RULE 130

Rules of Admissibility

A. OBJECT (REAL) EVIDENCE

Section 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a)

B. DOCUMENTARY EVIDENCE

Section 2. Documentary evidence. — Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n)

1. Best Evidence Rule

Section 3. 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:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

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

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

(d) When the original is a public record in the custody of a public officer or is recorded in a public office. (2a)

Section 4. Original of document. —

(a) The original of the document is one the contents of which are the subject of inquiry.

(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a)

2. Secondary Evidence

Section 5. When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a)

Section 6. When original document is in adverse party's custody or control. — If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a)

Section 7. Evidence admissible when original document is a public record. — When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a)

Section 8. Party who calls for document not bound to offer it. — A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a)

3. Parol Evidence Rule

Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The term "agreement" includes wills. (7a)

4. Interpretation Of Documents

Section 10. Interpretation of a writing according to its legal meaning. — The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8)

Section 11. Instrument construed so as to give effect to all provisions. — In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (9)

Section 12. Interpretation according to intention; general and particular provisions. — In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10)

Section 13. Interpretation according to circumstances. — For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those who language he is to interpret. (11)

Section 14. Peculiar signification of terms. — The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12)

Section 15. Written words control printed. — When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13)

Section 16. Experts and interpreters to be used in explaining certain writings. — When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14)

Section 17. Of Two constructions, which preferred. — When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15)

Section 18. Construction in favor of natural right. — When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16)

Section 19. Interpretation according to usage. — An instrument may be construed according to usage, in order to determine its

true character. (17)

C. TESTIMONIAL EVIDENCE

1. Qualification of Witnesses

Section 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a)

Section 21. Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others;

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a)

Section 22. Disqualification by reason of marriage. — During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a)

Section 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a)

Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;

(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;

(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;

(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)

2. Testimonial Privilege

Section 25. Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants,

children or other direct descendants. (20a)

3. Admissions and Confessions

Section 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)

Section 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)

Section 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (25a)

Section 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a)

Section 30. Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (27)

Section 31. Admission by privies. — Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. (28)

Section 32. Admission by silence. — An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a)

Section 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a)

4. Previous Conduct as Evidence

Section 34. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a)

Section 35. Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a)

5. Testimonial Knowledge

Section 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a)

6. Exceptions To The Hearsay Rule

Section 37. Dying declaration. — The declaration of a dying person, made under

the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a)

Section 38. Declaration against interest. — The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32a)

Section 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 fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a)

Section 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, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a)

Section 41. Common reputation. — Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35)

Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36a)

Section 43. Entries in the course of business. — Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37a)

Section 44. 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. (38)

Section 45. Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39)

Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)

Section 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41a)

7. Opinion Rule

Section 48. General rule. — The opinion of witness is not admissible, except as indicated in the following sections. (42)

Section 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to posses, may be received in evidence. (43a)

Section 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given, may be received in evidence regarding —

(a) the identity of a person about whom he has adequate knowledge;

(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (44a)

8. Character Evidence

Section 51. Character evidence not generally admissible; exceptions: —

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged.

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

RULE 132

Presentation of Evidence

A. EXAMINATION OF WITNESSES

Section 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1a)

Section 2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by

him shall be deemed prima facie a correct statement of such proceedings. (2a)

Section 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined except only as to matters pertinent to the issue;

(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or

(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a)

Section 4. Order in the examination of an individual witness. — The order in which the individual witness may be examined is as follows;

(a) Direct examination by the proponent;

(b) Cross-examination by the opponent;

(c) Re-direct examination by the proponent;

(d) Re-cross-examination by the opponent. (4)

Section 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (5a)

Section 6. Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a)

Section 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. (12)

Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13)

Section 9. Recalling witness. — After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (14)

Section 10. Leading and misleading questions. — A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:

(a) On cross examination;

(b) On preliminary matters;

(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or

is of feeble mind, or a deaf-mute;

(d) Of an unwilling or hostile witness; or

(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed. (5a, 6a, and 8a)

Section 11. Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (15)

Section 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. (6a, 7a)

Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. (16)

Section 14. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached. (17)

Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. (18)

Section 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (10a)

Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (11a)

Section 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9a)

B. AUTHENTICATION AND PROOF OF DOCUMENTS

Section 19. Classes of Documents. — For the purpose of their presentation evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to the entered therein.

All other writings are private. (20a)

Section 20. Proof of private document. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be. (21a)

Section 21. When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22a)

Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23a)

Section 23. Public documents as evidence. — Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (24a)

Section 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25a)

Section 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26a)

Section 26. Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27a)

Section 27. Public record of a private document. — An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a)

Section 28. Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (29)

Section 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (30a)

Section 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (31a)

Section 31. Alteration in document, how to explain. — The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a)

Section 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (33a)

Section 33. Documentary evidence in an unofficial language. — Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34a)

C. OFFER AND OBJECTION

Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35)

Section 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the time the witness is called to testify.

Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n)

Section 36. Objection. — Objection to evidence offered orally must be made immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified. (36a)

Section 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. (37a)

Section 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38a)

Section 39. Striking out answer. — Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n)

Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (n)

A.M. No. 06-11-5-SC      (2 October 2007)

RULE ON DNA EVIDENCE

RESOLUTION

Acting on the recommendation of the Chairperson and Members of the Subcommittee on Evidence submitting for the Court’s consideration and approval the proposed Rule on DNA Evidence, the Court Resolved to APPROVE the same.

This Resolution shall take effect on October 15, 2007 following its publication in a newspaper of general circulation.

October 2, 2007.

[sgd.]RENATO S. PUNO

Chief Justice

[sgd.]LEONARO A. QUISUMBING

Associate Justice

[sgd.]CONSUELO YNARES-SANTIAGO

Associate Justice

[sgd.]ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

[sgd.]ANTONIO T. CARPIO

Associate Justice

[sgd.]MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

[sgd.]RENATO C. CORONA

Associate Justice

[sgd.]CONCHITA CARPIO MORALES

Associate Justice

[sgd.]ADOLFO S. AZCUNA

Associate Justice

[sgd.]DANTE O. TINGAAssociate Justice

[sgd.]MINITA V. CHICO-NAZARIO

Associate Justice

[sgd.]CANCIO C. GARCIA

Associate Justice

[sgd.]PRESBITERO J. VELASCO, JR.

Associate Justice

[sgd.]ANTONIO EDUARDO B. NACHURA

Associate Justice

[sgd.]RUBEN T. REYESAssociate Justice

[sgd.]LEONARO A. QUISUMBING

Associate Justice

[sgd.]CONSUELO YNARES-SANTIAGO

Associate Justice

[sgd.]ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

[sgd.]ANTONIO T. CARPIO

Associate Justice

[sgd.]MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

[sgd.]RENATO C. CORONA

Associate Justice

[sgd.]CONCHITA CARPIO MORALES

Associate Justice

[sgd.]ADOLFO S. AZCUNA

Associate Justice

[sgd.]DANTE O. TINGAAssociate Justice

[sgd.]MINITA V. CHICO-NAZARIO

Associate Justice

[sgd.]CANCIO C. GARCIA

Associate Justice

[sgd.]PRESBITERO J. VELASCO, JR.

Associate Justice

[sgd.]ANTONIO EDUARDO B. NACHURA

Associate Justice

[sgd.]RUBEN T. REYESAssociate Justice

RULE ON DNA EVIDENCE

SECTION 1. Scope. – This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings.

