Manila

FORMER TENTH DIVISION

THE PEOPLE OF THE CA-G~R. CR-H.C. No. 00336

PHILIPPINES,

Plaintiff-Appellee,

-versus-

HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO

HERNANDEZ, MIGUEL

RODRIGUEZ, PETER

ESTRADA, and GERARDO BIONG,

Accused-Appellants.

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

J

ARTEMIO VENTURA, JOEY FILART and JOHN DOES, Accused.

x========================================= x

DISSENTING OPINION

TAGLE,J.:

With due respect, I am registering my dissent to the Resolution. I am voting instead for the grant of the motions for reconsideration of accused-appellants.

After a revisit and review of the records at hand, my mind can not rest easy that only little weight was given to the documentary evidence submitted by accused-appellant Webb as well as to the other matters raised by his co-accused-appellants.

As for accused-appellant Webb, he posits, among others, that his Philippine passport and the entries therein reflecting his departure from, and arrival to, the Philippines should not have been merely set aside by this Court on the rationale that the same were mere "photocopies." To reject them on such flimsy ground would run counter to the procedure of presenting evidence before a court of justice.

In Our Decision dated December 15, 2005, We ruled that:

The passport of accused-appellant Webb produced in evidence, and the inscriptions appearing thereon, . also offer little support of Webb's alibi. Be it noted that what appears on record is only the photocopy of the pages of Webb's passport. The Court therefore can only rely on the appreciation of the trial court as regard the authenticity of the passport and the marks appearing thereon, as it is the trial court that had the exclusive opportunity to view at first hand the original of the document, and determine for itself whether the same is entitled to any weight in 'evidence'.

It is a matter of practice for parties to submit machine copies of documents duly presented and marked in evidence after due comparison thereof with the originals. Where such comparison is

made and the copies are stipulated to be true and faithful reproductions of the original - as what was done here - the copies substitute for the originals.

Indisputably, the travel document of appellant Webb bears the Phil. Bureau of Immigration departure stamp mark of May 9, 1991 and arrival stamp mark of October 27, 1992. These stamp marks have been confirmed by two (2) immigration officials who attested to the genuineness of the entries on the original passport of appellant Webb. They affixed their stamps and initials on the original passport showing the date of departure and arrival of Webb in the Philippines.

Appellant Webb also presented a Certification dated July 7, 1993 issued by Bureau of Immigration Official Bella Estrada showing the departure of "H. Webb" on March 9, 1991 on board

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the United Airlines Flight No. 808 (Exh. "227") as indicated in its Passenger Manifest (Exh. "223").

For the arrival of appellant Webb to the Philippines from the United States, a Certification was likewise issued by the Philippine Bureau of Immigration on June 29, 1995 (Exh. "192"). These matters were even testified to by the concerned BID Officials and were never rebutted by the prosecution.

They, in fact, dovetailed with the arrival stamp of the U.S.

Immigration officials showing Webb's' date of entry in the U.S. as

~ - .' ~' - .:' ~ .,.' - " . '_-' .

CA-G.R. CR-H.C. o. 00336 DISSENTING OPINION

4

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March 9, 1991 and exit on October 27, 1992.

The Certifications dated August 31, 1995 and October 13, 1995 issued by the U.S. INS Non-Immigrant Information System (NIlS) as well as the computer print-out confirmed the entry of appellant Webb to the U.S. on March 9, 1991 and exit therefrom on October 26, 1992 (Exhs. "212-C" and "212- D").

While it is true that an earlier Certification was issued by the u.s. INS on August 10, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the Acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information".

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Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants" and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information System. Since appellant Webb entered the United States on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the United States.

True enough, following the standard diplomatic procedures, the Philippine Desk Officer' of the U.S. State Department, Mr. Torn Daughton, sent a diplomatic note providing the Philippine Embassy with a certification and computer printout from the US INS Nonimmigrant Information System, NIlS Archive Subsystem Basic Data Display containing an entry of accused Webb, which reads as follows:

ADMISSION NUMBER : 98871158001

LAST NAME : WEBB

FIRST NAME : HUBERT

DATE OF BIRTH : 11/07/68

CLASSIFICATION : B2

COUN OF CITIZ : PHILI

PORT OF ENTRY : SFR

DATE OF ENTRY : 03/09/91

DATE OF DEPARTURE : 10/26/92

APE ID YYMM : 92/11

..

The fact that the latter Certifications issued in relation to the entry and departure of the accused in the United States were duly authenticated by the U.S. Attorney General and by the US State Dept. should have left absolutely no doubt as to their genuineness, authenticity and due execution. The aforesaid certifications are public documents, having been issued by an official body, the US INS of the United States of America. As such, they are credible evidence and do not even require testimonial evidence. In Solie us. Commission on Elections? the Supreme Court explained thus:

Assuming that they are genuine writings issued by public officers, the rule is that public documents do not constitute prima facie evidence of the facts therein stated, unless they are 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. 2 (emphasis ours)

Notably, no evidence was adduced by the prosecution to controvert the genuineness of the aforesaid certifications as well as the entries in Webb's passport. To disregard these unrebutted documentary evidence is tantamount to accusing a U.S. agency of complicity in helping Webb ensure his freedom. And, undoubtedly, such accusation is blatantly groundless having no evidence to buttress it.

