EN BANC

G.R. No. 176389 - ANTONIO LEJANO, petitioner, versus PEOPLE OF THE PHILIPPINES, respondent.

G.R. No. 176864 - PEOPLE OF THE PHILIPPINES, plaintiff-appellee, versus HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA AND GERARDO BIONG, accused-appellants; ARTEMIO VENTURA, JOEY FILART AND JOHN DOES (At-Large), accused.

Promulgated:

December 14, 2010

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DISSENTING OPINION

VILLARAMA, JR., J.:

With all due respect to my colleagues, I dissent from the majority decision acquitting all the accused-appellants.

In the middle part of 1991, the gruesome deaths of 19-year old Carmela Vizconde, her mother Estrellita and 7-year old sister Jennifer in the hands of unknown assailants inside their home in a private subdivision shocked our countrymen and alarmed the authorities of the rise in heinous crimes, particularly those committed by individuals under the influence of drugs. Investigations conducted by the police and other bodies including the Senate, and even the arrest of two (2) sets of suspects (“akyat-bahay” gang and former contractor/workers of the Vizcondes), failed to unravel the truth behind the brutal killings – until an alleged eyewitness surfaced four (4) years later. The ensuing courtroom saga involving sons of prominent families had become one (1) of the most controversial cases in recent history as the entire nation awaited its long-delayed closure.

The Case

Subject of review is the Decision[1] dated December 15, 2005 of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 00336 affirming with modifications the Decision dated January 4, 2000 of the Regional Trial Court (RTC) of Parañaque City, Branch 274 finding the accused-appellants Hubert Jeffrey P. Webb, Antonio “Tony Boy” Lejano, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada and Miguel “Ging” Rodriguez guilty beyond reasonable doubt as principals, and accused-appellant Gerardo Biong as accessory, of the crime of Rape with Homicide.

The petition for review on certiorari filed earlier by accused Lejano (G.R. No. 176389) is hereby treated as an appeal, considering that said accused had in fact filed a notice of appeal with the CA.[2] In view of the judgment of the CA imposing the penalty of reclusion perpetua, such appeal by notice of appeal is in accord with A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)[3] which provides under Rule 124 (c):

(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.

Accordingly, G.R. No. 176389 was consolidated with the present appeal by all accused (G.R. No. 176864) except Artemio Ventura and Joey Filart who are still at large.[4] Only Webb and Gatchalian filed their respective supplemental briefs in compliance with our April 10, 2007 Resolution.[5]

The Facts

The Information filed on August 10, 1995 reads:

That on or about the evening of June 29 up to the early morning of June 30, 1991, in the municipality of Parañaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused Hubert Jeffrey P. Webb conspiring and confederating with accused Antonio “Tony Boy” Lejano, Artemio “Dong” Ventura, Michael Gatchalian y Adviento, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez and Joey Filart, mutually helping one another, while armed with bladed instruments, with the use of force and intimidation, with lewd design, with abuse of superior strength, nighttime and with the use of motor vehicle, wilfully, unlawfully and feloniously have carnal knowledge of the person of Carmela Vizconde against her will and consent.

That by reason or on the occasion of the aforesaid rape or immediately thereafter, the above-named accused with intent to kill, conspiring and confederating together, mutually helping one another, did then and there, and with evident premeditation, abuse of superior strength, nighttime, with the use of motor vehicle, assault and stab with bladed instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby inflicting upon them numerous stab wounds in different parts of their bodies which caused their instantaneous death.

That accused GERARDO BIONG and JOHN DOES having knowledge after the commission of the above-mentioned crime, and without having participated therein as principals or accomplices, took part subsequent to its commission by assisting, with abuse of authority as a police officer, the above-named principal accused, to conceal or destroy the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime.

CONTRARY TO LAW.[6]

The RTC and CA concurred in their factual findings based mainly on the testimony of the prosecution’s principal witness, Jessica M. Alfaro who is a confessed former drug user, the declarations of four (4) other witnesses and documentary exhibits.

Alfaro testified that on June 29, 1991 at around 8:30 in the evening, she drove her Mitsubishi Lancer and, with her then boyfriend Peter Estrada, went to the Ayala Alabang Commercial Center parking lot to get her order of one (1) gram of shabu from Artemio “Dong” Ventura. There she met and was introduced to Ventura’s friends: Hubert Jeffrey P. Webb, Antonio “Tony Boy” Lejano, Miguel “Ging” Rodriguez, Hospicio “Pyke” Fernandez, Michael Gatchalian and Joey Filart (she had previously seen them in a shabu house located in Parañaque which they frequented as early as January 1991,[7] while she had known Ventura since December 1990[8]). After paying for her shabu and while she was smoking it, Webb approached her and requested a favor for her to relay a message to a certain girl who happened to be Carmela, to which she agreed. After the group finished their shabu session, they proceeded to Carmela’s place at No. 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Parañaque City. She and Estrada in her car followed the two (2) vehicles: Webb, Lejano, Ventura, Fernandez and Gatchalian on board a Nissan Patrol car; while Filart and Rodriguez rode a Mazda pick-up.[9]

Upon reaching the area, Alfaro parked her car along Vinzons St. and approached the gate of the house pointed to by Webb. She pressed the buzzer and when a woman came out, she asked for Carmela. When she was able to talk to Carmela (an acquaintance she had met only twice in January 1991[10]), Alfaro relayed Webb’s message that he was around. However, Carmela said she cannot make it as she had just arrived home and told Alfaro to come back after twenty (20) minutes. She relayed the answer of Carmela to Webb who then instructed the group to return to Ayala Alabang Commercial Center.[11]

At the same parking lot, the group had another shabu session before proceeding again to Carmela’s residence in a convoy. Alfaro went to Vinzons St. alone while the Nissan Patrol and Mazda parked somewhere along Aguirre Avenue. Upon seeing Carmela who was at their garden, Alfaro was approached by Carmela saying she was going out for a while. Carmela told Alfaro that they come back before 12:00 midnight and she would just leave the pedestrian gate, as well as the iron grill gate leading to the kitchen door, open and unlocked.[12] Carmela further instructed Alfaro to blink her car’s headlights twice before reaching the pedestrian gate to signal her arrival. Alfaro returned to her car but waited for Carmela’s car to get out of the gate. Carmela drove ahead and Alfaro likewise left Vinzons St. Upon reaching the main road, Aguirre Avenue, she saw Carmela drop off the man who was with her in the car (whom she thought to be her boyfriend[13]). Alfaro looked for the group and relayed Carmela’s instructions to Webb. Thereafter, they all went back to the Ayala Alabang Commercial Center.[14]

At the parking lot, Alfaro relayed to the group what transpired during her last conversation with Carmela. She also told Webb about Carmela’s male companion; this changed his mood for the rest of the evening (“bad trip” already[15]). Webb then gave out complimentary cocaine and all of them used shabu and/or cocaine.[16] After about 40 to 45 minutes, Webb decided it was time to leave, declaring: “Pipilahan natin siya [Carmela] at ako ang mauuna.” Lejano said: “Ako ang susunod” and the others responded “Okay, okay.” They all left the parking lot and their convoy of three (3) vehicles entered Pitong Daan Subdivision for the third time. They arrived at the Vizconde residence between 11:45 to 11:55 p.m.[17]

Alfaro parked her car in between the Vizconde house and its adjacent house. While waiting for the rest of the group to alight from their cars, Fernandez approached her suggesting that they blow up the transformer near the pedestrian gate of the Vizconde residence in order to cause a brownout (“Pasabugin kaya natin ang transformer na ito”). She shrugged off the idea and told Fernandez “Malakas lang ang tama mo.” When Webb, Lejano and Ventura were already standing infront of the Vizconde residence, Webb repeated to the boys that they will line up for Carmela but he will be the first, and the others said, “O sige, dito lang kami, magbabantay lang kami.”[18]

Alfaro entered first the pedestrian gate which was left open, followed by Webb, Lejano and Ventura. At the garage, Ventura pulled out a chair to get on top of the hood of the Vizcondes’ Nissan Sentra car and loosened the electric bulb (“para daw walang ilaw”). They proceeded to the iron grill gate which was likewise left open, and passed through the dirty kitchen. It was Carmela who opened the aluminum screen door of the kitchen for them to enter. Carmela and Webb for a moment looked at each other in the eye, and then proceeded towards the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out of the house. Lejano asked where she was going and she told him she will smoke outside. On her way to the screen door, she saw Ventura pulling a drawer in the kitchen. At the garden area, she smoked a cigarette. After about twenty (20) minutes, she was surprised upon hearing a female voice uttered “Sino yan?” and she immediately walked out towards her car. She found the others still outside around her car and Estrada who was inside the car said: “Okay ba?” After staying in her car for about ten (10) minutes, she returned to the house passing through the same iron grill gate and dirty kitchen. While it was dark inside the house, there was light coming from outside. In the kitchen, she saw Ventura searching a lady’s bag on top of the dining table. When she asked Ventura what was it he was looking for, he said: “Ikaw na nga dito, maghanap ka ng susi.” She asked him what particular key and he replied: “Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse.” When she found a bunch of keys in the bag, she tried them on the main door of the house but none of them fitted the lock; she also did not find any car key.[19]

Unable to open the main door, Alfaro walked back towards the kitchen but upon reaching the spot leading to the dining area, she heard a very loud static sound (like that coming from a television which had signed off). Out of curiosity, she went to the door of the master’s bedroom where the sound was coming from and peeped inside. She pushed the slightly ajar door with her fingers and the sound grew even louder. After pushing the door wider, she walked into the room. There she saw a man on top of Carmela who was lying on the floor, two (2) bloodied bodies on top of the bed and Lejano who was at the foot of the bed about to wear his jacket. She turned her eyes on Carmela who was gagged, moaning and in tears while Webb was pumping her, his bare buttocks exposed. Webb gave her a look and she immediately left the room. At the dining area, she met Ventura who told her: “Prepare an escape. Aalis na tayo.” Shocked by what she saw, Alfaro rushed out of the house and found the rest of the group outside, in her car and on the sidewalk.[20]

Alfaro boarded her car and started the engine but did not know where to proceed. She saw Webb, Lejano and Ventura leaving the house already. Webb suddenly picked up a stone and threw it to the main door, breaking its glass frame. When the three (3) were near the pedestrian gate, Webb told Ventura that he left behind his jacket. But Ventura said they cannot make it anymore as the iron grills were already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. Near an old hotel in the Tropical Palace area, Alfaro saw the Nissan Patrol slow down and something thrown out into a cogonal area. They went to a large house with high walls and concrete fence, steel gate and long driveway located at BF Executive Village. They parked their cars inside the compound and gathered in the lawn area where the “blaming session” took place. It was only at this point that Alfaro and the others came to know fully what happened at the Vizconde house. The mother was the first one (1) killed, then Jennifer and the last, Carmela.[21]

Ventura was blaming Webb telling him: “Bakit naman pati yung bata?” According to Webb, the girl was awakened and upon seeing him molesting Carmela, she jumped on him, bit his shoulders and pulled his hair. Webb got mad and grabbed the girl, pushed her to the wall and stabbed her several times. Lejano excused himself and used the telephone inside the house, while Webb called up someone on his cellular phone. At around 2:00 in the morning, Gerardo Biong arrived and talked to Webb who ordered him to clean up the Vizconde house, and said “Pera lang ang katapat nyan.” Biong answered “Okay lang.” Webb addressed the group and gave his final instructions: “We don’t know each other. We haven’t seen each other...baka maulit yan.” She and Estrada then departed and went to her father’s house.[22]

Dr. Prospero A. Cabanayan, medico-legal officer of the National Bureau of Investigation (NBI), who conducted the autopsy on the cadavers of the victims, testified on his findings as stated in the autopsy reports he submitted to the court. The bodies were photographed showing their condition before the start of the post-mortem examination.[23] Considering that they were almost in complete rigor mortis, the victims must have been dead for twelve (12) hours. Carmela’s hands were on her back hogtied with an electric cord and her mouth gagged with a pillow case. She had contusions on her right forearm and thighs, ligature marks on her wrists and nine (9) stab wounds on her chest (five [5] wounds are “connecting” or reaching to the back of the body). Further, specimen taken from her genitalia tested positive for the presence of human spermatozoa, which is indicative of complete penetration plus ejaculation of the male sex organ into the female sex organ. The contusions on her thighs were probably due to the application of blunt force such as a fist blow.[24]

Dr. Cabanayan further testified that Estrellita was also hogtied from behind and her wrists bore ligature marks from an electric cord with a plug. She sustained twelve (12) stab wounds, eight (8) of which are “communicating” or perforating (through and through stab wounds) which are fatal since vital organs are involved.[25] As to Jennifer, her stab wounds, nineteen (19) in all, had the characteristics of one (1) which is extremely blunt, the other extremely sharp. These wounds are located in different parts of her body, most of which are on the left anterior chest. But unlike Carmela and Estrellita, Jennifer had two (2) stab wounds on her back and incise wounds on her left and right forearms, the latter usually referred to as defense wounds. Seven (7) of the nine (9) stab wounds on her chest were perforating, hence fatal wounds.[26] Judging from the characteristics of the stab wounds sustained by the victims, Dr. Cabanayan concluded that they could have been inflicted using sharp-edged, pointed and single-bladed instruments such as a kitchen knife.[27]

Normal E. White, Jr., one (1) of four (4) security guards assigned at Pitong Daan Subdivision which is part of the United BF Homes, testified that he and Edgar Mendez were the guards on duty on the night of June 29, 1991, starting at 7:00 o’clock in the evening until 7:00 o’clock in the morning of June 30, 1991. On June 30, 1991, at around 6:00 a.m., a homeowner called his attention on the incident the previous night at the Vizconde house. He immediately proceeded to said house where there were already many people. The housemaids of the Vizcondes led him to the entrance at the kitchen and pointed to the master’s bedroom. Upon entering the room, he saw the bloodied bodies of the victims: two (2) were on top of the bed, and one (1) lying down on the floor. He is familiar with Mrs. Vizconde, Carmela and Jennifer because they were kind to the guards and usually greeted them. Mrs. Vizconde was gagged and her hands tied, while Jennifer was also lying on top of the bed. Carmela was lying on her back with one (1) of her legs raised, her dress pulled up and her genitals exposed. He also noticed that the TV was still on with loud sound. He went out to call the police but he met their Security Chief whom he informed about the killings at the Vizconde house. He then proceeded directly to the entrance/guard post of the subdivision and was told by Mendez that there were already policemen who had arrived.[28]

Having been apprised of the arrival of the police, White, Jr. returned to the Vizconde house to observe what was going on. He saw the policemen already investigating the crime scene and one (1) of them he later came to know as Gerardo Biong. There was also a woman who was with Biong when he was conducting the investigation inside the Vizconde premises at the garage area. The maids were being asked if they were able to hear the breaking of the main door’s glass frame, and he saw Biong in the act of further breaking the remaining glass. He recognized other homeowners who were also there, including Michael Gatchalian who passed by infront of the house. Afterwards, he returned to their guard post where their Officer-in-Charge (OIC), Justo Cabanacan, probed him and Mendez on anything they had observed the previous night. He and Mendez told Cabanacan that they did not notice anything unusual except “Mike” (Michael Gatchalian) and his friends entering and exiting the subdivision gate (“labas-masok”).[29]

White, Jr. recounted that Mike’s group entered the subdivision on the night of June 29, 1991. Upon approaching the gate, Mike’s car slowed down on the hump. He was about to flag down and verify (“sisitahin”) but Mike (who was at the right front seat) immediately opened his window to show his face and pointed to two (2) vehicles behind him as his companions. Because of their policy allowing outsiders to enter the subdivision as long as they are accompanied by a homeowner, he and Mendez just let the three (3) vehicles in (Mike was in the first car). That was actually the second time he saw Mike and his “barkada” that night because he had earlier seen them at Vinzons St. near the Gatchalian residence. However, he could no longer remember the precise time he saw the group on these two (2) instances.[30]

White, Jr. further testified that on the night of June 30, 1991, policemen took him from the Pitong Daan Subdivision Homeowners’ Association and brought him to the Parañaque Municipal Building. Biong was forcing him to admit that he was one (1) of those who killed the Vizconde women. Biong boxed him insisting he was among the perpetrators and had no mercy for the victims. He and Mendez were later fetched by the Chief of Security of Pitong Daan Subdivision Homeowners’ Association, Nestor Potenciano Jr., and OIC Justo Cabanacan.[31] Biong had also taken their logbook where they list down the names of visitors, plate number of vehicles, name and street of the homeowner they were staying at, etc. However, when presented with the alleged logbook, White, Jr. said it was not the same logbook, he could not recognize its cover and could not categorically confirm the entries supposedly made in his own handwriting.[32]

Justo Cabanacan, another security guard assigned at the Pitong Daan Subdivision and the one (1) supervising his co-guards White, Jr., Mendez and Tungo, testified that when he reported for duty on June 30, 1991 at about 7:00 o’clock in the morning, he was met by Mendez who told him about the killing of a homeowner and her family. When he asked Mendez if he and White, Jr. noticed anything unusual during their tour of duty the previous night, Mendez said everything was alright except for Mike and his friends who had gone in and out of the subdivision (“labas-masok”) until the wee hours in the morning of June 30, 1991. White, Jr. also reported to him that on the night of June 29, 1991, while doing his roving duty around the subdivision, he noticed vehicles parked along Vinzons St. near the house of Mr. Almogino where there seemed to be a drinking party, and that Mike was “labas-masok” through the subdivision gate. He confirmed it was indeed their policy that if one (1) is a son/daughter of a homeowner, or accompanied by a homeowner or any relative of homeowner, he/she will no longer be stopped or queried by the guards. In particular, he knows Mike and had seen him visit the house of Lilet Sy, another homeowner. He often goes to Lilet Sy’s house because of the various complaints of homeowners against her like the presence of too many people at her house until midnight and the vehicles of her visitors running over her neighbors’ plants. This Lilet Sy is also a suspected drug pusher within the subdivision.[33]

Cabanacan further testified that around the last week of May or first week of June 1991, he came to know Hubert Webb because he had stopped his car at the subdivision gate as it had no local sticker of Pitong Daan Subdivision. It was around 7:00 o’clock in the evening when Webb arrived. He greeted Webb and asked about his destination. Webb replied he was going to see Lilet Sy. When he asked Webb to leave an identification card, Webb pointed to his car sticker saying he is also a BF Homes resident. He explained to Webb that the sticker on his car was for United BF Homes and not the local sticker of Pitong Daan Subdivision. Webb then said: “Taga-diyan lang ako sa Phase III...saka anak ako ni Congressman Webb.” He insisted on seeing Webb’s ID card and grudgingly Webb obliged and pulled out his wallet. Webb gave him a laminated ID card with Webb’s picture and with the name “Hubert Webb” written on it. After seeing the ID card, he returned the same to Webb and allowed him to enter the subdivision. However, he did not anymore record this incident in their logbook because anyway Webb is the son of the Parañaque Congressman, a well-known personality.[34]