Sec. 2. Application of other Rules on Evidence. In all matters not specifically covered by this Rule, the Rules of Court and other pertinent provisions of law on evidence shall apply.

Sec. 3. Definition of Terms. – For purposes of this Rule, the following terms shall be defined as follows:

a.b. “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;c.

d. “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins;

e.

f. “DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples;

g.

h. “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;

i.

j. “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

k.

l. “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.

m.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.b. A biological sample exists that is relevant to the case;c.

d. 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;

e.

f. The DNA testing uses a scientifically valid technique;g.

h. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

i.

j. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing.

k.This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

Sec. 5. DNA Testing Order. – If the court finds that the requirements in Section 4 hereof have been complied with, the court shall –

a.b. Order, where appropriate, that biological samples be taken from any person or crime scene evidence;c.

d. Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and

e.

f. If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted.

g.An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.

Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such

sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction.

Sec. 7. Assessment of probative value of DNA evidence. – In assessing the probative value of the DNA evidence presented, the court shall consider the following:

a.b. The chair of custody, including how the biological samples were collected, how they were handled, and the possibility

of contamination of the samples;c.

d. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests;

e.

f. The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and

g.

h. The reliability of the testing result, as hereinafter provided.i.

The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily.

Sec. 8. Reliability of DNA Testing Methodology. – In evaluating whether the DNA testing methodology is reliable, the court shall consider the following:

a.b. The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested;c.

d. The subjection to peer review and publication of the principles or methods;e.

f. The general acceptance of the principles or methods by the relevant scientific community;g.

h. The existence and maintenance of standards and controls to ensure the correctness of data generated;i.

j. The existence of an appropriate reference population database; andk.

l. The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

m.Sec. 9. of DNA Testing Results. – In evaluating the results of DNA testing, the court shall consider the following:

a.b. The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence;c.

d. The results of the DNA testing in the light of the totality of the other evidence presented in the case; and thate.

f. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity.

g.Sec. 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable to the Convict. – The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In the case the court, after due hearing finds the petition to be meritorious, if shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause.

A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders.

Sec. 11. Confidentiality. – DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court:

a.b. Person from whom the sample was taken;c.

d. Person from whom the sample was taken;e.

f. Lawyers of private complainants in a criminal action;g.

h. Duly authorized law enforcement agencies; andi.

j. Other persons as determined by the court.k.

Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented.

Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, he same may be disclosed to the persons named in the written verified request.

Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order

the appropriate government agency to preserve the DNA evidence as follows:

a.b. In criminal cases:c.

i.ii. for not less than the period of time that any person is under trial for an offense; oriii.

iv. in case the accused is serving sentence, until such time as the accused has served his sentence;v.

a.b. In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become

final and executory.The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that:

a.b. A court order to that effect has been secured; or

c. The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.Sec. 13. Applicability to Pending Cases. Except as provided in Section 6 and 10 hereof, this Rule shall apply to cases pending at the time of its effectivity.

Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007, following publication in a newspaper of general circulation.

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

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 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.

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.

Costs de oficio.

SO ORDERED.

[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 review[1] to set aside the Decision[2] dated 29 November 2000 of the Court of Appeals (“appellate court”) in CA-G.R. SP No. 59766. The appellate court affirmed two Orders[3] 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 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 JurisprudenceEstablishing 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.xxxART. 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 baptism[25] nor family pictures[26] 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]

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 Appeals[34] 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 ofDNA Analysis as Evidence

The 2002 case of People v. Vallejo[35] 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. Yatar[38] 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 test[42] 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 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. Schwartz[43] 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 ofDNA 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 AgainstSelf-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 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. 148220               June 15, 2005ROSENDO 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.

FACTS: In May 1998, Armi Alba, mother of minor Rosendo Alba filed a suit against Rosendo Herrera in order for the latter to recognize and support Rosendo as his biological son. Herrera denied Armi’s allegations. In the year 2000, the trial court ordered the parties to undergo a (deoxyribonucleic acid )DNA testing to establish whether or not Herrera is indeed the biological father of Rosendo Alba. However, Herrera questioned the validity of the order as he claimed that DNA testing has not yet garnered widespread acceptance hence any result therefrom will not be admissible in court; and that the said test is unconstitutional for it violates his right against self-incrimination.ISSUE: Whether or not Herrera is correct.HELD: No. It is true that in 1997, the Supreme Court ruled in Pe Lim vs CA that DNA testing is not yet recognized in the Philippines and at the time when he questioned the order of the trial court, the prevailing doctrine was the Pe Lim case; however, in 2002 there is already no question as to the acceptability of DNA test results as admissible object evidence in Philippine courts. This was the decisive ruling in the case of People vs Vallejo (2002).In the Vallejo Case, the Supreme Court recognized DNA analysis as admissible evidence. On the other hand, as to determining the weight and probative value of DNA test results, the Supreme Court provides, which is now known as the Vallejo Guidelines:In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data:

1. how the samples were collected,2. how they were handled,3. the possibility of contamination of the samples,4. the procedure followed in analyzing the samples,5. whether the proper standards and procedures were followed in conducting the tests,6. and the qualification of the analyst who conducted the tests.

The above test is derived from the Daubert Test which is a doctrine adopted from US jurisprudence (Daubert v. Merrell Dow Pharmaceuticals, Inc.) The Daubert Test is a test to be employed by courts before admitting scientific test results in evidence. More specifically, the Daubert Test inquires:

1. Whether the theory or technique can be tested,2. Whether the proffered work has been subjected to peer review,3. Whether the rate of error is acceptable,4. Whether the method at issue enjoys widespread acceptance

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

Anent the issue of self-incrimination, submitting to DNA testing is not violative of the right against self-incrimination. The right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. There is no “testimonial compulsion” in the getting of DNA sample from Herrera, hence, he cannot properly invoke self-incrimination.

G. R. No. L-31871 December 14, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CEFERINO MEDRANA Y TORRES, accused-appellant.

AQUINO, J.:

This is a murder case. The prosecution's evidence discloses that at around ten o'clock in the evening of September 5, 1967, Arturo Fernandez (Oying), 24, was seated at a table in the restaurant of the Muni Golf Links near Intramuros, Manila. With him at the table were Napoleon Medalla, Tommy Dizon and Teodulfo D. Belarmino. They were drinking whiskey and were engaged in a friendly conversation. Fernandez invited Medalla to attend his birthday party at the Nile Restaurant on Friday, September 8.

Paulino Gelidon Melvin Yabut and Eladio Yabut arrived at the restaurant. Gelidon and Eladio seated themselves beside Ceferino Medrana and Ching Santos at a table which was opposite the table occupied by Fernandez. Melvin, who was the president of a customs brokerage firm known as Cargoes Unlimited, Inc., seated himself beside Fernandez who was a vice-president of the firm.

Fernandez introduced Melvin to Medalla, telling the latter that Melvin is a nephew of Nemesio Yabut. Medalla uttered derogatory remarks against Nemesio Yabut, branding him as a squealer who caused the apprehension of two trucks of Medalla and whom he (Medalla) would kick and spit on. Fernandez countered that Medalla should not do that because Nemesio Yabut was his (Oying's) compadre. Medalla remarked that Gelidon the bodyguard of Fernandez, was "stale" (panis). Medalla then pointed to his bodyguards, Medrana and Belarmino, who were armed with caliber .45 guns.