Significantly, both certifications were requested by no less than the Government of the Republic of the Philippines and not by the accused or his family. To make insinuations of any I 425 seRA 735 (2004).

2 Idat751-752.

participation on the part of the family of the accused regarding the contents of the certifications as well as the erroneous data reflected on the first certification, to my mind, is such a huge leap. These certifications are official documents that should be accorded full faith on its face absent any evidence of impropriety on the part of the officials responsible in its execution and submission. For us to reject the subsequent certifications simply because of the issuance of the first certification which turned out to be erroneous would go against the very essence of justice and fair playas we are unwittingly ascribing infallability on the part of the INS. Besides, since when have we began to disregard. the presumption of regularity in the performance of official duties based on the supposition that the accused involved in a case belongs to an "influential family."

In the case People vs. Taquba', the defense of alibi was rejected by the Supreme Court as the evidence presented to establish the absence of the accused in the country at the time the of the commission of the offense was found wanting. The High Court explained that the best evidence to sufficiently support the accused's defense of alibi was through the presentation of the passport, as it is where the holder's departure and arrivals are officially indicated, to wit:

"Mirafe's defense of alibi is not acceptable either. The fact that she left for Koror on May 3, 1985, and arrived in Manila on March 3, 1986, does not prove that in between these dates, she did not come back to the Philippines to practice her deceptions. The tickets and certification she

3 229 seRA 188 (1994).

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l • -.- I ' - - , •. , '. - - .' ;) _.._. - -. --

submitted were not the best evidence to establish her absence from the Philippines on the dates the offenses were committed. What she should have submitted to the trial court was her passport, where the holder's departure/ arrivals are officially indicated."4 (emphasis supplied)

In this case, not only was the passport of the accusedappellant Webb presented during the trial, in fact, even the BID officials who had affixed their stamp marks and signatures on the subject passport succinctly testified before the lower court and affirmed that the entries thereon were true. The record is bereft of . any evidence showing that the said BID Officials and airport personnel deviated from their duty regarding the documentation and recording of appellant Webb's travel between March 9, 1991 and October 27, 1992.

In the absence of competent evidence to the contrary, the BID officials are therefore presumed to have regularly performed their official duty.

More importantly, the Court, the parties, and . the public at large are bound to respect the fact that official acts of the Government x x x are clothed With the presumption of regularity in the performance of official duty, and cannot be summarily, prematurely and capriciously set aside. Such presumption is operative not only upon the courts, but on all persons, especially on those who deal with the government on a frequent basis. There is perhaps a more cynical attitude fostered within the

4 Id.,atp.197.

popular culture, or even through anecdotal traditions. Yet, such default pessimism is not embodied in our system of laws, which presumes that the State and its elements act correctly unless otherwise proven. To infuse. within our legal philosophy a contrary, gloomy pessimism would assure that the State would bog down, wither and die." (emphasis supplied)

With respect to the lower court's ruling that "it was not physically impossible for the accused Webb to have returned to the Philippines, perpetrate the criminal act, and travel back to the United States, "6 this, to my mind, is pure conjecture and speculation. In fact, it is patently loaded with bias and can not serve as basis for a conclusion that accused-appellant was "smuggled" into the Philippines on or about the time of the commission of the offense. As a court of law, we cannot make such conclusion that appellant Webb was smuggled into the country . without any concrete evidence proving this.

Indeed, former Commissioner Andrea Domingo of the Bureau of Immigration stated that human smuggling occurs in our country. Yet, no evidence whatsoever was adduced showing that appellant Webb was smuggled into the country around the time of the commission of the offense. What is significant is that as early as December 5, 1991, in a letter to then Acting NBI Director Epimaco Velasco, Commissioner Domingo declared that although . there is a record of appellant Webb's departure from the Philippines to San Francisco on March 9, 1991, there is no record

5 Republic v. Nolasco, 457 SCRA 400, 435 (2005). 6 RTC Decision, pp. 1981-1982.

of his arrival in the Philippines between the period of March 20, 1991 to June 29, 1991, which is the date when the crime was committed.

Corollary, there is no proof that "human smuggling" occurs in the United States. And, for that matter, there is no evidence showing that appellant Webb was smuggled outside the United States.

Absent any competent evidence showing that he was able to enter and exit the Philippines undetected arid without any trace, it was error on our part to affirm the lower court's finding that it was not physically impossible for appellant Webb to have been in the country, perpetrate the crime and then, head back to the United States. Said conclusion of the lower court is pure guesswork.

There is likewise no evidence, competent or otherwise, showing that appellant Webb and his family used their money and connections to influence the U.S. Government into fabricating evidence for appellant Webb's behalf, as well as helping in facilitating his undetected departure and arrival into the United States. To presume that appellant Webb did not undergo standard immigration procedures (including the surrender of his passport for marking to document his travel) one would have to surmise that he already had plans of committing a crime or other illegal acts that would require an untraced United States and Philippine entry. This runs counter to the presumption of innocence in favor

of the accused.

