary, Jesus Sarcilla. From September 22, 1995 up to the time he testified, Guiyab said he never checked his office files to see if such a document had been filed in the office.16

Jesus Sarcilla, the barangay secretary, identified a document as the document of settlement between the Marayan spouses. He said the document was executed by the parties on September 26, 1995 and that he signed it. He gave a photocopy of the document to accused-appellant’s brother upon the latter’s request. However, Sarcilla could not vouch for the integrity of the document as he could not recall when he

10

parted with the original copy of the subject document nor the person to whom he gave it.17

Arcadio Marquez, accused-appellant’s elder brother, also testified to corroborate accused-appellant’s alibi. He confirmed accused-appellant’s testimony regarding his participation in the repair of the septic tank and in the settlement of a case in their barangay between a couple as well as on the alleged physical abuse of his brother by the Batangas City police.18 He explained that although, to his knowledge, other cases for frustrated homicide had been filed against his brother by Luisito Dueñas in Sariaya, Quezon and for murder by Virgilio Zaballero in Lucena City, the cases had been dismissed either because of desistance or because of failure of the complainant to appear at the trial.19

Atty. Mario Panganiban testified that he was the lawyer who assisted the accused-appellant while the latter was detained at the PNP office in Batangas City. He claimed that accused-appellant had complained of having been maltreated by the policemen, although the accused-appellant did not name those who had maltreated him. Atty. Panganiban said that although he told accused-appellant to see a physician for a physical examination, he did not know whether this was done by accused-appellant.20

After trial, judgment was rendered finding accused-appellant guilty of robbery with homicide in Criminal Case No. 10069-SP but acquitting him of the charge of violation of P.D. No. 1866 in Criminal Case No. 10193-SP. The dispositive portion of the trial court’s decision reads:

WHEREFORE, in view of the foregoing considerations, the court finds the accused JIMMY MARQUEZ y BACAY guilty beyond reasonable doubt of the crime of Robbery with Homicide defined and penalized under Article 294, par. 5, and Article 249 of the Revised Penal Code and he is hereby sentenced the supreme and capital penalty of DEATH, with costs.

He is further sentenced to pay the heirs of the deceased:

(a) The sum of P50,00.00 as death indemnity;

(b) The sum of P2 million representing stolen cash and the cost of the pieces of jewelry;

(c) The sum of P250,000.00 as moral and exemplary damages; and

(d) The sum of P80,000.00 representing burial and other expenses of the victim.

For failure of the prosecution to establish the guilt of the accused in Crim. Case No. 10193-SP for Illegal Possession of Firearm and Ammunition, above-named accused JIMMY MARQUEZ Y BACAY is pronounced ACQUITTED, without costs.

As the four (4) John Does have not been identified as of this time, the prosecution arm is hereby ordered to take extra effort in bringing to the bar of justice the said four (4) suspects to be dealt with accordingly.

SO ORDERED.21

Accused-appellant assigns the following errors allegedly committed by the trial court:

I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE AND SENTENCING HIM TO THE PENALTY OF DEATH.

II. THE LOWER COURT ERRED IN RELYING ON THE UNRELIABLE TESTIMONY OF TWO (2) BIASED WITNESSES.

As a preliminary matter, accused-appellant says that the use of DNA testing would prove his innocence. The fact, however, is that there was no DNA test to prove accused-appellant’s innocence.22

On the other hand, the evidence on record fully supports the trial court’s judgment of conviction. A conviction for robbery with homicide requires proof of the following elements: (a) the taking of personal property with violence or intimidation against persons or with force upon things; (b) the property taken belongs to another; (c) the taking be done with animus lucrandi (intent to gain); and (d) on the occasion of the robbery or by reason thereof, homicide in its generic sense was committed. The offense becomes the special complex crime of robbery with homicide under Art. 294

(1) of Revised Penal Code if the victim is killed on the occasion or by reason of the robbery.1âwphi1.nêt

Accused-appellant sought to discredit the testimonies of the prosecution witnesses Rizza Cervantes, salesgirl of the victim, and Jerwin Aclan, the victim’s son, and by offering denial and alibi as defense.

Accused-appellant’s claims are unconvincing. In challenging the finding of the trial court as to the credibility of the prosecution’s witnesses, the burden is on the accused to show that the testimonies are untrustworthy. This Court has consistently ruled that in the absence of any fact or circumstance of weight and influence which has been overlooked or the significance of which has been misconstrued by the trial court, appellate courts will not set aside the evaluation of the evidence made by the trial court considering that it has heard the witnesses and observed their deportment during the trial.23 In this case, there is no showing that the trial court overlooked substantial facts so as to justify this Court in setting aside the evaluation of the evidence made by the trial court.

Indeed, prosecution witnesses positively and categorically identified accused-appellant as one of the five armed men who held them up on September 22, 1995 and killed the victim. Rizza Cervantes testified as follows:

Q: Alright, you claimed that you were [held-up] when you were on board the tricycle, please tell the Court what transpired on that particular date and time when you were [held-up] while on board a tricycle?

A: We were about to go home and we were [held-up] at San Francisco Terrace by five (5) persons and I recognized only one among them, sir.

. . . .

ATTY. MALVEDA:

. . . .

Q: You said a while ago that you could identify that person who . . . . poked a gun and who shot Kuya Pilo when you were inside the tricycle, if that person is around, can you identify and point to him?

A: Yes, sir.

Q: Please identify that person?

A: (Witness pointed to a person who gave his name as Jimmy Marquez.)24

Jerwin Aclan testified as follows:

Q: Alright, that person whom you had seen right after you heard the shot while still poking the gun [at] your father, will you be able to recognize him, Mr. Witness?

A: Yes, sir.

Q: If that person whom you saw immediately after you heard the shot poking a gun still to your father is inside the courtroom, will you be able to recognize him?

A: Yes, sir.

Q: Please look around this courtroom and point to that person if that person whom you saw immediately after you heard the shot still poking a gun [at] your father at the time that your father was shot on September 22, 1996 is around, please point to him now[.]

A: That person, sir.

Q: What is your name?

A: [Witness pointed to a person who gave his name Jimmy Marquez.]25

There was no possibility of mistaken identification because accused-appellant and his companions were not wearing masks,26 and the prosecution witnesses and accused-appellant and his companions were face to face of each other, when the latter carried out their evil plan.

11

SPO2 Rolito Alinea, who conducted the investigation of the case, testified:

Q: I noticed that in [their] statements both witnesses Rizza Cervantes and Jerwin Aclan were able to identify accused Jimmy Marquez, will you please inform the Court how both witnesses were able to identify the accused Jimmy Marquez?

. . . .

A: These two witnesses were both in front of [the] police line up including the accused, [and the [witness[es] pointed to accused Jimmy Marquez.

Q: How many persons were there in the police line up?

A: Five (5), sir.

Q: Tell us how Rizza Cervantes identified Marquez?

A: When I asked Rizza Cervantes who among those five (5) persons in the line up is the one to be considered as one of the suspect[s], she pointed to Jimmy Marquez.

Q: How about Jerwin Aclan, how did he identif[y] Marquez?

A: He also pointed to the same police line up and he pointed Jimmy Marquez as one of those who killed Pampilo Aclan.27

Accused-appellant claims that Rizza Cervantes, as employee of the victim, and Jerwin Aclan, as the victim’s son, were naturally biased against him and, therefore, their testimonies should not be given credence. The same argument, however, could be made against accused-appellant’s own brother, Arcadio Marquez, who testified to corroborate accused-appellant’s alibi. Yet accused-appellant does not say his brother’s testimony should not be given weight.

Indeed, the relationship per se of the prosecution witnesses to the victim does not give rise to a presumption of bias nor does it ipso facto impair their credibility.28 There is no legal provision which disqualifies relatives of the victim of a crime from testifying, if they are competent.29 On the contrary, a relative like Jerwin Aclan should be considered especially qualified because he has an interest in securing the conviction of those who are truly guilty.30 What will it profit him if the one convicted is innocent?

Indeed, in the absence of proof that a witness is moved by improper motive, it is presumed that he was not so moved and, therefore, his testimony is entitled to full faith and credit.31 That presumption has not been overcome in this case, thus Jerwin’s identification of accused-appellant as the killer of his father stands. It should also be stressed that the motive for the killing is not important when there is no doubt as to the identity of the perpetrators of the crime.32 Here, however, the motive is plain: the victim was killed to rob him of his jewelry and his money.

Accused-appellant likewise contends that the mention of the mole on his chin as an identifying mark during the trial of the case was an afterthought since no such mention was made when the prosecution eyewitnesses identified him in the police line-up. As the Solicitor-General contends, however -

The mole on the chin is just one of appellant’s distinctive features. It is not constitutive of his physical appearance. What is significant is that appellant was positively and categorically identified by the prosecution witnesses as the gunwielder. Appellant need not be described in every detail. The main substance of the testimony of Rizza Cervantes and Jerwin Aclan that they saw accused-appellant shoot the victim remains untouched and unaffected.33

Accused-appellant also questions the prosecution’s non-presentation of Jimmy Soriso, the tricycle driver. He contends that this must be because his testimony would be adverse if produced. The prosecution evidence, however, was more than sufficient to establish the guilt of the accused-appellant beyond reasonable doubt. Suffice it to say, the question is not one of number, but of the quality of the testimonies offered.

In truth, it is the testimonies of the defense witnesses, despite their number, that the Court finds not credible. Most of them merely repeated in court what they had been instructed by Arcadio Marquez, accused-appellant’s brother. This is fairly evident from the following testimonies of the defense witnesses:

Testimony of Cesar Gobrin:

Q: Did you receive any subpoena to testify before this Court today?

A: None, sir, I was only told to testify that "bilang alagad ng batas dapat [kong] harapin ang usapin."

Q: Who informed you that you are going to testify today?

A: It was Arcadio Marquez who told me.

. . . .

Q: And that you are going to testify in favor of his brother?

A: Yes, sir.

Q: And that you discussed the things that you are going to testify before this Court?

A: Yes, sir.

Q: And what was discussed and told you by Arcadio Marquez w[as] the very same thing that you mentioned before this Court?

A: Yes, sir.

. . . .

Q: You were told by Arcadio Marquez to testify in Court and [inform] the Court that his brother was present in your Purok on September 22, 1995?

A: Because of that case.

Q: So when you came to this Court, you centered your mind that you are going to testify that Marquez was present in your Purok on September 22, 1995?

A: Yes, your Honor.

Q: Where was he on September 22, 1995?

A: In the house of his brother because he was doing something there.

Q: Were you present in their house?

A: I was not there.

Q: You were only told?

A: I was only told by my [auxiliaries].

Q: On September 18, 1995, where was Jimmy Marquez?

A: Probably in their house.

Q: Where?

A: In the house of his brother.

Q: Did you see him there?

A: I presumed.

Q: You presumed because you did not actually see him in the house of Arcadio Marquez?

A: No.34

Testimony of Clemente de Latade:

Q: You did not receive any subpoena to testify today, Mr. Witness?

A: None, sir.

Q: When for the first time did you come to know that you will testify today?

A: Last night, sir.

12

Q: Who informed that you will testify today?

A: Arcadio Marquez, sir.

Q: And he told you what to tell to this Court last night?

A: About the incident he told me, sir.

. . . .

Q: And because of that information told to you by Arcadio Marquez last night that was the very same thing you will testify to this Court on direct examination?

A: Yes, sir.

Q: In fact, your transportation fare was paid by Arcadio Marquez from Taguig in coming here and return back?

A: Yes, sir.

Q: And that you were instructed that you will only tell what he told you last night?

A: Yes, sir.35

Testimony of Rodolfo Guiyab:

Q: Why did you come to this Court wherein you don’t know of what you will testify?

A: I just received a subpoena that I will testify today, sir.

. . . .

Q: You have read the word, Jimmy Marquez, this caption?

A: Yes, sir.

Q: When did you read this?

A: Only yesterday, sir.

Q: What time?

A: 4:00 o’clock in the afternoon, sir.

Q: Do you know . . . . Jimmy Marquez?

A: I don't know him, sir.

Q: You never inquired from anybody . . . . who was that Jimmy Marquez?

A: I also asked, sir, I asked the Chief of the Tanod if he knew Jimmy Marquez and he told me, he does not know, sir.

Q: It is now clear that you don’t know any person by the name of Jimmy Marquez?

A: No, sir.

COURT:

Q: He is not the one of the constituents in your barangay?

A: No, he is not, Your Honor.36

Testimony of Mariano Aclan:

Q: Did you receive any subpoena to appear in today’s hearing, Mr. Witness?

A: None, sir.

Q: How did you come to know that you are to appear before this Court?

A: I had a talk with the brother of Marquez, sir.

COURT:

Q: You are referring to Arcadio?

A: Yes, sir.

ATTY. MALVEDA:

Q: And you claim to have talked last Tuesday?

A: Last Sunday, sir.

Q: That was October 26, 1997?

A: Yes, sir.

Q: Before that date were you able to have a talk with Arcadio Marquez?

A: Only today, sir, this morning.

Q: And what was told to you by Arcadio Marquez?

A: We talked about the incident, sir, that I am needed.

Q: So Arcadio Marquez told you as to what will be the subject of your testimony in court today?

A: None, sir.

Q: So you never [talked] of any subject matter that you are going to testify in today’s hearing?