Shortly thereafter, Medalla directed Medrana to get from his car a Thompson submachine gun so that he could fire it. Fernandez advised Medrana not to get the gun because trouble and scandal might ensue. Medalla said that he assumed responsibility for the consequences. Medrana, in compliance with Medalla's directive, stood up and walked towards the parking lot near the restaurant and the corner of Palacio and P. Burgos Streets. Medalla also stood up and went to the parking lot. Fernandez followed Medalla. Belarmino and Dizon also went to the parking lot.

Maria Resma, 36, a cigarette vendor who was near the parking lot at the time, testified that, at a distance of around fifteen paces, she saw Medalla and Fernandez grappling for the possession of a long gun. Medalla, who was able to wrest the gun from Fernandez, placed it inside his car. Then, Fernandez, with hands raised, moved backward, saying: "Huwag, pare, hindi ako lalaban". He was unarmed.

Benjamin Lopez, 19, a third-year high school student who worked as a caddy and knows Medalla and Fernandez, testified that at around ten o'clock on that night of September 5, 1967, he was at the Muni Golf Links, leaning against a parked car while waiting for some golfers.

He saw Medalla, Fernandez and Dizon in the parking lot. He heard a gunshot. On looking sidewise to his left, where the sound of the gunshot originated, he perceived Medalla, Medrana and Belarmino aiming their firearms at Fernandez, who was backing away with raised hands in a posture of surrender. Belarmino and Medrana were armed with .45 caliber pistols (Exh. I).

After Belarmino had fired at Fernandez, the latter fell and then he stood up with raised hands, saying: "Don't kill me. I'll not fight." As Fernandez walked towards his car, which was a few meters away, Medrana fired at him. The victim continued walking in a zigzag manner towards his car. Belarmino again fired at him. Fernandez buckled down on one knee and then he rose and moved

towards the driving range in a wobbly manner. Medrana followed him and fired at him repeatedly.

Fernandez collapsed inside the restaurant near the counter for glasses and plates. A bystander, who was hiding behind the counter and who knew the victim, said: "Oying, Oying, huwag dito, doon ka. " Fernandez stood up and staggered towards the fairway, still pursued by Medrana. At that juncture, Dizon shouted to Medalla: "Napo, si Oying." Reacting to Dizon's words, Medalla shouted the order: "Tama na yan". Heeding that injunction, Medrana desisted and returned to the parking lot.

Medalla tucked his firearm in his waist and walked towards the driving range, following the route taken by Fernandez. Upon overtaking Fernandez, Medalla stooped, raised the hands of Fernandez and shouted insolently: "Ano, puede ka pa ba?" Fernandez did not answer. His head was drooping. Medalla released him and ordered Medrana to place Fernandez in his (Medalla's) car and take him to the hospital. The car was driven by Leopoldo Hermo, Medalla's driver.

Fernandez was already dead upon arrival at the Philippine General Hospital. The postmortem examination showed that he had a fatal gunshot wound in his abdomen which lacerated his diaphragm, heart and liver. A .32 caliber slug was lodged in the pericardial sac of his heart. He had also gunshot wounds in the buttocks, forearm and left thigh. A .45 caliber bullet had entered his buttocks (gluteal region), exited on the right iliac region of his abdomen and reentered his right forearm (Exh. EE).

Belarmino, 50, an employee of Medalla, voluntarily surrendered to the police and gave a statement on the following day, September 6, wherein he admitted his participation in the shooting of Fernandez (Exh. I). He reenacted his role in the killing (Exh. L to L-4). It is significant that in his statement he repeatedly stated that Medrana was with him at the scene of the crime (Exh. L).

Hermo, 51, was arrested two days later or on September 7 (Exh. N). He also demonstrated how he shot Fernandez with his .32 caliber revolver, a Colt Cobra (Exhs. P and P-1). The booking sheet and arrest report regarding Hermo proves that Medrana was implicated in the killing of Fernandez, as may be seen from the following entry therein signed by Hermo, Patrolman S. Alonzo and by Sergeant Mallari for Colonel Enrique V. Morales, the chief of the detective bureau:

Herein accused (Hermo) was arrested at the above-stated time (6:30 p.m., 9-7-67), date and place for the crime of MURDER committed as follows:

That on or about 10: 15 p.m., Sept. 5, 1967, herein accused (Hermo) together with Teodulfo Belarmino y Decena, also under arrest and one Ceferino Medrana alias Ninoy still at large, shot victim, Arturo Fernandez y Camello with a .32 caliber revolver with serial number 71087 (recovered) inside the parking space in front of the Muni Golf Links, located at the corner of Palacio and P. Burgos Sts., Intramuros, Manila, hitting victim, causing victim's death upon arrival at the PGH.

Accused (Hermo) further stated that he shot victim while waiting for his employer Mr. Napoleon Medalla at the mentioned place, when all of a sudden he heard gunshot bursts and believing that his employer was injured, he drew his revolver tucked on his right waistline and aimed and shot point blank at the person who he said was in an act of attacking his employer.

The revolver was found to be covered with a certification signed by the commander of Laguna.

Accused surrendered to Col. James Barbers, Deputy Chief of Police and verbally admitted having shot victim once but refused to give a written statement as per advice of his lawyer. (Exh. N).

Belarmino was charged with murder on September 7 in an information filed in the Court of First Instance of Manila (Criminal Case No. 87276). The next day the information was amended by including Hermo as a co-accused. Medalla was included as a co-accused in the amended information filed on October 19. It was alleged therein that the three accused conspired with one whose Identity and whereabouts were still unknown.

Medrana, 25, had gone into hiding. He was arrested by Calamba, Laguna policemen in a nightclub in that town on August 31, 1968 or nearly one year after the killing (Exh. GG). Prosecution witness Gelidon Identified Medrana in a police lineup as one of the assailants of Fernandez (Exh. GG and GG 1).

The case against Medrana was succinctly capsulized by Patrolman Alonso in his booking sheet and arrest report where under the heading "Facts known to arresting officer" Alonso said (Exh. GG):

Herein accused was arrested ... for the crime of murder wherein the victim is Arturo Fernandez y Amello, committed as follows:

That on or about 10:15 p.m., September 5, 1967, herein accused together with other accused already under arrest, shot victim with a .45 caliber pistol, not recovered, inside the parking space in front of the Muni Golf Links, located at the corner of Palacio and P. Burgos Streets, Intramuros, Manila, hitting victim in different parts of the body and causing victim's death on arrival at the Philippine General Hospital, where he was conveyed for treatment.

Medrana was charged with murder in a separate information filed on September 2, 1968 in the Court of First Instance. It was alleged therein that he conspired with Belarmino, Hermo and Medalla to kill Fernandez (Criminal Case No. 90870). The case was eventually assigned to the Circuit Criminal Court (Case No. 30). Thus, Medrana was tried separately.

After trial, the lower court convicted him of murder qualified by abuse of superiority and aggravated by cuadrilla sentenced him to death and ordered him to pay an indemnity of P 390,400. He appealed to this Court.

Appellant Medrana, a high school graduate and a jeepney operator, relied on an alibi. He testified that he was with Medalla at around two o'clock in the afternoon of September 5, 1967 and that at about six o'clock he left the Muni Golf Links, after telling Belarmino to inform Medalla of his departure, and rode in a bus bound for his native barrio, Mayapa, Calamba.