In the morning of June 30, 1991, Cabanacan said he also went to the Vizconde house upon being told by Mendez and White, Jr. of the killings. By afternoon of the same day, he came to meet Biong who was conducting the investigation. Based on the information given by Mendez and White, Jr., he prepared a written report on the incident which he submitted to Nestor Potenciano, Jr. After the incident, Biong frequented their place to investigate and asserting he had no female companion while conducting his investigation at the Vizconde house on June 30, 1991. Aside from taking their logbook, Biong also took his two (2) guards (Mendez and White, Jr.) to the police headquarters on June 30, 1991 at around 7:00 p.m. The said guards also related to him what Biong did to them. They said Biong punched them and forced them to admit having participated in the Vizconde killings.[35]

Mila Solomon Gaviola, a laundrywoman who worked at the Webb residence located at Aguirre Avenue, BF Homes, Parañaque from January to July 1991[36] testified that on June 30, 1991 at around 4:00 in the morning, she went to the room of Hubert to get his and his brothers’ (Jason and Michael’s) dirty clothes, using the small “secret door” at the second floor near the servants’ quarters. She noticed that Michael and Jason were still asleep while Hubert was sitting on the bed wearing only his pants. When she finished collecting dirty clothes including those of Senator Webb, she brought them down to the laundry area. She ate breakfast and rested for a while. Afterwards, she started washing first Senator Webb’s clothes and then those of the sons. She washed Hubert’s white shirt with round neck and found it had fresh blood stains at the stomach area and also splattered blood (“tilamsik lang”) on the chest. She had difficulty removing the blood stains and had to use Chlorox. After she finished washing the clothes, she hanged them to dry on the second floor. Returning to the servants’ quarters, she peeped into Hubert’s room through the “secret door.” She saw Hubert pacing the floor (“di mapakali”); this was about 9:00 a.m. already. She saw Hubert again around 1:00 o’clock in the afternoon as he left the house passing through the “secret door”; he was clad in t-shirt and shorts. Hubert was back at the house by 4:00 o’clock in the afternoon. She never saw him again until she left in July 1991.[37]

Gaviola further testified that on June 30, 1991 at around 7:00 o’clock in the morning, she saw Senator Webb at the sala reading a newspaper.[38]

Lolita Carrera Vda. de Birrer, a widow and resident of United Parañaque Subdivision 5, testified that on June 29, 1991 at around 6:00 p.m., Biong who was then her boyfriend, asked her to come to the Parañaque police station to play “mahjong” at Aling Glo’s canteen located at the back of their office. They started playing at 6:30 in the evening. Between 1:00 and 2:00 in the morning of June 30, 1991, the radio operator at the police station went down to the canteen telling Biong he has a call. She took Biong’s place at the game while Biong went to the headquarters. After a while, she followed Biong to ask if he was joining the next bet. Biong was on the telephone talking with someone and visibly irked. She heard Biong’s words: “Ano?... Saan?... Mahirap yan ah! O sige, dadating ako... Ano?... Saan?... Dilaw na taxi?” Biong then told her he was leaving and shortly thereafter a taxicab arrived with a man seated at the back seat. Biong bade her good-bye saying he was going to BF Homes. She continued playing “mahjong” until morning. At around 7:00 a.m., Biong came back and went straight to the washing area of the canteen. She followed him and saw him cleaning blood stains on his fingernails. After wiping his face and hands with a handkerchief, he threw it away and when she asked why, Biong said it smelled stinky. Biong was in bad mood (“aburido”) and complained, “Putang inang mga batang ‘yon, pinahirapan ako nang husto”. Afterwards, Biong took out a knife with aluminum cover from his drawer and put it in his steel cabinet. She invited him for lunch but another policeman, Galvan, came and told Biong to proceed to BF Homes and investigate the three (3) dead persons there. Biong answered, “Oo, susunod na ako” and then proceeded to Capt. Bartolome’s office. With Capt. Bartolome’s permission, she joined them in going to the Vizconde residence.[39]

Upon arriving at the Vizconde house, Biong asked that the victims’ relatives and the homeowners’ association President be summoned. A certain Mr. Lopez and Ms. Moreno arrived and also a security guard named White, Jr. who pointed to the location of the victims’ bodies. They entered the master’s bedroom and she saw the mother and a small girl on top of the bed, and a young woman sprawled on the floor. After inspecting the bodies, Biong went to the toilet and turned on the faucet; the running water washed out the blood on the flooring of the toilet. Biong searched the drawers using his ballpen. She saw him took a round pendant watch and pocketed it. They went out of the room and on the top of the dining table they saw a shoulder bag and scattered next to it were various items such as Carmela’s ATM card, her driver’s license and calling cards. Biong proceeded to the main door and removed its chain lock. When they came out towards the garage area, Biong saw a stone by the window. He then asked Capt. Bartolome to go inside the room of the two (2) maids to see for himself if indeed the noise of the breaking glass could not be heard. When Capt. Bartolome was already inside the middle room, Biong shattered the remaining glass of the main door with the butt of his gun. When Biong asked if he could hear it, Capt. Bartolome answered in the affirmative. Biong next inspected the garage where he saw the footmarks on the car’s hood; Biong also found fingerprints on the electric bulb. She was just beside Biong at the time. They followed Biong towards the back of the house but upon seeing another shoe print on the ground just outside the master’s bedroom, he directed them not to proceed any further. They left the Vizconde house at around 10:00 a.m. and proceeded to the Parañaque Municipal Building.[40]

Birrer further testified that on July 1, 1991 at 10:00 o’clock in the morning, Biong arrived at her house bringing along with him the two (2) maids of the Vizcondes. He asked her to cook something for the maids to eat. Biong also instructed her to interview the maids on what they know about the killings. She did as told but the maids said they do not know anything as they were asleep. After they had lunch, Biong told her to let the maids rest. While she and the maids were resting at the sala, Biong requested to use her bathroom. Before taking a bath, Biong took out the contents of his pockets which he put on the dining table. She saw Carmela’s ATM card and driver’s license, bracelet, earrings and the round pendant watch Biong had taken from a jewelry box while they were inside the Vizconde house. When Biong left her house, he brought all said items with him.[41]

On July 2, 1991 at around 6:00 p.m., Birrer was at the Parañaque Municipal Building inside Biong’s office. She saw Biong open his steel cabinet and took out a brown leather jacket which she thought was imported. When she asked him where it came from, Biong initially just said it was given as a gift but when she further queried, he answered: “Natatandaan mo ba ‘yong nirespondehan ko noong gabi sa BF Homes? Doon galing ‘yon.” She asked Biong whether those were the youths he had mentioned earlier and he said yes. As to the jewelries taken by Biong from the Vizconde house, she was with Biong when the latter pawned them at a pawnshop near Chow-Chow; Biong got P20,000.00 for the pawned items.[42]

Birrer further testified that two (2) weeks after they went to the Vizconde residence to investigate, Biong on two (2) occasions brought her along to a certain house. It was only Biong who went inside the said house as she waited in a taxicab. In both instances, Biong came out of the house with an envelope containing an undisclosed amount of money. She remembered this because when she was already staying in Pangasinan on December 7, 1995, she saw flashed on ABS-CBN’s TV Patrol News 7:00 p.m. newscast on television, a video footage of the house of Senator Webb. She was certain it was that house where Biong went and came out carrying cash in an envelope.[43]

Lauro G. Vizconde, husband of Estrellita and father of Carmela and Jennifer, testified on the personal circumstances of the victims. At the time of their deaths, Estrellita was engaged in business (at one [1] time or another she was a garment manufacturer, taxi operator, canteen owner and local employment recruiter), Carmela was a graduating B.S. Psychology student at the University of Santo Tomas, while Jennifer was a Grade I pupil at Bloomfield Academy at BF Resort, Las Piñas, Metro Manila. He left the Philippines in November 1989 to work in the United States of America. He had not since returned to the country -- until this unfortunate tragedy befell his family -- but communicated with his wife through telephone once or twice a month.[44]

Lauro G. Vizconde further testified that his daughter, when she was still alive, was so close to him that she confides her daily activities, dreams, ambitions and plans in life. She intended to pursue further masteral and doctoral degrees in business psychology in the U.S.A. In fact, that was the reason he transferred from one (1) state to another looking for a school where Carmela could enroll. However, he had to come home in July 1991 and bury his wife and daughters whose violent deaths he was informed of only upon arriving in the country and when he saw their bodies with stab wounds at the funeral parlor just before burial. He spent burial expenses in the amount of P289,000.00, plus P103,000.00 incidental expenses, P300,000.00 paid for memorial lots and around P100,000.00 for the construction of the mausoleum - with a grand total of P793,950.00. He likewise incurred litigation expenses in the amount of P97,404.50.[45]

In one (1) of their telephone conversations when he was still in the U.S.A., Lauro Vizconde recounted that Carmela mentioned to him that she had turned down a suitor whom she called “Bagyo,” who is a son of politician in Parañaque and comes from an affluent family. He also expressed his mental anguish, wounded feelings, emotional suffering due to the untimely demise of his family. It actually cost him his life, his heart bled all the time and only time can tell when he can fully cope with the situation. He is presently totally displaced and jobless; he misses his family and he now lives an abnormal life with no inspiration and no more challenge to work for. When asked how much compensation he will ask for moral damages, he answered saying he leaves the matter to the sound discretion of the court as in truth, no amount can truly compensate him for the loss of his loved ones. He sought justice for the death of his family and hoped that the culprits, whoever they were, will be punished so that the souls of his departed loved ones may rest in peace.[46]

Defense Evidence

The accused chiefly assailed the credibility of prosecution star witness Alfaro, in particular her execution of two (2) allegedly inconsistent affidavits (one on April 28, 1995 and another on May 22, 1995) and raised alibi and denial as defenses to the charge of rape with homicide attended by conspiracy. During the trial, no less than 95 witnesses[47] were presented, and voluminous documentary exhibits were submitted.

The testimonies of the principal witnesses for the defense are summarized as follows:

Hubert Jeffrey P. Webb testified that at the time of the killings between June 29 and 30, 1991, he was still in Anaheim Hills, California, U.S.A., having departed from the Philippines on March 9, 1991 on board a United Airlines flight bound for San Francisco. He was accompanied by Gloria Webb, whose husband Richard Webb is the eldest brother of his father Senator Freddie Webb. It was the first time he traveled to the US and he returned to the Philippines only on October 25, 1992. On the eve of his departure, he, Rael, Tina and his then girlfriend Milagros Castillo went out and had dinner at Bunchchums. Later that night, they went to Faces Disco at Makati Avenue where his friends Paulo Santos and Jay Ortega followed. They went home at 3:00 o’clock in the morning already. After driving around in the city and bringing Milagros home, he arrived at his house at around 5:00 a.m. His parents were already preparing to leave and so they headed to the airport.[48] Webb’s friend Rafael Jose, Paulo Santos, Senator Webb’s security staff Miguel Muñoz, Webbs’ secretary Cristina Magpusao and house girl Victoria Ventoso corroborated Webb’s testimony that he departed from the Philippines on March 9, 1991.[49]

Webb further testified that he stayed at the house of her Auntie Gloria and Uncle Dinky at San Francisco until late April to May 1991. Upon the invitation of her aunt Susan Brottman, sister of his mother, he rode a train and went to Anaheim where he stayed until mid-July 1991. Thereafter, he rented a nearby place but did not complete the one (1) month pre-paid lease period as he proceeded to Longwood, Florida. He stayed at the residence of his Uncle Jack and Sonia Rodriguez for almost a year (August 1991-August 1992). He went back to Anaheim and stayed at the house of his godmother and sister of his mother, Imelda Pagaspas, until October 1992. He met his relatives and other personalities while in the US; visited Lake Tahoe with the Wheelock family; toured Disneyland where Luis Wheelock filmed them and attended a concert with Christopher Esguerra who also took him out to the malls.[50]

Webb further testified that in the later part of June 1991, his parents joined him in the US. He applied for and was issued a driver’s license on June 14, 1991. He also worked at the pest control company of his cousin-in-law Alex del Toro. Aside from his passport and airline ticket for return flight to the Philippines, Webb presented before the court the logbook of jobs/tasks kept by del Toro, in which he pointed to the entries therein which were actually performed by him; and also his purported pay check ($150 “pay to Cash”), ID and other employment papers. He also identified some handwritten letters he mailed while he was in the US and sent to his friend Jennifer Cabrera in the Philippines; photographs and video tape clips taken during his cousin Marie Manlapit’s wedding to Alex del Toro which wedding he attended in the US together with his mother; and receipt issued for the mountain bicycle he bought on June 30, 1991 from the Orange Cycle store in Anaheim.[51]

Webb denied having met Carmela Vizconde and neither does he know Jessica Alfaro. He had been jailed since August 9, 1995. When asked about his co-accused, Webb said the only ones he had met before June 29, 1991 were Fernandez and Rodriguez. He used to play basketball with Fernandez at BF Homes Phase III, during which he also met Rodriguez. While he admitted having gone out on a group with Fernandez to the houses of their basketball buddies, he denied having gone out with Rodriguez at any time.[52] He also denied knowing Biong who is neither a driver nor security aide of his father.[53]

Gloria Webb testified that on March 9, 1991, she traveled with Webb on a United Airlines flight to San Francisco. Webb stayed at her residence at 639 Gellert Boulevard, Daly City, California until May 1991 when he left to be with his mother’s sister and relatives in Anaheim. Webb and her grandson attended a “concierto” in the evenings and he also joined and helped her son-in-law with his business. Webb went with them to church, to the malls and in shopping. In April 1991, Webb went on a trip to Lake Tahoe with Mr. Wheelock and family.[54]

Dorothy Wheelock testified that she became a US citizen in 1974 and has been residing at 877 Las Lomas Drive, Milpitas, California. Webb’s mother is her childhood friend and schoolmate. When she heard that Webb was in the US looking for a job, she invited him, and her husband Louis Wheelock picked him up at Daly City in April 1991. To reciprocate the Webbs’ hospitality while they visited the Philippines in 1990, she and her family took Webb to a trip to Lake Tahoe in Nevada during which they even took a video tape. Senator Freddie and Mrs. Webb also visited and stayed with them for four (4) days in July 1991. They took them to a trip to Yosemite Park, also with video footages taken by her husband.[55]

Steven Keeler testified that he had been an American citizen since 1982 and resident of 4002 River Street, Newport Beach, California. He met Webb at a dinner in the house of Webb’s aunt Susan Brottman in Anaheim Hills around May or June 1991. Brottman’s son, Rey Manlapit, was his good friend. They played basketball with Webb, went to bars, shopped and watched TV. He also knew that Webb bought a car and worked for Alex del Toro for Environment First Termite Control. He believed that Webb left for Florida towards the end of summer (July 1991). He could not recall any specific dates he was with Webb.[56]

Honesto Aragon testified that he went to the US in 1967 and became a US citizen in 1989. On June 28, 1991, he met then Congressman Freddie Webb at the house of the latter’s sister-in-law, Susan, at Anaheim. Congressman Webb introduced to him his son Hubert Webb. He, Congressman Webb and Hubert went to some stores to go shopping for a bicycle for Hubert. But they only bought bike accessories. He invited them to snack before he brought them to his own house where he introduced to them his son Andrew. The following day, June 29, 1991, they went to Riverside, California to shop for a car for Hubert; though they found a Toyota MR2, they did not buy it because it has questionable ownership. Early morning the next day, he picked up Congressman Webb and they played tennis from 7:00 to 10:00 a.m. He and Congressman Webb were close friends, as both of them were members of a basketball team in Letran. The first time he saw Hubert was when he was still a small kid and the other time on June 28, 1991 at the Brottman’s residence in Anaheim.[57]

Senator Freddie Webb testified that his son Hubert left for the US on March 9, 1991, the first time he had gone out of the country. Hubert stayed with his sister-in-law Gloria. They wanted to show Hubert the value of independence, hard work and perseverance, and for him to learn how to get along and live with other people. Hubert resigned from his job at Saztec before departing for the US. He and his wife also went to the US on June 28, 1991. They stayed at the house of his sister-in-law, Susan Brottman at Anaheim. From San Francisco, they went to Orlando, Florida, then back to Los Angeles and returned to the Philippines on July 21, 1991. Among the places he visited while in the US were the Yosemite Park, Nordstrom, Disneyland, Disneyworld. Upon arriving at Anaheim, he saw his son Hubert and also informed Honesto Aragon regarding their plan to procure a bicycle for Hubert. Hubert was with them again on June 29, 1991 at dinner in the residence of his sister-in-law. On July 1, 1991, they went shopping for some clothes. Together with Aragon, he and Hubert looked for a Toyota MR2 car and paid for it with a check (the car was priced at $6,000-$7,000).[58]

Senator Webb further testified that he knows Mila Gaviola who used to be their “labandera.” She left their house but returned to work for them again about a couple of months after the Mt. Pinatubo eruption. As to Alfaro’s statements implicating his son Hubert in the Vizconde killings, he said the statements were not accurate because it was physically impossible for Hubert to have participated in the crime as he was abroad at the time.[59]

Louis Whitaker testified that he left the Philippines and resided in the US since September 1964. He met Jack Rodriguez when the latter fetched him and his wife Sonia at the Los Angeles International Airport on June 28, 1991 upon their arrival from the Philippines. They proceeded to the house of a mutual friend, Salvador Vaca, at Moresbay Street in Lake Forest. They went to see Congressman Webb at a house in Anaheim. That was the first time he met Congressman Webb, Mrs. Webb, the sister-in-law and a Mr. Aragon. On June 29, 1991, he and Rodriguez invited Congressman Webb to see Mr. Vaca perform at La Calesa Restaurant in the City of Testin. When they fetched Congressman Webb at his sister-in-law’s house, he met again Mrs. Webb, and also Hubert. He saw Hubert for the second time at Orlando, Florida when he went to the house of Jack Rodriguez there; this was about July or August 1991.[60]

Sonia H. Rodriguez testified that she was appointed UNESCO Commissioner by then President Fidel V. Ramos. She has known accused Webb since he was a child. On June 28, 1991, she and her husband boarded a plane for Los Angeles, California. They were fetched at the LA airport by old-time friend Salvador Vaca and proceeded to the latter’s house in Orange County, California. They had dinner that evening with spouses Freddie and Elizabeth Webb at the house of Susan Brottman. The next day, in the afternoon of June 29, 1991, her husband and Salvador Vaca picked up Senator Webb from the house of Susan Brottman and then came back to fetch her and Mrs. Vaca to go to La Calesa, a restaurant owned by Mario Benitez, also a Filipino. However, she and Mrs. Vaca decided to stay home. On June 30, 1991 at around 8:00 p.m., she and her husband went to the house of Susan Brottman, together with Salvador and Mrs. Vaca and Louis Whitaker. She recalled that Hubert was there at the time. She saw Hubert again on July 4, 1991 when they went on a lakeside picnic with the Webb family, Brottmans and Vacas. After watching the fireworks, they went to Sizzler Restaurant. The next day, she and her husband stayed overnight at San Francisco where they also met Senator and Mrs. Webb. On August August 4, 1991, Hubert arrived in her home in Florida with her son Tony, daughter-in-law Ana, and stayed with them for almost one (1) year. The last time she saw Hubert was when he left Orlando, Florida on January 27, 1992.[61]