In addition, the letters written by appellant Webb addressed to Jennifer Cabrera also deserve evidentiary weight. Although she admits that she knew appellant Webb was being suspected of killing the Vizcondes as early as 1991, the fact that she only presented them in 1995 when she gave her statement should not be interpreted as being suspicious. After all, appellant Webb was only charged with the crime in 1995. It would have been premature for her to present the letters as evidence when in 1991, appellant Webb had not yet been charged with the crime of rape with homicide and incarcerated.

As the pieces of documentary evidence are in fact credible proof manifesting that appellant Webb was in the United States from March 1991 to October 1992 coupled with the sheer improbability of him traveling back to the Philippines and then entering the United States once more like a thief in the night undetected, it was indeed physically impossible for him to have committed the gruesome crime. More so, when there was no evidence presented before the lower court proving that he Wp_S able to enter the United States without undergoing the proper immigration procedure.

It is worth stressing that documentary evidence prevails over testimonial evidence. Testimonial evidence, unlike documentary, can easily be fabricated. Hence, the story related by Jessica Alfaro

can not be taken as gospel truth in the light of the foregoing documentary evidence. The identification of appellant Webb as mastermind is very much suspect as it is crystal clear that he was in the United States then.

Before the commission of the crime, Jessica Alfaro testified that she and her alleged companions had a shabu session, not once but twice. Her senses undoubtedly were impaired due to the use of this drug. Her ability to perceive what happened that night is highly questionable and unreliable. Besides the highly suspect pinpointing at accused-appellant Webb as the mastermind, there are also other inconsistencies in her testimony, hereinafter discussed, that are enough to shatter her credibility.

Alfaro's declaration that they exited to Aguirre Ave. via H. Go Street after leaving the Vizconde house on the date of the incident, is contradicted by a resident of the subdivision, witness Matthew John Almogino, who testified that there is no ingress and egress to Aguire st. through H. Go Street. Alfaro claimed that there was an ongoing party that night and there were cars parked along the street. She parked her car in front of the Vizconde house while the other two cars of accused-appellants were parked at the end of the road. Yet, Almogino testified that there was no party on going that night.

She also averred that there was light commg from the Meralco post in front of the Vizconde residence. But Engineer del

Rosario of Meralco stated that SInce the 1970'S, that specific Meralco post has no light.

She likewise claimed that as she and accused-appellants were hurriedly leaving the house, appellant Webb threw a stone at a window. It is beyond comprehension why appellant Webb would stop and throw a stone at a house window when they were allegedly in a rush to leave the crime scene. It is an unnatural human reaction.

Furthermore, she averred that she and accused-appellants went to the house of the Vizcondes in three vehicles, a Mazda pick-

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up, a Nissan Patrol, and her car, Mitsubishi Lancer. But these

two vehicles, Mazda pick-up and Nissan Patrol, were never found. No proof was adduced as to their ownership. Indeed, if these vehicles were used to facilitate the commission of the crime, it is bewildering why these were not found, particularly when it was prominently mentioned in the information as well as in the trial a quo.

Corollary, she alleged that after the incident, they all went to a house and had a so-called "blaming session." Later on, she and police officers went around the area of the BF Executive Village intending to point out the house she and accused-appellants allegedly went to after the commission of the crime. But after going around the area, she was unable to identify the said house. If in fact, they did go to a house where the alleged "blaming session"

took place, she should have been able to locate it.

Moreover, to this day the persons of Joey Filart and Artemio Ventura remains at large. It behooves one to think whether these two individuals actually exist and even conspired with the accused in perpetrating this crime. Especially so when after a thorough search conducted in the archives of the National Statistics Office, no entry could be found pertaining to one "Artemio Ventura" or "Dong Ventura."

By and large, her testimony therefore is of doubtful credibility, replete as it is with inconsistencies. Her positive identification of appellant Webb is highly suspect as his presence in the United States was established not only through documentary evidence, but also by testimonial evidence. Although the witnesses were mostly composed of. family members and friends, this is not to say that they committed perjury on stand.

No less than a Supreme Court Justice, Antonio T. Carpio testified in open court that in the morning of June 29, 1991, he had an overseas conversation with Congressman Webb. It was during this conversation that he was informed that the said congressman, along with his wife and son, Hubert were in the United States, viz:

ATTY. ONGKIKO .

Q: Evidence has been introduced, Atty. Carpio, that the Vizconde killings allegedly took place sometime June 29, June 30, 1991. Now, my question, Atty. Carpio is on or about that date, were you in touch with Congressman

WITNESS CARPIO:

A: In the morning of June 29, Saturday, between 10:00 and 11:00 in the morning, Manila time, I had a telephone conversation with' Mr. Webb who was then in the United States.

Webb?

WITNESS CARPIO

A: Well, he was saying that he was with Beth and Hubert whom he was looking for a job. xxx xxx xxx?

(Underlining supplied) .

AnY. M. ONGKIKO

Q: Do we understand this telephone was a long distance telephone call?

WITNESS CARPIO:

A: That is correct, sir.

AnY. M. ONGKIKO

Q: Now, will you kindly recall to the Honorable Court exactly what was the conversation that transpired in this telephone conversation?

WITNESS CARPIO:

A: When I had a phone conversation with Mr. Webb to this effect, when he called up, I asked him how he was and he said that well, he was in the United States, with his wife, Beth Webb, and he said that they were looking for a job for Hubert and some other small talk about the work that we had been doing preparing for some bills for him.