Medrana's alibi is belied by Belarmino who declared in his statement, taken about fourteen hours after the killing, that between nine and ten o'clock in the evening of September 5, 1967 Medrana (Ninoy) was with Belarmino and Medalla at the scene of the crime and that Medrana helped Medalla in placing the mortally wounded victim in Medalla's car (Nos. 10, 11, 18, 28, 29 and 59, Exh. I).

While Medrana in his testimony conveys the impression that his meeting with Medalla in the afternoon of September 5, 1967 was an isolated instance, it can be deduced from Belarmino's statement that Medrana was a bodyguard of Medalla. Belarmino, an employee of Medalla, said that he saw Medrana daily (araw-araw) armed with a .45 caliber revolver (No. 52, Exh.I).

As already mentioned in the recital of the prosecution's version, Hermo, Medalla's driver, signed Patrolman Alonso's booking sheet and arrest report implicating Medrana in the killing (Exh. N).

The statement of Eladio Yabut, taken about ten hours after the shooting, also belies the alibi of Medrana. Eladio recounted in his statement that Medalla asked Medrana to get the Thompson submachine gun from Medalla's car (Nos. 17 and 18, Exh. 28). This matter was also brought out in Eladio's testimony.

So, appellant's contention that he was not mentioned by Yabut in his statement nor implicated by him in the killing of Fernandez (pp. 73-75, Brief) is not correct. Yabut repeatedly referred to a certain Ninoy as being present at the scene of the crime and as the person whom Medalla instructed to get from his car his Thompson submachine gun (Exh. 28). As previously noted, Ninoy is appellant Medrana. Yabut knows appellant by that nickname and not by his surname Medrana.

Appellant's able counsel meticulously and painstakingly exposed the alleged discrepancies, contradictions, bias, improbability and lack of credibility in the testimonies of prosecution witnesses Gelidon Eladio Yabut, Resma and Lopez.

Counsel faulted the trial court for not giving probative value to the facts elicited by him during the cross-examination of the said witnesses, for not reading his memorandum, for basing the judgment of conviction on its observation of the demeanor of the witnesses and for giving credence to the testimonies of Lopez and Resma in spite of the fact that they gave their statements eleven days after the shooting and that they were given protection, assistance and shelter by the victim's father, Senator Estanislao Fernandez (lst, 2nd, 3rd and 5th Assignments of Error).

In resolving these contentions, it is wen to bear in mind that there is no doubt whatsoever that Medrana was at the scene of the crime, that he participated in the shooting and that he was a fugitive from justice for nearly a year, a circumstance indicative of guilt.

The only issue is as to what was Medrana's role in the killing where four armed persons, acting like a firing squad, conducted a fusillade and peppered with bullets a defenseless victim whose life was not spared notwithstanding his repeated conciliatory declaration (amounting to a plea for mercy) that he would not fight his assailants.

Gelidon and Eladio Yabut testified that they saw Medrana, with his drawn .45 caliber automatic pistol (naka-omang), following Fernandez who was walking on the putting green towards the driving range in a zigzag manner (pasoray-soray) (31 and 85 tsn, February 25, 1970).

Resma testified that after Medalla had wrested the Thompson submachine gun from Fernandez and placed it inside his car, Medalla, Belarmino and Medrana, who was on Medalla's right and who was wearing a shirt with its long sleeves rolled up to the elbow, aimed their firearms at Fernandez. Later, Medrana helped Medalla in placing Fernandez inside Medalla's car (113-114, 119 tsn February 25, 1970).

Lopez corroborated Resma's testimony by declaring that he saw Medalla (who was wearing a white polo barong) and two persons on his right and left aiming their guns at Fernandez who was moving backward. The man on Medalla's right, who was wearing a shirt with its sleeves rolled up, was Medrana. He shot Fernandez after Belarmino, the man on Medalla's left, had fired at Fernandez.

According to Lopez, Fernandez walked towards his car and was shot by Belarmino. Fernandez fell on his knees and then ran towards the driving range. Medrana ceased him and shot him three times. Fernandez fell near the place where the drinking glasses were kept. He stood up and ran to the practice green. At that juncture, Medalla said "Tama na yan". Medrana returned to the parking lot. Later, he and another person placed Fernandez in Medalla's car (195-204 tsn February 26, 1970).

Those testimonies of Gelidon Yabut, Resma and Lopez, all eyewitnesses, regarding Medrana's culpability taken in conjunction with the declarations of his co-accused, Belarmino and Hermo, as to Medrana's presence at the scene of the crime, are conclusive as to his guilt and militate against the theory of self-defense and defense of a stranger which Medrana's counsel sought to establish in his cross-examination of Doctor Angelo Singian, the medico-legal officer who conducted the autopsy.

Appellant's counsel argues that the fact that Resma and Lopez gave their statements to the police eleven days after the killing and only after having received assurances of protection from Senator Fernandez and having been given board and lodging in his house impairs their credibility.

The two witnesses candidly declared during the trial that they were afraid to testify because they feared Medalla and they did not want to be involved in the case (179-180 tsn February 25, 1970; 211-212 tsn February 26, 1970).

But because Senator Fernandez gave them security guards and they lived in his residence, they decided to testify on what they knew about the incident. Lopez said that during his first conference with Senator Fernandez the latter told him that he (Senator Fernandez) did not want a witness who had not actually seen what had happened. Lopez informed Senator Fernandez that he had witnessed the incident (216 tsn February 26, 1970).

The fact that Resma and Lopez did not volunteer to give their statements to the police immediately after the incident and the fact that their statements were taken after Senator Fernandez had given them protection, board and lodging might give the impression that their testimonies were mere inventions to help the prosecution. That is appellant's basic contention in this appeal.

We find that an unprejudiced and dispassionate appraisal of their testimonies and detailed statements to the police (Exhs. 5 and 36) and a consideration of their personal circumstances and the fact that they were undeniably present at the scene of the crime lead to the conclusion that their testimonies have the earmarks of veracity and would be difficult to fabricate.

Resma, a squatter in the ruins of Intramuros who finished grade four, and Lopez, a teenager struggling to earn a living as a caddy, appear to be guileless individuals without any rascality in their makeup. Belonging to a humble station in life and not accustomed to the mischievousness of more sophisticated and educated persons, the two eyewitnesses are not of the stuff of which perjurers are made.

They were intensively cross-examined before two judges by skilled advocates. If their declarations as to Medrana's role in the assassination of Fernandez were fabrications, as repeatedly asseverated by appellant in his reply brief, then the competent defense lawyers would have easily unmasked them as liars. But Resma and Lopez withstood the gruelling cross-examination. They did not abandon their version that Medrana was one of the gunwielders who shot Fernandez.

Appellant's assumption that Resma and Lopez should have volunteered to apprise the police immediately that they had witnessed the shooting is contrary to human experience. It is well-known that eyewitnesses to killings usually do not want to

undergo the trouble and inconvenience of an investigation and of appearing in court, being grilled by lawyers and being exposed to reprisal from the accused.

It is not surprising that in this case the victim's father had to take Resma and Lopez into custody. Their failure to testify might have prevented the prosecution from proving its case against the accused. A miscarriage of justice would have been the result.

If Resma and Lopez were not telling the truth as to the participation of Medrana in the killing of Fernandez, then Medrana should have presented eyewitnesses to refute their testimonies. There were several persons in the driving range and parking lot at the time the incident occurred (156-157 tsn February 25, 1970).