A: Marquez told me about the problem of his brother, sir. He told me to testify today that his brother was in Taguig.

Q: That is exactly the statement told you by Arcadio Marquez?

A: Yes, sir.

Q: Other than that statement there were no other matters told you by Arcadio Marquez?

A: None, sir.

COURT:

Q: Who is that brother whom you are going to show that he was in Taguig?

A: I forgot the name because he was not residing there, Your Honor.

Q: You do not know his name?

A: Because I have many works and I will testify that he was there, Your Honor.

. . . .

Q: Before you testified, let us say, from October 27 up to November 3, 1995, did you come to see the document which according to you signed?

A: Yes, sir.

Q: Where did you see that?

A: When we brought that document during the last hearing.

Q: You were already here during the last hearing before today?

A: Yes, Your Honor.

Q: Notwithstanding the fact that you did not receive any subpoena you were present during the last hearing of this case?

13

A: Yes, sir.

Q: And notwithstanding that statement of yours you will still claim before this Court that it was only on October 27 that Arcadio Marquez talked to you about the statement that you are going to testify before this Court?

A: He informed me when I will come to this Court, sir.

Q: So do you wish to tell the Court that this Kasunduan ng Pag-aayos was with Mr. Arcadio Marquez on October 27, 1997?

A: I just saw this document here, sir.

Q: Who showed to you this document, was it Arcadio Marquez?

A: Yes, sir.

Q: It was here in Court that Arcadio Marquez presented to you this document?

A: Outside, sir.

Q: So he had a copy of his own?

A: I do not know, Your Honor.

Q: Is this exactly the document showed to you by Arcadio Marquez?

A: Yes, sir.

Q: So that this was in possession Arcadio Marquez from Taguig up to San Pablo City?

A: I only saw this document outside, sir.

Q: And only the two of you were there at the place where it was showed to you?

A: Yes, sir.

Q: No other person present?

A: None, sir.

Q: What is the content of that document?

A: Considering that I do now know how to read, Your Honor, it was read to me and then I signed.37

Moreover, alibi as a defense cannot prevail over the positive identification of accused-appellant. It is inherently weak. Denials and alibis, unsubstantiated by clear and convincing evidence, as in this case, are negative and self-serving, and cannot be given greater evidentiary weight over the positive testimonies of credible witnesses.38 It has been held that where an accused’s alibi is only confirmed by close relatives, who induced others to testify on something they knew nothing about, such denial deserves scant consideration, especially in the face of affirmative testimonies of credible prosecution witnesses as to his presence in the crime scene.39

The foregoing finding notwithstanding, we think the penalty of death imposed by the trial court should be modified. Art. 294, paragraph 1 of the Revised Penal Code provides that "[t]he penalty of reclusion perpetua to death, where by reason or on occasion of the robbery, the crime of homicide shall have been committed. . ." shall be imposed. In this case, in sentencing accused-appellant to death for the crime of robbery with homicide, the trial court took into account the aggravating circumstance of commission of the crime by a band and/or armed malefactors. However, this circumstance was not alleged in the information filed against accused-appellant. Rule 110, §8 of the Revised Rules of Criminal Procedure (effective December 1, 2000), now provides:

Designation of the offense. -- The complaint or information shall state the designation of the offense given by the statute, aver the acts or omission constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (Emphasis added)

This provision must be applied to this case being favorable to accused-appellant. Moreover, it has been held that if the appreciation of an aggravating circumstance would raise the imposable penalty to death, the circumstance must be alleged in the information.40 As no aggravating circumstance is alleged in the information in this case, the penalty should be reduced to reclusion perpetua.

The Court affirms the awards of P50,000.00 as civil indemnity for the death of the victim, the same being in line with prevailing jurisprudence,41 and of P80,000.00, representing burial and other incidental expenses, as stipulated by the parties. On the other hand, considering that the parties’ stipulation that the value of the stolen cash and jewelry was P2.5 million is "subject to the . . . court’s sound discretion" and taking into account the factual circumstances of this case, the Court deems it appropriate to reduce the amount for the restitution of the stolen cash and jewelry to P1 million. Similarly, as there is no uniform amount for the award of moral damages in cases for robbery with homicide but, considering the circumstances of this case as already discussed, the amount awarded to the heirs of Pampilo Aclan should be reduced to P50,000.00.42 In accordance with People v. Catubig,43 exemplary damages may be awarded to the offended party pursuant to Art. 2230 of the Civil Code if there is an aggravating circumstance, whether ordinary or qualifying. An award of P25,000.00 as exemplary damages is proper.

WHEREFORE, the decision of the Regional Trial Court, Fourth Judicial Region, Branch 32, San Pablo City, dated October 26, 1998, is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to pay the heirs of Pampilo Aclan the amounts of P50,000.00 as civil indemnity, P100,000.00 as moral damages, P80,000.00 as burial and other incidental expenses, P25,000.00 as exemplary damages and P1,000,000.00 as restitution for the stolen cash and jewelry.

G.R. No. 150224 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs.JOEL YATAR alias "KAWIT", appellant.

D E C I S I O N

PER CURIAM:

On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation.1

14

Appellant was charged with Rape with Homicide under the following Information:

That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will.

CONTRARY TO LAW.2

The facts are:

On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyn’s friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning.3

At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house.4

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother.5

At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellant’s eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyn’s husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8

In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid.9

Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police.10

At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawang’s house. Together with fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds.

The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m.

The police discovered the victim’s panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel.

When questioned by the police authorities, appellant denied any knowledge of Kathylyns’s death,11 however, he was placed under police custody.

On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He’s running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty."

After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors:

I

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.

II

THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellant’s contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.13 Well-entrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judge’s assessment of credibility deserves the appellate court’s highest respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.16

The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime.17

Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victim’s abdomen and back, causing a portion of her small intestines to spill out of her body.18 Rigor mortis of the vicitm’s body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses.

It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise

15

and some swelling in her right forearm indicating resistance to the appellant’s assault on her virtue.22

Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellant’s gene type.

DNA is a molecule that encodes the genetic information in all living organisms.23 A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.25

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case.

DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victim’s body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victim’s body during the assault.27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.28

The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method.

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.29

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques.30 Based on Dr. de Ungria’s testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination.31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken from the victim’s vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence.34 Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is

reasonably based on scientifically valid principles of human genetics and molecular biology.

Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellant’s wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victim’s vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt.35

Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.

This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37 The right against self- incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence.

We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused.

It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel.

Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law.

This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented.

16

Appellant’s twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house during the time when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens his alibi.

As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt.

Appellant’s assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission.

The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.44

Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appellant running down the stairs of Isabel’s house and proceeding to the back of the same house.46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school."47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmother’s house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives x x x."50 These statements were not contradicted by appellant.

Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.51

Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips by stabbing her repeatedly, thereby causing her untimely demise.

The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as the victim’s father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that actual

force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The fact that the victim’s hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.56

In the case at bar, appellant is the husband of the victim’s aunt. He is seven years older than the victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-law’s house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar.

As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances.60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED.

Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power.

17

G.R. No. 158802 November 17, 2004

IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained at the New Bilibid Prisons, Muntinlupa City)JUNE DE VILLA, petitioner-relator, vs.THE DIRECTOR, NEW BILIBID PRISONS, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

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

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

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

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

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

In his defense, petitioner alleged that, at the time of the alleged rape, he was already 67 years old. Old age and sickness had rendered him incapable of having an erection. He further averred that Aileen's family had been holding a grudge against him, which

accounted for the criminal charges. Finally, he interposed the defense of alibi, claiming that at the time of the incident, he was in his hometown of San Luis, Batangas.6

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

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

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

SO ORDERED.10

Three years after the promulgation of our Decision, we are once more faced with the question of Reynaldo de Villa's guilt or innocence.

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

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

On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the Decision, wherein he once more prayed that DNA tests be conducted.13 The Motion was denied with finality in a Resolution dated November 20, 2001.14 Hence, the Decision became final and executory on January 16, 2002.15

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

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

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

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

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

DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE

18

FACT THAT LEAHLYN WAS SIRED AS A RESULT OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.20

x x x x x x x x x

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

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

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

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

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

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

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

In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of conviction, without, however, providing a legal ground on which to anchor his petition. In fine, petitioner alleges neither the deprivation of a constitutional right, the absence of jurisdiction of the court imposing the sentence, or that an excessive penalty has been imposed upon him.

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

Clearly, mere errors of fact or law, which did not have the effect of depriving the trial court of its jurisdiction over the case and the person of the defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be corrected on certiorari or on appeal, in the form and manner

prescribed by law.31 In the past, this Court has disallowed the review of a court's appreciation of the evidence in a petition for the issuance of a writ of habeas corpus, as this is not the function of said writ.32 A survey of our decisions in habeas corpus cases demonstrates that, in general, the writ of habeas corpus is a high prerogative writ which furnishes an extraordinary remedy; it may thus be invoked only under extraordinary circumstances.33 We have been categorical in our pronouncements that the writ of habeas corpus is not to be used as a substitute for another, more proper remedy. Resort to the writ of habeas corpus is available only in the limited instances when a judgment is rendered by a court or tribunal devoid of jurisdiction. If, for instance, it can be demonstrated that there was a deprivation of a constitutional right, the writ can be granted even after an individual has been meted a sentence by final judgment.

Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas corpus was held to be available where an accused was deprived of the constitutional right against self-incrimination. A defect so pronounced as the denial of an accused's constitutional rights results in the absence or loss of jurisdiction, and therefore invalidates the trial and the consequent conviction of the accused. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus.35 Later, in Gumabon v. Director of the Bureau of Prisons,36 this Court ruled that, once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention.37 Although in Feria v. Court of Appeals38 this Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, we laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.39

In the recent case of Calvan v. Court of Appeals,40 we summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked by the attendance of a special circumstance that requires immediate action. In such situations, the inquiry on a writ of habeas corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention.41 It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus.

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

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

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

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

19

In the case at bar, it appears that in the middle of the appeal, the petitioner's counsel of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his appearance as counsel, giving the sole explanation that he was "leaving for the United States for an indefinite period of time by virtue of a petition filed in his favor."48 In the face of this abandonment, petitioner made an impassioned plea that his lawyer be prevented from this withdrawal in a handwritten "Urgent Motion for Reconsideration and Opposition of Counsel's Withdrawal of Appearance with Leave of Court" received by this Court on September 14, 1999.49 Petitioner alleged that his counsel's withdrawal is an "untimely and heartbreaking event", considering that he had placed "all [his] trust and confidence on [his counsel's] unquestionable integrity and dignity."50

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No costs.

20

G.R. No. 148220 June 15, 2005

ROSENDO HERRERA, petitioner, vs.ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review1 to set aside the Decision2 dated 29 November 2000 of the Court of Appeals ("appellate court") in CA-G.R. SP No. 59766. The appellate court affirmed two Orders3 issued by Branch 48 of the Regional Trial Court of Manila ("trial court") in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity testing, while the Order dated 8 June 2000 denied petitioner’s motion for reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented by his mother Armi Alba, filed before the trial court a petition for compulsory recognition,

support and damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent. Petitioner also denied physical contact with respondent’s mother.

Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute ("UP-NSRI"), a DNA analysis laboratory. She was a former professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that the test had an accuracy rate of 99.9999% in establishing paternity.4

Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further argued that DNA paternity testing violates his right against self-incrimination.

The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondent’s motion to conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus:

In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petition.

IT IS SO ORDERED.5 (Emphasis in the original)

Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that "under the present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to obtain the requisite specimen…, unconstitutional."

In an Order dated 8 June 2000, the trial court denied petitioner’s motion for reconsideration.6

On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 "in excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction." Petitioner further contended that there is "no appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law." Petitioner maintained his previous objections to the taking of DNA paternity testing. He submitted the following grounds to support his objection:

1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).

2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of the test as admitted by private respondent’s "expert" witness.

3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises.

4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional.7

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial court’s evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in

21

the exercise of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not violate his right against self-incrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the appellate court’s decision reads:

WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner.

SO ORDERED.8

Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001.9

Issues

Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit.10

Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court "to embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its implementation."11 Petitioner maintains that the proposed DNA paternity testing violates his right against self-incrimination.12

The Ruling of the Court

The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship,13 support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.14

A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father.15

There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations with the mother, because of either physical absence or impotency.16 The putative father may also show that the mother had sexual relations with other men at the time of conception.

A child born to a husband and wife during a valid marriage is presumed legitimate.17 The child’s legitimacy may be impugned only under the strict standards provided by law.18

Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his biological father.19 This kind of evidence appeals to the emotions of the trier of fact.

In the present case, the trial court encountered three of the four aspects. Armi Alba, respondent’s mother, put forward a prima facie case when she asserted that petitioner is respondent’s biological father. Aware that her assertion is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures.

Petitioner, on the other hand, denied Armi Alba’s assertion. He denied ever having sexual relations with Armi Alba and stated that respondent is Armi Alba’s child with another man. Armi Alba countered petitioner’s denial by submitting pictures of respondent and petitioner side by side, to show how much they resemble each other.

Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed in this jurisdiction.

Laws, Rules, and Jurisprudence Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

xxx

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree.—The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree.—The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.