Webb presented other witnesses to buttress his defense of alibi: Victor Yap (who took video shots of Congressman Webb during a boat ride in Disneyland);[62] Armando Rodriguez (who testified seeing Hubert in Orlando either August or September 1991);[63] performing artist Gary Valenciano (who testified meeting Hubert at a dinner at the Rodriguez residence in Orlando on November 24, 1991, Jack Rodriguez being the father of his high school classmate Antonio Rodriguez;[64] and Christopher Paul Legaspi Esguerra (grandson of Gloria Webb who went with Hubert Webb to watch the concert of the Deelite Band in San Francisco in the later part of April 1991 and saw Hubert Webb for the last time in May 1991).[65]

Then a practicing lawyer, Atty. Antonio T. Carpio (now an Associate Justice of this Court) testified that on June 29, 1991 between 10:00 and 11:00 o’clock in the morning, he had a telephone conversation with former Congressman Webb who said he was calling from Anaheim, U.S.A., where he and his wife went to look for a job for their son Hubert. They also talked about bills to be drafted as his law office had been engaged by Congressman Webb for bill drafting services as well as preparation of his speeches and statements. When asked if he had personal knowledge that Congressman Webb was really in the US at that time, he replied that since Webb had told him he was leaving for the US, he just presumed it was so when Webb said he was then at Anaheim. Neither did he have personal knowledge that Hubert Webb was in the US at the time of his conversation with Congressman Webb.[66]

Webb submitted the following documentary evidence in connection with his sojourn in the US:

1) Video Tape recording of Disneyland trip on July 3, 1991;[67]

2) Official Receipt issued by Orange Cycle Center dated June 30, 1991,[68] photographs of the bicycle purchased by Webb from said store;[69]

3) Car plate with the name “Lew Webb”;[70]

4) Passport with Philippine Immigration arrival stamp;[71]

5) Photographs of Webb with Rodriguez family;[72]

6) California Driver’s License of Webb,[73] Original License Card of Webb issued on June 14, 1991;[74]

7) Statement of Account issued to Environment First Termite Control showing Check No. 0180;[75] Bank of America Certification on Check Nos. 0122 and 0180;[76]

8) Public Records of California Department of Motor Vehicle on sale to Webb of Toyota MR2 car;[77] Traffic citations issued to Webb;[78] Import documents of said car into the Philippines;[79]

9) Certification issued by the US Immigration and Naturalization Service and correspondence between US and Philippine Government;[80] computer-generated print-out of the US-INS indicating date of Webb’s entry in USA as March 9, 1991 and his date of departure as October 26, 1992;[81] US-INS Certification dated August 31, 1995 authenticated by the Philippine Department of Foreign Affairs, correcting the earlier August 10, 1995 Certification;[82]

10) Certification issued by Agnes Tabuena;[83] Passenger Manifest of PAL Flight No. 103;[84] PAL ticket issued to Webb,[85] Arrival in Manila Certification issued by the Philippine Immigration,[86] Diplomatic Note of the US Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stating that the Certification dated August 31, 1995 is a true and accurate statement;[87] and Certificate of Authentication of Philippine Consul Herrera-Lim.[88]

Accused Antonio Lejano and Michael Gatchalian likewise raised the defense of alibi claiming that they spent the night of June 29, 1991 until early morning of June 30, 1991 watching video tapes at the house of Carlos Syap at Ayala Alabang Village.

Lejano further testified that with the exception of Miguel “Ging” Rodriguez and Michael “Mike” Gatchalian who are his former schoolmates, he does not know any of his co-accused. They left the house of Syap brothers early morning of June 30, 1991; it was Cas Syap who brought him and Mike home. On July 5, 1991, he and Cas Syap went to the police station where Mike, who was picked up as a suspect by the police on July 4, was detained. When they met Biong there, they told him they are willing to vouch for Mike’s innocence and even volunteered to give statements. Biong told them to return the following day. However, when he returned in the morning of July 6, 1991, Biong wanted his fingerprints taken right away but he told Biong he needed to consult someone first. He eventually submitted himself for fingerprinting after his name came out in the media. Lejano pointed out that Alfaro failed to identify him even as she passed by him three (3) times, and was able to do so only when she was coached by the prosecution camp.[89]

On the part of Michael Gatchalian, he presented nine (9) witnesses: Atty. Porfirio “Perry” Pimentel, RPN 9 broadcast executive who testified that he personally took video footages of Mon Tulfo’s interviews with some persons in America (including Honesto Aragon and the bicycle shop owner) who attested that Hubert Webb was there at the time of the Vizconde killings, but which segment was edited out in the program he produced (Action 9);[90] Mark Anthony So, a former NBI intelligence agent who was tasked to confirm photos of Hubert Webb (his classmate at DLSU St. Benilde) to familiarize Alfaro with his facial features;[91] Matthew John Almogino, a childhood friend and neighbor of Gatchalian, who testified that he was among those who went inside the Vizconde house in the morning of June 30, 1991 and Biong even asked him to take pictures; thereupon at around 9:30 a.m., he saw Gatchalian in front of the Vizconde residence telling him that he just woke up and exchanged pleasantries with him; and that as far as he knows, Webb, Fernandez, Lejano and Gatchalian are not “magbabarkada”;[92] Atty. Leny Mauricio and Ana Marie Pamintuan of The Philippine Star wherein a news article was published stating that Michael Gatchalian had rejected government’s offer for him to turn state witness in the Vizconde case;[93] Atty. Camilo Murillo who accompanied Gatchalian on July 19, 1991 when he gave his statement to the NBI, testified that Atty. Pete Rivera relayed to Gatchalian the request of then NBI Director Honesto Aragon for him to turn state witness and which offer was refused by Gatchalian and his father;[94] and Atty. Manuel Sunga who accompanied Gatchalian to the Department of Justice (DOJ) when he submitted his counter-affidavit (where there were already media people), testified that they were invited to the conference room where State Prosecutor Zuño in the presence of then Secretary Guingona made the offer for Gatchalian to turn state witness but it was rejected.[95]

Atty. Francisco C. Gatchalian confirmed that the NBI and later the DOJ made offers for his son to turn state witness in this case but they refused for the reason that his son was innocent of the crime charged. Michael had told him that on the night of June 29, 1991 until early morning of June 30, 1991, Michael was with his friends at Ayala Alabang Village in Muntinlupa at the residence of the Syaps. Gatchalian narrated that when he woke up to jog in the morning of June 30, 1991 around 7:00 to 7:30, he passed by the Vizconde house and saw people milling in front. At about 8:30 a.m., he saw the crowd getting bigger and so he instructed Michael who had wakened up, to find out and check what happened to their neighbor. Michael rushed out towards the Vizconde residence and when he came back about 10:00 o’clock that same morning, he reported that the house was robbed and people were killed inside the house. Both of them stayed in their house that day. He denied Alfaro’s claim that she was their distant relative.[96]

Accused Miguel Rodriguez maintained he was at home when the killings took place. He presented as witness his first cousin Mark Josef Andres Rualo who testified that at around 1:00 in the morning of June 30, 1991, he called up Rodriguez asking why he has not yet proceeded to the birthday party of Rualo at their house. Rodriguez replied that he could not make it because he was not fetched by his brother Art (who was the one with a car). So he handed the telephone to Art (who had arrived at the party around 9:30 to 10:00 p.m.) for them to talk. From Rodriguez’s residence at Pilar Village, it will take about fifteen (15) to twenty (20) minutes by car. It was a big party attended by some eighty (80) guests and which ended by 3:30 to 4:00 a.m. But it was only the first time he had invited Rodriguez to his birthday party. He knows Lejano, Rodriguez’s close friend and classmate, because Rodriguez used to bring him along when Rodriguez comes to his house.[97]

The other witnesses presented by Rodriguez, Col. Charles Calima, Jr. and Michael Rodriguez, testified on the alleged incident of “mistaken identity” wherein Alfaro supposedly pointed to one (1) “Michael Rodriguez,” a drug dependent who was pulled out by Col. Calima from the Bicutan Rehabilitation Center on the basis of the description given by NBI agents. They testified that when Alfaro confronted this “Michael Rodriguez,” she became very emotional and immediately slapped and kicked him telling him, “How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me.” Contrary to the physical description given by the NBI, the accused Miguel Rodriguez he saw inside the court room had no tattoo on his arm and definitely not the same “Michael Rodriguez” whom Alfaro slapped and kicked at the NBI premises. Michael Rodriguez testified that he was blindfolded and brought to the comfort room by NBI agents and forced to admit that he was Miguel Rodriguez; he identified Alfaro and Atty. Figueras from a collage of photographs shown to him in court.[98]

Accused Gerardo Biong testified that the last time he handled this case was when General Filart announced the case as solved with the presentation of suspects sometime in October 1991. However, he was subpoenaed by the NBI for the taking of his statement because Lauro Vizconde complained that he had stolen jewelries at the Vizconde house. He had sought the examination of latent fingerprints lifted from the crime scene but the suspects turned out negative when tested. He denied the accusation regarding the destruction of evidence as well as missing items during his investigation at the Vizconde residence. The bloodied bed, mats, pillows and bed sheets were burned by people at the funeral parlor as ordered by Mr. Gatmaitan. Among the suspects he had then were Michael Gatchalian, Tony Boy Lejano and Cas Syap. As to the testimony of Birrer that they played “mahjong” on the night of June 29, 1991, he said it was not true because the place was closed on Saturdays and Sundays. After a surveillance on Birrer, he discovered she had in her possession Carmela’s driver’s license and was driving a car already. He denied Birrer’s account that he went to a place after receiving a telephone call at 2:30 in the morning of June 30, 1991. As to Alfaro, he met her for the first time at the NBI on June 23, 1995. His brown jacket was given to him long ago by a couple whose dispute he was able to settle. He only met Webb and Estrada at the NBI. Biong denied the accusations of Birrer, saying that she was angry at him because they separated and he had hit her after he heard about her infidelity. Neither has he seen Alfaro before the filing of this case. He was administratively charged before the Philippine National Police (PNP) for Grave Misconduct due to non-preservation of evidence. He was offered by the NBI to turn state witness but he declined as he found it difficult to involve his co-accused whom he does not really know.[99]

Biong admitted that Birrer went along with him, Galvan and Capt. Bartolome to the Vizconde residence in the morning of June 30, 1991. Upon arriving at the Vizconde house, he looked for the victims’ relatives and the homeowners’ association president; Atty. Lopez and Mrs. Mia came. In going inside the house, they passed through the kitchen door which was open already. On top of the kitchen table, there was a lady’s bag with things scattered; he later inspected them but did not think of examining the bag or taking note of the calling cards and other items for possible relevance to the investigation. Upon entering the master’s bedroom, he saw the bloodied bodies. Mrs. Vizconde’s hands were hogtied from behind and her mouth gagged while Jennifer’s body was also bloodied. Carmela who was lying on a floor carpet was likewise gagged, her hands hogtied from behind and her legs spread out, her clothes raised up and a pillow case was placed on top of her private part. He had the bodies photographed and prepared a spot report.[100]

Biong also admitted that before the pictures were taken, he removed with his bare hands the object, which was like a stocking cloth, that was wrapped around Carmela’s mouth and neck. As to the main door glass, it was the upper part which he broke. There was a red jewelry box they saw where a pearl necklace inside could be seen; he remembered he had it photographed but he had not seen those pictures. They left the Vizconde house and brought the cadavers to the funeral parlor. He did not take steps to preserve the bloodied carpet, bed sheets and blankets because they have been previously told by NBI that no evidence can be found on such items. As for the footprint and shoe print found on the hood of the car and at the back of the house, he also could not recall if he had those photographed. It was only the following day that he brought an employee of the Parañaque police to lift fingerprints from the crime scene; he was the one (1) giving instructions at the time. However, no latent fingerprints had been taken; despite attempts, no clear fingerprint had been lifted and he did not any more ask why.[101]

Biong further admitted that he was so angry with the Vizconde housemaids as he did not believe they did not hear anything despite the loud sound of the breaking of the main door glass. He also admitted mauling Normal E. White, Jr. because he thought he was withholding information during the investigation. Edgar Mendez did not tell him about the entry of a three (3)-vehicle convoy into the subdivision on the night of June 29, 1991. As for Michael Gatchalian, he knows him because on July 3, 1991 at 4:30 a.m., they caught him at Vinzons St. at the entrance of Pitong Daan Subdivision for possession of marijuana. However, he does not know any more what happened to that case he filed against Gatchalian as he was already dismissed from the service.[102] He also admitted having mauled Gatchalian while interrogating him for his participation in the Vizconde killings.[103]

Ruling of the Trial Court

On January 4, 2000, the trial court rendered its Decision[104] finding all the accused guilty as charged, the dispositive portion of which reads:

WHEREFORE, this Court hereby finds all the principal accused GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA. This Court likewise finds the accused Gerardo Biong GUILTY BEYOND REASONABLE DOUBT AS AN ACCESSORY AFTER THE FACT, AND HEREBY SENTENCES HIM TO SUFFER AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY TO TWELVE (12) YEARS. In addition, the Court hereby orders all the accused to jointly and severally pay the victims’ surviving heir, Mr. Lauro Vizconde, the following sums by way of civil indemnity:

1. The amount of P150,000.00 for wrongful death of the victims;

2. The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde;

3. The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde;

4. The amount of P97,404.55 as attorney’s fees;

Let an alias warrant of arrest be issued against the accused Artemio “Dong” Ventura and Joey Filart for their eventual apprehension so that they can immediately be brought to trial.

SO ORDERED.[105]

The trial court found Alfaro as a credible and truthful witness, considering the vast details she disclosed relative to the incident she had witnessed inside the Vizconde house. The trial court noted that Alfaro testified in a categorical, straightforward, spontaneous and frank manner, and has remained consistent in her narration of the events despite a lengthy and grueling cross-examination conducted on her by eight (8) defense lawyers. Neither was her credibility and veracity of her declarations in court affected by the differences and inconsistencies between her April 28, 1995 and May 22, 1995 affidavits, which she had satisfactorily explained during the trial considering the circumstances that she initially desired to protect her former boyfriend Estrada and her relative Gatchalian, the absence of a lawyer during the first taking of her statements by the NBI, her distrust of the first investigators who took her statements and prepared her April 28, 1995 affidavit, and her uncertainty if she could obtain adequate support and security for her own life were she to disclose everything she knows about the Vizconde killings.

On the other hand, the trial court ruled that principal accused Webb, Lejano, Rodriguez and Gatchalian failed to establish their defense of alibi, the accused having been positively identified by Alfaro as the group who conspired and assisted one (1) another in plotting and carrying out on the same night the rape of Carmela, on the occasion of which Carmela’s mother and sister were also stabbed to death. The trial court held that Alfaro gave a clear, positive and convincing testimony which was sufficiently corroborated on its material points by the testimonies of other witnesses and confirmed by the physical evidence on record.

The Court of Appeals Ruling

By Decision of December 15, 2005, the CA affirmed with modification the trial court’s decision:

WHEREFORE, premises considered, the Decision of the Regional Trial Court, Branch 274 of Parañaque City in Criminal Case No. 95-404, finding accused-appellants Hubert “Jeffrey” Webb y Pagaspas, Antonio “Tony Boy” Lejano, Michael Gatchalian y Adviento, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez GUILTY BEYOND REASONABLE DOUBT as principals, and Gerardo Biong as accessory, of the crime of RAPE with HOMICIDE, is AFFIRMED with MODIFICATION, as indicated:

1). We AFFIRM the sentence of accused-appellants Webb. Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez to suffer the penalty of reclusion perpetua and its corresponding accessory penalties under Article 41 of the Revised Penal Code;

2). We MODIFY the penalty of Gerardo Biong who is an accessory to the crime. Accused-appellant Biong is sentenced to an indeterminate prison term of six (6) years of prision correccional, as minimum, to twelve (12) years of prision mayor, as maximum, and absolute perpetual disqualification under Article 58 of the Revised Penal Code; and

3). We MODIFY the civil indemnity. Accused-appellants Webb. Lejano, Gatchalian, Fernandez, Estrada and Rodriguez are ORDERED to pay jointly and severally the surviving heir of the victims, Mr. Lauro Vizconde. the amounts of P200,000.00 as civil indemnity, P762,450.00 as actual damages, P2,000,000.00 as moral damages and P97,404.55 as attorney's fees, with the corresponding subsidiary liability against accused-appellant Biong pursuant to Article 110, paragraph 2 of the Revised Penal Code.

SO ORDERED.[106]

The CA upheld the trial court in giving full weight and credence to the eyewitness testimony of Alfaro which was duly corroborated by other prosecution witnesses who had not been shown to have ill-motive and malicious intent in revealing what they know about the Vizconde killings. It disagreed with the appellants’ view that they were victims of an unjust judgment upon their mere allegations that they were tried by publicity, and that the trial judge was biased whose discriminatory and hostile attitude was demonstrated by her rejection of 132 out of 142 exhibits of the defense during the bail hearings and her refusal to issue subpoenas to prospective defense witnesses such as former Secretary Teofisto Guingona and Antonio Calvento.

The CA also fully concurred with the trial court’s conclusion that all the principal accused failed to establish their defense of alibi after carefully evaluating the voluminous documentary and testimonial evidence presented by the defense. On the issue of conspiracy, the CA found that the prosecution was able to clearly and convincingly establish its presence in the commission of the crime, notwithstanding that appellants Rodriguez, Gatchalian, Estrada and Fernandez did not actually rape Carmela, nor participated in killing her, her mother and sister.

On motion for reconsideration filed by the appellants, the CA’s Special Division of Five, voting 3-2, affirmed the December 15, 2005 Decision.[107] In the Resolution dated January 26, 2007, the majority reiterated that it has fully explained in its Decision why the US-INS Certifications submitted by appellant Webb deserve little weight. It stressed that it is a case of positive identification versus alibi founded on documentary evidence. On the basis of the rule that alibi is accepted only upon the clearest proof that the accused was not and could not have been at the crime scene when it was committed, the CA in resolving the appeal considered the weight of documentary evidence in light of testimonial evidence -- an eyewitness account that the accused was the principal malefactor. As to the issue of apparent inconsistencies between the two (2) affidavits executed by Alfaro, the CA said this is a settled matter, citing the Joint Decision in CA-G.R. SP No. 42285 and CA-G.R. SP No. 42673 entitled “Rodriguez v. Tolentino” and “Webb, et al. v. Tolentino, et al.,” which had long become final.