But Medrana presented only one witness, a fifty-eight-year-old caddy named Pedro Ofredo, who testified that when he heard the gunshots he noticed that Maring Resma, like himself. left the golf course. He said that he did not see Lopez on the night of September 5, 1967 because Lopez did not render any service at that time.

The truth is that Lopez resided at the caddy house where he slept. So, night and day he was in the golf course. Resma's testimony that she witnessed the shooting with her companions Joe Solomon and Pedro Mata cannot be nullified by Ofredo's testimony that he allegedly saw her leaving the golf course immediately after the gunshots were heard.

Appellant regards the failure of Resma and Lopez to recognize Medrana in the newspaper photographs shown to them by the police (No. 45, Exh. 5; No. 43, Exh. 36) as an instance showing their lack of credibility. It should be noted that even Medrana, when shown on the witness stand his photograph with the caption "Ceferino Medrana" published in the Manila Times of September 16, 1967, said frankly: "I am not sure if that is my picture." (18 tsn March 2, 1970.)

Resma and Lopez saw Medrana only once on the night of September 5, 1967 at the scene of the crime. What they saw was the entire person of Medrana. They did not see him at close range or face to face. What remained in the archives of their memory was the whole figure of Medrana's person, not merely his head. Hence, it was difficult for them to recognize Medrana when only the photograph of his face was shown to them (See 176 tsn, February 25, 1970).

As to the inconsistencies and contradictions, it was inevitable that the testimonies of Gelidon Eladio Yabut, Resma and Lopez before Judge Alikpala would not jibe perfectly with their testimonies about two years later before Judge Pamaran. The absence of discrepancies would confirm appellant's assertion that they "gave perjured, fabricated and incredible testimony" (p. 43, Reply Brief ).

The contradictions and errors dealt with minor details and did not nullify their declaration as to the participation of Medrana in the shooting of Fernandez. That is the point that matters and on that point the testimonies of the four witnesses are worthy of belief.

Appellant contends that Judge Manuel R. Pamaran erred in not awaiting the completion of the testimonies of Belarmino and Hermo in Criminal Case No. 87276 before Judge Federico C. Alikpala and thus prevented Medrana from proving self-defense or defense of another person by means of their testimonies or that the shooting was justified. (6th assignment of error).

We hold that no error was committed by the trial court on that score. Medrana was given a separate trial. His defense was alibi or, according to his counsel, denial of any participation in the shooting. We have already noted that Belarmino in his confession declared that Medrana was present at the scene of the crime (Exh. I). Hermo in the booking sheet and arrest report implicated Medrana (Exh. N).

In the face of those statements, the testimonies of Hermo and Belarmino would be of no help to Medrana. The medico-legal officer testified in this case and in the case against Hermo, Belarmino and Medalla before Judge Alikpala. The theory of self-defense and defense of another person is partly based on the medico-legal officer's testimony.

As will be shown presently, that theory cannot be sustained in this case. The prosecution's evidence (particularly the reenactment made by Hermo and Belarmino) proves that the ruthless liquidation of Fernandez was not justified. There was no reason why Fernandez would perpetrate unlawful aggression against Medalla and his bodyguards.

Medrana's learned counsel, in his fourth assignment of error and in his summation (filed after the submission of his brief), harps on the plea of self-defense which was intimated in Belarmino's statement. Belarmino said that he shot Fernandez when the latter

made a motion to draw his weapon ("akmang bubunot") (No. 28, Exh. 1).

Counsel adverted to the testimony of the medico-legal expert on cross-examination that the bullet which most probably first struck Fernandez was the .45 caliber slug (Exh. R) fired by Belarmino. That bullet entered the left side of the victim's waist, travelled more or less horizontally across his body, exited at the right side of his waist and then reentered and lodged on the victim's right forearm above the right wrist. The testimony allegedly belied the claim of the prosecution witnesses that the first shot was fired when the hands of Fernandez were raised in a gesture of surrender to Medalla and his companions.

Counsel's argument is highly controversial. We find that the testimony of the medico-legal officer, like expert testimony in general, is a hodgepodge of conjectures. It should be emphasized that on redirect examination, he admitted that it was also possible that the .32 caliber bullet (Exh. S) fired by Hermo was the first slug that Fernandez (291 tsn).

While the conspiracy among the four accused was not proven directly, it could be implied from their concerted attack and their relationship to each other (Belarmino and Medrana were bodyguards of Medalla and Hermo was Medalla's driver) that they had an agreement or community of design to kill Fernandez because of some deep-seated grudge harbored by Medalla against Fernandez and Nemesio Yabut whose exact business relationship to Fernandez is not definitely shown in the record.

The motive may be gleaned from the following declaration of Belarmino in his statement (No. 27, Exh. 1):

Ang naging paksa ng usapan ni Oyeng (Fernandez) at ni Mr. Medalla ay iyon paggogolf nila ni Mr. Nemesio Yabut at nasabi nga ni Mr. Medalla and tungkol doon sa barilan sa Custom, at sinabi pa ni Medalla na mabait na tao iyan si Mr. Yabut pero kung minsan somosobra iyon(g) mga taohan niya.

Iyon ay kinagalit ni Oyeng at katwiran niya ay hindi dapat siraan si Mr. Yabut dahil sa malaki ang pakinabang niya ki Mr. Yabut.

Ang sagot naman ni Mr. Medalla ay wala naman akong (siyang) sinasabing masama tungkol kill Mr. Yabut. Ang katunayan ay mabuting tao si Mr. Yabut, kaya lamang ay bakit ang dala-dala na armas ng mga taohan niya ay high-powered at mga armalite. Iyon lamang at nagalit naman si Oyeng, kaya't nagbayad si Mr. Medalla ng lahat ng nainom at nagyaya ng umuwi.

Appellant Medrana was a co-conspirator. His complicity in the killing of Fernandez was proven beyond reasonable doubt.

Appellant's contention in his seventh assignment of error that the trial court erred in holding that the killing was qualified by abuse of superiority is not well-taken. It is incontestable that the four accused, all armed, ganged up against Fernandez and took advantage of their numerical superiority in liquidating him with impunity. What happened in this case is known in colloquial parlance as "overkill".

On the other hand, the Solicitor General contends that because deadly, high-powered weapons were utilized against the helpless victim to insure his liquidation and that it is evident that the four assailants had made some preparation for the assault, treachery should be considered aggravating.

We disagree with that contention. The victim had been alerted that he would be liquidated. It was his misfortune that he was not able to stop the assault. The element of surprise, a characteristic feature of alevosia, was absent. Anyway, the point has only academic significance because when treachery and abuse of superior strength coexist, they are treated as one aggravating circumstance (U.S. vs. Jamino, 3 Phil. 102, 109; People vs. Bustos, 45 Phil. 9, 54-55).

Appellant's contention in his eighth assignment of error that abuse of superiority absorbed cuadrilla is correct. Band cannot be appreciated in this case as an aggravating circumstance independently of abuse of superior strength. If treachery absorbs abuse of superiority and band (U.S. vs. Abelinde, 1 Phil. 568), then it is reasonable to hold that band should not be treated as an aggravating circumstance separate and distinct from abuse of superior strength. The two circumstances have the same essence which is the utilization of the combined strength of the assailants to overpower the victim and consummate the killing.

There being no generic aggravating circumstances nor mitigating circumstances in this case, the penalty for murder, which is reclusion temporal maximum to death, should be imposed in its medium period. Hence, appellant Medrana should be sentenced to reclusion perpetua.