This Court’s rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA,20 a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father.21 A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence.22 Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation.23 However, a student permanent record, a written consent to a father’s operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing.24 Standing alone, neither a certificate of baptism25 nor family pictures26 are sufficient to establish filiation.

So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity.27

22

In Co Tao v. Court of Appeals,28 the result of the blood grouping test showed that the putative father was a "possible father" of the child. Paternity was imputed to the putative father after the possibility of paternity was proven on presentation during trial of facts and circumstances other than the results of the blood grouping test.

In Jao v. Court of Appeals,29 the child, the mother, and the putative father agreed to submit themselves to a blood grouping test. The National Bureau of Investigation ("NBI") conducted the test, which indicated that the child could not have been the possible offspring of the mother and the putative father. We held that the result of the blood grouping test was conclusive on the non-paternity of the putative father.

The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity.30

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.31 We quote relevant portions of the trial court’s 3 February 2000 Order with approval:

Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individual’s blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts.

The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individual’s DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called "genes."

Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci."

How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the "known" print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called "allele", one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child’s DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father’s profile is then examined to

ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man’s DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.32 (Emphasis in the original)

Although the term "DNA testing" was mentioned in the 1995 case of People v. Teehankee, Jr.,33 it was only in the 2001 case of Tijing v. Court of Appeals34 that more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas corpus against respondent who abducted petitioners’ youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage. However, we observed that:

Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

Admissibility of DNA Analysis as Evidence

The 2002 case of People v. Vallejo35 discussed DNA analysis as evidence. This may be considered a 180 degree turn from the Court’s wary attitude towards DNA testing in the 1997 Pe Lim case,36 where we stated that "DNA, being a relatively new science, xxx has not yet been accorded official recognition by our courts." In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched the accused’s DNA profile. We affirmed the accused’s conviction of rape with homicide and sentenced him to death. We declared:

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.37

Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according "official recognition" to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis.

In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar38 and In re: The Writ of Habeas Corpus for Reynaldo de Villa.39 In Yatar, a match existed between the DNA profile of the semen found in the victim and the DNA profile of the blood sample given by appellant in open court. The Court, following Vallejo’s footsteps, affirmed the conviction of appellant because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape. The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victim’s child does not preclude the convict-petitioner’s commission of rape.

In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.40 and Daubert v. Merrell Dow Pharmaceuticals.41 In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Frye’s counsel offered an expert witness to testify on the result of a systolic blood pressure deception test42 made on defendant. The state Supreme Court affirmed Frye’s conviction and ruled that "the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." The Frye standard of general acceptance states as follows:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long

23

way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

In 1989, State v. Schwartz43 modified the Frye standard. Schwartz was charged with stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution introduced the private testing facility’s results over Schwartz’s objection. One of the issues brought before the state Supreme Court included the admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that:

While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that admissibility of specific test results in a particular case hinges on the laboratory’s compliance with appropriate standards and controls, and the availability of their testing data and results.44

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.45 further modified the Frye-Schwartz standard. Daubert was a product liability case where both the trial and appellate courts denied the admissibility of an expert’s testimony because it failed to meet the Frye standard of "general acceptance." The United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus:

Rule 401. "Relevant evidence" is defined as that which has any "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 702 of the Federal Rules of Evidence governing expert testimony provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimony’s reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the theory or technique is generally accepted in the scientific community.

Another product liability case, Kumho Tires Co. v. Carmichael,46 further modified the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines.47 At best, American jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court.48 Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence.49 Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence.

This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue."50

Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence.

Probative Value of DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:

In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.51]

We also repeat the trial court’s explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child’s DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father’s profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man’s DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.52

It is not enough to state that the child’s DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction,53 trial courts should require at least 99.9% as a minimum value of the Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone.54

DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity.55 This refutable presumption of paternity should be subjected to the Vallejo standards.

Right Against Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to be a witness against himself." Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial court’s 3 February 2000 Order with approval:

Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only to evidence that is "communicative" in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of

24

lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on "testimonial compulsion."56

The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses.57 Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759.

SO ORDERED.G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs.The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents.

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

G.R. No. 161634 March 3, 2004

ZOILO ANTONIO VELEZ, petitioner, vs.RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

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

G. R. No. 161824 March 3, 2004

VICTORINO X. FORNIER, petitioner, vs.HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents.

D E C I S I O N

VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it.

Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila.

25

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court

In G. R. No. 161824

In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJ’s certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code –

"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false" –

in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code -

"Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections" -

and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate.

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads –

"Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."

Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land.

In G. R. No. 161434 and G. R. No. 161634

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.

26

Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise -

"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines.

"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest.

"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner."

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario.

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held.

Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.

The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship.

Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office.6 Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice.9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power.10 The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security.11 The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship.12

The Local Setting - from Spanish Times to the Present

There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees.14

Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts;15 however, three royal decrees were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.18

The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws.19

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. -

"(a) Persons born in Spanish territory,

"(b) Children of a Spanish father or mother, even if they were born outside of Spain,

"(c) Foreigners who have obtained naturalization papers,

"(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy."20

The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States.21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside.

Thus –

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."22

Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States.

The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of

27

1902, the first comprehensive legislation of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight."23

Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.24

Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period.25 More about this later.

In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein."26

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -

"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein."

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship -

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution

"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.

"(3) Those whose fathers are citizens of the Philippines.

"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship.

"(5) Those who are naturalized in accordance with law."

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns -

"Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.

"(4) Those who are naturalized in accordance with law."

For good measure, Section 2 of the same article also further provided that –

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship."

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution.

Section I, Article IV, 1987 Constitution now provides:

"The following are citizens of the Philippines:

"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.

"(2) Those whose fathers or mothers are citizens of the Philippines.

"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

"(4) Those who are naturalized in accordance with law."

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election."

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."27

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal

28

of Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth.

Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married.

Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that -

1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

2. FPJ was born to them on 20 August 1939;

3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;

4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC.

The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals.

Section 3, Rule 130, Rules of Court states that -

"Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

"x x x x x x x x x

"(d) When the original is a public record in the custody of a public office or is recorded in a public office."

Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides:

"Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated."

The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the

statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred.31

The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation

Under Civil Law.

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that -

"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified."

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition.33 In Mendoza vs. Mella,34 the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own."

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class."

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Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:

"Art. 172. The filiation of legitimate children is established by any of the following:

"(1) The record of birth appearing in the civil register or a final judgment; or

"(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

"(1) The open and continuous possession of the status of a legitimate child; or

"(2) Any other means allowed by the Rules of Court and special laws.

"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

"The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

"x x x x x x x x x.

"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children.

"The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent."

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws."

Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect."

It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect

his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among members of a family, and those which exist among members of a society for the protection of private interests."37

In Yañez de Barnuevo vs. Fuster,38 the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that -

"Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" -

that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code,39 such as on successional rights and family relations.40 In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law41 and not his political status.

Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount.

These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides -

"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree’ includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d)

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declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that:

"1. I am the sister of the late Bessie Kelley Poe.

"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.

"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila.

"x x x x x x x x x

"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year.

"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944.

"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe.

"x x x x x x x x x

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.

"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Ruby Kelley Mangahas Declarant DNA Testing

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of DNA testing -

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

Petitioner’s Argument For Jurisprudential Conclusiveness

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on

July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and Serra vs. Republic.45

On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases.

"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather.

"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis.

"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino.

"The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo.

"x x x x x x x x x

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.

"The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose.

"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own?

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To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated."

The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.

Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him.

The fact of the matter – perhaps the most significant consideration – is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided.

In Sum –

(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines.

(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latter’s capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held.

(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate.

(4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only be material, but also deliberate and willful.

WHEREFORE, the Court RESOLVES to DISMISS –

1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando

Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.

2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003.

No Costs.

SO ORDERED.

Davide, Jr., C.J., see separate opinion, concurring.Puno, J., on leave but was allowed to vote; see separate opinion.Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter.Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded.Ynares-Santiago, J., concurs and also with J. Puno’s separate opinion.Sandoval-Gutierrez, J., concurs, please see separate opinion.Carpio, J., see dissenting opinion.Austria-Martinez, J., concurs, please see separate opinion.Corona, J., joins the dissenting opinion of Justice Morales.Carpio-Morales, J., see dissenting opinion.Callejo, Sr., J., please see concurring opinion.Azcuna, J., concurs in a separate opinion.Tinga, J., dissents per separate opinion.

SEPARATE OPINION

DAVIDE, JR. C.J.:

The procedural and factual antecedents of these consolidated cases are as follows:

On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on Elections (COMELEC) a petition to disqualify private respondent Fernando Poe, Jr. (FPJ) and to deny due course to or cancel his certificate of candidacy for the position of President in the forthcoming 10 May 2004 presidential elections. As a ground therefore, he averred that FPJ committed falsity in a material representation in his certificate of candidacy in declaring that he is a natural-born Filipino citizen when in truth and in fact he is not, since he is the illegitimate son of Bessie Kelley, an American citizen, and Allan Poe, a Spanish national. The case was docketed as COMELEC Case SPA No. 04-003 and assigned to the COMELEC’s First Division.

At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJ’s record of birth to prove that FPJ was born on 20 August 1939 to Bessie Kelley, an American citizen, and Allan Poe, who was then married to Paulita Gomez. Upon the other hand, FPJ tried to establish that his father was a Filipino citizen whose parents, although Spanish nationals, were Filipino citizens. He adduced in evidence a copy of the marriage contract of Allan Poe and Bessie Kelley, showing that they were married on 16 September 1940 in Manila.

In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC Case SPA No. 04-003 for lack of merit. It declared that COMELEC’s jurisdiction is limited to all matters relating to election, returns and qualifications of all elective regional, provincial and city officials, but not those of national officials like the President. It has, however, jurisdiction to pass upon the issue of citizenship of national officials under Section 78 of the Omnibus Election Code on petitions to deny due course or cancel certificates of candidacy on the ground that any material representation contained therein is false. It found that the evidence adduced by petitioner Fornier is not substantial, and that FPJ did not commit any falsehood in material representation when he stated in his certificate of candidacy that he is a natural-born Filipino citizen.

His motion for reconsideration filed before the COMELEC en banc having been denied, petitioner Fornier filed a petition with this Court, which was docketed as G.R. No. 161824.

Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court via a special civil action for certiorari under Rule 65 of the Rules of Court, docketed as G.R. No. 161434, to challenge the jurisdiction of the COMELEC over the

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issue of the citizenship of FPJ. They assert that only this Court has jurisdiction over the issue in light of the last paragraph of Section 4 of Article VII of the Constitution, which provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No. 161634.

The core issues in these consolidated cases, as defined by the Court during the oral argument, are as follows:

(1) Whether the COMELEC has jurisdiction over petitions to deny due course to or cancel certificates of candidacy of Presidential candidates;

(2) Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b) Velez, and (c) Fornier; and

(3) Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born Filipino citizen.

These consolidated petitions must be dismissed.

Both the petitions of Tecson and Velez invoke the jurisdiction of this Court as provided for in the last paragraph of Section 4 of Article VII of the Constitution, and raise the issue of the ineligibility of a candidate for President on the ground that he is not a natural-born citizen of the Philippines. The actions contemplated in the said provision of the Constitution are post-election remedies, namely, regular election contests and quo warranto. The petitioner should have, instead, resorted to pre-election remedies, such as those prescribed in Section 68 (Disqualifications), in relation to Section 72; Section 69 (Nuisance candidates); and Section 78 (Petition to deny course to or cancel a certificate of candidacy), in relation to Section 74, of the Omnibus Election Code, which are implemented in Rules 23, 24 and 25 of the COMELEC Rules of Procedure. These pre-election remedies or actions do not, however, fall within the original jurisdiction of this Court.

Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has the original jurisdiction to determine in an appropriate proceeding whether a candidate for an elective office is eligible for the office for which he filed his certificate of candidacy or is disqualified to be a candidate or to continue such candidacy because of any of the recognized grounds for disqualification. Its jurisdiction over COMELEC SPA No. 04-003 is, therefore, beyond question.

Upon the other hand, this Court has jurisdiction over Fornier’s petition (G.R. No. 161824) under Section 7 of Article IX-A of the Constitution, which provides:

Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

This Court can also take cognizance of the issue of whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the challenged resolution in COMELEC SPA No. 04-003 by virtue of Section 1 of Article VIII of the Constitution, which reads as follows:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of nay branch or instrumentality of the Government.

On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following facts have been established by a weighty preponderance of evidence either

in the pleadings and the documents attached thereto or from the admissions of the parties, through their counsels, during the oral arguments:

1. FPJ was born on 20 August 1939 in Manila, Philippines.

2. FPJ was born to Allan Poe and Bessie Kelley.

3. Bessie Kelley and Allan Poe were married on 16 September 1940.

4. Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was not shown to have declared his allegiance to Spain by virtue of the Treaty of Paris and the Philippine Bill of 1902.

From the foregoing it is clear that respondent FPJ was born before the marriage of his parents. Thus, pursuant to the Civil Code then in force, he could either be (a) a natural child if both his parents had no legal impediments to marry each other; or (b) an illegitimate child if, indeed, Allan Poe was married to another woman who was still alive at the time FPJ was born.