AnY. M. ONGKIKO

Q: From your telephone conversation with

Congressman Webb, did you acquire any impression as ' exactly where Hubert was at that time?

It is also worthy to point out that the testimony of Atty.

Sacaguing who was the head of the NBI's Anti-Kidnapping,

7 TSN dated August 12, 1997.

Hijacking and Armed Robbery Task Force is persuasive. He testified that Jessica Alfaro was a former" asset" who came to him and informed him that she knows someone who had related to her the details of the crime. Later on, Alfaro told him that she could not bring the man to face him as the latter did not want to testify. She allegedly told Atty. Sacaguing, "Easy lang, Sir. Sir, relax lang, sir, papapelan ko, papapelan ko na lang yan." In turn, Atty. Sacaguing told her that she is not an eyewitness so that cannot be done. She then went out of the office."

As it is, her claim that she is an eyewitness is highly dubious.

True, she testified positively on the elements of the crime and the inconsistencies highlighted herein could be asserted as being merely collateral matters that are inconsequential. Yet, we must look at the bigger picture.

If on the collateral matters her testimony is unreliable, it is not actually far-fetched that she was not really an eyewitness to the crime. For if she truly were an eyewitness, she should have been able to determine the particularities as to the place with accuracy. She could not even pin-point the house where the alleged "blaming session" took place. It stands to reason that she could have concocted how the crime occurred and who the assailants are, by merely putting all the pieces of the puzzle together considering that the incident was highly-publicized.

The participation of the other accused-appellants IS also S TSN (Artemio Sacaguing) dated May 28, 1996, pp. 38-45,49-50,58,77-79.

uncertain and unclear to arnve at a conclusion that there was conspiracy. The oft-repeated rule is that conspiracy must be proved as convincingly and. indubitably established as the crime its elf. 9 It is a hornbook doctrine that conspiracy must be proved by positive and convincing evidence, the same quantum of evidence as the crime itself, that is, proof beyond reasonable doubt.'?

This Court in agreement with the trial court banked upon the presence of the accused-appellants at the crime scene as well as their alleged utterances in ruling that conspiracy was extant. The finding of conspiracy is actually founded on circumstantial evidence.

In order however for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every rational hypothesis except that of guilt." Hence, if one circumstance is inconsistent with the hypothesis that accusedappellants are guilty then it should be held that the prosecution failed to prove conspiracy beyond reasonable doubt.

One of the circumstances pointed out by this Court in finding conspiracy is that: "After the third and final time they went back to the Visconde residence, they again expressed their concurrence to

9 People vs. Pendatun, 434 SCRA 148. 10 People vs. Montenegro, 436 SCRA 33.

II People vs. Patano, Supra at 110; citing People vs. Berroya, 283 SCRA 122.

Webb's criminal plan, when, on the part of Lejano, he agam confirmed that he will be the second to rape Carmela; while Rodriguez, Gatchalian, Estrada, Fernandez and accused Filart, after expressing such approval, assured Webb that they will just be there to act as lookouts." But what had been uttered by the group -- "0 sige dito lang kami magbabantay lang kami" does not conclusively show assent to the commission of the crime. Their act of going in and out of the village cannot, by any stretch of the imagination, be construed as an overt act showing unity of purpose or conspiracy.

To hold an accused guilty as a co-principal by conspiracy, there must be sufficient and unbroken chain of events that directly and definitely links the accused to the commission of the crime without any space for baseless suppositions or frenzied theories to filter through." It must be shown that accused-appellants pursued their acts towards the accomplishment of the same unlawful objective, each performing his assigned task so that their acts, though apparently independent from each other, were in fact related, connected and cooperative, thus indicating a closeness of personal association and a concurrence of sentiment."

In People vs. Melencion:" the Supreme Court ruled that the participation of Melencion based on three (3) circumstances, namely: first, he and Eulalio simultaneously entered the yard of the victim with long arms; second, he stood beside Eulalio Autida

12 People vs. Castillo, 425 SCRA 160; citing People vs. Me1encion, 355 SCRA 113. 13 Supra.

14 355 SeRA 120.

with his firearm in a forth-arm position as if ready to shoot; and third, he was seen with three (3) other unidentified individuals coming from the direction of the gunshot with a long firearm were insufficient to conclusively prove the existence of conspiracy between Walter and his co-accused, viz:

We cannot draw any inference from the facts that accused-appellant Walter Melencion consciously shared Eulalio Autida's frame of mind and adhered to his objective. Although accused-appellant carried his weapon in a forth-arm position, it is clearly unclear whether he raised it in the accomplishment of a common goal or for some other purpose. There is even no showing that accused-appellant cocked his firearm in preparation to shoot, much less aimed it in the direction of Lorenzo Bautista. What is extant on record only is Tiburcio's claim that Walter raised his firearm in a forth-arm position "as if he was about to shoot," which to our mind was a statement that evinced some uncertainty on the action taken by the latter. It could be that accused-appellant acted as a second to Eulalio Autida in case the latter failed to hit his target. But this is purely speculative and an obvious departure from the established facts. Conspiracy cannot be established by mere conjectures but by positive and conclusive evidence.