Appellants’ Arguments

Appellants Webb and Lejano set forth the following arguments in their Supplemental Appeal Brief as grounds for the reversal of the CA Decision and their acquittal in this case:

I

THE EVIDENCE ESTABLISHING APPELLANT WEBB'S ABSENCE FROM PHILIPPINE TERRITORY BETWEEN 9 MARCH 1991 AND 27 OCTOBER 1992 ENGENDERS A REASONABLE DOUBT AND PRECLUDES AN ABIDING CONVICTION, TO A MORAL CERTAINTY, OF HIS GUILT OF THE CRIME CHARGED. THUS, AS CORRECTLY APPRECIATED BY JUSTICES TAGLE AND DACUDAO IN THEIR SEPARATE DISSENTING OPINIONS -

A. THE PASSPORT OF APPELLANT WEBB, AS THE OFFICIAL TRAVEL DOCUMENT ISSUED BY THE PHILIPPINE GOVERNMENT TO HIM, IS STAMPMARKED AND INITIALED WITH THE DEPARTURE DATE OF 9 MARCH 1991 AND ARRIVAL DATE OF 27 OCTOBER 1992, SHOWING THAT HE WAS NOT IN THE PHILIPPINES BUT ABROAD AT THE TIME OF THE COMMISSION OF THE CRIME ON 29 JUNE 1991.

B. THE CERTIFICATIONS AND COMPUTER PRINTOUT ISSUED BY THE UNITED STATES INS NON-IMMIGRANT INFORMATION SYSTEM, WHICH INDICATE EXACTLY THE SAME DEPARTURE AND ARRIVAL DATES OF 9 MARCH 1991 AND 27 OCTOBER 1992, CONFIRM THAT IT WAS PHYSICALLY IMPOSSIBLE FOR APPELLANT WEBB TO HAVE COMMITTED THE CRIME.

C. THE RULING THAT APPELLANT WEBB WAS "SMUGGLED" INTO AND OUT OF THE PHILIPPINES WITHIN 9 MARCH 1991 AND 27 OCTOBER 1992, WITH THE US INS CERTIFICATIONS BEING THE PROBABLE PRODUCT OF “MONEY, POWER, INFLUENCE, OR CONNECTIONS” IS BASED ON PURE SPECULATION AND BIASED CONJECTURE AND NOT ON A CONCLUSION THAT ANY COURT OF LAW SHOULD MAKE.

D. NO LESS THAN THE HONORABLE JUSTICE ANTONIO T. CARPIO TESTIFIED IN OPEN COURT THAT IN THE MORNING OF 29 JUNE 1991, OR BEFORE THE COMMISSION OF THE CRIME, HE HAD AN OVERSEAS CONVERSATION WITH SEN. FREDDIE N. WEBB ON THE LATTER’S PRESENCE IN THE UNITED STATES WITH HIS WIFE AND APPELLANT WEBB.

II

THE DISSENTING JUSTICES CORRECTLY REJECTED JESSICA ALFARO FOR NOT BEING A CREDIBLE WITNESS AND FOR GIVING INCONSISTENT AND UNRELIABLE TESTIMONY.

III

THE COURT OF APPEALS MANIFESTLY ERRED IN DISCARDING EACH AND EVERY PIECE OF THE ACCUSED’S EVIDENCE AND PRACTICALLY REDUCING THE APPEAL BELOW INTO AN EXERCISE OF FINDING GROUNDS TO DOUBT, SUSPECT AND ACCORDINGLY REJECT THE PROOF OFFERED BY THEM IN THEIR DEFENSE INSTEAD OF GIVING DUE WEIGHT AND CONSIDERATION TO EACH IN ORDER TO THOROUGHLY SATISFY ITSELF OF THE “MORAL CERTAINTY” REQUIREMENT IN CRIMINAL CASES.

IV

IN LIGHT OF THE BASIC TENETS UNDERLYING OUR CRIMINAL JUSTICE SYSTEM, WHICH ESCHEW A FINDING OF GUILT UNLESS ESTABLISHED BEYOND REASONABLE DOUBT AND ORDAIN THE RESOLUTION OF ALL DOUBTS IN FAVOR OF THE ACCUSED, THE COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE CONVICTION OF APPELLANT WEBB WHEN THE DEFENSE OF ALIBI HE ESTABLISHED BY OVERWHELMING EVIDENCE IS SUFFICIENT TO ENGENDER REASONABLE DOUBT AS TO HIS GUILT OF THE OFFENSE CHARGED. THE SCALES OUGHT TO HAVE BEEN TILTED IN HIS, AND NOT THE PROSECUTION’S, FAVOR.[108]

Appellant Gatchalian reiterates the arguments he had raised in his appeal brief and motion for reconsideration filed before the CA, as follows:

I

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCREDIBLE TESTIMONY OF SUPPOSED EYEWITNESS JESSICA ALFARO AND CORROBORATING WITNESSES NORMAL WHITE AND JUSTO CABANACAN.

II

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS PROVED THE CONSPIRACY BEYOND REASONABLE DOUBT AND IN CONVICTING HEREIN ACCUSED-APPELLANT BASED ON SUCH CONSPIRACY.

III

THE PROCEEDING BELOW WAS ATTENDED BY IRREGULARITIES SHOWING PARTIALITY ON THE PART OF THE TRIAL JUDGE IN VIOLATION OF HEREIN ACCUSED-APPELLANT’S RIGHT TO DUE PROCESS.

IV

THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN ACCUSED-APPELLANT.

x x x x

I

BY ALL STANDARDS OF FAIRNESS AND JUSTICE, THE TESTIMONY OF JESSICA ALFARO CANNOT BE JUDICIALLY RECOGNIZED.

II

THE CRIMINAL CONNECTION OF MICHAEL GATCHALIAN TO THE GRUESOME VIZCONDE MURDERS HAS NOT EVEN BEEN REMOTELY SHOWN TO SERVE AS A BASIS FOR CONVICTION.

III

IN THE REQUIRED JUDICIAL EVALUATION PROCESS, THE ENVIRONMENTAL CIRCUMSTANCES IN THE RECORD OF THIS CASE POINT UNERRINGLY TO THE INNOCENCE OF MICHAEL GATCHALIAN.

IV

THE RULES ON EVIDENCE ON BURDEN OF PROOF AND OF THE STANDING PRESUMPTIONS IN LAW HAVE BEEN GROSSLY VIOLATED.

V

MICHAEL GATCHALIAN RESPECTFULLY INVOKES HIS CONSTITUTIONAL RIGHT TO DUE PROCESS ON THE GROUNDS OF BIAS AND PREJUDICE, AND FOR ALL THAT IT IS WORTH, HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND A SPEEDY DISPOSITION OF HIS CASE.[109]

Additionally, Gatchalian assails the denial by the trial court of his motion (and also appellant Webb’s) for DNA testing despite a certification from the NBI that the specimen semen remained intact, which Justice Tagle in his dissenting opinion also found as unjust. He further argues that the right to a speedy trial is violated even if the delay was not caused by the prosecution but by events that are not within the control of the prosecution or the courts. Thus, the length of time which took Alfaro to come forward and testify in this case is most conspicuous. Her delay of four (4) years in reporting the crime has to be taken against her, particularly with the story behind it. She volunteered to come forward only after the arrests of previous accused did not lead anywhere. Moreover, it is clear that she adopted the version previously advanced by an “akyat-bahay” gang, as noted by Justice Dacudao in his dissenting opinion. Gatchalian thus contends that the delay occurred even before a preliminary investigation was conducted and cites cases upholding the right of accused persons to a speedy trial where there was delay in the preliminary investigation.[110]

Totality of Evidence Established the

Guilt of Appelants Beyond Reasonable Doubt

Appellants assail the lower courts in giving full faith and credence to the testimonies of the prosecution witnesses, particularly Jessica Alfaro despite inconsistencies and contradictions in her two (2) affidavits, and the alleged “piece by piece discarding” of their voluminous documentary exhibits and testimonies of no less than ninety-five (95) witnesses. They contend that the totality of evidence engenders a reasonable doubt entitling them to acquittal from the grave charge of rape with homicide.

After a thorough and conscientious review of the records, I firmly believe that the CA correctly upheld the conviction of appellants.

Credibility of Prosecution

Witnesses

The determination of the competence and credibility of a witness rests primarily with the trial court, because it has the unique position of observing the witness’ deportment on the stand while testifying.[111] It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings.[112] When the trial court’s findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.[113]

Reexamining the testimony of Alfaro, who underwent exhaustive and intense cross-examination by eight (8) defense lawyers, it is to be noted that she revealed such details and observations which only a person who was actually with the perpetrators could have known. More importantly, her testimony was corroborated on its material points by the declarations of other prosecution witnesses, to wit: [1] that their convoy of three (3) vehicles repeatedly entered the Pitong Daan Subdivision on the night of June 29, 1991 was confirmed by the security guard on duty, Normal White, Jr., who also testified that he had seen Gatchalian and his group standing at the vicinity of the Almogino residence located near the end of Vinzons St., which is consistent with Alfaro’s testimony that on their first trip to the subdivision she parked her car infront of the Vizconde house while appellants parked their respective cars near the dead end of Vinzons St.; [2] that Ventura climbed on the hood of the Nissan Sentra car and loosened the light bulb to turn it off was confirmed by the testimony of Birrer and appellant Biong that they found a shoe print on the hood of the car parked inside the garage of the Vizconde house; even defense witnesses Dennis Almogino (neighbor of the Vizcondes) and SPO2 Reynaldo Carbonnel declared that the garage was totally without light; [3] that a lady’s bag was on top of the dining table in the kitchen was likewise confirmed by Birrer and Biong; [4] that a loud static sound coming from the TV set inside the master’s bedroom which led Alfaro to the said room, matched with the observations of the Vizconde housemaids, Birrer and Biong that when they went inside the Vizconde house in the morning of June 30, 1991, the TV set inside the master’s bedroom was still turned on with a loud sound; [5] the positioning of the dead bodies of Carmela, Estrellita and Jennifer and their physical appearance or condition (hogtied, gagged and bloodied) was correctly described by Alfaro, consistent with the declarations of White, Jr., Birrer and Biong who were among those who first saw the bodies in the morning of June 30, 1991; [6] that Carmela was raped by Webb and how the three (3) women were killed as Alfaro learned from the conversation of the appellants at the BF Executive Village house, was consistent with the findings of Dr. Cabanayan who conducted the autopsy and post-mortem examination of the cadavers in the morning of June 30, 1991 showing that the victims died of multiple stab wounds, the specimen taken from Carmela’s vaginal canal tested positive for spermatozoa and the approximate time of death based on the onset of rigor mortis, which would place it between midnight and 2:00 o’clock in the morning of June 30, 1991; [7] that Webb, just before going out of the gate of the Vizconde house, threw a stone which broke the glass frame of the main door, jibed with the testimony of Birrer who likewise saw a stone near the broken glass panel at the living room of the Vizconde house, and Biong himself testified that he even demonstrated to Capt. Bartolome and the housemaids the loud sound by again hitting the glass of the main door;[114] and [8] that after Webb made a call on his cellular phone, Biong arrived at around 2:00 o’clock in the morning of June 30, 1991 at the BF Executive Village house where she and appellants retreated, was consistent with the testimony of Birrer that Biong left the “mahjong” session to answer a telephone call between 1:00 to 2:00 o’clock in the morning of June 30, 1991 and thereafter Birrer asked where he was going, to which Biong replied “BF” and shortly thereafter a taxicab with a man at the backseat fetched Biong.

Indeed, Alfaro could not have divulged the foregoing details of the crime if she did not really join the group of Webb in going to the Vizconde residence and witness what happened during the time Webb, Lejano and Ventura were inside the house and when the group retreated to BF Executive Village. Contrary to appellants’ contention, Alfaro’s detailed testimony appears clear and convincing, thus giving the Court the impression that she was sincere and credible. She even opened her personal life to public scrutiny by admitting that she was addicted to shabu for sometime and that was how she came to meet Webb’s group and got entangled in the plot to gang-rape Carmela. Her being a former drug user in no way taints her credibility as a witness. The fact that a witness is a person of unchaste character or even a drug dependent does not per se affect her credibility.[115]

Alfaro’s ability to recollect events that occurred four (4) years ago with her mental condition that night of June 29, 1991 when she admittedly took shabu three (3) times and even sniffed cocaine, was likewise questioned by the appellants. When the question was posed to Alfaro on cross-examination, she positively stated that while indeed she had taken shabu at that time, her perception of persons and events around her was not diminished. Her faculties unimpaired by the drugs she had taken that night, Alfaro was able to vividly recall what transpired the whole time she was with appellants. Alfaro testified that even if she was then a regular shabu user, she had not reached that point of being paranoid (“praning”). It was the first time Alfaro sniffed cocaine and she described its initial effect as being “stoned,” but lasting only five (5) to seven (7) minutes. However, she did not fall asleep since shabu and “coke” are not downers.

Alfaro further explained her indifference and apathy in not dissuading Webb and her group from carrying out their evil plan against Carmela as due to the numbing effect of drugs, which also enabled her to dislodge from her mind the harrowing images of the killings for quite sometime. Eventually, the chance to redeem herself came when she was invited to a Christian fellowship, and with her child’s future in mind, her desire to transform her life grew stronger. As she cast off her addiction to drugs, its desensitizing effect began to wear off and her conscience bothered her no end. Under such circumstances, the delay of four (4) years in admitting her involvement in the Vizconde killings cannot be taken against Alfaro. In fact, she had to muster enough courage to finally come out in the open considering that during her last encounter with appellants at a discotheque in 1995, she was threatened by appellant Rodriguez that if she will not keep her mouth shut, she will be killed. He even offered her a plane ticket for her to go abroad. Coming from wealthy and influential families, and capable of barbaric acts she had already seen, appellants instilled such fear in Alfaro that her reluctance to report to the authorities was perfectly understandable.

I find that the circumstances of habitual drug use and delay in reporting a crime did not affect the competence and credibility of prosecution witness Alfaro. It bears stressing that the fact of delay alone does not work against the witnesses. Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of the witness if such delay is satisfactorily explained.[116]

Besides, appellants failed to adduce any evidence to establish any improper motive that may have impelled Alfaro to falsely testify against them, other than their allegation that she regularly associated with NBI agents as one (1) of their informants. The absence of evidence of improper motive on the part of the said witness for the prosecution strongly tends to sustain the conclusion that no such improper motive exists and that her testimony is worthy of full faith and credit.[117] Neither had appellants established any ill-motive on the part of the other prosecution witnesses.

Inconsistencies and Discrepancies in Alfaro’s April 28, 1995 and May 22, 1995 Affidavits

Appellants, from the start of preliminary investigation, have repeatedly harped on the discrepancies and inconsistencies in Alfaro’s first and second affidavits. However, this Court has repeatedly ruled that whenever there is inconsistency between the affidavit and the testimony of a witness in court, the testimony commands greater weight.[118] With greater relevance should this rule apply in situations when a subsequent affidavit of the prosecution witness is intended to amplify and correct inconsistencies with the first affidavit, the discrepancies having been adequately explained. We held in People v. Sanchez[119]

...we advert to that all-too familiar rule that discrepancies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses. Sworn statements/affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiant’s mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits.[120]

Alfaro explained the circumstances surrounding her execution of the first Affidavit dated April 28, 1995 which was done without the presence of a lawyer and at the house of agent Mario Garcia where she was brought by Atty. Sacaguing and Moises Tamayo, another agent of task force Anti-Kidnapping, Hijack and Robbery (AKHAR). The unusual questioning of these men gave her the impression that she was merely being used to boost their career promotion and her distrust was even heightened when they absolutely failed to provide her security. She was aghast upon discovering the completed affidavit which falsely stated that it was made in the presence of her lawyer of choice (Atty. Mercader who was not actually present). Agent Tamayo also incorporated inaccurate or erroneous information indicating that she was a college graduate even if she tried to correct him. Tamayo simply told her to just let it remain in the statement as it would not be noticed anyway.[121] Moreover, on account of her urgent concern for her own security and fear of implicating herself in the case, Alfaro admitted down playing her own participation in her narration (including the circumstance that she had previously met Carmela before the incident) and those of her ex-boyfriend Estrada and her relative, Gatchalian.

Prosecution Evidence Sufficient to Convict Appellants

This Court has consistently held that the rule on the trial court’s appreciation of evidence must bow to the superior rule that the prosecution must prove the guilt of the accused beyond reasonable doubt.  The law presumes an accused innocent, and this presumption must prevail unless overturned by competent and credible proof.[122] Thus, we are tasked to consider two crucial points in sustaining a judgment of conviction: first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecution’s compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.[123]

There appears to be no question about the fact that a horrible and most unfortunate crime has been committed. It is, in this case, indeed a given fact, but next to it is the pivotal issue of whether or not the prosecution has been able to discharge its equal burden in substantiating the identities of accused-appellants as the perpetrators of the crime. As well said often, conviction must rest on the strength of the prosecution’s case and not on the weakness of the defense.

Positive Identification

of Accused-Appellants

Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution.[124] Both the RTC and CA found the eyewitness testimony of Alfaro credible and competent proof that appellants Webb, Lejano, Gatchalian, Fernandez, Rodriguez and Estrada were at the scene of the crime and that Webb raped Carmela as the bloodied bodies of her mother and sister lay on top of the bed inside the master’s bedroom, and right beside it stood Lejano while Ventura was preparing for their escape. At another house in BF Executive Village where the group retreated after leaving the Vizconde house, Alfaro witnessed the blaming session, particularly between Ventura and Webb, and thereupon learned from their conversation that Carmela’s mother and sister were stabbed to death before she herself was killed. Alfaro likewise positively identified appellant Biong, whom somebody from the group described as the driver and bodyguard of the Webb family, as the person ordered by Webb to “clean the Vizconde house.”

The testimony of Alfaro on its material points was corroborated by Birrer, Dr. Cabanayan, White, Jr., Cabanacan and Gaviola. Appellants’ presence at the scene of the crime before, during and after its commission was duly established. Their respective participation, acts and declarations were likewise detailed by Alfaro who was shown to be a credible witness. It is axiomatic that a witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on cross-examination is a credible witness.[125]

A criminal case rises or falls on the strength of the prosecution’s case, not on the weakness of the defense.  Once the prosecution overcomes the presumption of innocence by proving the elements of the crime and the identity of the accused as perpetrator beyond reasonable doubt, the burden of evidence then shifts to the defense which shall then test the strength of the prosecution’s case either by showing that no crime was in fact committed or that the accused could not have committed or did not commit the imputed crime, or at the very least, by casting doubt on the guilt of the accused.[126]

Appellants’ Alibi and Denial

We have held in a  number of cases that alibi is an inherently weak and unreliable defense, for it is easy to fabricate and difficult to disprove.[127] To establish alibi, the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime. Physical impossibility “refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.”[128] Due to its doubtful nature, alibi must be supported by clear and convincing proof.[129]

“Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission of the felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the common notion, alibi is in fact a good defense. But, to be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception. Where there is the least possibility of accused’s presence at the crime scene, the alibi will not hold water. [130] [emphasis supplied.]