Petitioner Fornier never alleged that Allan Poe was not the father of FPJ. By revolving his case around the illegitimacy of FPJ, Fornier effectively conceded paternity or filiation as a non-issue. For purposes of the citizenship of an illegitimate child whose father is a Filipino and whose mother is an alien, proof of paternity or filiation is enough for the child to follow the citizenship of his putative father, as advanced by Fr. Joaquin Bernas, one of the amici curiae. Since paternity or filiation is in fact admitted by petitioner Fornier, the COMELEC committed no grave abuse of discretion in holding that FPJ is a Filipino citizen, pursuant to paragraph 3 of Section 1 of Article IV of the 1935 Constitution, which reads:

Section 1. The following are citizens of the Philippines:

…

(3) Those whose fathers are citizens of the Philippines.

I agree with the amici curiae that this provision makes no distinction between legitimate and illegitimate children of Filipino fathers. It is enough that filiation is established or that the child is acknowledged or recognized by the father.

DISSENTING OPINION

CARPIO, J.:

I dissent from the majority opinion.

The Antecedent Proceedings

Petitioner Fornier filed before the Commission on Elections ("Comelec") a "Petition for Disqualification of Presidential Candidate Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." on the ground that Fernando Poe, Jr. ("FPJ") is not a natural-born Philippine citizen. The Comelec First Division dismissed the petition, ruling that petitioner failed to present substantial evidence that FPJ committed "any material misrepresentation when he stated in his Certificate of Candidacy that he is a natural-born citizen." On motion for reconsideration, the Comelec En Banc affirmed the ruling of the First Division. Petitioner Fornier now assails the Comelec En Banc resolution under Rule 64 in relation to Rule 65 of the Rules of Court.

The Undisputed Facts

The undisputed facts are based on two documents and the admission of FPJ. The first document is the Birth Certificate of FPJ, showing he was born on 20 August 1939. The Birth Certificate is an evidence of FPJ.[1] The second document is the Marriage Certificate of Allan F. Poe and Bessie Kelley, showing that their marriage took place on 16 September 1940. The Marriage Certificate is also an evidence of FPJ.[2] Moreover, FPJ admits that his mother Bessie Kelley was an American citizen.[3]

Based on these two documents and admission, the undisputed facts are: (1) FPJ was born out of wedlock and therefore illegitimate,[4] and (2) the mother of FPJ was an American citizen.

The Issues

The issues raised in Fornier’s petition are:

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(a) Whether the Court has jurisdiction over the petition to disqualify FPJ as a candidate for President on the ground that FPJ is not a natural-born Philippine citizen;

(b) Whether FPJ is a natural-born citizen of the Philippines.

Jurisdiction

The Comelec has jurisdiction to determine initially the qualifications of all candidates. Under Section 2(1), Article IX-C of the Constitution, the Comelec has the power and function to "[E]nforce and administer all laws and regulations relative to the conduct of an election." The initial determination of who are qualified to file certificates of candidacies with the Comelec clearly falls within this all-encompassing constitutional mandate of the Comelec. The conduct of an election necessarily includes the initial determination of who are qualified under existing laws to run for public office in an election. Otherwise, the Comelec’s certified list of candidates will be cluttered with unqualified candidates making the conduct of elections unmanageable. For this reason, the Comelec weeds out every presidential election dozens of candidates for president who are deemed nuisance candidates by the Comelec.[5]

Section 2(3), Article IX-C of the Constitution also empowers the Comelec to "[D]ecide, except those involving the right to vote, all questions affecting elections x x x." The power to decide "all questions affecting elections" necessarily includes the power to decide whether a candidate possesses the qualifications required by law for election to public office. This broad constitutional power and function vested in the Comelec is designed precisely to avoid any situation where a dispute affecting elections is left without any legal remedy. If one who is obviously not a natural-born Philippine citizen, like Arnold Schwarzenneger, runs for President, the Comelec is certainly not powerless to cancel the certificate of candidacy of such candidate. There is no need to wait until after the elections before such candidate may be disqualified.

Under Rule 25 on "Disqualification of Candidates" of the Comelec Rules of Procedure, a voter may question before the Comelec the qualifications of any candidate for public office. Thus, Rule 25 provides:

Section 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate.

Section 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law. (Emphasis supplied)

The Comelec adopted its Rules of Procedure pursuant to its constitutional power to promulgate its own rules of procedure[6] to expedite the disposition of cases or controversies falling within its jurisdiction.

The Comelec has ruled upon the qualifications of candidates, even if the Constitution provides that some other body shall be the "sole judge" of the qualifications of the holders of the public offices involved. The Court has upheld the jurisdiction of Comelec to issue such rulings,[7] even when the issue is the citizenship of a candidate.[8] Thus, the Comelec has jurisdiction to determine initially if FPJ meets the citizenship qualification to run for President.

However, the Comelec En Banc, in its scanty resolution, failed to state the factual bases of its ruling. The Comelec En Banc also failed to rule conclusively on the issue presented – whether FPJ is a natural-born Philippine citizen. The Comelec En Banc affirmed the First Division ruling that "[W]e feel we are not at liberty to finally declare whether or not the respondent is a natural-born citizen." In short, the Comelec En Banc allowed a candidate for President to run in the coming elections without being convinced that the candidate is a natural-born Philippine citizen. Clearly, the Comelec En Banc acted with grave abuse of discretion. Under Section 1, Article VIII, as well as Section 5, Article VIII, of the Constitution, the Court has jurisdiction to hear and decide the issue in a petition for certiorari under Rule 64 in relation to Rule 65.

To hold that the Court acquires jurisdiction to determine the qualification of a candidate for President only after the elections would lead to an absurd situation. The Court would have to wait for an alien to be elected on election day before he could be disqualified to run for President. If the case is not decided immediately after the election, an alien who wins the election may even assume office as President before he is finally disqualified. Certainly, this is not what the Constitution says when it provides

that "[N]o person may be elected President unless he is a natural-born citizen of the Philippines."[9] The clear and specific language of the Constitution prohibits the election of one who is not a natural-born citizen. Thus, the issue of whether a candidate for President is a natural-born Philippine citizen must be decided before the election.

Governing Laws

Since FPJ was born on 20 August 1939, his citizenship at the time of his birth depends on the Constitution and statutes in force at the time of his birth.[10] FPJ’s citizenship at the time of his birth in 1939, applying the laws in force in 1939, determines whether he is a natural-born Philippine citizen.

Natural-born Philippine citizens are "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."[11] If a person has to perform an act, such as proving in an administrative or judicial proceeding, that an event subsequent to his birth transpired thus entitling him to Philippine citizenship, such person is not a natural born citizen.[12]

The 1935 Constitution and the Spanish Civil Code, the laws in force in 1939, are the governing laws that determine whether a person born in 1939 is a Philippine citizen at the time of his birth in 1939. Any subsequent legislation cannot change the citizenship at birth of a person born in 1939 because such legislation would violate the constitutional definition of a natural-born citizen as one who is a Philippine citizen from birth. In short, one who is not a Philippine citizen at birth in 1939 cannot be declared by subsequent legislation a natural-born citizen.

General Principles

A legitimate child of a Filipino father follows the citizenship of the father. A child born within wedlock is presumed to be the son of the father[13] and thus carries the blood of the father. Under the doctrine of jus sanguinis, as provided for in Section 1(3), Article III of the 1935 Constitution, a legitimate child, by the fact of legitimacy, automatically follows the citizenship of the Filipino father.

An illegitimate child, however, enjoys no presumption at birth of blood relation to any father unless the father acknowledges the child at birth.[14] The law has always required that "in all cases of illegitimate children, their filiation must be duly proved."[15] The only legally known parent of an illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the blood of the mother. Thus, unless the father acknowledges the illegitimate child at birth, the illegitimate child can only acquire the citizenship of the only legally known parent - the mother.

However, if the Filipino father is legally known because the filiation (blood relation of illegitimate child to the father) of the child to the Filipino father is established in accordance with law, the child follows the citizenship of the Filipino father. This gives effect, without discrimination between legitimate and illegitimate children, to the provision of the 1935 Constitution that "[T]hose whose fathers are citizens of the Philippines"[16] are Philippine citizens.

Nature of Citizenship

If the Filipino father acknowledges the illegitimate child at birth, the child is a natural-born Philippine citizen because no other act after his birth is required to acquire or perfect his Philippine citizenship. The child possesses all the qualifications to be a Philippine citizen at birth.

If the Filipino father acknowledges the child after birth, the child is a Philippine citizen as of the time of the acknowledgment. In this case, the child does not possess all the qualifications to be a Philippine citizen at birth because an act - the acknowledgement of the Filipino father - is required for the child to acquire or perfect his Philippine citizenship. Statutory provisions on retroactivity of acknowledgment cannot be given effect because they would be contrary to the constitutional definition of natural- born citizens as those who are Philippine citizens at birth without having to perform any act to acquire or perfect their Philippine citizenship.

If the illegitimacy of a child is established, there is no presumption that the child has the blood of any man who is supposed to be the father. There is only a conclusive presumption that the child has the blood of the mother. If an illegitimate child claims to have the blood of a man who is supposed to be the child’s father, such blood relation must be established in accordance with proof of filiation as required by law.

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Where the illegitimate child of an alien mother claims to follow the citizenship of the putative father, the burden is on the illegitimate child to establish a blood relation to the putative Filipino father since there is no presumption that an illegitimate child has the blood of the putative father. Even if the putative father admits paternity after the birth of the illegitimate child, there must be an administrative or judicial approval that such blood relation exists upon proof of paternity as required by law.

Citizenship, being a matter of public and State interest, cannot be conferred on an illegitimate child of an alien mother on the mere say so of the putative Filipino father. The State has a right to examine the veracity of the claim of paternity. Otherwise, the grant of Philippine citizenship to an illegitimate child of an alien mother is left to the sole discretion of the putative Filipino father. For example, a Philippine citizen of Chinese descent can simply claim that he has several illegitimate children in China. The State cannot be required to grant Philippine passports to these supposed illegitimate children born in China of Chinese mothers just because the putative Filipino father acknowledges paternity of these illegitimate children. There must be either an administrative or judicial determination that the claim of the putative Filipino father is true.

The case of the illegitimate Vietnamese children, born in Vietnam of Vietnamese mothers and allegedly of Filipino fathers, is illustrative. These children grew up in Vietnam, many of them studying there until high school. These children grew up knowing they were Vietnamese citizens. In 1975, a Philippine Navy vessel brought them, together with their Vietnamese mothers, to the Philippines as Saigon fell to the communists. The mothers of these children became stateless when the Republic of (South) Vietnam ceased to exist in 1975. The Department of Justice rendered Opinion No. 49 dated 3 May 1995 that being children of Filipino fathers, these Vietnamese children, even if illegitimate, are Philippine citizens under Section 1(3), Article IV of the 1935 Constitution and Section 1(2), Article III of the 1973 Constitution. This Opinion is cited by FPJ as basis for his claim of being a natural-born Philippine citizen.[17] However, this Opinion categorically stated that before the illegitimate Vietnamese children may be considered Filipino citizens "it is necessary in every case referred to that such paternity be established by sufficient and convincing documentary evidence."[18]

In short, the illegitimate child must prove to the proper administrative or judicial authority the paternity of the alleged Filipino father by "sufficient and convincing documentary evidence." Clearly, an administrative or judicial act is necessary to confer on the illegitimate Vietnamese children Philippine citizenship. The mere claim of the illegitimate child of filiation to a Filipino father, or the mere acknowledgment of the alleged Filipino father, does not automatically confer Philippine citizenship on the child. The State must be convinced of the veracity of such claim and approve the same. Since the illegitimate Vietnamese children need to perform an act to acquire or perfect Philippine citizenship, they are not natural-born Philippine citizens. They become Philippine citizens only from the moment the proper administrative or judicial authority approve and recognize their filiation to their alleged Filipino fathers.

The rationale behind requiring that only natural-born citizens may hold certain high public offices[19] is to insure that the holders of these high public offices grew up knowing they were at birth citizens of the Philippines. In their formative years they knew they owed from birth their allegiance to the Philippines. In case any other country claims their allegiance, they would be faithful and loyal to the Philippines of which they were citizens from birth. This is particularly true to the President who is the commander-in-chief of the armed forces.[20] The President of the Philippines must owe, from birth, allegiance to the Philippines and must have grown up knowing that he was a citizen of the Philippines at birth. The constitutional definition of a natural-born Philippine citizen would lose its meaning and efficacy if one who was at birth recognized by law as an alien were declared forty years later[21] a natural-born Philippine citizen just because his alleged Filipino father subsequently admitted his paternity.

Proof of Filiation

Article 131[22] of the Spanish Civil Code, the law in force in 1939, recognized only the following as proof of filiation of a natural child:

a. acknowledgment in a record of birth;

b. acknowledgment in a will;

c. acknowledgment in some other public document.

To establish his Philippine citizenship at birth, FPJ must present either an acknowledgement in a record of birth, or an acknowledgment in some other public document executed at the time of his birth. An acknowledgment executed after birth does not make one a citizen at birth but a citizen from the time of such acknowledgment since the acknowledgment is an act done after birth to acquire or perfect Philippine citizenship.

After the birth of one who is not a natural-born Philippine citizen, a subsequent legislation liberalizing proof of filiation cannot apply to such person to make him a natural-born citizen. A natural-born Philippine citizen is expressly defined in the Constitution as one who is a citizen at birth. If a person is not a citizen at birth, no subsequent legislation can retroactively declare him a citizen at birth since it would violate the constitutional definition of a natural-born citizen.