Appellant's last assignment of error refers to the trial court's computation of the civil liability. It estimated the victim's life

expectancy at sixty years. Since he was almost twenty-five years old when he was killed and his salary and allowances amounted to P9,600 a year, the trial court computed his lost earnings or income for 35 years at P336,000. That amount plus his salary of P2,400 for the rest of 1967, moral and exemplary damages of P40,000 and the usual indemnity of P12,000 totalled P390,400.

Appellant contends that the allowances should not have been included in the income and that the victim's life expectancy should be based on actuarial tables.

We hold that the indemnity of P 390,400. payable to the heirs of the victim is not excessive nor unwarranted.

There can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation but the amount recoverable depends on the particular facts and circumstances of each case (25 C.J.S. 1241).

WHEREFORE, the trial court's judgment is affirmed with the modification that the penalty is reduced to reclusion perpetua. Costs de oficio.

SO ORDERED.

[G.R. No. 124737.  June 26, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RIZALINO FUNDANO, accused-appellant.

DECISION

DAVIDE, JR., J.:

Accused-appellant Rizalino Fundano (hereafter RIZALINO) seeks to reverse the 26 February 1996 decision[1] of the Regional Trial Court (RTC) of Makati City, Branch 150, in Criminal Cases Nos. 94-4887, 94-4888 and 94-4889, which found him guilty beyond reasonable doubt of three counts of rape. The complaints in those cases were signed by the complainant Melody Fundano and her mother and filed with the court below on 4 July 1994.

In Criminal Case No. 94-4887, RIZALINO was charged with rape committed as follows:

That on or about the 10th day of September, 1993, in the Municipality of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned MELODY G. FUNDANO, a 15-year old girl, without her consent and against her will.[2]

The complaints in Criminal Cases Nos. 94-4888 and 94-4889 were similarly worded, except as to the dates the crimes were committed, i.e., 11 September 1993[3] and 12 September 1993,[4] respectively.

The National Bureau of Investigation (hereafter NBI), after initial investigation, transmitted the results of its investigation to the Provincial Prosecutor of Rizal on 26 November 1993.[5] Attached to the report was the affidavit of NBI agent Atty. Carlo Magno Uminga,[6] dated 26 November 1993, stating that RIZALINO had a “Standing Warrant of Arrest for Homicide” issued by the Regional Trial Court of Makati, Branch 134, on 26 November 1985, and that efforts to locate RIZALINO had failed as he was “in hiding at Bulan, Sorsogon.”

On 6 July 1994, the court below issued a warrant[7] for the arrest of RIZALINO at his address at 7123 Langka St., Comembo, Makati, Metro Manila. No bail was recommended for his provisional liberty. He was subsequently apprehended and

detained at the NBI Detention Center, Manila.[8]

At his arraignment on 14 July 1994, RIZALINO refused to be represented by Atty. Gesiree Abong of the Public Attorney’s Office (PAO) as he wanted to have counsel de parte assist him and file a motion for reinvestigation. Thus, the court reset arraignment to 26 July 1994.[9] On the latter date, RIZALINO, assisted by Atty. Gesiree Abong nonetheless, entered a plea of not guilty to each of the three counts of rape charged against him.[10] After pre-trial was declared terminated on 25 August 1994, trial on the merits was scheduled to commence on 30 August 1994.[11]

The prosecution presented complainant Melody Fundano (hereafter MELODY) and NBI Medico-Legal Officer Dr. Rolando Victoria for its evidence in chief; and Ma. Luz Goña and Orlando Oseo, as rebuttal witnesses. The defense presented RIZALINO, Oscar Quelas and Luzviminda Gregana for its evidence in chief; and RIZALINO and Vida Fundano, as surrebuttal witnesses.

The prosecution established the following facts:

MELODY was the seventh of nine children of RIZALINO with his common-law wife, Maria Fundano. The family resided at 7123 Langka St., Comembo, Makati, although RIZALINO seldom stayed there. In 1974, RIZALINO married one Flora Granada with whom he begot two children. While he maintained a relationship with her since 1960, he claimed he had separated from Flora in 1980.[12]

RIZALINO left his family with Maria in 1985 and moved to Bicol in 1986. In 1991, in Bicol, he started cohabiting with one Vida Joya, with whom he had no issue. Nevertheless, he would return to Comembo and stay there for one to three months at a time. When he was not in Comembo, he was usually with “his other wife” in Bicol and, according to MELODY, he was in Bicol in August and October 1993, and in Comembo in September 1993.[13]

The Fundano residence at Comembo, Makati, was a one-room house partitioned into two sections by a curtain. One of the sections served as the sleeping quarters, which had a bed on one side and a papag, or makeshift wooden bed, beside it. From the beds one could hear whatever was happening in the other section.[14]

Five of MELODY’s siblings used to live in Comembo, but later moved to their sister-in-law’s house at Fembo, Makati. For some time, MELODY stayed with her siblings at Fembo but, before she was raped, RIZALINO fetched her and her youngest sister, Rosemarie, from Fembo and took them to Comembo.[15]

On the night of 10 September 1993, only RIZALINO and his daughters MELODY and Rosemarie, were in the Comembo house. RIZALINO and Rosemarie slept on the floor while MELODY slept on the papag. At around midnight, MELODY stirred from her sleep and found herself lying beside RIZALINO on the floor. RIZALINO, who was already naked, removed MELODY’s panty and went “on top of her.” He forced her and boxed her even as she pleaded, “Tay, huwag” [Father, don’t]. After removing MELODY’s panty, RIZALINO boxed her three times on the stomach, thereby preventing her from asking for help. He then inserted his penis into MELODY’s vagina and kept it there for a long time. MELODY kept crying, but she could not move as RIZALINO held both her hands. After the act, he warned her not to tell anyone, not even her mother, about the incident, as it would “only be [her] shame.” That rape was her first sexual experience.[16]

The next day, after school, MELODY went to the house of Lucita Fundano, her sister-in-law, at Fembo. She told Lucita that she would be sleeping there and asked the latter to tell her father RIZALINO of her intention. But RIZALINO fetched MELODY from Lucita’s house, and because she was afraid that he would harm her if she disobeyed, MELODY went with him back to Comembo. That night, Rosemarie slept in a different part of the house. However, at around midnight, MELODY again found herself “being there in the papag already or lying on the floor” beside RIZALINO. The latter, who was naked, removed MELODY’s panty and “place[d] himself on top of” her. He appeared to her to be drunk, which he was every night. RIZALINO then inserted his penis into MELODY’s vagina and kissed her on the cheeks. After he finished, he warned her that if she told anyone about the incident, he would kill her and her relatives. Out of fear and confusion, MELODY did not reveal her ordeal to anyone.[17]

The following morning, MELODY attended class and went home to Comembo at around 3:00 p.m. In the evening, she slept on the papag, while her younger sister slept elsewhere. Again RIZALINO carried MELODY from the bed to the floor and removed her panty. She begged him to stop, but he did not heed her plea. He held both her hands to keep her from breaking away, then mounted her and inserted his penis into her vagina. After his misdeed, he simply went to sleep. MELODY then put on her undergarment and cried herself to sleep.[18]

From school the next day, MELODY went to Lucita’s house, where she stayed until the end of September 1993. During that entire period, MELODY kept silent about her ordeal.[19]