"The above circumstances are too inadequate to establish a conspiracy between accused-appellant Walter Melencion and his co-accused Eulalio Autida. xxx

We cannot hypothesize likewise on the events

and incidents that transpired immediately after the shot rang out. It was claimed that accusedappellant left the vicinity with three (3) unidentified men one of whom could have been Walter Melencion. But there is no evidence whatsoever that he left the place as he supposedly thought that his mission had already been accomplished. Nor did he persist from executing any act that might have contributed to the efforts of Eulalio Autida as the records are silent in this point." (emphasis ours)

In the case at bar, if in the first time, the group proceeded to the residence of the Vizcondes and nothing appalling or bewildering happened, the group could not have suspected that the alleged suggestion of the principal ("pipilahan natin ito") would pursue. The words "0 sige dito lang kami magbabantay lang kami" certainly make up an indistinct statement, that could either indicate indifference to the suggestion made by the principal or could also pertain to a proposal to look after the cars. There is also no showing that they carried arms while waiting outside the victims' residence to ensure the fulfillment of the purported objective of the persons who were allegedly inside the house. In sum, the circumstances before the commission of the crime do not conclusively point out unity of purpose.

The narration of Alfaro also supports the assessment that there is no indication that the group shared a common purpose. Alfaro explained that she did not even try to dissuade accusedappellants from pursuing their plan to get in line with Carmela, as

they were all under the influence of drugs" and she felt nothing when she heard Webb's suggestion of pipilahan as she was devoid of emotion whenever she took illegal drugs." Since Alfaro felt nothing when she heard the suggestion allegedly made by Webb at that moment, the other members of the group would have also reacted in the same way as they also had taken drugs. They could not have fully realized the impact of what Webb allegedly declared. As they did not have full use of their faculties at that time, it cannot be morally ascertained that accused-appellants cooperated knowingly or intentionally by supplying material or In oral aid for the efficacious execution of the crime.

Likewise, the circumstances during and after the commission of the crime as narrated by witness Alfaro failed to point out any overt act that would establish conspiracy. Instead, these circumstances amplify the fact that the group never shared a common purpose in perpetrating a criminal act.

"Prosecutor Zuno: Q. And what did you do with that statement from Dong Ventura "Prepare a escape, prepare a escape (sic), Aalis na tayo."?

Witness Alfaro: A. Because I was shocked also, I got out of the house.

Prosecutor Zuno: Q. Where did you go?

Witness Alfaro: Q. I went to my car where some of them where there on top of my car and

15 Decision, December 15, 2005, p. 26, TSN October 18,2004 at p. 13, 15. 16 Ibid.; citing TSN February 14, 1996, pp. 84-88 ..

some of them were "sa bangketa."

Prosecutor Zuno: Q. And what did you do when you were inside your car?

Prosecutor Zuno: Q. And with that statement from Dong Ventura, what did the group do if the group did anything?

Witness Alfaro: A. They all rode in their cars. (Ibid., p.651)

Witness Alfaro: A. I started my engine and I went back at their gate, to the house, because I still don't know where will I proceed." (TSN, October 16, 1995, p.649)

Xxx

xxx

Prosecutor Zuno: Q. And you said you drove your car. What direction did you drive your car?

Witness Alfaro: A. I turned to a lot of streets until I reached Tirona.

Prosecutor Zuno: Q. And upon reaching Tirona Steet, what happened?

Witness Alfaro: A. The Mazda was also in Tirona. "Nagkasalubong kami ng Mazda."

Prosecutor Zuno: Q. And as you met this Mazda, you said nagkasalubong kami ng Mazda," what happened if anything happened?

Witness Alfaro: A. We all went to Aguirre area where the Patrol was already next to me. (Id., pp. 652-653)

From the respective positions of the accused-appellants (some of them where on top of the witness' car and some of them

were on the sidewalk), it appears that the members of the group had no clue of what was going on inside the Vizcondes' house. Their cars even came from different directions, Alfaro's car turned to a lot of streets before it reached Tirana Street, while the Mazda came from Tirona already and the Patrol was seen next to her only when they reached Aguirre Street.

Accused-appellants clearly were not consciously giving aid to the persons inside the house with the intention of grvmg assistance or cooperation to the crime being perpetrated by the alleged principal/so Neither is there any conclusive evidence proving that they left the place thinking that their common purpose had already been accomplished; nor did they persist in executing any act that could have contributed to the commission of

. the heinous crime.

It should be remembered that performance of an act that contributes to the goal of another is not enough. The act must be motivated by the same unlawful intent. Neither joint nor simultaneous action is per se sufficient indication of conspiracy unless proved to have been motivated by a common design.'? The reaction of the alleged members of the group confirms that they were unaware of the happening inside the Vizconde residence.

Prosecutor Zuno: Q. How the others reacted?