Burden of Proof

Any person who claims to be a citizen of the Philippines has the burden of proving his Philippine citizenship. Any person who claims to be qualified to run for President because he is, among others, a natural-born Philippine citizen, has the burden of proving he is a natural-born citizen. Any doubt whether or not he is natural-born citizen is resolved against him. The constitutional requirement of a natural-born citizen, being an express qualification for election as President, must be complied with strictly as defined in the Constitution. As the Court ruled in Paa v. Chan: [23]

It is incumbent upon a person who claims Philippine citizenship to prove to the satisfaction of the Court that he is really a Filipino. No presumption can be indulged in favor of the claimant of Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the State.

Since the undisputed facts show that FPJ is an illegitimate child, having been born out of wedlock, the burden is on FPJ to prove his blood relation to his alleged Filipino father. An illegitimate child enjoys no presumption of blood relation to any father. Such blood relationship must be established in the appropriate proceedings in accordance with law.

Private party litigants cannot stipulate on the Philippine citizenship of a person because citizenship is not a private right or property, but a matter of public and State interest. Even if petitioner Fornier admits that FPJ, although illegitimate, is the son of Allan F. Poe, such admission cannot bind the State for the purpose of conferring on FPJ the status of a natural-born Philippine citizen or even of a naturalized citizen. Certainly, the Court will not recognize a person as a natural-born Philippine citizen just because the private party litigants have admitted or stipulated on such a status. In the present case, the Solicitor General, as representative of the Government, is strongly disputing the status of FPJ as a natural-born Philippine citizen.

Legitimation

Under Article 123[24] of the Spanish Civil Code, legitimation took effect as of the date of marriage. There was no retroactivity of the effects of legitimation on the rights of the legitimated child. Thus, a legitimated child acquired the rights of a legitimate child only as of the date of marriage of the natural parents. Allan F. Poe and Bessie Kelley were married on 16 September 1940 while FPJ was born more than one year earlier on 20 August 1939. Assuming that Allan F. Poe was FPJ’s natural father, the effects of legitimation did not retroact to the birth of FPJ on 20 August 1939.

Besides, legitimation vests only civil, not political rights, to the legitimated child. As the Court held in Ching Leng:[25]

The framers of the Civil Code had no intention whatsoever to regulate therein political questions. Hence, apart from reproducing the provisions of the Constitution on citizenship, the Code contains no precept thereon except that which refers all matters of "naturalization", as well as those related to the "loss and reacquisition of citizenship" to "special laws." Consistently with this policy, our Civil Code does not include therein any rule analogous to Articles 18 to 28 of the Civil Code of Spain, regulating citizenship. (Underscoring in the original)

Clearly, even assuming that the marriage of Allan F. Poe and Bessie Kelley legitimated FPJ, such legitimation did not vest retroactively any civil or political rights to FPJ.

Treaty of Paris of 1898 and Philippine Bill of 1902

FPJ admits that his grandfather, Lorenzo Pou, was a Spanish citizen who came to the Philippines from Spain.[26] To benefit from the mass naturalization under the Treaty of

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Paris of 1898 and the Philippine Bill of 1902, FPJ must prove that Lorenzo Pou was an inhabitant and resident of the Philippines on 11 April 1899. Once it is established that Lorenzo Pou was an inhabitant and resident of the Philippines on 11 April 1899, then he is presumed to have acquired Philippine citizenship under the Treaty of Paris of 1898 and the Philippine Bill of 1902.[27] Being an inhabitant and resident of the Philippines on 11 April 1899 is the determinative fact to fall under the coverage of the Treaty of Paris of 1898 and the Philippine Bill of 1902.[28]

There is, however, no evidence on record that Lorenzo Pou was a Philippine inhabitant and resident on 11 April 1899. The date of arrival of Lorenzo Pou in the Philippines is not known. If he arrived in the Philippines after 11 April 1899, then he could not benefit from the mass naturalization under the Treaty of Paris of 1898 and the Philippine Bill of 1902. There is also no evidence that Lorenzo Pou was naturalized as a Philippine citizen after 11 April 1899. Thus, there can be no presumption that Lorenzo Pou was a Philippine citizen.

There is also no evidence on record that Allan F. Poe, the son of Lorenzo Pou and the alleged father of FPJ, was naturalized as a Philippine citizen. Thus, based on the evidence adduced there is no legal basis for claiming that Allan F. Poe is a Philippine citizen. Nevertheless, there is no need to delve further into this issue since the Court can decide this case without determining the citizenship of Lorenzo Pou and Allan F. Poe. Whether or not Lorenzo Pou and Allan F. Poe were Philippine citizens is not material in resolving whether FPJ is a natural-born Philippine citizen.

Convention on the Rights of the Child

The Philippines signed the Convention on the Rights of the Child on 26 January 1990 and ratified the same on 21 August 1990. The Convention defines a child to mean "every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier." Obviously, FPJ cannot invoke the Convention since he is not a child as defined in the Convention, and he was born half a century before the Convention came into existence. FPJ’s citizenship at birth in 1939 could not in any way be affected by the Convention which entered into force only on 2 September 1990.

The Convention has the status of a municipal law[29] and its ratification by the Philippines could not have amended the express requirement in the Constitution that only natural-born citizens of Philippines are qualified to be President. While the Constitution apparently favors natural-born citizens over those who are not, that is the explicit requirement of the Constitution which neither the Executive Department nor the Legislature, in ratifying a treaty, could amend. In short, the Convention cannot amend the definition in the Constitution that natural-born citizens are "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."

In any event, the Convention guarantees a child "the right to acquire a nationality,"[30] and requires States Parties to "ensure the implementation" of this right, "in particular where the child would otherwise be stateless."[31] Thus, as far as nationality or citizenship is concerned, the Convention guarantees the right of the child to acquire a nationality so that he may not be stateless. The Convention does not guarantee a child a citizenship at birth, but merely "the right to acquire a nationality" in accordance with municipal law. When FPJ was born in 1939, he was apparently under United States law an American citizen at birth.[32] After his birth FPJ also had the right to acquire Philippine citizenship by proving his filiation to his alleged Filipino father in accordance with Philippine law. At no point in time was FPJ in danger of being stateless. Clearly, FPJ cannot invoke the Convention to claim he is a natural-born Philippine citizen.

The Doctrine in Ching Leng v. Galang

The prevailing doctrine today is that an illegitimate child of a Filipino father and an alien mother follows the citizenship of the alien mother as the only legally known parent. The illegitimate child, even if acknowledged and legally adopted by the Filipino father, cannot acquire the citizenship of the father. The Court made this definitive doctrinal ruling in Ching Leng v. Galang,[33] which involved the illegitimate minor children of a naturalized Filipino of Chinese descent with a Chinese woman, Sy An. The illegitimate children were later on jointly adopted by the naturalized Filipino and his legal wife, So Buan Ty.

The facts in Ching Leng as quoted by the Court from the trial court’s decision are as follows:

After the petitioner Ching Leng Alias Ching Ban Lee obtained judgment in this Court dated May 2, 1950 granting his petition for naturalization, he together with his wife So

Buan Ty filed another petition also in this Court in Special Proc. No. 1216 for the adoption of Ching Tiong Seng, Ching Liong Ding, Victoria Ching Liong Yam, Sydney Ching and Ching Tiong An, all minors and admittedly the illegitimate children of petitioner Ching Leng with one Sy An, a Chinese citizen. Finding the petition for adoption proper, this Court granted the same in a decision dated September 12, 1950, declaring the said minors free from all legal obligations of obedience and maintenance with respect to their mother Sy An and to all legal intents and purposes the children of the adopter Ching Leng alias Ching Ban Lee and So Buan Ty with all the legal rights and obligations provided by law.

On September 29, 1955, Ching Leng took his oath of allegiance and became therefore a full pledge (sic) Filipino citizen. Believing now that his adopted illegitimate children became Filipino citizens by virtue of his naturalization, petitioner Ching Leng addressed a communication to the respondent Commissioner of Immigration requesting that the alien certificate of registration of the said minors be cancelled. (Bold underscoring supplied)

In Ching Leng, the Court made a definitive ruling on the meaning of "minor child or children" in Section 15 of the Naturalization Law,[34] as well as the meaning of children "whose parents are citizens of the Philippines" under the Constitution. The Court categorically ruled that these children refer to legitimate children only, and not to illegitimate children. Thus, the Court held:

It is claimed that the phrases "minor children" and "minor child", used in these provisions, include adopted children. The argument is predicated upon the theory that an adopted child is, for all intents and purposes, a legitimate child. Whenever, the word "children" or "child" is used in statutes, it is generally understood, however, to refer to legitimate children, unless the context of the law and its spirit indicate clearly the contrary. Thus, for instance, when the Constitution provides that "those whose parents are citizens of the Philippines, "and "those whose mothers are citizens of the Philippines," who shall elect Philippine citizenship "upon reaching the age of majority", are citizens of the Philippines (Article IV, Section 1, subdivisions 3 and 4), our fundamental law clearly refers to legitimate children (Chiong Bian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May 12, 1952).

Similarly, the children alluded to in said section 15 are those begotten in lawful wedlock, when the adopter, at least is the father. In fact, illegitimate children are under the parental authority of the mother and follow her nationality, not that of the illegitimate father (U.S. vs. Ong Tianse, 29 Phil. 332, 335-336; Santos Co vs. Gov’t of the Philippines, 52 Phil. 543, 544; Serra v. Republic, supra; Gallofin v. Ordoñez, 70 Phil. 287; Quimsuan vs. Republic, L-4693, Feb. 16, 1953). Although, adoption gives "to the adopted person the same rights and duties as if he were a legitimate child of the adopter", pursuant to said Article 341 of our Civil Code, we have already seen that the rights therein alluded to are merely those enumerated in Article 264, and do not include the acquisition of the nationality of the adopter.

Moreover, as used in said section 15 of the Naturalization Law, the term "children" could not possibly refer to those whose relation to the naturalized person is one created by legal fiction, as, for instance, by adoption, for, otherwise, the place and time of birth of the child would be immaterial. The fact that the adopted persons involved in the case at bar are illegitimate children of appellant Ching Leng does not affect substantially the legal situation before us, for, by legal fiction, they are now being sought to be given the status of legitimate children of said appellant, despite the circumstance that the Civil Code of the Philippine does not permit their legitimation. (Bold underscoring supplied)

Ching Leng, penned by Justice Roberto Concepcion in October 1958, was a unanimous decision of the Court En Banc. Subsequent Court decisions, including Paa v. Chan[35] and Morano et al. v. Vivo,[36] have cited the doctrine laid down in Ching Leng that the provision in the 1935 Constitution stating "those whose fathers are citizens of the Philippines" refers only to legitimate children. When the 1973 and 1987 Constitutions were drafted, the framers did not attempt to change the intent of this provision, even as they were presumably aware of the Ching Leng doctrine.

Nevertheless, I believe that it is now time to abandon the Ching Leng doctrine. The inexorable direction of the law, both international and domestic in the last 100 years, is to eliminate all forms of discrimination between legitimate and illegitimate children. Where the Constitution does not distinguish between legitimate and illegitimate children, we should not also distinguish, especially when private rights are not involved as in questions of citizenship. Abandoning the Ching Leng doctrine upholds the equal protection clause of the Constitution. Abandoning the Ching Leng doctrine is also in compliance with our treaty obligation under the Covenant on the Rights of Children mandating States Parties to eliminate all forms of discrimination based on the status of

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children, save of course those distinctions prescribed in the Constitution itself like the reservation of certain high public offices to natural-born citizens.

Abandoning the Ching Leng doctrine does not mean, however, that an illegitimate child of a Filipino father and an alien mother automatically becomes a Philippine citizen at birth. We have repeatedly ruled that an illegitimate child does not enjoy any presumption of blood relation to the alleged father until filiation or blood relation is proved as provided by law.[37] Article 887 of the Civil Code expressly provides that "[I]n all cases of illegitimate children, their filiation must be duly proved." The illegitimate child becomes a Philippine citizen only from the time he establishes his blood relation to the Filipino father. If the blood relation is established after the birth of the illegitimate child, then the child is not a natural-born Philippine citizen since an act is required after birth to acquire or perfect his Philippine citizenship.

Conclusion

In conclusion, private respondent Fernando Poe, Jr. is not a natural-born Philippine citizen since there is no showing that his alleged Filipino father Allan F. Poe acknowledged him at birth. The Constitution defines a natural-born citizen as a Philippine citizen "from birth without having to perform any act to acquire or perfect" his Philippine citizenship. Private respondent Fernando Poe, Jr. does not meet this citizenship qualification.

Therefore, I vote to grant the petition of Victorino X. Fornier. However, I vote to dismiss the petitions of Maria Jeanette C. Tecson, Felix B. Desiderio, Jr. and Zoilo Antonio Velez on the ground that their direct petitions invoking the jurisdiction of the Court under Section 4, paragraph 7, Article VII of the Constitution are premature, there being no election contest in this case.

G.R. No. 172607 April 16, 2009

PEOPLE OF THE PHILIPPINES, Appelle, vs.RUFINO UMANITO, Appellant.