The claim of appellant Webb that he could not have committed the crime because he left for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992 was correctly rejected by the RTC and CA. These dates are so distant from the time of the commission of the crime, June 29, 1991 and June 30, 1991, and it would not have been impossible during the interregnum for Webb to travel back to the country and again fly to the US several times considering that the travel time on board an airline from the Philippines to San Francisco, and from San Francisco to the Philippines takes only about twelve (12) to fourteen (14) hours. Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29-30, 1991 and then departed for the US again, and returning to the Philippines in October 1992. There clearly exists, therefore, such possibility of Webb’s presence at the scene of the crime at the time of its commission, and his excuse cannot be deemed airtight.

This Court in People v. Larrañaga[131] had similarly rejected the defense of alibi of an accused, involving a shorter travel distance (Quezon City to Cebu) and even shorter period of time showing the least possibility of an accused’s presence at the time of the commission of the crime (a matter of hours) than in the case at bar (March 9, 1991 to June 29, 1991 which is three [3] months). In denying the motion for reconsideration of accused Larrañaga, we held that accused Larrañaga failed to establish his defense of alibi, which is futile in the face of positive identification:

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

Besides, a thorough examination of the evidence for the prosecution shows that the appellants failed to meet the requirements of alibi, i.e., the requirements of time and place.    They failed to establish by clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997. 

Not even Larrañaga who claimed to be in Quezon City satisfied the required proof of physical impossibility.   During the hearing, it was shown that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are four (4) airline companies plying the route.   One of the defense witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and evening. Indeed, Larrañaga’s presence in Cebu City on July 16, 1997 was proved to be not only a possibility but a reality.    Four (4) witnesses identified Larrañaga as one of the two men talking to Marijoy and Jacqueline on the night of July 16, 1997.    Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larrañaga approach Marijoy and Jacqueline at the West Entry of Ayala Center.  The incident reminded her of Jacqueline’s prior story that he was Marijoy’s admirer.   Shiela confirmed that she knows Larrañaga since she had seen him on five (5) occasions.   Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 o’clock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center.   She recognized the two (2) men as Larrañaga and Josman, having seen them several times at Glicos, a game zone, located across her office at the third level of Ayala Center.  Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie.   In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larrañaga at Tan-awan at about 3:30 in the morning of July 17, 1997.    The latter was leaning against the hood of a white van.   And over and above all, Rusia categorically identified Larrañaga as one of the participes criminis.[132] [emphasis supplied]

In the light of relevant precedents, I find no reversible error committed by the RTC in refusing to give credence to appellant Webb’s argument that he could not have committed the crime of rape with homicide because he was still in the US on June 29 and 30, 1991. The RTC thus correctly ruled:

Granting for the sake of argument that the claim of departure for the United States of the accused Webb on March 9, 1991 and his arrival in the Philippines on October 26, 1992 had been duly established by the defense, it cannot prove that he remained in the United States during the intervening period. During the long span of time between March, 1991 to October, 1992, 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.

It must be noted that the accused Webb is a scion of a rich, influential, and politically powerful family with the financial capacity to travel back and forth from the Philippines to the United States. He could very well afford the price of a plane ticket to free him from all sorts of trouble. Since there are numerous airlines plying the route from Manila to the United States, it cannot be said that there was lack of available means to transport. Moreover, the lapse of more than three (3) months from the time the accused Webb left the Philippines for the United States on March 9, 1991 to June 29 and 30, 1991 when the crime was committed is more than enough time for the accused Webb to have made several trips from the United States to the Philippines and back. The Court takes judicial notice of the fact that it only requires the short period of approximately eighteen (18) hours to reach the Philippines from the United States, with the advent of modern travel.

It must likewise be noted that the father of the accused Webb, besides being rich and influential, was at that time in 1991, the Congressman of Parañaque and later became a Senator of the Republic of the Philippines. Thus, the Webb money and connections were at the disposal of the accused Webb, and it is worthy of belief that the accused Webb could have departed and entered the country without any traces whatsoever of his having done so. In fact, defense witness Andrea Domingo, former Commissioner of the Bureau of Immigration and Deportation testified on the practice of “human smuggling” at the Ninoy Aquino International Airport.

On this point, the Supreme Court has declared in a case that even the lapse of the short period of one (1) week was sufficient for an accused to go to one place, to go to another place to commit a crime, and then return to his point of origin. The principal factor considered by the Supreme Court in denying the defense of alibi in People vs. Jamero (24 SCRA 206) was the availability to the accused of the means by which to commit a crime elsewhere and then return to his refuge. x x x[133] [emphasis supplied]

There is likewise no merit in appellant Webb’s contention that the CA misappreciated his voluminous documentary evidence and numerous witnesses who testified on his stay in the US. The CA, after a meticulous and painstaking reevaluation of Webb’s documentary and testimonial evidence, sustained the RTC’s conclusion that these pieces of evidence were either inadmissible, incompetent or irrelevant. I quote with approval the CA’s findings which are well-supported by the evidence on record:

(a) U.S. INS Certifications

x x x x

The Court seriously doubts that evidentiary weight could be ascribed to the August 31, 1995 and October 13, 1995 Certifications of the U.S. INS and computer print-out of the Nonimmigrant Information System (NIIS) which allegedly established Webb’s entry to and exit from the United States. This is due to the fallibility demonstrated by the US INS with regard to the certifications which the said office issued regarding the basic information under its direct control and custody.

It is to be remembered that as part of his evidence, Webb presented the explanation of one Steven P. Bucher, Acting Chief of Records Services Branch of the U.S. INS, who admitted that the U.S. INS had previously reported on August 10, 1995, erroneously, that it had no record of the arrival and departure of Webb to and from the United States. The said office later on admitted that it failed to exhaustively study all information available to it. We are not convinced with this explanation. It is to be noted that the U.S. INS is an agency well known for its stringent criteria and rigid procedure in handling documents relating to one’s travel into and out of its territory. Such being the case, it would therefore be hard to imagine that the said agency would issue a certification that it had no record of a person’s entry into and exit from the United States without first conducting an efficient verification of its records.

We do not also believe that a second search could give rise to a different conclusion, considering that there is no showing that the records searched were different from those viewed in the first search. The later certifications issued by the U.S. INS modifying its first certification and which was issued only a few weeks earlier, come across as a strained effort by Webb at establishing his presence in the United States in order to reinforce his flimsy alibi.

It is not amiss to note that a reading of the first Certificate of Non-existence of Record (Exhibit “212-D”) subscribed by Debora A. Farmer of the U.S. INS would show that the U.S. INS had made a “diligent” search, and found no record of admission into the United States of Webb. The search allegedly included an inquiry into the automated and non-automated records systems of the U.S. INS. Be it also noted that the basis of the U.S. INS second certification (Exhibit “218”) was a printout coming also from automated information systems.

As pointed out by the Office of the Solicitor General in its appeal brief, “how it became possible for the U.S. INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on accused-appellant Webb when the said port of entry had no such record was never sufficiently addressed by the defense.”

It is with this view that the Court recognizes little if not nil probative value in the second certification of the U.S. INS.

x x x x

(b) Passenger Manifest of United Airlines Flight

The purported passenger manifest for the United Airlines flight that allegedly conveyed accused-appellant Webb for the United States, was not identified by the United Airlines personnel who actually prepared and completed the same. Instead, the defense presented Dulcisimo Daluz, the supervisor of customer services of United Airlines in Manila, who had no hand in the actual preparation or safekeeping of the said passenger manifest. It must be stressed that to satisfactorily prove the due execution of a private document, the testimony of the witness with regard to the execution of the said document must be positive. Such being the case, his testimony thereto is at most hearsay and therefore not worthy of any credit.

Likewise, we note that the said passenger manifest produced in court is a mere photocopy and the same did not comply with the strict procedural requirement of the airline company, that is, all the checking agents who were on duty on March 9, 1991 must sign or initial the passenger manifest. This further lessens the credibility of the said document.

(c) United Airline Ticket

...the alleged United Airline ticket of accused-appellant Webb offered in evidence is a mere photocopy of an alleged original, which was never presented below. Other than the submission that the original could no longer be produced in evidence, there is no other proof that there ever was an original airline ticket in the name of Webb. This does not satisfy the requirements set forth under Section 5 of Rule 130. x x x we find that the photocopy presented in evidence has little if no probative value. Even assuming there was such an original ticket in existence, the same is hardly of any weight, in the absence of clear proof that the same was indeed used by accused-appellant Webb to go to the United States.

(d) Philippine passport

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 regards 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.

(e) Video footage of accused-appellant Webb’s parents in Disneyland and Yosemite Park.

The video footage serendipitously taken by Victor Yap allegedly of Senator Webb and his family while on vacation at Disneyland in Anaheim, California on July 3, 1991 does little to support the alibi of accused-appellant Webb for it is quite interesting to note that nowhere did accused-appellant Webb appear in this footage. None of the people shown in the film was identified as the accused-appellant Webb. Moreover, the records disclose that just before the segment of the film that showed Senator Webb, there was a gap or portion of static that appeared which did not appear in any other portion of the footage. We find that this supports the conclusion that the videotape was possibly tampered as an additional support to the alibi of accused-appellant that he was in the United States.

x x x x

(f) Video footage at Lake Tahoe and the del Toro-Manlapit Wedding

...the video footage showing accused-appellant Webb seemingly on holiday at Lake Tahoe with the Wheelocks, to our mind does not disprove that Webb was in the country at the time of the Vizconde killing. Firstly, the date being shown intermittently in the footage was not the same or near the date of the Vizconde killing. As we have earlier stated, we do not discount the possibility that Webb was in the Philippines during the time he was supposed to have been in the United States, especially, when there are eyewitnesses who testified to the effect that Webb was in the Philippines only a couple of weeks before the killing and who also testified of Webb’s participation in the crime. In any case, we take judicial notice that modern electronic and photographic advances could offer a means to splice or modify recorded images to configure to a desired impression, including the insertion or annotation of numeric figures on a recorded image.

Likewise, the videotape and photographs taken on Alex del Toro’s wedding also fail to convince, as this was allegedly taken on October 10, 1992 well after the fateful days of June 29 and 30, 1991.

(g) Photograph of Webb and Christopher Esguerra before the Dee Lite Concert

The photograph of accused-appellant Webb with Esguerra allegedly taken in late April 1991 before they went to a band concert has little probative value. It must be pointed out that the image in the picture itself does not depict the date or place it was taken, or of any Dee Lite concert allegedly attended by Webb. Likewise, we observed that the photograph appears to have been trimmed down from a bigger size, possibly to remove the date printed therein. It is also to be noted that Esguerra admitted that the inscription appearing at the back of the photograph of, “Hubert and I before the Dee Lite Concert, April 1991” was only written by him in 1995, after it was given to him by accused-appellant’s mother, Elizabeth, before he took the witness stand. The Court cannot therefore but cast suspicion as to its authenticity.

(h) Webb’s Driver’s License

We agree with the trial court's observation that the Driver’s License allegedly obtained by accused-appellant from the California Department of Motor Vehicle sometime in the first week of June 1991 is unworthy of credit, because of the inconsistencies in Webb’s testimony as to how he obtained the same. In one testimony, Webb claimed he did not make an application but just walked in the licensing office and he did not submit any photograph relative to his application. In a later testimony, he claimed that he submitted an ID picture for his driver’s license, and that the picture appearing on his driver’s license was the very same picture he submitted together with his application for the driver’s license. These are two inconsistent testimonies on the same subject matter, which render the said driver’s license and the alleged date when the same was obtained, unworthy of credit.

(i) Logbook of Alex del Toro and Check Payments of Webb’s salary

The employment records of accused-appellant, which include the alleged logbook of del Toro in his pest control business, and check payments to Webb were also offered to support the latter’s alleged presence in the United States on the dates near the day of the Vizconde killings. A review of the logbook shows that the same is unworthy of any evidentiary weight. The entries where the accused Webb were indicated to have performed work for del Toro, showed that the name of Webb (“Hubie”/”U.B.”) was merely superimposed on the actual entries and could have been easily fabricated to create the impression that Webb had some participation in the business of del Toro, and therefore, are not reliable proofs of Webb’s presence and occupation in the United States around the time of the Vizconde killing.

The alleged check payments of Webb’s salary are also unreliable. The check dated June 13, 1991 was made payable to “Cash”, while the other check which appeared to be payable to “Hubert Webb” was however dated only July 10, 1991. Neither of the said checks squarely placed accused-appellant Webb in the United States at the time of the Vizconde killings. Simply put, neither check is therefore clear proof to support Webb’s alibi.

(j) Bicycle/Sportscar

The Toyota MR2 sportscar and Cannondale bicycle allegedly purchased by accused-appellant Webb and his father in the United States appear to have been purchased with great haste, and under suspicious circumstances.

Consider that immediately after the accused-appellant’s father, former Senator Freddie Webb, arrived in the United States, the first thing he did was go out with his friend Honesto Aragon and accused-appellant to look for a bicycle and a car to be used by the latter in going to and from work. The car was bought sometime in early July 1991 and the bicycle sometime on June 30, 1991. It is a wonder to this Court that the accused-appellant and his father would buy a bicycle and a sportscar at practically the same time to provide the accused-appellant transportation to his work. Would not just a car or a bicycle do for him? Also, the hurried purchase of the car right after the arrival of Freddie Webb appears at the very least, suspicious, as a prospective car-buyer would understandably want to make a canvas first for the best car to buy, and not just to purchase the first car he sees.

Moreover, as aptly observed by the trial court, though it was made clear that the purpose of purchasing the said bicycle and car was for accused-appellant’s convenience in going to and from his work -- we find, that this contradicts the other evidence presented by accused-appellant because it appears from his evidence that other than his brief stint in del Toro’s pest control company business and his employment as a gasoline station attendant which incidentally was not sufficiently proven, all that accused-appellant did in the United States was to go sightseeing, shopping and meet with family and friends.

Lastly, the fact that the car and the bicycle were allegedly purchased in close proximity to the date of the rape and killing of the Vizconde women does little to dissuade the perception that the car and bicycle were purchased only for the purpose of providing a plausible defense of alibi for Webb.

(k) Letters to Jennifer Claire Cabrera

Cabrera, a friend and neighbor of accused-appellant in BF Homes, Parañaque, produced four (4) letters allegedly written and sent to her by Webb while he was in the United States, in order to support the accused-appellant’s alibi. These were allegedly the only letters sent by Webb to her.

The letters were allegedly written and posted at around the same time the Vizconde rape and killing happened, such that, if the letters were to be duly considered, they would place Webb in the United States at the same time the June 30, 1991 killings occurred; thus, bolstering Webb’s defense of alibi.

However, the said letters, to our mind, are not convincing proof of alibi, inasmuch said letters were produced only in 1995 at the time she gave a statement, and the same time Webb was charged. However, Cabrera admitted that she knew Webb was being involved or accused in the Vizconde killings as early as 1991 and that she was shocked upon learning that he was being implicated therein.

The Court finds it incredible that despite being shocked in 1991, about the involvement of her friend, accused-appellant in the Vizconde rape-slay, Cabrera would wait until 1995 to “produce” the letters that could have cleared her friend’s name. An interregnum of four years before coming out with valuable proof in support of a friend is to our mind, a telling factor on the credibility of the alleged letters.

Also, the impression that may be inferred from reading the letters was one of a man who was pining away for his ladylove. Webb was quite expressive with his feelings when he wrote that he missed Cabrera, “a lot,” yet after only four letters that was conveniently written sometime in June 1991, he thereafter stopped writing letters to Cabrera as if the whole matter was already forgotten. It is highly suspicious therefore that the only letters of accused-appellant Webb to Cabrera were written and sent at the exact opportune time that the Vizconde killings occurred which conveniently supplied a basis for his defense of alibi.

Moreover, from the contents of the letters, we can deduce that there was some sort of romantic relationship with the accused-appellant Webb and Cabrera. In fact, Webb in his letters referred to Cabrera as his “sweetheart” and “dearest”, and confessed to her that all he thinks about was her, and he was hoping he would dream of her at night. It is not improbable, therefore, that Cabrera could have prevaricated herself to save her friend.

In sum, accused-appellant tried vainly to establish his defense of alibi with the presentation of not only a substantial volume of documentary evidence but also testimonies of an overwhelming number of witnesses which were comprised mostly of relatives and family friends who obviously wanted him to be exonerated of the crime charged. It is for this reason that we regard their testimonies with an eye of suspicion for it is but natural, although morally unfair, for a close relative or friend to give weight to blood ties and close relationship in times of dire needs especially when a criminal case is involved.[134] [emphasis supplied]

The rule is well-entrenched in this jurisdiction that in determining the value and credibility of evidence, witnesses are to be weighed, not numbered. The testimony of only one witness, if credible and positive, is sufficient to convict.[135] As to appellant Webb’s voluminous documentary evidence, both the RTC and CA judiciously examined each exhibit and concluded that these do not pass the test of admissibility and materiality insofar as proving the physical impossibility of his presence at the Vizconde residence on June 29, 1991 until the early morning of June 30, 1991.

Appellant Webb cites the opposite view taken by Justices Tagle and Dacudao in their dissenting opinions and urges this Court to accord the US INS certification and other documents relative to his arrival and departure in the US on the dates March 9, 1991 and October 26, 1992, respectively, the presumption of regularity being official documents issued by US authorities. Justices Tagle and Dacudao concurred in stating that the conclusion of their three (3) colleagues (majority) that the US INS certifications did not exclude the possibility of Webb traveling back to the Philippines and again departing for the US between March 9, 1991 and October 26, 1992 -- is nothing but speculation and conjecture. Webb further mentions that since a Justice of this Court “confirmed appellant Webb’s alibi of being in the United States on 29 June 1991[,] [a]t the very least, such exculpatory testimony coupled with the plethora of appellant Webb’s other documentary and testimonial evidence on his presence in the United States on 29 June 1991 raises reasonable doubt as to appellant Webb’s guilt of the crime charged.”[136]

I find the contentions bereft of merit.

In the first place, let it be emphasized that Justice Carpio’s testimony before the trial court confirmed merely the fact that his conversation with then Congressman Webb took place on June 29, 1991 and what the latter relayed to him about his location at the time such telephone call was made, who was with him in the US (his wife and appellant Webb) and the purpose of their US trip (to find a job for appellant Webb). Said witness even admitted that he had no personal knowledge that appellant Webb was in fact in the United States at the time of his telephone conversation with Congressman Webb.[137]

As to the travel documents consisting of his US passport, US INS certifications and other evidence presented by appellant Webb in support of his alibi, while it is true that such presentation of passport, plane ticket and other travel documents can serve as proof that he was indeed out of the country at the time of the Vizconde killings,[138] it must still be shown that the evidence is clear and convincing, and the totality of such evidence constitutes an airtight excuse as to exclude the least possibility of his presence at the crime scene. However, appellant Webb failed in this regard and the RTC and CA did not err in giving scant weight to his arsenal of evidence, particularly so on the strength of the positive identification of appellant Webb as Carmela’s rapist and one of those who actually took part in the brutal killing of Carmela, her mother and sister between midnight of June 29, 1991 and early morning of June 30, 1991.