Xxx

17 People vs. Castillo, Supra., at p. 160; citing People vs. Tilos, 349 SeRA 28l.

Witness Alfaro: A. Everybody was shocked and they didn't realZy expect that there was reaZZy a thing going -to have this killing. All they know is something like "yun nga pipilahan lang dapat nila yon." (Id., p. 674)·

Alfaro's statement, "Everybody was shocked and they didn't. really expect that there was really a thing going" is inconsistent with the Court's ruling that accused-appellants shared the same criminal design. Their shocked reaction is an indication that there was in fact no concurrence of sentiment among them. Irrefutably therefore, the prosecution failed to establish the presence of

conspiracy.

Her testimony, "All they know is something like, yun nga pipilahan lang dapat nila yon" is merely an opinion of accusedappellants' state of mind. This is pure speculation and not an actual account of the crime; hence, should not be given evidentiary weight. Conspiracy cannot be established by mere conjectures but by positive and conclusive evidence. IS

Moreover,· it is erroneous to conclude that accusedappellants allegedly acting as lookouts conspired with the principal actor/so Justice Panganiban's treatise on the different degrees of participation of a "lookout" in People us. de VeraI9 is informative, to wit:

18 People vs. Melencion, 355 SCRA 113. 19 312 SCRA 640.

In People v. Tatlonghari," the Court was asked to .. resolve the responsibility of some appellants who "knowingly aidted) the actual killers by casting stones at the· victim, and distracting his attention." The Court ruled that they were accomplices and not co-conspirators,. "(i)n the

Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense.

In People v. Lorenc," the Supreme Court convicted all the accused as principals because they had acted in band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his companions effective means and encouragement to commit the crime of robbery and rape.

Upon the other hand, in Peoplev. Corbes," the Court noted that Manuel Vergel knew of the criminal design to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he was merely approached by one of the robbers who was tasked to look for a getaway vehicle.

20 130 scxx 311. 21 270 seRA 465. 12 27 scnx 726.

absence of clear proof that the killing was in fact envisaged by them. "

In People v. Balili," the Court convicted appellant as an accomplice, holding that "in going with them, knowing their criminal intention, and in staying outside of the house with them while the others went inside the store to rob and kill, (he) effectively supplied the criminals with material and moral aid, making him guilty as an accomplice." The Court noted that there was no evidence that he "had conspired with the malefactors, nor that he actually participated in the commission of . the crime."

"The mere presence of Ortiz, who was

Thus, in People vs. de Vera,24 although appellant de Vera cooperated with the principal in killing the victim, the fact that he did not participate in the actual killing and that he was unarmed the Court held that the prosecution failed to prove he conspired with the principal. Instead, he was found guilty as an accomplice for the killing could be and was accomplished without him.

On the other hand, in People vs. Ouinao," the accused who was present at the scene of the crime was acquitted based on reasonable doubt. The court found that there was no showing of an overt act on his part that he concurred with the criminal design of the principal. Except in the case of the mastermind of a crime, it must be shown that the accused performed an overt act in furtherance of the conspiracy. It was held in part:

23 17 SCRA 892. 24 Supra note 19. :!5 269 SCRA 508.

not shown to be armed, at the scene of the cr-ime Immediately after its commission does not imply conspiracy. Singularity of purpose and unity in the execution of the unlawful objective are essential to establish the existence of conspiracy .26 Mere knowledge, acquiescence to or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the criIne, with a view to the furtherance of. the common design and purpose 27 Conspiracy transcends companionship." The presence and company of Ortiz were not necessary or essential to the perpetration of the murder.

N either can Ortiz be considered an accomplice. Article 18 of the Revised Penal Code provides that an accomplice is one who, not being a principa1, cooperates in the execution of the offense by previous or simultaneous acts. To be convicted as such, it is necessary that he be aware of the criminal intent of the principal and then cooperate knowingly or intentionally by supplying material. or moral aid for the efficacious execution of the crime. The prosecution, however, failed to present convincing evidence tending to establish that Appellant Ortiz"? knew of the other accused's intent to kill Magpantay. Again, his mere presence at the scene of the crime and Iris flight therefrom with the other accused are not proof beyond reasonable doubt of his participation or conspiracy in the crime."

From the foregoing, it can be inferred that not all "lookouts" are necessarily co-conspirators. There can be no categorical

26 People v. Jorge, 231 SCRA 693.

27 People v. Cedon, 233 SCRA 187. 28 People v. Manuel, 234 SCRA 532.

29 Supra, p. 511 citing People v. Fronda, 222 SCRA 71.

finding that lookouts conspired with the principal actor, absent a determination of whether the overt acts perpetrated by the former before, during, and after the commission of the crime, show unity of purpose, concerted action, and concurrence of sentiments. Thus, the mere presence of persons appearing as lookouts at the scene of the crime should not automatically result in an indictment as co-conspirator of the principal actor.

It cannot be overemphasized that mere presence at the scene of the crime without any (overt act ) active participation therein imply conspiracy. Mere knowledge or acquiescence to or agreement to cooperate is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime, with the view of the furtherance of the common design and purpose - conspiracy transcends companionship.>?

For instance, the purported act of Gatchalian in driving the car to the Pitong Daan Subdivision is not even an overt act, which is indispensable in committing the crimes ascribed. There was no iota of evidence to show that he drove the car to the Pitong Daan particularly to lend support to the supposed principal in perpetrating the criminal acts. From the narration of the witness, they were out~ide the residence of the Vizcondes unarmed without any clue of what was happening inside.