R E S O L U T I O N

TINGA, J.:

In our Resolution dated 26 October 2007, this Court resolved, for the very first time, to apply the then recently promulgated New Rules on DNA Evidence (DNA Rules)1 in a case pending before us – this case. We remanded the case to the RTC for reception of

DNA evidence in accordance with the terms of said Resolution, and in light of the fact that the impending exercise would be the first application of the procedure, directed Deputy Court Administrator Reuben Dela Cruz to: (a) monitor the manner in which the court a quo carries out the DNA Rules; and (b) assess and submit periodic reports on the implementation of the DNA Rules in the case to the Court.

To recall, the instant case involved a charge of rape. The accused Rufino Umanito (Umanito) was found by the Regional Trial Court (RTC) of Bauang, La Union, Branch 67 guilty beyond reasonable doubt of the crime of rape. Umanito was sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify the private complainant in the sum of P50,000.00. On appeal, the Court of Appeals offered the judgment of the trial court. Umanito appealed the decision of the appellate court to this court.

In its 2007 Resolution, the Court acknowledged "many incongruent assertions of the prosecution and the defense."2 At the same time, the alleged 1989 rape of the private complainant, AAA, had resulted in her pregnancy and the birth of a child, a girl hereinafter identified as "BBB." In view of that fact, a well as the defense of alibi raised by Umanito, the Court deemed uncovering of whether or not Umanito is the father of BBB greatly determinative of the resolution of the appeal. The Court then observed:

x x x With the advance in genetics and the availability of new technology, it can now be determined with reasonable certainty whether appellant is the father of AAA's child. If he is not, his acquittal may be ordained. We have pronounced that if it can be conclusively determined that the accused did not sire the alleged victim's child, this may cast the shadow of reasonable doubt and allow his acquittal on this basis. If he is found not to be the father, the finding will at least weigh heavily in the ultimate decision in this case. Thus, we are directing appellant, AAA and her child to submit themselves to deoxyribonucleic acid (DNA) testing under the aegis of the New Rule on DNA Evidence (the Rules), which took effect on 15 October 2007, subject to guidelines prescribed herein.3

The RTC of Bauang, La Union, Branch 67, presided by Judge Ferdinand A. Fe, upon receiving the Resolution of the Court on 9 November 2007, set the case for hearing on 27 November 20074 to ascertain the feasibility of DNA testing with due regard to the standards set in Sections 4(a), (b), (c) and (e) of the DNA Rules. Both AAA and BBB (now 17 years old) testified during the hearing. They also manifested their willingness to undergo DNA examination to determine whether Umanito is the father of BBB.5

A hearing was conducted on 5 December 2007, where the public prosecutor and the counsel for Umanito manifested their concurrence to the selection of the National Bureau of Investigation (NBI) as the institution that would conduct the DNA testing. The RTC issued an Order on even date directing that biological samples be taken from AAA, BBB and Umanito on 9 January 2008 at the courtroom. The Order likewise enjoined the NBI as follows:

In order to protect the integrity of the biological samples, the [NBI] is enjoined to strictly follow the measures laid down by the Honorable Supreme Court in the instant case to wit:

Moreover, the court a quo must ensure that the proper chain of custody in the handling of the samples submitted by the parties is adequately borne in the records, i.e.; that the samples are collected by a neutral third party; that the tested parties are appropriately identified at their sample collection appointments; that the samples are protected with tamper tape at the collection site; that all persons in possession thereof at each stage of testing thoroughly inspected the samples for tampering and explained his role in the custody of the samples and the acts he performed in relation thereto.

The DNA test result shall be simultaneously disclosed to the parties in Court. The [NBI] is, therefore, enjoined not to disclose to the parties in advance the DNA test results.

The [NBI] is further enjoined to observe the confidentiality of the DNA profiles and all results or other information obtained from DNA testing and is hereby ordered to preserve the evidence until such time as the accused has been acquitted or served his sentence.6

Present at the hearing held on 9 January 2008 were AAA, BBB, counsel for Umanito, and two representatives from the NBI. The RTC had previously received a letter from the Officer-in-Charge of the New Bilibid Prisons informing the trial court that Umanito would not be able to attend the hearing without an authority coming from the Supreme Court.7 The parties manifested in court their willingness to the taking of the DNA sample from the accused at his detention center at the New Bilibid Prisons on 8 February 2008.8 The prosecution then presented on the witness stand NBI forensic chemist Mary Ann Aranas, who testified on her qualifications as an expert witness in

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the field of DNA testing. No objections were posed to her qualifications by the defense. Aranas was accompanied by a laboratory technician of the NBI DNA laboratory who was to assist in the extraction of DNA.

DNA samples were thus extracted from AAA and BBB in the presence of Judge Fe, the prosecutor, the counsel for the defense, and DCA De la Cruz. On 8 February 2008, DNA samples were extracted from Umanito at the New Bilibid Prisons by NBI chemist Aranas, as witnessed by Judge Fe, the prosecutor, the defense counsel, DCA De la Cruz, and other personnel of the Court and the New Bilibid Prisons.9

The RTC ordered the NBI to submit the result of the DNA examination within thirty (30) days after the extraction of biological samples of Umanito, and directed its duly authorized representatives to attend a hearing on the admissibility of such DNA evidence scheduled for 10 March 2008. The events of the 28 March 2008 hearing, as well as the subsequent hearing on 29 April 2008, were recounted in the Report dated 19 May 2008 submitted by Judge Fe. We quote therefrom with approval:

2. That as previously scheduled in the order of the trial court on 09 January 2008, the case was set for hearing on the admissibility of the result of the DNA testing.

At the hearing, Provincial Prosecutor Maria Nenita A. Opiana, presented Mary Ann T. Aranas, a Forensic Chemist of the National Bureau of Investigation who testified on the examination she conducted, outlining the procedure she adopted and the result thereof. She further declared that using the Powerplex 16 System, Deoxyribonuncleic acid analysis on the Buccal Swabs and Blood stained on FTA paper taken from [AAA], [BBB], and Rufino Umanito y Millares, to determine whether or not Rufino Umanito y Millares is the biological father of [BBB], showed that there is a Complete Match in all of the fifteen (15) loci tested between the alleles of Rufino Umanito y Milalres and [BBB]; That based on the above findings, there is a 99.9999% probability of paternity that Rufino Umanito y Millares is the biological father of [BBB] (Exhibits "A" and series and "B" and series).

After the cross-examination of the witness by the defense counsel, the Public Prosecutor offered in evidence Exhibits "A" and sub-markings, referring to the Report of the Chemistry Division of the National Bureau of Investigation, Manila on the DNA analysis to determine whether or not Rufino Umanito y Millares is the biological father of [BBB] and Exhibit "B" and sub-markings, referring to the enlarged version of the table of Exhibit "A," to establish that on the DNA examination conducted on [AAA], [BBB] and the accused Rufino Umanito for the purpose of establishing paternity, the result is 99.9999% probable. Highly probable.

The defense did not interpose any objection, hence, the exhibits were admitted.

1. That considering that under Section 9, A.M. No. 06-11-5-SC, if the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity, the instant case was set for reception of evidence for the accused on April 29, 2008 to controvert the presumption that he is the biological father of [BBB].

During the hearing on April 29, 2008, the accused who was in court manifested through his counsel that he will not present evidence to dispute the findings of the Forensic Chemistry Division of the National Bureau of Investigation.

The DNA samples were collected by the forensic chemist of the National Bureau of Investigation whose qualifications as an expert was properly established adopting the following procedure:

a) The subject sources were asked to gargle and to fill out the reference sample form. Thereafter, the chemists informed them that buccal swabs will be taken from their mouth and five (5) droplets of blood will also be taken from the ring finger of their inactive hand;

b) Pictures of the subject sources were taken by the NBI Chemist;

c) Buccal swabs were taken from the subject sources three (3) times;

d) Subject sources were made to sign three (3) pieces of paper to serve as label of the three buccal swabs placed inside two (2) separate envelopes that bear their names;

e) Blood samples were taken from the ring finger of the left hand of the subject sources;

f) Subject sources were made to sign the FTA card of their blood samples.

The buccal swabs and the FTA cards were placed in a brown envelope for air drying for at least one hour.

g) Finger prints of the subject sources were taken for additional identification;

h) The subject sources were made to sign their finger prints.

i) Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz and Prosecutor Maria Nenita A. Oplana, in that order, were made to sign as witnesses to the reference sample forms and the finger prints of the subject sources.

j) After one hour of air drying, the Buccal Swabs and the FTA papers were placed inside a white envelope and sealed with a tape by the NBI Chemists;

k) The witnesses, Atty. Ramon J. Gomez, Deputy Court Administrator Reuben dela Cruz, Prosecutor Maria Nenita A. Opiana including the NBI Chemist, affixed their signatures on the sealed white envelope;

l) The subjects sources were made to sign and affix their finger prints on the sealed white envelope;

m) The chemists affixed their signatures on the sealed envelope and placed it in a separate brown envelope;

n) The subjects sources were made to affix their finger prints on their identification places and reference forms.

The same procedure was adopted by the Forensic Chemists of the NBI in the taking of DNA samples from the accused, Rufino Umanito at the New Bilibid Prison in the afternoon of February 8, 2008.

Mary Ann Aranas, the expert witness testified that at the NBI the sealed envelope was presented to Ms. Demelen dela Cruz, the supervisor of the Forensic Chemistry Division to witness that the envelope containing the DNA specimens was sealed as it reached the NBI. Photographs of the envelope in sealed form were taken prior to the conduct of examination.

With the procedure adopted by the Forensic Chemist of the NBI, who is an expert and whose integrity and dedication to her work is beyond reproach the manner how the biological samples were collected, how they were handled and the chain of custody thereof were properly established the court is convinced that there is no possibility of contamination of the DNA samples taken from the parties.

At the Forensic Laboratory of the National Bureau of Investigation, the envelopes containing the DNA samples were opened and the specimens were subjected to sampling, extraction, amplification and analysis. Duplicate analysis were made. The Forensic Chemist, Mary Ann Aranas caused the examination of the blood samples and the buccal swabs were separately processed by Mrs. Demelen dela Cruz.

In order to arrive at a DNA profile, the forensic chemists adopted the following procedure: (1) Sampling which is the cutting of a portion from the media (swabs and FTA paper); (2) then subjected the cut portions for extraction to release the DNA; (3) After the DNA was released into the solution, it was further processed using the formarine chain reaction to amplify the DNA samples for analysis of using the Powerplex 16 System, which allows the analysis of 16 portions of the DNA samples. The Powerplex 16 System are reagent kits for forensic purposes; (3) After the target, DNA is multiplied, the amplified products are analyzed using the genetic analyzer. The Powerplex 16 System has 16 markers at the same time. It is highly reliable as it has already been validated for forensic use. It has also another function which is to determine the gender of the DNA being examined.

Mary Ann Aranas, the Forensic Chemist, in her testimony explained that the DNA found in all cells of a human being come in pairs except the mature red blood cells. These cells are rolled up into minute bodies called "chromosomes," which contain the DNA of a person. A human has 23 pairs of chromosomes. For each pair of chromosome, one was found to have originated from the mother, the other must have came from the father. Using the Powerplex 16 System Results, the variable portions of the DNA called "loci," which were used as the basis for DNA analysis or typing showed the following: under "loci" D3S1358, the genotype of the locus of [AAA] is 15, 16, the genotype of [BBB] is 15, 16, one of the pair of alleles must have originated and the others from the father. The color for the allele of the mother is red while the father is blue. On matching the allele which came from the mother was first determined [AAA], has alleles of 15 or 16 but in the geno type of [BBB], 15 was colored blue because that

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is the only allele which contain the genotype of the accused Rufino Umanito, the 16 originated from the mother, [AAA]. In this marker [BBB] has a genotype of 15, 16, 16 is from the mother and 15 is from the father.

The whole process involved the determination which of those alleles originated from the mother and the rest would entail looking on the genotype or the profile of the father to determine if they matched with those of the child.

In the analysis of the 16 loci by the Forensic Chemists, amel on the 13th row was not included because this is the marker that determines the gender of the source of the loci. The pair XX represents a female and XY for a male. Rufino Umanito has XY amel and [BBB] and [AAA] have XX amel. For matching paternity purposes only 15 loci were examined. Of the 15 loci, there was a complete match between the alleles of the loci of [BBB] and Rufino (Exhibits "A" and "B").

To ensure reliable results, the Standard Operating Procedure of the Forensic Chemistry Division of the NBI in paternity cases is to use buccal swabs taken from the parties and blood as a back up source.

The said Standard Operating Procedure was adopted in the instant case.

As earlier mentioned, DNA samples consisted of buccal swabs and blood samples taken from the parties by the forensic chemists who adopted reliable techniques and procedure in collecting and handling them to avoid contamination. The method that was used to secure the samples were safe and reliable. The samples were taken and handled by an expert, whose qualifications, integrity and dedication to her work is unquestionable, hence, the possibility of substitution or manipulation is very remote.

The procedure adopted by the DNA section, Forensic Chemistry Division of the National Bureau of Investigation in analyzing the samples was in accordance with the standards used in modern technology. The comparative analysis of DNA prints of the accused Rufino Umanito and his alleged child is a simple process called parentage analysis which was made easier with the use of a DNA machine called Genetic Analyzer. To ensure a reliable result, the NBI secured two (2) DNA types of samples from the parties, the buccal swabs as primary source and blood as secondary source. Both sources were separately processed and examined and thereafter a comparative analysis was conducted which yielded the same result.