On 26 October 1993, while she was at Lucita’s house, MELODY learned that her father was no longer at the Comembo house. That night, as MELODY thought about why her father abused her, she started crying. Awakened, Lucita asked MELODY why she was crying. MELODY finally revealed what RIZALINO did to her.[20] Lucita then asked MELODY why she kept this matter to herself all this time. MELODY answered that she was afraid and ashamed, and that RIZALINO had told her he would bring her to Bicol so that, MELODY believed, “he may continue what he had done to” her. She could not even tell her eighteen-year old brother about her nightmares because he was equally afraid of RIZALINO.[21]

The next morning, Lucita went to Maria, MELODY’s mother, in Manila and told her about MELODY’s complaint, while MELODY went to Cavite to see her friends. MELODY did not return to Comembo, and on 7 November, she went to her mother in Manila. Four days later, or on 11 November 1993, MELODY, accompanied by Maria and Lucita, went to the NBI and accomplished a complaint sheet,[22] executed a sworn statement,[23] and submitted herself to a medical examination, with the findings summarized in Living Case No. MG-93-1053.[24] After the examination, MELODY, Lucita and Maria went to the house of Abe and Sandoy Fundano, RIZALINO’s brothers, who agreed that the case against RIZALINO should be pursued.[25]

Dr. Rolando Victoria, who examined MELODY, found no extra-genital physical injuries nor hymenal lacerations, and while her hymen was intact, it admitted a 2.8-centimeter diameter tube without producing any injury. Dr. Victoria thus concluded that MELODY’s hymenal orifice could admit an adult male organ in full erection without suffering injury, and that it was possible she engaged in sexual intercourse.[26]

On the other hand, RIZALINO testified that he left Manila for Bicol in 1986 and had stayed there ever since, although he would visit Manila once in a while and stay at his children’s residence in Kakarong, Makati. Sometimes he dropped by the house of his common-law wife and mother of MELODY, Maria Gerola,[27] at Langka Street, Fort Bonifacio, Makati. After he moved to Bicol, he gave financial support to Maria only once, when she went to Bicol to get the money. RIZALINO declared that days before the dates he allegedly raped MELODY, he was bedridden as his legs were wounded and swollen; in fact, he was under medical treatment by an arbularyo (herbal doctor) named Oscar Buelas.[28] The treatments were administered at RIZALINO’s house in Iraya, Bulan, Sorsogon, on Saturdays and Sundays beginning 11 September 1993 until October 1993. RIZALINO was able to walk only on or about 15 October 1993 and was completely healed sometime in November 1993. He never went to Manila while he was bedridden and undergoing treatment, even until he was healed. He knew nothing about the rapes for which he was indicted nor of any reason why MELODY accused him of committing them.

RIZALINO’s witnesses, Oscar Quelas and Luzviminda Gregana, corroborated his alibi.

Oscar Quelas, a farmer who doubled as an arbularyo and lived in Barangay Lagong, Bulan, Sorsogon, declared that RIZALINO became Oscar’s patient sometime in September 1993. On 11 and 12 September 1993, Oscar treated RIZALINO for rheumatism, which immobilized the latter. The treatment was administered three times a day from 7:00 a.m. to 7:00 p.m. at RIZALINO’s house in Iraya, Zone 7, Bulan, Sorsogon. Since RIZALINO did not heal well, Oscar made crutches for RIZALINO a week after 12 September. Oscar still treated RIZALINO after 12 September 1993, but could not remember the exact dates.[29]

Luzviminda Gregana, RIZALINO’s neighbor in Bulan, Sorsogon, averred that sometime during the last week of August 1993, and in September and November 1993, she would see RIZALINO either seated or on crutches outside his house. Although she would see him whenever she went to market, it was only in September 1993 when she saw him sick. According to Luzviminda, two “quack” doctors, one of them Oscar Quelas, treated RIZALINO every Saturday and Sunday of September 1993.[30]

Rebuttal witness Ma. Luz Goña claimed that she was a neighbor of RIZALINO in Comembo, Makati, and he mortgaged his house at Comembo to her on 14 September 1993, as security for a P10,000.00 loan. The transaction was reduced to writing, and on 14 September 1993, RIZALINO and Maria Fundano signed the document in front of Goña at 3123 Langka St., Comembo, Makati. Orlando Oseo, Antonio Oseo, Josie Castillo and Teofilo Maghanoy signed the document as witnesses. Goña had been in possession of the document since 1993. Goña further declared that she disbelieved RIZALINO’s claim that he was in Bicol during the entire month of September of 1993 as they discussed the mortgage on 12 September 1993 and she gave the money to him on 14 September 1993, both in Comembo.[31]

Rebuttal witness Orlando Oseo, a neighbor and cousin of RIZALINO, testified that he had been seeing RIZALINO at Langka Street, Makati, during the entire month of September 1993. In fact, Orlando was even one of the witnesses to the mortgage document earlier mentioned. While he admitted that he and RIZALINO had a misunderstanding in 1978, which lasted for two months, they reconciled thereafter.[32]

On surrebuttal, RIZALINO asserted that he signed the mortgage contract in his house in Sorsogon on 14 September 1993. MELODY’s mother, Maria Gerona, brought the document to Sorsogon as she knew he was sick. To explain the transaction, RIZALINO declared that Maria had asked P10,000.00 from him for the expenses of their eldest son who was to leave for abroad, but since he could not produce the money, Maria asked him to mortgage the house in Makati. After acceding to

the request, Maria presented the document for his signature. There were no witnesses to the signing, and although he knew all the witnesses who signed the document, their signatures were not on the document when he signed it. Finally, RIZALINO claimed that the transaction was between Goña and Maria and that the document was brought to him only for his conformity.[33]

Surrebuttal witness Vida Joya presented herself in court as Vida Fundano, the current common-law wife of RIZALINO. She testified that on 14 September 1993, Maria Gerona went to the Fundano residence in Sorsogon. Vida read the mortgage document and explained it to RIZALINO who could not read it because of his poor vision and his eyeglasses were not available then. Vida confirmed that the document was not signed by any witness.[34]

In its decision of 26 February 1996,[35] the trial court found RIZALINO guilty of rape as charged in Criminal Cases Nos. 94-4887, 94-4888 and 94-4889, and taking into account “the alternative circumstance of relationship, which is aggravating in crimes against chastity such as rape,” sentenced him “to suffer the penalty of RECLUSION PERPETUA in each of the three (3) cases against him” and “to pay P50,000.00 as moral damages in each of these cases and P25,000.00 as exemplary damages in each case.”

The court a quo found that the threat RIZALINO made against MELODY and her family was sufficient to produce a reasonable fear, thereby compelling her to submit to his bestial demands. Moreover, his moral ascendancy and influence over his daughter MELODY substituted for violence or intimidation.

The trial court gave full faith and credit to MELODY’s testimony who declared in court, “in a straight forward (sic) and categorical manner,” and exhibited no ulterior motive which “could have removed the sense of modesty and shame in a 15-year old girl and impelled her to concoct a story that would certainly bring ignominy, dishonor and humiliation to her and her family.” The RCT thus concluded:

If she had not in fact been raped, [MELODY] could not have narrated the details of her horrifying experience to the NBI authorities, submitted herself to genital examination and signed a criminal complaint for rape against the accused. Certainly, it was only to vindicate her honor that gave her the courage to face the ordeal of a public trial in making a narration of rape perpetrated by her own father.

Finally, the trial court found unworthy of credence RIZALINO’s defense of alibi, which was belied by the witnesses for the prosecution, including his first cousin, Orlando Oseo.