Indeed, alibi cannot be sustained where it is not only without credible corroboration, but also where it does not, on its face, demonstrate the physical impossibility of the accused’s presence at the place and time of the commission of the crime.[139] Against positive evidence, alibi becomes most unsatisfactory. Alibi cannot prevail over the positive identification of a credible witness.[140] Appellant Webb was placed at the crime scene by Alfaro who positively identified him as the one (1) who plotted and committed the rape of Carmela, and later fatally stabbed her, her mother and sister, aided by or in concert with Lejano and Ventura. Gaviola and Cabanacan gave corroborating testimonies that appellant Webb was here in the country, as he was just in his house at BF Homes Subdivision Phase III, at least a few weeks prior to and on June 29 to 30, 1991.

Verily, it is only when the identification of the accused as the author of the crime charged is inconclusive or unreliable that alibi assumes importance. Such is not the situation in the case at bar where the identification of the perpetrators by a lone eyewitness satisfied the moral certainty standard.

It is the prosecution’s burden to prove the guilt of the accused beyond reasonable doubt. Definitely, “reasonable doubt” is not mere guesswork whether or not the accused is guilty, but such uncertainty that “a reasonable man may entertain after a fair review and consideration of the evidence.” Reasonable doubt is present when --

after the entire comparison and consideration of all the evidences, leaves the minds of the [judges] in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.[141]

That reasonable doubt is not engendered by the presentation of certifications of entry into and exit from the US, passport with stamp marks of departure and declarations of witnesses who are mostly relatives and friends of appellant Webb, can be gleaned from the fact that passports and plane tickets indicating dates of arrival and departure do not necessarily prove that the very same person actually took the flight. This Court takes judicial notice of reported irregularities and tampering of passports in the years prior to the recent issuance by the DFA of machine-readable passports. In fact, the proliferation of photo-substituted passports, fake immigration stamps, assumed identity and double passports, among others, have been cited as grounds to justify the necessity of amending the Philippine Passport Act of 1996 (R.A. No. 8239) as proposed in the Senate, “x x x to rally for the issuance of passports using tamper proof and the latest data encryption technology; and provide stiffer penalties against proliferators of fake passports.”[142]

It is worthy of note I note that the original of Webb's passport was not offered in evidence and made part of the records, which only gives credence to the prosecution’s allegation that it bore signs of tampering and irregularities. And as earlier mentioned, the much vaunted US-INS second certification dated August 31, 1995 based on a mere computer print-out from the Non-immigrant Information System (Exhibit “213-1-D”) retrieved from the US- INS Archives in Washington, and the accompanying certifications, have little probative value, the truth of their contents had not been testified to by the persons who issued the same. Moreover, the issuance of this certification only a couple of weeks after the August 10, 1995 US-INS Office in San Francisco was issued, only raised questions as to its accuracy. Said earlier certification through Debora A. Farmer stated that:

[a]fter diligent search no record is found to exist in the records of the Immigration and Naturalization Service. The search included a review of the Service automated and nonautomated records system; there is no evidence of any lawful admission to the United States as an immigrant, or as a nonimmigrant, relating to Hubert P. Webb, born November 7, 1968, in the Philippines. The records searched are current as of July 1, 1995 for the immigrants and nonimmigrants.[143] [emphasis supplied]

The above finding was relayed by Thomas Schiltgen, District Director of the Immigration and Naturalization Service, San Francisco to Ms. Teresita V. Marzan, Consul General of the Philippines:

SUBJECT: WEBB, HUBERT

RE: Hubert Jeffrey Webb

Dear Requester:

YOUR REQUEST WAS RECEIVED BY THIS OFFICE ON 07/10/95.

WE HAVE COMPLETED OUR SEARCH FOR RECORDS RESPONSIVE TO YOUR REQUEST BUT DID NOT LOCATE ANY. IF YOU STILL BELIEVE THAT WE HAVE RECORDS WITHIN THE SCOPE OF YOUR REQUEST, AND CAN PROVIDE US WITH ADDITIONAL INFORMATION, WE WILL CONDUCT ANOTHER SEARCH. IF YOU ELECT TO REQUEST ANOTHER SEARCH, WE RECOMMEND THAT YOU NOT FOLLOW THE APPEALS PROCEDURE DESCRIBED BELOW UNTIL WE HAVE COMPLETED THAT SEARCH.

YOU MAY APPEAL THE FINDING IN THIS MATTER BY WRITING TO THE OFFICE OF INFORMATION AND PRIVACY, UNITED STATES DEPARTMENT OF JUSTICE, SUITE 570, 1310 G. STREET, N.W., FLAG BUILDING, WASHINGTON D.C., 20530 WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS LETTER. YOUR LETTER SHOULD REFERENCE THE INS CONTROL NUMBER ABOVE AND THE LETTER AND THE ENVELOPE SHOULD BE CLEARLY MARKED FOIA/PA APPEAL.

SINCERELY,

(SGD.) DISTRICT DIRECTOR[144] [emphasis supplied]

To show that the August 10, 1995 US-INS Certification was erroneous, appellant Webb presented the Memorandum addressed to Secretary Domingo L. Siazon signed by Consul Leo M. Herrera-Lim, the Diplomatic Note dated October 30, 1995 and the letter of Debora Farmer stating that the San Francisco certification was erroneous.[145] The prosecution, however, presented another document which indicated that an appeal to the U.S. Department of Justice, Office of Information and Privacy yielded a negative result on any record on file that one (1) Hubert Webb arrived in the United States on March 9, 1991, and further that Richard L. Huff, Co-Director of the Office of Information and Privacy had in effect sustained as correct the US-INS San Francisco report that there is no such data on Hubert Webb in the San Francisco database so that the Philippine Embassy in Washington, D.C. should instead ask the assistance of other U.S. government agencies in their search for data on appellant Webb.[146]

The defense endeavored to explain why the US-INS Archives in Washington could have made the “mistake” of stating that it had no data or information on the alleged entry of appellant Webb on March 9, 1991 and his exit on October 26, 1992. However, it had not satisfactorily addressed the nagging question of how it became possible for the US-INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on appellant Webb when the said port of entry had no such record. Considering that many visitors (nonimmigrants) are admittedly not entered into the NIIS database, and that diligent search already yielded a negative response on appellant Webb’s entry into the US on March 9, 1991 as per the August 10, 1995 Certification, as to what US government agency the alleged computer-generated print-out in the August 31, 1995 certification actually came from remains unclear.

Appellant Webb’s reliance on the presumption of regularity of official functions, stressing the fact that the US-INS certifications are official documents, is misplaced. The presumption leaned on is disputable and can be overcome by evidence to the contrary.[147] In this case, the existence of an earlier negative report on the NIIS record on file concerning the entry of appellant Webb into and his exit from the US on March 9, 1991 and October 26, 1992, respectively, had raised serious doubt on the veracity and accuracy of the subsequently issued second certification dated August 31, 1995 which is based merely on a computer print-out of his alleged entry on March 9, 1991 and departure on October 26, 1992.

As to the testimony of former Foreign Affairs Secretary Domingo L. Siazon, the same cannot be given due credence since he is incompetent to testify on the contents of the August 31, 1995 US-INS Certification, having merely received the said document in his capacity as the head of the Department of Foreign Affairs of the Philippines. Consul Leo M. Herrera-Lim’s testimony likewise did not carry much weight considering that its significance is confined to the fact that the document from the US-INS was transmitted and received by the DFA. It is to be noted that the certification issued by the Philippine Embassy with respect to the US-INS Certifications contained a disclaimer, specifically stating that the Embassy assumed no responsibility for the contents of the annexed document.[148] The same observations regarding the “consularized certifications” was reflected in the Decision dated April 16, 1998 in CA-G.R. SP No. 42285 (“Miguel Rodriguez v. Amelita Tolentino”) and CA-G.R. SP No. 42673 (“Hubert P. Webb v. Amelita Tolentino”).[149]

Appellant Webb’s travel documents and other supposed paper trail of his stay in the US are unreliable proof of his absence in the Philippines at the time of the commission of the crime charged. The non-submission in evidence of his original passport, which was not formally offered and made part of the records, had deprived the RTC, CA and this Court the opportunity to examine the same. Such original is a crucial piece of evidence which unfortunately was placed beyond judicial scrutiny.

IWe quote the following observations made by the prosecution on Webb’s passport from the appeal brief of the OSG:

In tandem with the presentation of the various U.S. INS certifications to bolster appellant Webb’s story of a U.S. sojourn before, during and after the commission of the offense charged, he further anchors his defense on his passport (Exh. AAAAAA and 294) ostensibly to show, among others, that the grant by the United States government granted him a visa effective from April 6, 1989 to April 6, 1994 and the U.S. Immigration in San Francisco stampmarked it on March 9, 1991 (Exh. AAAAAA-6) on page 30 thereof (Exh. AAAAAA-2 and 294-D).

On its face, what the entries in the passport plainly suggest is that appellant Webb violated U.S. immigration laws by “overstaying” beyond the usual six-(6) month period allowed for tourists. However, he being the son of a Senator would not unnecessarily violate U.S. immigration laws. It would be quite easy for him to apply for and secure an extension of his authorized stay in the U.S., if only he requested. But why did not he or his parents secure the extension? Why was there no evidence to show that he ever requested an extension? Did he really overstay in the U.S. or could he simply enter and leave the U.S. and the Philippines without marking his passport? These raise serious questions on the integrity of the passport.

Is appellant Webb really untouchable that even U.S. authorities in various states would let him get “off the hook” without much of a fuss after his alleged brushes with the law (TSN - Hubert Webb dated September 10, 1997, p. 82)? This is especially incredible considering that he was allegedly apprehended in the United States near the U.S. border (Ibid., pp. 82-83) where authorities are always on the look out for illegal aliens.

The questions involving appellant Webb’s passport are not limited to the stamp marks (or lack of stamp marks) therein. There are unusual things about his passport which he has been unable to explain satisfactorily.

The passport of her mother, Elizabeth Webb, for example, appears to be well preserved despite having been used more frequently than that of appellant Webb who supposedly used it in only one trip abroad. Not only do some of the pages appear smudged or untidy, but more significantly, the perforations on the passport pages indicating the serial number of appellant Webb’s passport no longer fit exactly on the pages -- that is, they are no longer aligned. The perforations are intended not only to indicate the serial number of the passport but more importantly to countercheck intercalations and tampering. The “non-alignment” of the perforations is thus significant.

In addition to the over-all shabby appearance of appellant Webb’s passport, what is evident is the torn plastic portion of the dorsal page thereof near the holder’s signature. There is also the matter of the marked difference in the signatures of appellant Webb as appearing on the dorsal side of the passport (Exh. AAAAAA-3 and 294-A-1) as compared with that appearing on his laminated photograph (Exh. AAAAAA-5 and 294-C-1). Of course, he tried to offer an explanation on the variance in the two (2) signatures. All he could reason out, however, was that he wrote his name using his normal penmanship when in a lazy mood (TSN -- Hubert Webb dated August 14, 1997, p. 27), implying that the signature appearing on his laminated photograph is his real signature. A review of his other documentary evidence supposedly bearing his signature shows that what appears therein is his name written in his “normal penmanship,” and that it is only in the laminated picture (Exh. AAAAAA-5 and 294-C) that such “real signature” appears. Following appellant Webb’s explanation, it means that he was in a lazy mood all the time![150]

Two (2) more documents presented by appellant Webb deserve a close look -- his US Driver’s License supposedly issued on June 14, 1991, and the Passenger Manifest. The RTC’s evaluation of said documents revealed their lack of probative value, thus:

On August 14, 1997, [Webb] testified that he did not make any application since the procedure in California provides for a walk-in system, that he did not submit any photograph relative to his application for a Californian Driver’s License, inasmuch as a photograph of him was taken, and that, his driver’s license was issued sometime on the first week of June, 1991. On the other hand, on September 1, 1997, the accused suddenly and completely changed his testimony while still on direct examination. He claims that the picture appearing on the driver’s license was the very same he submitted together with his application for the driver’s license. Thus, the discrepancy as to the source of the photograph (Exhibit “334-E”) between the testimony given on August 14, 1997 where the accused Webb said that the California Department of Motor Vehicle took his picture, and the testimony given on September 1, 1997 where he said that he submitted it to the California DMV as an attachment to his supposed driver’s license application renders the accused Webb’s testimony as unbelievable and unworthy of credence.

It is beyond belief that the same picture submitted by the accused Webb became the picture in the driver’s license allegedly issued on June 14, 1991. Moreover, it is contrary to human nature and experience, aside from the fact that it is likewise contrary to the procedure described by the accused Webb in obtaining a driver’s license in the State of California. Since a driver’s license is one of the principal means of identification in the United States as well as in the Philippines, to allow the applicants to produce their own pictures would surely defeat the purpose in requiring them to appear before the Department of Motor Vehicle, that is, to ensure the integrity and genuineness of the driver’s license.

The Court takes note that the accused Webb, in his fervent desire to exculpate himself from criminal liability, earlier offered in evidence the letter dated January 10, 1992 of Mr. Robert L. Heafner, Legal Attache of the Embassy of the United States to the then Director of the National Bureau of Investigation, Alfredo S. Lim, (Exhibit “61”) which stated in very clear terms that the accused Webb’s California Driver’s License Number A8818707 was issued on August 9, 1991. Furthermore, the said letter states the listed address of the accused Webb at the time of the issuance of the driver’s license was 532 So. Avenida Faro Ave., Anaheim, California 92807. The said listed address of the accused Webb at the time his driver’s license was issued has demolished the testimony of the defense witness Sonia Rodriguez that the accused Webb was supposed to be already living with the Rodriguez family in Longwood, Florida by the first week of August, 1991.

The accused Webb likewise offered in evidence the official communication coming from the Federal Bureau of Investigation dated December 31, 1991 (Exhibit “MMM” and submarkings; Exhibit “66-C” and submarkings) which likewise gave the information that the accused Webb was issued California Driver’s License No. 8818707 on August 9, 1991, and that as of August 9, 1991, the address of the accused Webb was 532 South Avenida Faro, Anaheim, California 92807. The fact that the alleged Driver’s License No. A8818707 was issued on two (2) different dates (August 9, 1991 and June 14, 1991) casts a serious doubt on its provenance and authenticity.

x x x x

In order to establish that the accused Hubert Webb departed from the Philippines on 09 March 1991 on board UA flight 808 the defense also presented witness Dulcisimo Daluz, Station Manager of United Airlines for Manila who in turn presented a document purporting to be the Passenger Manifest for the flight departing on 09 March 1991 (Exhibits “233-A” to “233-N”).

This document merits outright rejection considering that the defense witness Daluz confirmed that the same was prepared by the UA departure area personnel and not by himself. Thus, this document is merely hearsay and is devoid of any merit whatsoever.

In respect of the plane ticket of the accused Hubert Webb, what was likewise offered as part of the testimony of Daluz was a mere photo copy, wherein Daluz also admitted not having any direct participation in its preparation.

The spurious nature of the document was observed by the witness Daluz himself who admitted that there were irregularities in the Passenger Manifest presented by the defense. According to Daluz, it is a strict procedural requirement that all the checking agents who were on duty on March 9, 1991 were supposed to initial the Passenger Manifest, However, he admitted that Exhibits “223” and “223-N” did not contain the initials of the checking agents who were supposed to initial the same.

The defense presented Agnes Tabuena, Vice-President for Finance and Administration of the Philippine Airlines for the purpose of establishing that Hubert Webb arrived in the Philippines only on 26 October 1992.

Like witnesses Daluz and Nolasco, Tabuena’s statements on the witness stand and the Certification was based exclusively on the Passenger Manifest of PAL’s PR 103. Unfortunately for the defense, the said testimony is of no probative value and of doubtful veracity considering that the witness did not prepare the same, nor did the witness identify the persons who prepared the same other than that they were “airport staff”, nor did she had any idea when the document was transmitted to her office. In fact, the witness could not even interpret the contents of the said Passenger Manifest, much more testify as to the due execution and genuineness thereof.

In view of the vital necessity to the other accused of establishing accused Webb’s alibi, it is important to note that Atty. Francisco Gatchalian, father of the accused Michael Gatchalian was then a high ranking PAL Official and a colleague of Tabuena. This makes the source of the document, even ignoring the fact of its inadmissibility, suspicious.[151] [emphasis supplied.]

The alibi of appellants Gatchalian and Lejano, who claimed they were at the Syap residence at Ayala Alabang Village watching video tapes the whole night of June 29, 1991 until early morning of June 30, 1991, was even less plausible considering the distance of that place from Pitong Daan Subdivision, which is just a few minutes ride away. The RTC noted the manifestation of the defense on Andrew Syap’s refusal to testify on Gatchalian and Lejano’s whereabouts during the night in question, despite their efforts to convince him to do so. It further noted the testimony of Assistant NBI Director Pedro Rivera that Carlos Syap upon seeing Gatchalian with their group even berated Gatchalian for dragging him into his (Gatchalian’s) own problem. Aside from Alfaro, security guard Normal White, Jr. also testified that the presence of Gatchalian (son of a homeowner), who pointed to the other appellants in the two (2) cars behind him as his companions, was the reason they allowed his friends to enter the subdivision on the night of June 29, 1991. White, Jr. also categorically declared he had, earlier that same night, seen Gatchalian with his friends standing at Vinzons St. Thus, other than the hearsay declaration of his father who merely testified on what his son told him about spending the night watching video tapes at the Syap residence on June 29, 1991, Gatchalian presented no corroborative evidence of his alibi.

As to appellant Lejano, he was positively identified by Alfaro as the first to express approval of Webb’s plan to gang-rape Carmela by saying, “Ako ang susunod.” Lejano was also with Alfaro, Webb and Ventura in going inside the Vizconde house, and whom she later saw inside the master’s bedroom, at the foot of the bed where the bloodied bodies of Estrellita and Jennifer lay, and just standing there about to wear his jacket while Webb was pumping the hogtied and gagged Carmela on the floor. His alibi is likewise feeble, as he could have easily gone to the Vizconde house within a few minutes from the Syap residence where he and Gatchalian allegedly watched video tapes.