The National Bureau of Investigation DNA Section, Forensic Division is an accredited DNA testing laboratory in the country which maintains a multimillion DNA analysis equipment for its scientific criminal investigation unit. It is manned by qualified laboratory chemists and technicians who are experts in the field, like Mary Ann Aranas, the expert witness in the instant case, who is a licensed chemists, has undergone training on the aspects of Forensic Chemistry fro two (2) years before she was hired as forensic chemists of the NBI and has been continuously attending training seminars, and workshops which are field related and who has handled more than 200 cases involving DNA extraction or collection or profiling.

The accused did not object to the admission of Exhibits "A" and "B" inclusive of their sub-markings. He did not also present evidence to controvert the results of the DNA analysis.

Section 6. A.M. No. 06-11-5-SC provides that: "If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity.

DNA analysis conducted by the National Bureau of Investigation Forensic Division on the buccal swabs and blood stained on FTA paper taken from [AAA], [BBB] and Rufino Umanito y MillAres for DNA analysis to determine whether or not Rufino Umanito y Millares is the biological father of [BBB] gave the following result:

"FINDINGS: Deoxyribonuncleic acid analysis using thePowerplex 16 System conducted on the above-mentioned, specimens gave the following profiles;x x x

x x x

There is a COMPLETE MATCH in all the fifteen (15) loci tested between the alleles of Rufino Umanito y Millares and [BBB].

REMARKS: Based on the above findings, there is a99.9999% Probability of Paternity that

Rufino Umanito y Millares is the biologicalFather of [BBB]"Disputable presumptions are satisfactory if uncontradicted but may be contradicted and overcome by other evidence (Rule 131, Section 3, Rules of Court).

The disputable presumption that was established as a result of the DNA testing was not contradicted and overcome by other evidence considering that the accused did not object to the admission of the results of the DNA testing (Exhibits "A" and "B" inclusive of sub-markings) nor presented evidence to rebut the same.

WHEREFORE, premises considered, the trial court rules that based on the result of the DNA analysis conducted by the National Bureau of Investigation, Forensic Division, RUFINO UMANITO y MILLARES is the biological father of [BBB].10

Umanito’s defense of alibi, together with his specific assertion that while he had courted AAA they were not sweethearts, lead to a general theory on his part that he did not engage in sexual relations with the complainant. The DNA testing has evinced a contrary conclusion, and that as testified to by AAA, Umanito had fathered the child she gave birth to on 5 April 1990, nine months after the day she said she was raped by Umanito.

Still, Umanito filed a Motion to Withdraw Appeal dated 16 February 2009. By filing such motion, Umanito is deemed to have acceded to the rulings of the RTC and the Court of Appeals finding him guilty of the crime of rape, and sentencing him to suffer the penalty of reclusion perpetua and the indemnification of the private complainant in the sum of P50,000.00. Given that the results of the Court-ordered DNA testing conforms with the conclusions of the lower courts, and that no cause is presented for us to deviate from the penalties imposed below, the Court sees no reason to deny Umanito’s Motion to Withdraw Appeal. Consequently, the assailed Decision of the Court of Appeals dated 15 February 2006 would otherwise be deemed final if the appeal is not withdrawn.1avvphi1

WHEREFORE, the Motion to Withdraw Appeal dated 16 February 2009 is GRANTED. The instant case is now CLOSED and TERMINATED.

SO ORDERED.

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G.R. No. 171713 December 17, 2007

ESTATE OF ROGELIO G. ONG, petitioner, vs.Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian, Jinky C. Diaz, respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil Procedure assailing (1) the Decision1 of the Court of Appeals dated 23 November 2005 and (2) the Resolution2 of the same court dated 1 March 2006 denying petitioner’s Motion for Reconsideration in CA-G.R. CV No. 70125.

A Complaint3 for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered:

(a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter.

(b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support.

(c) Ordering the defendant to pay plaintiff attorney’s fees in the sum of P100,000.00.

(d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.4

As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez.5

From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City.

From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors’ Hospital, Tarlac City.

Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joanne’s needs – recognizing the child as his.

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child.

Rogelio, despite Jinky’s remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the heretofore adverted complaint.

After summons had been duly served upon Rogelio, the latter failed to file any responsive pleading despite repeated motions for extension, prompting the trial court to declare him in default in its Order dated 7 April 1999. Rogelio’s Answer with Counterclaim and Special and Affirmative Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a decision granting the reliefs prayed for in the complaint.

In its Decision6 dated 23 April 1999, the RTC held:

WHEREFORE, judgment is hereby rendered:

1. Ordering defendant to recognize plaintiff as his natural child;

2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and further

3. Ordering defendant to pay reasonable attorney’s fees in the amount of P5,000.00 and the cost of the suit.

On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for reconsideration seeking the court’s understanding, as he was then in a quandary on what to do to find a solution to a very difficult problem of his life.7

On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial court dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure.8

On 16 June 1999, the RTC issued an Order granting Rogelio’s Motion for New Trial:

WHEREFORE, finding defendant’s motion for new trial to be impressed with merit, the same is hereby granted.

The Order of this court declaring defendant in default and the decision is this court dated April 23, 1999 are hereby set aside but the evidence adduced shall remain in record, subject to cross-examination by defendant at the appropriate stage of the proceedings.

In the meantime defendant’s answer is hereby admitted, subject to the right of plaintiff to file a reply and/or answer to defendant’s counterclaim within the period fixed by the Rules of Court.

Acting on plaintiff’s application for support pendente lite which this court finds to be warranted, defendant is hereby ordered to pay to plaintiff immediately the sum of P2,000.00 a month from January 15, 1999 to May 1999 as support pendente lite in arrears and the amount of P4,000.00 every month thereafter as regular support pendente lite during the pendency of this case.9

The RTC finally held:

The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.

Since it was duly established that plaintiff’s mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid).

The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of –

a) physical incapacity of the husband to have sexual intercourse with his wife;

b) husband and wife were living separately in such a way that sexual intercourse was not possible;

c) serious illness of the husband which prevented sexual intercourse.

It was established by evidence that the husband is a Japanese national and that he was living outside of the country (TSN, Aug. 27, 1999, page 5) and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz.

While it may also be argued that plaintiff Jinky had a relationship with another man before she met the defendant, there is no evidence that she also had sexual relations

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with other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second child (see Exh. "A"), so her first child, a certain Nicole (according to defendant) must have a different father or may be the son of Hasegawa K[u]tsuo.

The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne.

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff.10

On 15 December 2000, the RTC rendered a decision and disposed:

WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age.11

Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001.12 From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002.13

During the pendency of the case with the Court of Appeals, Rogelio’s counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong,14 which motion was accordingly granted by the Court of Appeals.15

In a Decision dated 23 November 2005, the Court of Appeals held:

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis.

No pronouncement as to costs.16

Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 1 March 2006.

In disposing as it did, the Court of Appeals justified its Decision as follows:

In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiff’s mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiff’s mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support.17

Hence, this petition which raises the following issues for resolution:

I

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DISMISS RESPONDENT’S COMPLAINT FOR COMPULSORY RECOGNITION DESPITE ITS FINDING

THAT THE EVIDENCE PRESENTED FAILED TO PROVE THAT ROGELIO G. ONG WAS HER FATHER.

II

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO REBUT THE PRESUMPTION OF HER LEGITIMACY.

III

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED THE CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG.18

Petitioner prays that the present petition be given due course and the Decision of the Court of Appeals dated November 23, 2005 be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.19

From among the issues presented for our disposition, this Court finds it prudent to concentrate its attention on the third one, the propriety of the appellate court’s decision remanding the case to the trial court for the conduct of DNA testing. Considering that a definitive result of the DNA testing will decisively lay to rest the issue of the filiation of minor Joanne, we see no reason to resolve the first two issues raised by the petitioner as they will be rendered moot by the result of the DNA testing.

As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor.

Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.20

A child born to a husband and wife during a valid marriage is presumed legitimate.21 As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides:

Article 167. The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy. We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals22:

The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded on the policy to protect the innocent offspring from the odium of illegitimacy.

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code23 provides:

Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband’s having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

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2) By the fact that husband and wife were living separately in such a way that access was not possible;

3) By the serious illness of the husband.24

The relevant provisions of the Family Code provide as follows:

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

There had been divergent and incongruent statements and assertions bandied about by the parties to the present petition. But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing.

DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity.25

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.

Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individual’s blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts.

The chemical structure of DNA has four bases. They are known as A (Adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individual’s DNA determines his or her physical make up. And since DNA is a double stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called "genes."

Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci."

How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; DNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the "known" print. If a

substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called "allele," one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child’s DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father’s profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man’s DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.26

In the newly promulgated rules on DNA evidence it is provided:

SEC. 3 Definition of Terms. – For purposes of this Rule, the following terms shall be defined as follows:

x x x x

(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples;

(d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person;

(e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and

(f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population.

Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the definitive key to the resolution of the issue of support for minor Joanne. Our articulation in Agustin v. Court of Appeals27 is particularly relevant, thus:

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts,verbal and written, by the putative father."

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA 17]:

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

The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with out en banc decision in People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the rape and murder victim’s

42

DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile.

A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584], we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts."

In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3 March 2004, 424 SCRA 277], where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe, Jr., we stated:

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong weight of DNA testing...

Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA 504], we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. x x x.

Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioner’s argument is without basis especially as the New Rules on DNA Evidence28 allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation, thus:

SEC. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.

From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.

As defined above, the term "biological sample" means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.29

Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.

And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito,30 citing Tecson v. Commission on Elections,31 this Court held:

The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in our jurisdiction in

this wise: "[i]n case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to."

It is obvious to the Court that the determination of whether appellant is the father of AAA’s child, which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under Section 4 of the Rules, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. However, while this Court retains jurisdiction over the case at bar, capacitated as it is to receive and act on the matter in controversy, the Supreme Court is not a trier of facts and does not, in the course of daily routine, conduct hearings. Hence, it would be more appropriate that the case be remanded to the RTC for reception of evidence in appropriate hearings, with due notice to the parties. (Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of Appeals32:

x x x [F]or too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.

WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 164266 July 23, 2008

NOVER BRYAN SALVADOR y DE LEON, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

NACHURA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by petitioner Nover Bryan Salvador y De Leon, assailing the Court of Appeals (CA) Decision1 dated February 26, 2004 which affirmed the Regional Trial Court2 (RTC) Decision3 dated October 26, 2001. Likewise assailed is the appellate court’s Resolution4 dated July 6, 2004 denying petitioner’s motion for reconsideration.

The facts of the case follow:

Spouses Ernesto and Margarita Zuñiga had three daughters, namely: Marianne, Mary Ann and the victim Arlene. Mary Ann was married to the petitioner herein. The Zuñiga family, including Mary Ann and the petitioner were living together at 550 Coloong I, Valenzuela City. Their residence had three bedrooms – one for the Zuñiga spouses; the other for Marianne and Arlene; and the last for Mary Ann and the petitioner.

On September 20, 1997, the Zuñiga spouses, together with Marianne, went to Bulacan to attend the wake of Ernesto’s mother; while Mary Ann with her new born child, and Arlene, stayed at their Valenzuela home. Petitioner, at that time, asked permission to attend a birthday party.5

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At about 9:00 in the evening, petitioner, accompanied by Eduardo Palomares, returned home to get some karaoke tapes to be used at the birthday party. They thereafter went back to the party and stayed there until 12 midnight before heading back home.

At 4:30 in the morning, the following day, the Zuñiga spouses and Marianne arrived home. They opened the main door which was then locked. After preparing for sleep, Marianne proceeded to the room which she was sharing with Arlene. There she saw Arlene, who suffered stab wounds, already dead. After seeing Arlene’s body, the Zuñiga spouses rushed to the room of Mary Ann and the petitioner. While Mary Ann proceeded to Arlene’s room, petitioner stayed at the sala and cried. He was later seen embracing Mary Ann and telling her that he was innocent.6

At around 5:00 in the morning, police investigators arrived. The police found no forcible entry into the house; no valuables were missing; and no bloodstains in other parts of the house except Arlene’s room. They likewise discovered, on top of the kitchen table, petitioner’s underwear (briefs), gray t-shirt and short pants.7 They further found hair strands on Arlene’s bed. These pieces of evidence were brought to the laboratory for examination.

On September 21, 1997, Dr. Noel Minay (Dr. Minay), a medico-legal of the National Bureau of Investigation (NBI) conducted an autopsy of the deceased.8 He found that Arlene suffered 21 stab wounds produced by a pointed instrument, one side of which was sharp like a balisong or a kitchen knife. He further declared the possibility that Arlene struggled with the assailant before she died.9

The NBI Forensic Biologist also examined petitioner’s briefs, t-shirt and short pants, and found that the briefs and shirt were positive of type "O" human blood, Arlene’s blood type.10 The NBI Forensic Chemist, subsequently, conducted DNA Analysis on the following specimens:

1. One (1) dirty white Hanford brief[s];

2. One (1) light gray t-shirt with DKNY print infront;

3. Several strands of hair allegedly recovered in the bedroom of [the] victim;

4. Buccal swabs taken from the following:

a. ERNESTO ZUÑIGA (victim’s father)

b. MARGARITA ZUÑIGA (victim’s mother)

c. NOVER BRYAN SALVADOR (suspect)11

The examination of specimen no. 1 yielded a negative result for the presence of human DNA; while specimen nos. 2, 3, and 4 a-c, yielded positive results.12

Petitioner was thus charged with Homicide in an Information dated April 8, 1998, the accusatory portion of which reads:

That on or about the 20th day of September, 1997, in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously assault and stab one ARLENE ZUÑIGA, hitting on the different parts of her body, which led to the death of said Arlene Zuñiga.