30 People v. Patano, 399 SeRA 90,

While the trial court found the testimony of the security guards Normal White and Justo Cabanacan as sufficiently corroborating the testimony of Alfaro, I find the same insufficient to corroborate conspiracy. White only testified to the fact that

,

Gatchalian was riding in one of the three cars going in and out of

the subdivision. This fact in itself obviously is not an active participation wherein we could infer conspiracy.

With respect to the overt act pointing to the participation of Fernandez in the conspiracy, the trial court found that he suggested to blow up the transformer to conceal what they were about to do. The testimony of Alfaro nevertheless' demonstrates that although he mentioned the blowing up of the transformer, it was not established that such statement is connected with the crime that was about to be perpetrated.

"Prosecutor Zuno: Q. And as you reached the Visconde residence driving your car, what did you do if you did anything?

Witness Alfaro: A. "Naghanap kami ng parking kasi" the street was full because along Vinzons Street there was a party going on along Vinzons (sic). So punong-puno na double parking na and we have to find and we cannot block any driveway.

Prosecutor Zuno: Q. Before you parked your car, what did you do if you did anything?

Witness Alfaro: A. Per instruction of Carmela, before reaching the pedestrian gate I have to give the signal of two blinking of headlights.

Prosecutor Zuno: Q. Now you said you parked your car, where did you park your car?

Witness Alfaro: A. "Hindi na ako makakita ng parking," So, what I did was I blocked the garage gate of two houses. "Bale" half of the Visconde gate and half of the other house. I was in between.

xxx

Prosecutor Zuno: Q.

approached you

anythinghappened?

Witness Alfaro: A. It was Pyke who approached me.

And 'after they

what happened

have if

Prosecutor Zuno: Q. And what did he tell you, if he told you anything, when Pyke approached you?

Witness Alfaro: A. Pyke said, "Pasabugin kaya natin ang transformer na ito." (TSN, October 16, 1995,P.589-590)

Xxx

"Prosecutor Zuno: Q. Now with that statement from Pyke Fernandez, what did you say if you said anything?

Witness Alfaro: A. I just told him, "Malakas lang ang tama mo." (TSN, October 16, 1995, p. 592)

From the foregoing, the words "Pasabugin kaya natin ang transformer na ito" allegedly stated by Fernandez do not at all indicate unity with the purpose of the principal. There was nothing from the circumstances before, during and after such statement that shows that the suggestion of Fernandez to blowout the transformer was for the purpose of concealment of the crime to be committed. He did not even pursue such plan. That it was for the purpose of concealing a crime was only based on the

On another matter, let us review the apprehension of Tony Boy Lejano. He recounted that on July 4, 1991, together with

no probative weight. The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass."

The records show that the only overt act and cooperation that can be attributed to the accused-appellants was their presence at the scene of the crime. They were even outside the place of the residence of the victims when the alleged crime was committed. To reiterate, mere presence at the scene of the crime is insufficient to establish conspiracy.

It is also noteworthy that no fingerprints of accusedappellants matched those fingerprints taken from the crime scene. It is mind-boggling that accused-appellants who allegedly committed the dastardly act left no physical trace of their presence at the Vizconde house.

In the chain of events as narrated by Alfaro, the circumstances leading to a conclusion that accused-appellants had, by a previous agreement and concerted action, conspired with others is weak and deficient. Penultimately, where the facts can be consistent with the non-participation of other accused-appellant, conspiracy must be rejected.

31 People vs. Patano, 399 SeRA 90.

33

Carlos Syap, he visited Michael Gatchalian in jail intending to offer testimony on Michael's behalf. He and Carlos Syap were going to testify that they were with Michael that night; hence, he could not have been involved in the crime. The following day, when he revisited Gatchalian, he was then accused of the same crime.

Logically, it is therefore not improbable that Carlos Syap, who could have testified as to their whereabouts on that fateful night would choose not to testify. The natural reticence of Carlos Syap to get involved in the case could be naturally assumed to have been out of fear that he too might be incarcerated for the

same cnme.

Besides, as pointed out by appellant Lejano in his motion, assuming that he committed the crime, the conclusion of the trial court that he could have traveled back and forth from the Syap residence and to the Vizconde's is improbable, considering Alfaro's claim that he never left the group. He could not have been in two places at the same time.

Furthermore, I find it unjust that his motion as well as that of appellant Webb's for a DNA test were denied by the RTC ratiocinating that at that time, there is no one in the country who had the necessary knowledge and expertise to testify on DNA examination. Also, the Order of denial predicated on the presumption that the specimen semen found on Carmela's body may have already been tampered with or contaminated is grossly

case.

J

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erroneous. That the specimen semen was tampered with is not conclusive in the light of the certification issued by the NBI that the specimen semen remained intact. Hence, the trial court should have not ruled on such matter based on a mere conjecture and in total disregard of the presumption of regularity in the performance of official duty.

In People vs. Yatar," the High Court pointed out the importance of a DNA examination, viz:

/

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 criminalinvestigation, 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

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. 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 atthe crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victim's body during the assault. 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."

As the examination conducted by Dr. Prospera Cabanayan

32 428 seRA 504 (2004). 33 ld at 514-515.