Appellant Fernandez, on his part, insisted that Alfaro’s story was simply fabricated by her “hidden mentors” who considered the sworn statement of Roberto D. Barroso taken on November 4, 1991. Barroso was one (1) of the members of the “Akyat Bahay” gang who were earlier charged before the Makati City RTC in Criminal Case Nos. 91-7135-37 for Rape with Homicide and for Robbery with Homicide in connection with the Vizconde killings. There is an uncanny congruence in the details of the incident as testified to by Alfaro, with the sworn statement of Barroso particularly pertaining to the manner by which the garage light of the Vizconde house was put out, the smashing of the glass panel of the main door, and the appearance of a woman who opened the main door saying “Sino kayo?”[152]

Such submissions are inane, in view of the dismissal of those cases filed against the first set of suspects based on lack of evidence. Contrary to Fernandez’s insinuation of a fabricated eyewitness account, Alfaro gave much more minute details than the limited narration given by Barroso. More important, Alfaro’s testimony was sufficiently corroborated on its material points, not only by the physical evidence, but also by the testimonies of four (4) disinterested witnesses for the prosecution: White, Jr., Cabanacan, Gaviola and Birrer.

Fernandez also cited as among the reasons why Alfaro’s declarations were far from positive, the non-recovery of the fatal weapons used in the killings. He contended that a crucial link in the prosecution’s physical evidence was thus missing, as Alfaro could not even say what was the “object” or “thing” which she saw thrown out of the Nissan Patrol while the group was on their way to the BF Executive Village. Hence, her suggestion that what she saw Ventura took from the kitchen drawer may have been kitchen knives used to kill the victims must fail.[153]

Such proposition fails to persuade. The failure to present the murder weapon will not exculpate the accused from criminal liability. The presentation and identification of the weapon used are not indispensable to prove the guilt of the accused, much more so where the perpetrator has been positively identified by a credible witness.[154]

Appellant Rodriguez denies being a conspirator with Webb’s group in the commission of the crime, asserting that his presence and participation in the Vizconde killings, from the time of its inception up to its consummation, was not established beyond reasonable doubt. He cites the failure of Alfaro to mention his name as part of the “group” twice in her testimony. These instances refer to Alfaro’s direct examination when she was asked to name the persons riding the convoy of three (3) vehicles when they left Ayala Alabang Commercial Center parking lot to proceed to the Vizconde residence at Pitong Daan Subdivision,[155] and the second time when she was asked to enumerate the members of the “group” who were waiting along Aguirre Avenue during their second trip to the Vizconde residence.[156] Thus, when Alfaro testified that the rest of the group acted as lookouts while she, Webb, Lejano and Ventura went inside the Vizconde house, it must be understood as limited only to those she had previously enumerated, which definitely did not include Rodriguez.[157]

The argument is untenable. The mere fact that Alfaro missed out naming Rodriguez in two (2) instances during her direct examination does not give rise to the conclusion that he was not positively identified by Alfaro as among those present and participated prior to, during and after the commission of the crime as lookouts along with the rest of the group. Contrary to Rodriguez’s claim, the first time that Alfaro referred to and enumerated the members of the “group” which she had unexpectedly joined that night, was at the beginning of her narration on how she met Ventura’s friends when she got her order of shabu at the Ayala Alabang Commercial Center parking lot.

Q. And you said that Dong Ventura introduced you to this group, will you name the group that was introduced to you by Dong Ventura?

A. First, he introduced me to Hubert Webb, then Fyke Fernandez, Miguel Rodriguez, and then Tonyboy Lejano, Michael Gatchalian.[158]

Alfaro was again asked to enumerate the members of the “group” when the prosecution asked her to name the members of the group, in the later part of her direct examination during the same hearing.[159] She also testified that after everyone, including Rodriguez, took part in a shabu session, they left the parking lot.[160] It thus logically follows that whenever Alfaro made reference to the “group” in her entire narration, it necessarily included those she had enumerated she had met and had a shabu session with at the Ayala Alabang Commercial Center parking lot. This same group was with her from their first trip to the Vizconde residence until the time they left Pitong Daan Subdivision and retreated to a house at BF Executive Village early morning of June 30, 1991. Alfaro had specifically mentioned Rodriguez when asked by Prosecutor Zuño to describe their relative positions at the lawn area of the BF Executive Village house, thus establishing his presence during the “blaming session”:

A. x x x kalat kami, sir, pero hindi kami magkakalayo x x x

x x x x

Q. How about Miguel Rodriguez, how far was he from Hubert?

A. Two meters away.

x x x x

A. Mike is very very near Ging Rodriguez.[161]

It must be stressed that Alfaro categorically declared it was Rodriguez who approached her at Faces Disco on March 30, 1995 and told her to shut up or she would be killed. Aside from making that threat, Rodriguez also offered Alfaro a plane ticket so she could leave the country.[162] Rodriguez’s bare denial cannot be given any evidentiary weight. We have ruled that denial is a self-serving negative evidence that cannot be given greater weight than the declaration of a credible witness who testified on affirmative matters.[163]

Rodriguez’s attempt to set up an alibi through the testimony of his cousin Mark Rualo was equally frail. Even assuming as true Rualo’s testimony that he had indeed invited Rodriguez to attend his birthday party on June 29, 1991 but Rodriguez opted to stay in his house and even talked to him on the phone when he called Rodriguez to ask why he was not yet at the party, it cannot serve as proof of Rodriguez’s whereabouts at the time of the commission of the crime. It did not rule out the actual presence of Rodriguez at the crime scene.

Appellant Estrada, just like Rodriguez and Fernandez, did not take the witness stand and simply relied on the alibi defense of his co-accused, principally that of Webb. Alfaro testified that it was Estrada, then her boyfriend, who was together with her in her car throughout the night of June 29, 1991 until early morning of June 30, 1991. Estrada was among those who acted as lookouts outside the Vizconde house after they all concurred in the plan of Webb to gang-rape Carmela while they were still at the parking lot of the Ayala Alabang Commercial Center.

Conspiracy among appellants duly proven

The existence of conspiracy between appellants Webb, Ventura, Lejano, Gatchalian, Fernandez, Rodriguez and Filart was satisfactorily proven by the prosecution. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.  Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to actually pursue it.  It may be proved by direct or circumstantial evidence.[164] Although only one (1) rape was actually proven by the prosecution, as conspirators who mutually agreed to commit the crime and assisted one (1) another in its commission, on the occasion of which the rape victim Carmela, her mother Estrellita and sister Jennifer, were killed, each of the accused-appellants shall be criminally liable for rape with homicide.

Indeed, appellants by their individual acts, taken as a whole, showed that they were acting in unison and cooperation to achieve the same unlawful objective, even if it was only Webb, Ventura and Lejano who actually went inside the Vizconde house while Estrada, Fernandez, Rodriguez, Gatchalian and Filart stood as lookouts outside the house. Under these premises, it is not even necessary to pinpoint the precise participation of each of the accused-appellants, the act of one being the act of all.[165]

One who participates in the material execution of the crime by standing guard or lending moral support to the actual perpetrators thereof is criminally responsible to the same extent as the latter. There being conspiracy among the accused-appellants, they are liable as co-principals regardless of the manner and extent of their participation.[166]

Biong guilty as accessory after the fact

Appellant Biong contends that he cannot be convicted as accessory to the crime of rape with homicide because the acts imputed to him did not result in the hiding of the case. There was no evidence that such indeed was his intent or motive. He points out that the bodies of the victims were found at their respective places where they were assaulted and there was no evidence that they had been moved an inch from where they breathed their last. He asserts that non-preservation of the evidence is not an accessory crime under the Revised Penal Code.[167]

The contentions have no merit.

The Revised Penal Code in Article 19 defines an accessory as one who has knowledge of the commission of the crime, yet did not take part in its commission as principal or accomplice, but took part in it subsequent to its commission by any of three modes:  (1) profiting himself or assisting the offender to profit by the effects of the crime;  (2) concealing or destroying the body of  the crime, or the effects or instruments thereof in order to prevent its discovery;  and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.[168]

Under paragraph 3 of Article 19 of the Revised Penal Code, as amended, there are two (2) classes of accessories, one of which is a public officer who harbors, conceals or assists in the escape of the principal.  Such public officer must have acted with abuse of his public functions, and the crime committed by the principal is any crime, provided it is not a light felony.  Appellant Biong is one (1) such public officer, and he abused his public function when, instead of immediately arresting the perpetrators of the crime, he acceded to the bidding of appellant Webb to “clean the Vizconde house,” which means he must help hide any possible trace or sign linking them to the crime, and not necessarily to prevent the discovery of the bodies in such actual condition upon their deaths. Hence, such “cleaning” would include obliterating fingerprints and other identifying marks which appellants Webb, Lejano and Ventura might have left at the scene of the crime.

Contrary to Biong’s assertion, his failure to preserve evidence at the crime scene such as fingerprints on the doors and objects inside the master’s bedroom where the bodies were found, the bloodied floor of the toilet, the actual material used in gagging Carmela and Estrellita, the bloodied blankets and bed sheets, the original condition of the broken glass panel of the main door, the shoe print and foot prints on the car hood and at the back of the house, fingerprints on the light bulb at the garage -- was a form of assistance to help the perpetrators evade apprehension by confusing the investigators in determining initially what happened and the possible suspects. Consequently, Biong’s unlawful taking of the jewelries and Carmela’s ATM card and driver’s license, his act of breaking the larger portion of the main door glass, the washing out of the blood on the toilet floor and permitting the relatives to burn the bloodied bed sheets and blankets -- had in fact misled the authorities in identifying potential suspects. Thus, the police had a difficult time figuring out whether it was robbers who entered the Vizconde house and perpetrated the rape-slay, or drug-crazed addicts on the loose, or other persons having motive against the Vizconde family had exacted revenge, or a brutal sexual assault on Carmela by men who were not strangers to her which also led to the killings.

On the basis of strong evidence of appellant Biong’s effort to destroy crucial physical evidence at the crime scene, I hold that the RTC did not err in convicting him as an accessory to the crime of rape with homicide.

Penalty

The CA was correct in affirming the sentence imposed by the RTC upon each of the accused-appellants Webb, Lejano, Gatchalian, Rodriguez, Fernandez and Estrada. The proper penalty is reclusion perpetua because the imposition of the death penalty under the Revised Penal Code (in Article 335 thereof, as amended by R.A. No. 2632 and R.A. No. 4111, when by reason or on the occasion of rape, a homicide is committed), was prohibited by the Constitution at the time the offense was committed.[169] At any rate, the subsequent passage of R.A. No. 9346 entitled “An Act Prohibiting the Imposition of the Death Penalty in the Philippines,” which was signed into law on June 24, 2006, would have mandated the imposition on accused-appellants the same penalty of reclusion perpetua.

As to the penalty imposed by the CA on appellant Biong as accessory after the fact to the crime of rape with homicide, we find the same proper and in order.

DNA Testing

Appellant Gatchalian reiterates his and appellant Webb’s motion for DNA testing of the semen specimen taken from the vaginal cavity of Carmela during the autopsy conducted by Dr. Cabanayan, which motion was denied by the RTC for lack of available scientific expertise and technology at the time.

With the great advances in forensic science and under pertinent state laws, American courts allow post-conviction DNA testing when its application has strong indications that the result could potentially exonerate the convict. Indeed, even a convicted felon has the right to avail of new technology not available during his trial.

On October 2, 2007, this Court approved the Rule on DNA Evidence[170] which took effect on October 15, 2007.

Pursuant to Section 4 of the Rule, the 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 after due notice and hearing. Such order shall issue upon showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

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

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.[171]

By Resolution dated April 20, 2010, this Court granted appellant Webb’s request to submit for DNA analysis the semen specimen taken from the cadaver of Carmela Vizconde under the custody of the National Bureau of Investigation (NBI). We ordered (1) the NBI to assist the parties in facilitating the submission of the said specimen to the UP-Natural Science and Research Institute (UP-NSRI), Diliman, Quezon City; and (2) the NBI and UP-NSRI to report to this Court within fifteen (15) days from notice regarding compliance with and implementation of the said resolution.

In his Compliance and Manifestation dated April 27, 2010, Atty. Reynaldo O. Esmeralda, NBI Deputy Director for Technical Services, informed this Court that the semen specimen/vaginal smear taken from the cadaver of Carmela Vizconde and all original documents (autopsy and laboratory reports, and photographs) are no longer in the custody of the NBI as these were submitted as evidence to the Regional Trial Court (RTC) of Parañaque City, Branch 274 by then NBI Medico-Legal Chief, Prospero A. Cabanayan, M.D., when the latter testified on direct and cross-examination on January 30, 31, February 1, 5, 6 and 7, 1996. Attached thereto are certified true copies of Laboratory Report No. SN-91-17 (stating positive result for the presence of human spermatozoa), Autopsy Report No. N-91-1665 (with remarks: “Smear for presence of spermatozoa”), copy of the sworn statement of Dr. Cabanayan and certified true copy of the envelope bearing his signed handwritten notation that all original photographs have been submitted as evidence during the aforementioned hearing dates.[172]

On May 11, 2010, the Office of the Solicitor General (OSG) filed a Motion for Reconsideration of our Resolution dated April 20, 2010 on grounds that (a) the DNA testing order was issued in disregard of Section 4 of the Rule on DNA Evidence which requires prior hearing and notice; (b) a determination of propriety of DNA testing at this stage under the present Rule, separate from that filed by Webb before the trial court on October 6, 1997, is necessary as there was no opportunity back then to establish the requisites for a DNA testing order under the Rule which took effect only in 2007; (c) the result of the DNA testing will constitute new evidence, which cannot be received and appreciated for the first time on appeal; and (d) this Court failed to elucidate an exceptional circumstance to justify its decision to consider a question of fact, as this Court itself acknowledged in its April 20, 2010 Resolution that the result of DNA testing is not crucial or indispensable in the determination of appellant Webb’s guilt for the crime charged.[173]

On May 21, 2010, Atty. Roberto Makalintal, Jr., Branch Clerk of RTC Parañaque City, Branch 274, submitted his Comment on The Compliance and Manifestation Dated April 27, 2010 of the NBI stating that: (a) There is no showing of actual receipt by RTC Branch 274 of the specimen/vaginal smear mentioned in Dr. Cabanayan’s affidavit dated April 27, 2010; (b) Based on available records such as the TSN of January 31, 1996 and February 7, 1996 during which Dr. Cabanayan testified, no such specimen/vaginal smear was submitted to RTC Branch 274; (c) The TSN of January 31, 1996 on pages 57, 58 and 69 suggest that marked in evidence as Exhibits “S”, “T” and “U” by then Chief State Prosecutor Jovencito Zuño were only the photographs of the three slides containing the semen specimen; (c) In the hearing of February 7, 1996, Dr. Cabanayan’s last testimony before RTC Branch 274 in this case, he testified that the last time he saw those slides was when he had the photographs thereof taken in 1995 (the first time was when he examined them in 1991), and as far as he knows between 1991 and 1995, those slides were kept in the Pathology Laboratory of the NBI; and (d) The entire records of the cases were already forwarded to this Court a long time ago, including the evidence formally offered by the prosecution and the accused.[174]

Under our Resolution of June 15, 2010, we required the NBI to (a) show proof of the release of the semen specimen to the RTC of Parañaque City, Branch 274 in 1996; and (b) comment on the alleged conflicting representations in its Compliance and Manifestation dated April 27, 2010, both within ten days from notice. However, the NBI has not complied with said directive.

In his Comment on the OSG’s motion for reconsideration, appellant Fernandez argued that when this Court, in the higher interest of justice, relaxed the Rule on DNA Evidence to afford Webb the fullest extent of his constitutional rights, the prosecution was not thereby denied its equally important right to due process. Contrary to the OSG’s claim that this Court immediately granted DNA testing without observing the requisites under Section 4 of the Rule on DNA Evidence, and without due notice and hearing, appellant asserts that the Resolution dated April 20, 2010 clearly defines the parameters of the DNA analysis to be conducted by the UP-NSRI assisted by the NBI. Indeed, there are ample safeguards in the Rule to assure the reliability and acceptability of the results of the DNA testing. Fernandez, however, objected to the statement of the OSG that “in the light of positive identification” of appellant Webb by the principal witness for the prosecution, Jessica Alfaro, the existing circumstances more than warrant the affirmation of Webb’s guilt. Alfaro’s cross-examination exposed her as an “out-and-out perjurer, a bold and intentional liar under oath” and a “fake witness” whose account of the incident is “shot-through with fatal omissions, self-contradictions, inconsistencies and inherent improbabilities.”[175]

Appellant Lejano likewise filed his comment, pointing out that the trial court denied Webb’s motion to direct the NBI to submit semen specimen for DNA analysis on November 25, 1997 only after lengthy exchange of pleadings between the defense and prosecution, the latter having properly opposed said motion. Hence, the People cannot now rightfully claim that there was no notice or hearing on the issue of submitting the semen specimen for DNA analysis. Citing Brady v. Maryland,[176] Lejano contended that the suppression of exculpatory evidence – or evidence that will show reasonable probability that the verdict would have been different had the evidence been disclosed – grossly violates an accused’s right to due process. In this case, the evidence needs only to be subjected to DNA analysis to establish the innocence of appellant Webb, as well as of petitioner and appellant Lejano. It was further asserted that the semen specimen was already existing at the time of the trial, and hence can hardly be considered as “new evidence” and that DNA testing of said semen specimen taken from the victim Carmela Vizconde “has the scientific potential to produce new information that is relevant to the proper resolution of the case” (Sec. 4 (d), Rule on DNA Evidence).[177]

On his part, appellant Webb stressed that there are exceptional circumstances that justify this Court’s order to immediately conduct the DNA analysis. He has been behind bars for more than fifteen (15) years. He has filed a motion for DNA analysis as early as 1997 or thirteen (13) years ago. The result of such test could yield evidence that could acquit him while no damage will be suffered by the prosecution considering that this Court emphasized in its Resolution of April 20, 2010 that the prosecution’s evidences and concerns regarding the proper preservation of evidence in the custody of the NBI would have to be addressed in the light of the requirements laid down by the Rule on DNA Evidence. As to the prosecution’s argument that this Court cannot receive and appreciate “new evidence,” Section 4 of the Rule states that “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”; DNA testing is even available post-conviction (Ibid, Sec. 6). This Court in accordance with proper procedure thus decided to receive DNA evidence in order not to further delay the case, appellants after all, were convicted more than ten (10) years ago in 2000 and have been incarcerated for fifteen (15) years now.

Webb further underscored that where the evidence has not been offered, it is the prosecution who should have the legal custody and responsibility over it.[178] The NBI’s letter dated April 23, 1997 confirmed that the semen specimen was in its custody. The NBI’s repudiation of such fact is belied by the records; the Prosecution’s Formal Offer of Evidence shows that Exhibits “S”, “T” and “U” were merely photographs of the slides containing the vaginal smear. Also, nowhere in the transcript of stenographic notes taken during Dr. Cabanayan’s testimony was it shown that he turned over the actual slides to the trial court. On the contrary, when Dr. Cabanayan was asked on February 6, 1996 to produce the slides, which he had promised to bring during the previous hearing, he admitted that he “forgot all about it” when he came to the hearing. Thus, it appears from the record that from the time the semen specimen was taken from Carmela Vizconde’s cadaver, it has always been in the custody of the NBI.[179]

Evidently, the NBI could no longer produce the semen specimen/vaginal smear taken from the cadaver of Carmela Vizconde and consequently DNA analysis of said physical evidence can no longer be done. Hence, this Court set aside the April 20, 2010 resolution and forthwith proceeded to resolve the present appeal on the basis of existing evidence which have been formally offered by the parties and/or made part of the records.