CONTRARY TO LAW.13

The aforementioned facts were established during the prosecution’s presentation of evidence. It was further testified to by the witnesses that – petitioner owned a knife otherwise known as balisong, which he usually brought every time he went out. Ill motive was shown by petitioner’s previous act of peeping through the bathroom and Arlene’s room on two occasions – while she was taking a bath and while she was inside the room with Marianne.

For his part, all that the petitioner could offer was bare denial of the accusations against him.

On October 26, 2001, the RTC rendered a Decision finding the petitioner guilty of homicide. The dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused NOVER BRYAN SALVADOR y DE LEON guilty beyond reasonable doubt and as principal of the crime of homicide as

defined and penalized under Article 249 of the Revised Penal Code, without any attending mitigating or aggravating circumstance, and, applying the Indeterminate Sentence Law, hereby sentences him to an indeterminate penalty of EIGHT (8) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as maximum. The accused is further sentence (sic) to indemnify Spouses Ernesto and Margarita Zuñiga the amount of P50,000.00 for the death of Arlene Zuñiga and another amount of P50,000.00 as moral damages, both without subsidiary imprisonment in case of insolvency. The accused is further sentenced to pay the costs of suit.

SO ORDERED.14

The RTC considered the following circumstantial evidence sufficient to establish petitioner’s guilt:

(1) The perpetrator did not use any force or destroy any portion of the house to get inside the house. This implies that the perpetrator is an occupant of the house. The accused was, during the time material to this case, residing with his in-laws. The allegation of the accused that the main door of the house was open when he returned to get the tape is difficult to believe. It is unthinkable that the remaining occupants of the house, namely, Arlene and Mary Ann, who are both female, would not take the necessary precaution for their own protection such as locking the door of the house. It is as difficult to suppose that the perpetrator of the crime would go to the house where his intended victim was sleeping without being sure that he could gain entry to the house or have the necessary instruments to open the door.

(2) There were no personal belongings missing in the house. This shows that the person who entered the room of the victim had no intention to steal. This fact can better be appreciated if we consider the evidence that the accused was caught many times peeping at Arlene during her lifetime; and that [bloodstains] were found not in the short pants of the accused but in his Hanford brief and T-shirt.

(3) The absence of [bloodstains] or spots in any other part of the house except the room of the victim. This indicates that the assailant must have cleaned the traces of blood inside the house. The facility and time to clean the area is more available to an assailant who was an occupant of the house or a member of the household.

(4) Prior to and up to the date of the commission of the crime on September 20 or 21, 1997[,] the accused was seen by his parents-in-law Ernesto and Margarita Zuñiga and her sister-in-law Marianne and his friend Dondy Hiponia in many occasions to have in [his] possession a ‘balisong" or "beinte (sic) nueve." A "balisong" or "beinte (sic) nueve" is the tagalong name for a knife with folding blade. There is no reason for the Court to doubt the testimonies of said witnesses. Being close relatives and friend of the accused[,] they have no motive to fabricate a story against the accused or to implicate him to the commission of the crime charged. The claim of the accused that his father-in-law Ernesto Zuñiga is trying to implicate him [for] the killing of Arlene because his father-in-law disapproved his marrying Mary Ann, and that he accompanied his mother-in-law to the house of the mistress of his father-in-law is not supported by the facts of the case. The accused was allowed to stay in the house of the Zuñigas, an indication that he was acceptable to the family. The alleged mistress of Ernesto was not shown to exist, nor her supposed address revealed by the accused. The disappearance of said bladed weapon and the denial by the accused that he ever owned the same are intriguing because, according to expert testimony, the stab wounds sustained by the victim were produced by a pointed instrument one side of which is sharp like a "balisong" or "beinte (sic) nueve."

(5) The presence of human blood with type "O" in the t-shirt and brief of the accused, the finding that the blood type of the victim belongs to groupd (sic) "O," and the circumstance that the accused had suffered no scratches or wound from which to come blood to stain his T-shirt and brief are revealing and could only lead to the conclusion that the victim was the source of the blood found in the T-shirt and brief of the accused.

(6) The conclusion arrived at by Magsipoc that the DNA Profile of the [bloodstain] in the light gray t-shirt and the DNA Profile on the hair strands could come from the accused and the victim.

(7) The unusual behavior of the accused after the discovery of the dead body of Arlene betrayed the accused. Ernesto and Margarita Zuñiga testified that soon after the discovery of the death of Arlene[,] they immediately went to the room of the accused and his wife Mary Ann; that it took Margarita a hard time to awaken the accused; and that upon being awakened, the accused did not get (sic) inside the room where Arlene was and instead stayed and cried in the sala telling his wife that he was innocent even

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if nobody yet at that time was pointing to him as the suspect. The actuation of the accused then was that of a perpetrator of the crime with troubled conscience.15

On appeal, the CA affirmed petitioner’s conviction.16 Hence, the present petition for review on certiorari anchored on the following grounds:

I

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR WHEN IT RULED THAT THE MOST CONVINCING EVIDENCE OF THE PROSECUTION IS THE RESULT OF THE DNA ANALYSIS CONDUCTED BY THE NBI FORENSIC CHEMIST.

II.

THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR WHEN IT RULED THAT BY MEANS OF CIRCUMSTANTIAL EVIDENCE, IT WAS PROVEN AND ESTABLISHED BEYOND REASONABLE DOUBT THAT ACCUSED-APPELLANT WAS THE ONE RESPONSIBLE FOR THE DEATH OF ARLENE ZUÑIGA.

III.

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF HOMICIDE.17

The petition lacks merit.

Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community.18

Section 4, Rule 133 of the Rules of Court, provides that circumstantial evidence is sufficient for conviction if the following requisites are complied with:

(1) There is more than one circumstance;

(2) The facts from which the inferences are derived are proven; and

(3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.19

All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. Thus, conviction based on circumstantial evidence can be upheld, provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person.20

In the present case, both the trial and appellate courts considered these pieces of evidence in finding petitioner’s guilt: 1) the non-employment of force in entering the scene of the crime; 2) no missing personal belongings; 3) the absence of bloodstains in other parts of the house except Arlene’s room; 4) petitioner’s ownership of a balisong, the same weapon used in stabbing the victim; 5) the presence of type "O" human blood on petitioner’s T-shirt and briefs; 6) the positive result of the DNA analysis using the bloodstains found in petitioner’s shirt and briefs; and 7) petitioner’s unusual behavior after the discovery of the victim’s lifeless body.21

In his appeal before the CA and likewise in this present petition, petitioner questions the sufficiency of each and every circumstance enumerated above. He specifically points out the inconsistent findings of the NBI Forensic Chemist and those of the NBI Forensic Biologist.22 As to the circumstance that there was no forcible entry to the house, he insists that the main door was not locked; and he, in fact, faults Arlene for not locking the door to her bedroom.23 Petitioner adds that the connection between the alleged "peeping incident" and intent to kill was so remote; and thus insufficient to convict him.24 He also persuades this Court to give credence to his testimony that he owned a samurai (double-bladed knife) and not a balisong (single-bladed) which thus negates his authorship of the crime, since it would be contrary to the medico-legal’s findings that the weapon used was an instrument one side of which was sharp.25 Petitioner further asserts that the absence of scratches, wounds and bruises on his

body were more consistent with his innocence rather than his guilt, if we follow the court’s conclusion that Arlene had a chance to struggle with him prior to his death.26 Lastly, petitioner claims that if we were to believe the prosecution’s version, it would be hard to imagine that Mary Ann (petitioner’s wife), who was then in the other room, was not awakened.27

Prior to the fateful night when Arlene’s lifeless body was discovered, several witnesses saw petitioner in possession of a balisong. The NBI autopsy report, in turn, stated that the wounds sustained by Arlene were inflicted with the use of a weapon only one side of which was sharp (such as a balisong). After the discovery of the crime, the balisong was nowhere to be found. Hence, the trial court was correct in its conclusion that the balisong previously seen in petitioner’s possession was the very weapon used in stabbing the victim. While petitioner admitted owning a different kind of weapon, he failed to produce it in court. As such, it remained a self-serving allegation that cannot be considered to exonerate him from liability.

As to petitioner’s shirt and briefs, as correctly held by the trial court (and as affirmed by the appellate court), they were found to be stained with type "O" blood (the victim’s blood type). Instead of questioning the absence of proof that he was not of the same blood type as the victim, petitioner should have presented evidence that he indeed has type "O" blood. The fact remains that petitioner offered no explanation why his shirt and briefs contained bloodstains. It is, therefore, correct to conclude that they were stained with the victim’s blood.

Moreover, the absence of scratches and bruises on petitioner’s body parts does not negate the trial court’s conclusion that the victim had the chance to struggle with the petitioner. This is so because, at the time the petitioner attacked the victim between 1:00 and 4:00 in the morning, she was most likely asleep and was only awakened by the petitioner; she was, therefore, not in a position to offer strong resistance. This explains why such struggle produced no bruises and scratches.

The presence of petitioner’s wife inside the house at that time does not likewise negate the commission of the crime. Considering that his wife was a nursing mother who definitely had sleepless nights, she could not be expected to be conscious of everything that happened outside her room.

More importantly, intent to kill was duly established by the witnesses when they testified relative to the "peeping incident." Although there was no evidence or allegation of sexual advances, such incident manifested petitioner’s evil motive. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.28 Motive and intent may be considered one and the same, in some instances, as in the present case.

Lastly, the DNA analysis made by the NBI expert placed the petitioner at the scene of the crime.1avvphi1 Such evidence was considered, together with the other circumstances discussed earlier. The individual pieces of evidence may not be sufficient to point to the accused as the author of the crime. However, when taken together, they are more than enough to establish beyond reasonable doubt that petitioner committed the crime of homicide. We would like to emphasize at this point that the peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more like a puzzle which, when put together, reveals a remarkable picture pointing towards the conclusion that the accused is the author of the crime.29

The prosecution’s evidence, especially the testimonies of the witnesses who happen to be the victim’s relatives, was not weakened by the fact of such relationship. The Court notes that petitioner himself is a relative of the witnesses, albeit by affinity, being the husband of the victim’s sister. It is unnatural for a relative, who is interested in vindicating the crime, to accuse somebody else other than the real culprit. For her/him to do so is to let the guilty go free.30 Where there is nothing to indicate that witnesses were actuated by improper motives on the witness stand, their positive declarations made under solemn oath deserve full faith and credence.31

We also reiterate the well-settled rule that this Court accords great weight and a high degree of respect to factual findings of the trial court, especially when affirmed by the CA, as in the present case. Here, the RTC was unequivocally upheld by the CA, which was clothed with the power to review whether the trial court’s conclusions were in accord with the facts and the relevant laws.32 The credibility given by the trial courts to prosecution witnesses is an important aspect of evidence which appellate courts can rely on, because of the trial courts’ unique opportunity to observe the witnesses,

45

particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsels.33

In view of the foregoing, petitioner was correctly convicted of homicide punishable by reclusion temporal. Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty, absent any modifying circumstances, shall be taken from the full range of prision mayor and the maximum of which shall be taken from the medium period of reclusion temporal.34 Specifically, the indeterminate penalty that should be imposed is within the range of 6 years and 1 day to 12 years of prision mayor, as minimum; to 14 years, 8 months and 1 day to 17 years and 4 months of reclusion temporal, as maximum. Hence, a modification of the penalty imposed by the trial court is in order. Instead of 8 years, 8 months and 1 day, the minimum term of the indeterminate penalty shall be 8 years and 1 day of prision mayor;35 while the maximum term shall be that imposed by the trial court.

An appeal in a criminal proceeding throws the whole case open for review. It then becomes the duty of this Court to correct any error in the appealed judgment, whether or not included in the assignment of errors.36

We affirm the award of P50,000.00 by way of indemnity ex delicto to the Zuñiga spouses. When death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity for death without need of any evidence or proof of damages.37 The court likewise correctly awarded P50,000.00 as moral damages because of their mental anguish and moral suffering caused by Arlene’s death.

The trial and appellate courts did not award actual damages, obviously because the victim’s heirs failed to present proof of the expenses they incurred. However, it has been repeatedly held by this Court that where the amount of actual damages cannot be determined because of the absence of receipts to prove the same, temperate damages may be fixed at P25,000.00.38

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Court of Appeals dated February 26, 2004 in CA-G.R. CR No. 26048 is AFFIRMED with MODIFICATIONS. Petitioner Nover Bryan Salvador y De Leon is hereby sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. In addition to civil indemnity and moral damages, petitioner is ordered to pay spouses Ernesto and Margarita Zuñiga the sum of P25,000.00 as temperate damages.

SO ORDERED.

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