More telling is the admission of appellant Michael Gatchalian that he was offered twice in 1995 by the Department of Justice to become a state witness for the prosecution. Indeed, if appellant Gatchalian was guilty of the crime as charged, it would have been the best course of action for him to accept the offer. Yet, he did not. And now, he is serving time in jail - for life. It boggles the mind why a person, if not innocent, would not accept the opportunity to go scot free and instead, take the risk of a finding of guilt from the courts.

x.- - - - - - - - - - - - - - - - - - - - x

yielded the presence of human spermatozoa on the genitalia of Carmela Vizconde, a DNA examination could have determined whether appellants Webb and/or Lejano did the bestial act or not and an independent and unbiased medical examiner could have ascertained whether the specimen semen was compromised or not. Also, it would have put an end to the question of whether accused Webb was really in the country or not.

Worth mentioning is prosecution witness Lolita Birrer's statement that Gatchalian was allegedly tortured by several policemen, including Biong. If, in fact, there was a conspiracy to commit the crime between accused-appellants, there is no plausible explanation for Biong to torture Gatchalian. We cannot simply brush this matter of the alleged infliction of torture by Biong on Gatchalian considering that Birrer is a witness for the prosecution. .

CA-G.R. CR-H.C. No. 00336 DISSENTING OPINION

36

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Also, Brenda Mia and Matthew John Almogino testified that they both conversed separately with appellant Gatchalian near the Vizconde residence in the early morning of June 30, 1999. Yet, Alfaro claimed that appellant Gatchalian was with her in a house after the commission of the crime where the claimed "blaming session" took place. However, she could not pinpoint the aforementioned house when asked for its location. Definitely, Gatchalian does not possess the power of "bi-location" or being in two places at the same time. Obviously, Alfaro was not telling the truth.

Furthermore, the participation of appellant Peter Estrada that fateful night is in fact uncertain. The lower court had made the conclusion that since the charge of conspiracy was duly proven independent of the crime, everyone therein was guilty of the crime as charged.

We must however consider Alfaro's admission that she did not see who allegedly gave their assent to Webb's alleged declaration that they will rape Carmela. She in fact testified that Estrada did not participate in the killing and in the raping of Carmela Vizconde. In her narration of facts, Estrada was not even n 1...· nywhere inside the house of the Vizcondes but inside the

his alleged statement of "Okey ba?" is open to many

ons.

'mony of the laundrywoman Gaviola cannot likewise

Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on appellant's sando shirt, as well as the tres cantos, were human blood. Mendoza, however, did not conduct further tests to ascertain the type of blood found on these pieces of evidence nor did he match it with the victim's blood type, hence, it does not connect the bloodstains to the herein victim. In People vs. Rodriguez, the Court ruled that the maong pants allegedly belonging to appellant and found positive of type 0 blood has no probative value since the blood type of appellant and the victim were not taken for purposes of comparison. 35

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

be taken hook, line and sinker. She testified that the stain on appellant Webb's shirt was human blood. Yet, We must consider that the alleged stain on the shirt was never submitted as evidence. The alleged stain thereon was never examined in order to ascertain if it were human blood. And if it were human blood, the same was never compared to the blood type of the victims.

The High Court's ruling in People vs. 'Tomaquinr' is apt, to

wit:

Likewise, I am not convinced with the testimony of N onnal White. It is rather suspicious why he could not even identify the logbook as well as the entries appearing thereon during the proceedings. He could not say whether the same was written by his hand or not. Part of his duty is to record in the logbook the coming in and going out of the people in the village. As such, he should have been able to identify the logbook itself and more importantly, his own signature appearing thereon, if any.

~ 435 scax 23 (2004), ~ Id at 46.

-G.R. CR-H.C. No. 00336 DISSE -TING OPINION

38

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

Settled is the rule that an accused, enjoying the presumption of innocence, must only raise reasonable doubt in order to be acquitted of the crime charged. No matter how weak the evidence of the defense may be, the prosecution must draw strength from its own evidence.

"Our criminal justice system stresses that the overriding consideration of a case is not whether the court doubts the innocence of the accused, but whether it entertains reasonable doubt as to his guilt. Where the pieces of evidence against the

I believe that the level of moral certainty required for a conviction in criminal cases has not been reached in the case at bar. There must be moral certainty in an unprejudiced mind that the crime wascommitted by the accused-appellants. This applies not only to appellant Webb but also to his co-appellants who allegedly "conspired" with each other in the rape and killing of the Vizconde women between June 29 and 30, 1992.

The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense. Accusation cannot be made synonymous with guilt. It is incumbent upon the prosecution to demonstrate that the culpability lies and the freedom of the accused can be forfeited only if the requisite quantum of proof necessary for conviction exists. In the absence thereof, we must acquit."

~ People vs. Melencion, 355 SCRA 124.

CA-G.R. CR-H.C. No. 00336 DISSENTING OPINION

39

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

appellant are insufficient to determine the guilt with moral certainty, the appellant is entitled to an acquittal. 37"

I therefore vote for the acquittal of the accused-appellants.

ORIGINAL SIGNED LUCENITO N. TAGLE Associate Justice

3- People v, Gamer, 326 SeRA 660, 674 (2000).