In this appeal, RIZALINO assigns this lone error:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING [HIM] FOR THREE COUNTS OF RAPE BEYOND REASONABLE DOUBT.

In support thereof, he argues that, first, MELODY had a motive to fabricate charges against him as he abandoned MELODY’s family for another woman and failed to give them financial support. Second, if indeed MELODY was raped, and three times at that, it was highly improbable that no physical injuries on her genital area were detected. He thus doubted the expertise of the examining physician, Dr. Rolando Victoria, because it was unscientific for a doctor to opine that rape could have been committed without physical findings to support such opinion. Third, in disregarding his surrebuttal testimony, the trial court actually harbored doubts as to his guilt.

In the Appellee’s Brief, the Office of the Solicitor General urges us to affirm the challenged judgment, reiterating the trial court’s assessment of the credibility of MELODY’s testimony, i.e., that it would be unnatural for a young and innocent girl to concoct a story of defloration, allow an examination of her private parts, and subject herself to public trial or ridicule, if she were not deeply moved by a sincere desire to apprehend and punish the culprit.[36] Equally stressed by the Solicitor was MELODY’s coherence throughout her direct and cross-examination as she narrated three incidents of rape with clarity. The Solicitor likewise argued that the absence of hymenal and extra-genital injuries did not preclude a finding of rape.[37] Indeed, Dr. Victoria explained that MELODY’s hymenal orifice was distensible and allowed penetration by an adult male organ without incurring injury. Lastly, the Solicitor contended that RIZALINO’s alibi, even after considering his surrebuttal testimony, could not overcome MELODY’s positive identification of RIZALINO, as well as the testimonies of Ma. Luz Goña and Orlando Oseo.

This appeal is devoid of merit.

Critical to any rape prosecution is the complainant’s credibility, for that factor alone is sufficient to convict the accused.[38] It is to be expected then that the defense will attempt to destroy the complainant’s trustworthiness. In this case, the defense labored to ascribe ill motive to MELODY in that she hated her father because he did not give her support and he cohabited with another woman. However, RIZALINO failed to prove these allegations with credible evidence. Thus does a sound and time-

tested judicial dictum come to fore, that where there is no evidence and nothing to indicate that the principal witness for the prosecution was actuated by improper motive, the presumption is that she was not so actuated and her testimony is entitled to full faith and credit.[39]

Assuming, however, that MELODY indeed fostered rancor against RIZALINO, it is nonetheless inconceivable that she would subject herself to the trauma, inconvenience, distress, anxiety, humiliation, public scrutiny and loss of privacy, among other vexations, attendant a trial for rape, if only to vent her resentment of RIZALINO’s failure to give financial support or his cohabiting with a woman disagreeable to MELODY.[40] In MELODY’s case, even before court proceedings began, she already exposed herself to revealing questions in executing her sworn statement, then to a physical examination in which she was told to undress and allow the intrusion of a 2.8-centimeter diameter tube into her most private organ, after which she further divulged her ordeal to her uncles. She later suffered three trial dates on the witness stand, enduring a most taxing cross-examination where defense counsel even insinuated that MELODY enjoyed sexual intercourse with her father.

RIZALINO’s claims of trumped-up charges are even more absurd when, as in this case, one considers that the complainant is the daughter of the accused; for then the disgrace is absorbed not only by complainant, but by her entire family as well, who would, it stands to reason, dissuade complainant from pursuing her cause unless it were true.[41] Plainly, only a woman seeking justice with truth as her weapon could have braved this calvary.[42]

Anent the absence of hymenal and extra-genital injuries on MELODY, such does not persuade us. The examining physician explained that her hymen was distensible or elastic, hence could allow the penetration of an adult male organ in full erection without sustaining or incurring any injury.

RIZALINO, moreover, may not decry Dr. Victoria’s alleged lack of expertise. Before one may be allowed to testify as an expert witness, his qualifications must first be established by the party presenting him, i.e., he must be shown to possess the special skill or knowledge relevant to the question to which he is to express an opinion.[43] In Dr. Victoria’s case, the prosecution examined his past and present employment, his experience and duties as an NBI medico-legal officer, and the lectures and seminars he attended and conducted.[44] An expert witness may be impeached, or the weight of his opinion lessened, by introducing evidence or pointing out paradoxes in his testimony; and in the cross-examination of such a witness, great latitude is allowed the examining counsel to test the credibility of the expert for the guidance of the court.[45] In the instant case, defense counsel’s lone remark was that “the prosecution has not established the qualification of” Dr. Victoria, which, by itself, did not impair the expertise already established by the prosecution. At any rate, neither the medical report nor the testimony of witnesses other than the complainant is indispensable when, as here, the complainant’s testimony is credible.[46]

All told, we are convinced, with moral certainty, that RIZALINO raped his daughter MELODY thrice as charged in Criminal Cases Nos. 94-4887, 94-4888 and 94-4889 before the court below.

While the trial court made no reference to RIZALINO’s surrebuttal testimony, such did not indicate that the court a quo harbored doubts as to his guilt. On the contrary, this silence only meant that the trial court did not find the testimony credible or found nothing therein to alter the fact of his presence in Comembo on the questioned dates. More importantly, the defense of alibi cannot prevail over the positive identification by credible witnesses that the accused in this case was the perpetrator of the offenses charged.[47]

The trial court correctly appreciated the alternative circumstance of relationship under Article 15 of the Revised Penal Code as an aggravating circumstance. It is settled that in the crimes of rape under Article 335 and acts of lasciviousness under Article 336 of the Revised Penal Code, relationship is aggravating.[48] Parenthetically, it may be pointed out that under Section 11 of R.A. No. 7659,[49] which amended Article 335 of the Revised Penal Code, the relationship of father-daughter in rape makes the imposition of the death penalty mandatory.

The penalty for rape under the law in force then was reclusion perpetua, a single indivisible penalty, which should be applied regardless of the presence of aggravating or mitigating circumstances.[50] Thus, the trial court correctly sentenced RIZALINO to reclusion perpetua for each act of rape. The rape victim then is entitled to civil indemnity[51] set by jurisprudence at P50,000.00.[52] Since there were three counts of rape in this case, the trial court should have imposed P50,000.00 as civil indemnity for each count, yet it failed to fix any such amount. Nevertheless, said court condemned RIZALINO to pay the amount of P50,000.00 as moral damages for each count of rape, or a total of P150,000.00. While moral damages may be awarded the victim in a rape case,[53] in this instance, we reduce the amount to P25,000.00 in each case. Finally, exemplary damages may be adjudicated against an accused when the crime was attended by an aggravating circumstance.[54] Here, the trial court correctly awarded exemplary damages because of the presence of the aggravating circumstance of relationship.

WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of the Regional Trial Court (RTC) of Makati City, Branch 150, in Criminal Cases Nos. 94-4887, 94-4888 and 94-4889 finding accused-appellant RIZALINO FUNDANO guilty beyond reasonable doubt as principal of rape in each of said cases and sentencing him to suffer the penalty of reclusion

perpetua in each case is AFFIRMED, subject to the modifications reducing the moral damages to P25,000.00 in each case and, furthermore, ordering him to pay the victim, Melody Fundano, indemnity in the amount of P50,000.00 in each of said cases. The rest of the appealed judgment stands.

Costs against accused-appellant RIZALINO FUNDANO.

SO ORDERED.