Appellant Webb’s Urgent

Motion To Acquit

With the recall of the order for DNA testing, appellant Webb moved for his acquittal on the ground of violation of his constitutional right to due process by reason of the State’s failure to produce the semen specimen, either through negligence or willful suppression. Webb argues that the loss or suppression by the prosecution of the semen specimen denied him the right to avail of the latest DNA technology and prove his innocence. Citing American jurisprudence (Matter of Dabbs v. Vergari,[180] California v. Trombetta[181] and Brady v. Maryland[182]), Webb contends that in disallowing the DNA examination he had requested, the RTC denied him from presenting a “complete defense” through that “singular piece of evidence that could have definitively established his innocence,” the trial court relying instead on the identification of Jessica Alfaro, a “perjured witness.” The constitutional duty of the prosecution to turn over exculpatory evidence to the accused includes the duty to preserve such evidence.

Webb maintains that the semen specimen extracted from the cadaver of Carmela had exculpatory value, as even NBI’s Dr. Cabanayan testified during the hearing of February 7, 1996, that it was still possible to subject the same to DNA analysis to identify the person to whom the sperm belonged. Thus, a DNA analysis of said semen specimen excluding appellant Webb as the source thereof would disprove the prosecution’s evidence against him. Further, Webb points out that the prosecution considered the presence of spermatozoa on the body of Carmela as evidence that she was raped, offering the photographs of the glass slides containing the sperm cells as proof that she was in fact raped on or about the late evening of June 29, 1991 or early morning of June 30, 1991. But the only evidence of the prosecution that it was Webb who raped Carmela was the testimony of Alfaro which was given full credit by the RTC and CA despite all its inconsistencies, and despite all documentary and testimonial evidence presented by the defense proving that Webb was at the United States at the time the crime was committed.

On the matter of preserving DNA evidence, Webb cites Section 12 of the Rule on DNA Evidence which authorizes the court to order the appropriate government agency to preserve the DNA evidence during trial and even when the accused is already serving sentence, until such time the decision of the court has become final and executory. While this Court has given Webb the best opportunity to prove his innocence in the order granting DNA analysis of the sperm specimen taken from Carmela’s cadaver, such potentially exculpatory evidence could not be produced by the State. Webb now claims that as a result of the destruction or loss of evidence under the NBI’s custody, he was effectively deprived of his right to present a complete defense, in violation of his constitutional right to due process, thus entitling him to an acquittal.

Loss of Semen Specimen

Not Ground For

Acquittal of Webb

Webb’s argument that under the facts of this case and applying the cited rulings from American jurisprudence, he is entitled to acquittal on the ground of violation of his constitutional right to due process,is without merit.

In Brady v. Maryland[183] it was held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In said case, the petitioner was convicted of murder committed in the course of robbery and sentenced to death. He later learned that the prosecution suppressed an extrajudicial confession made by his accomplice who admitted he did the actual killing. The US Supreme Court granted a new trial and remanded the case but only on the question of punishment.

In Matter of Dabbs v. Vergari,[184] the court ordered DNA testing of specimen taken from a rape victim after the sexual assault and from the accused who was convicted, DNA testing being unavailable at the time of the trial. Accused therein was identified by the victim as her attacker. The court found the factual circumstances clearly showed that the semen specimen could have come only from the accused. It noted that the witness testified that accused acted alone, had ejaculated and she did not have sexual intercourse with any other person within 24 hours prior to the sexual assault. DNA testing ultimately revealed that petitioner’s DNA composition did not match with that found on the victim’s underwear. Consequently, the court granted petitioner’s subsequent motions to vacate the judgment of conviction.

In California v. Trombetta,[185] a case involving the prosecution for drunk driving, the US Supreme Court ruled that the Due Process Clause of the Constitution does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the State’s failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents’ breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting “in good faith and in accord with their normal practice.” x x x The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

More importantly, California’s policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.

To meet this standard of constitutional materiality, x x x evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case. [italics supplied.]

From the above cases, it is clear that what is crucial is the requirement of materiality of the semen specimen sought for DNA testing. Appellant Webb must be able to demonstrate a reasonable probability that the DNA sample would prove his innocence. Evidence is material where “there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”[186]

In People v. Yatar,[187] decided before the promulgation of the Rule on DNA Evidence, the Court expounded on the nature of DNA evidence and the factors to be considered in assessing its probative value in the context of scientific and legal developments. The proper judicial approach is founded on the concurrence of relevancy and reliability. Most important, forensic identification though useful does not preclude independent evidence of identification.

DNA is a molecule that encodes the genetic information in all living organisms. 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. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.

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. 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. 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.

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.

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. 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. 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. 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 unchartered 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, 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. 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 of 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 (Exhibits “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, Exhibits “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.[188] [emphasis supplied.]

Indeed, in other jurisdictions it has been recognized that DNA test results are not always exculpatory.

Postconviction test results are not always exculpatory. In addition, exculpatory test results will not necessarily free the convicted individual. If the evidence does exclude the petitioner, the court must weigh the significance of the exclusion in relation to all the other evidence. Convicted offenders often believe that if crime scene evidence does not contain their DNA they will automatically be exonerated. Not finding the petitioner’s DNA does not automatically indicate the case should be overturned, however. In a rape case, for example, the perpetrator may have worn a condom, or not ejaculated. In some cases, the absence of evidence is not necessarily evidence of the defendant’s absence or lack of involvement in the crime.[189]

We hold that the source of the semen extracted from the vaginal cavity of the deceased victim is immaterial in determining Webb’s guilt. From the totality of the evidence presented by both the prosecution and the defense, Webb was positively identified as Carmela’s rapist.

As the records bear out, the positive identification of appellant Webb as Carmela’s rapist satisfied the test of moral certainty, and the prosecution had equally established beyond reasonable doubt the fact of rape and the unlawful killing of Carmela, Estrellita and Jennifer on the occasion thereof. Even assuming that the DNA analysis of the semen specimen taken from Carmela’s body hours after her death excludes Webb as the source thereof, it will not exonerate him from the crime charged. Alfaro did not testify that Webb had ejaculated or did not use a condom while raping Carmela. She testified that she saw Webb rape Carmela and it was only him she had witnessed to have committed the rape inside the Vizconde residence between late evening of June 29, 1991 and early morning of June 30, 1991. Moreover, she did not testify that Carmela had no sexual relations with any other man at least 24 hours prior to that time. On the other hand, a positive result of DNA examination of the semen specimen extracted by Dr. Cabanayan from Carmela’s cadaver would merely serve as corroborative evidence.

As to the loss of the semen specimen in the custody of the NBI, appellant Webb’s contention that this would entitle him to an acquittal on the basis of Brady v. Maryland is misplaced.

In Arizona v. Youngblood,[190] a 10-year old boy was molested and sodomized by the accused, a middle-aged man, for 1½ hours. After the assault, the boy was examined in a hospital where the physician used swab to collect specimen from the boy’s rectum and mouth, but did not examine them at anytime. These samples were refrigerated but the boy’s clothing was not. Accused was identified by the victim in a photographic lineup and was convicted of child molestation, sexual assault and kidnapping. During the trial, expert witnesses had testified that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated the accused. The Court held:

There is no question but that the State complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and the clothing, and the boy’s examination at the hospital. The State provided respondents’ expert with the laboratory reports and notes prepared by the police criminologist, and respondent’s expert had access to the swab and to the clothing.

x x x x

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. x x x We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

In this case, the police collected the rectal swab and clothing on the night of the crime: respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence – such as it was – was made available to respondent’s expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion – and we agree—that there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause. [emphasis supplied.]

In this case, there is no showing of bad faith on the part of the police investigators, specifically the NBI, for the non-production of the vaginal swab and glass slide containing the semen specimen, during the trial and upon our recent order for DNA testing. The prosecution did not conceal at anytime the existence of those vaginal swab and glass slide containing the vaginal smear. Curiously, despite Dr. Cabanayan’s admission during the hearing that it was still possible to subject the semen specimen to DNA analysis, the defense never raised the issue thereafter and resurrected the matter only in October 1997 when Webb’s counsel filed his motion.

It bears to stress that the vaginal smear itself was not formally offered by the prosecution, but only the photographs of the glass slide containing the semen specimen for the purpose only of proving that Carmela was in fact raped and not that Webb was the source of the sperm/semen. As noted by the RTC when it denied Webb’s motion for DNA on November 25, 1997, prevailing jurisprudence stated that DNA being a relatively new science then, has not yet been accorded official recognition by our courts. The RTC also considered the more than six (6) years that have elapsed since the commission of the crime in June 1991, thus the possibility of the specimen having been tampered with or contaminated. Acting on reasonable belief that the proposed DNA examination will not serve the ends of justice but instead lead to complication and confusion of the issues of the case, the trial court properly denied Webb’s request for DNA testing.

We thus reiterate that the vaginal smear confirming the presence of spermatozoa merely corroborated Alfaro’s testimony that Carmela was raped before she was killed. Indeed, the presence or absence of spermatozoa is immaterial in a prosecution for rape. The important consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ.[191] On the other hand, a negative result of DNA examination of the semen specimen could not have exonerated Webb of the crime charged as his identity as a principal in the rape-slay of Carmela was satisfactorily established by the totality of the evidence. A finding that the semen specimen did not match Webb’s DNA does not necessarily negate his presence at the locus criminis.

Civil Liability of Appellants

The Court sustains the award of P100,000.00 as civil indemnity, pursuant to current jurisprudence that in cases of rape with homicide, civil indemnity in the amount of P100,000.00 should be awarded to the heirs of the victim.[192] Civil indemnity is mandatory and granted to the heirs of the victims without need of proof other than the commission of the crime. For the deaths of Estrellita and Jennifer, the award of civil indemnity ex delicto to their heirs, was likewise in order, in the amount of P50,000.00 each.[193] Following People v. Dela Cruz,[194] P75,000.00 civil indemnity and P75,000 moral damages in rape cases are awarded only if they are classified as heinous.[195] As the rape-slay of Carmela took place in 1991, R.A. No. 7659 entitled “AN ACT TO IMPOSE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES,” which was approved on December 13, 1993 and was to become effective fifteen (15) days after its publication in two national newspapers of general circulation, was not yet effective.[196]

As to moral damages, recent jurisprudence allows the amount of P75,000.00 to be awarded in cases of rape with homicide.[197] We find the amount of P2,000,000.00 as moral damages awarded by the RTC as affirmed by the CA, rather excessive. While courts have a wide latitude in ascertaining the proper award for moral damages, the award should not be to such an extent that it inflicts injustice on the accused.[198] The award of P2,000,000.00 as moral damages to the heir of the victims should accordingly be reduced to P500,000.00. The rest of the awards given by the trial court are affirmed.

In view of the foregoing, I respectfully vote that the appeals in the above-entitled cases be DISMISSED and the Decision dated December 15, 2005 of the Court of Appeals in CA-G.R. CR H.C. No. 00336 be AFFIRMED with MODIFICATION only as to the award of damages.

MARTIN S. VILLARAMA, JR.

Associate Justice

---

[1] Penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Regalado E. Maambong and Lucenito N. Tagle (dissented in the resolution of appellants’ motion for reconsideration).

[2] Rollo (G.R. No. 176389), p. 13.

[3] Effective October 15, 2004.

[4] Rollo (G.R. No. 176389), pp. 393-399 and rollo (G.R. No. 176864), pp. 80-104.

[5] Rollo ( G.R. No. 176864), pp. 263-499, 525-550.

[6] Records, Vol. 1, pp. 1-3.

[7] TSN, October 19, 1995, pp. 3-6 (Records, Vol. 5, pp. 37-40); TSN, October 23, 1995, pp. 10-24 (Records, Vol. 5, pp. 258-272).

[8] TSN, October 23, 1995, pp. 6-10 (Records, Vol. 5, pp. 254-258).

[9] TSN, October 10, 1995, pp. 79-81 and 93-99 (Records, Vol. 4, pp. 253-255, 267-273).

[10] TSN, October 18, 1995, pp. 18-19, 27-40, 54 and 62-63 (Records, Vol. 4, pp. 943-944, 953-966, 980 and 988-989); TSN, October 30, 1995, pp. 27-29 (Records, Vols. 5 & 6, pp. 900-902); TSN, November 8, 1995, pp. 91, 114, 117-118 (Records, Vol. 6, pp. 395, 418 and 421-422); TSN, October 16, 1995, pp. 142-143 (Records, Vol. 4, pp. 694-695); Exhibit “A”, Records, Vol. 8, p. 508.

[11] TSN, October 10, 1995, pp. 99-103 (Records, Vol. 4, pp. 273-278).

[12] Pictures of the Vizconde house at Records, Vol. 1, pp. 82-87.

[13] TSN, February 26, 1996, pp. 77-82.

[14] TSN, October 10, 1995, pp. 104-121 and 155 (Records, Vol. 4, pp. 278-295 and 329).

[15] TSN, March 4, 1996, p. 28.

[16] TSN, October 10, 1995, pp. 156-164 (Records, Vol. 4, pp. 330-338).

[17] Id., at p. 165 (339); TSN, October 16, 1995, pp. 33-35 (Records, Vol. 4, pp. 586-588); TSN, October 24, 1995, pp. 98-100 (Records, Vols. 5, 6 & 7, pp. 528-530); TSN, February 29, 1996, pp. 42-64.

[18] TSN, October 10, 1995, pp. 36-53 (Records, Vol. 4, pp. 589-607).

[19] Id., at pp. 40-72, 75-76 (Id., at pp. 593-625, 628 to 628-A); TSN, January 25, 1996, pp. 14-15; TSN, February 26, 1996, pp. 104-106.

[20] TSN, October 10, 1995, pp. 76-97 (Records, Vol. 4, pp. 628-A to 649); May 22, 1995 Affidavit, Records, Vol. l, p. 96.

[21] Id., at pp. 97-104 (Id. at pp. 649-656); TSN, February 19, 1996, pp. 6-39; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.

[22] Id., at pp. 111-112, 121-142 (Id. at pp. 663-664, 673-694); TSN, February 27, 1996, pp. 38, 50-51; TSN, February 8, 1996, pp. 50, 55, 60-81; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.

[23] Exhibits “G” to “G-2”, “Q” to “R”, “V”, “W” and “X”, Records, Vol. 8, pp. 308-310, 323-324, 328-330.

[24] Exhibits “H” to “K”, Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp. 64, 67-91; TSN, January 31, 1996, pp. 7-8.

[25] Exhibit “Y” to “BB”, Records, Vol. 8, pp. 456-459; TSN, January 31, 1996, pp. 59-75.

[26] Exhibits “M” to “U”, Records, Vol. 8, pp. 319-322; TSN, January 31, 1996, pp. 8-10, 13-20.

[27] TSN, January 31, 1996, pp. 7, 17-18 and 74.

[28] TSN, March 25, 1996, pp. 8-14, 17-34.

[29] Id., at pp. 21-22, 34-55; TSN, May 2, 1996, pp. 63-64.

[30] TSN, March 25, 1996, pp. 57-69.

[31] Id., at pp. 70-79.

[32] Id., at pp. 79-109.

[33] TSN, March 14, 1996, pp. 12, 15-25, 41-45, 48, 51-54, 63-64; TSN, March 18, 1996, pp. 88-97.

[34] TSN, March 14, 1996, pp. 79-89, 103-104.

[35] Id., at pp. 104-106; TSN, March 18, 1996, pp. 20-22.

[36] Employment Contract of Gaviola, Exhibit “C”, Records, Vol. 8, p. 304.

[37] TSN, December 5, 1995, pp. 21-65.

[38] TSN, December 6, 1995, p. 19; TSN, December 13, 1995, pp. 88-89.

[39] TSN, April 16, 1996, pp. 18-38, 79.

[40] Id., at pp. 38-56.

[41] Id., at pp. 55-66; TSN, April 23, 1996, pp. 12-13.

[42] TSN, April 16, 1996, pp. 66-86.

[43] Id., at pp. 96-104.

[44] TSN, February 11, 1997, pp. 14-19, 24-28, 31.

[45] Id., at pp. 48-49, 53-72, 82-102; Exhibits “SSSS” and “TTTT”, Records, Vol. 12, pp. 790-795.

[46] Id., at pp. 80-82, 103-105.

[47] See page 4 of CA Decision, rollo (G.R. No. 176389), p. 121.

[48] TSN, August 14, 1997, pp. 11-19^.

[49] TSN, July 8, 1997, pp. 15-23, 61-62; TSN, June 9, 1997, pp. 9-10, 20-26; TSN, July 3, 1997, pp. 9-19; TSN, June 19, 1997, pp. 9-12, 29-36, 53-54; TSN, July 1, 1997, pp. 25-27.

[50] Id., at pp. 28-73.

[51] TSN, September 1, 1997, pp. 5-79; Exhibits “223” to “295”, Records, Vol. 21, pp. 11-25, 26, 31, 203, 207; Exhibits “79”, “319”, “331”, “234”, “295”, “346”, “305”, “306”, “307” and “244” to “246”.

[52] Id., at pp. 81-86.

[53] Id., at pp. 90-91.

[54] TSN, April 30, 1997, pp. 73-74.

[55] TSN, April 23, 1997, pp. 128-129, 134-148.

[56] TSN, June 2, 1997, pp. 51-64, 75-78.

[57] TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84.

[58] TSN, July 16, 1997, pp. 37-42, 46-51, 58-62.

[59] Id., at pp. 65-70.

[60] TSN, June 26, 1997, pp. 13-28.

[61] TSN, May 9, 1996, pp. 26-32, 37, 44-57.

[62] TSN, July 29, 1997, pp. 54-58.

[63] TSN, July 7, 1997, pp. 19-35.

[64] TSN, July 2, 1997, pp 33-37.

[65] TSN, June 3, 1997, pp. 14-33.

[66] TSN, August 12, 1997, pp. 9-12, 28-30.

[67] Exhibit “331”.

[68] Exhibit “337-B”.

[69] Exhibit “349”, Records, Vol. 21, p. 116 (Vol. 3), 29-32 (Vol. 4).

[70] Exhibit “348”.

[71] Exhibit “319-A”.

[72] Exhibits “323”, “325”, “326”.

[73] Exhibit “344”.

[74] Exhibit “346”.

[75] Exhibit “309”, “309-A” and submarkings.

[76] Exhibit “347” and submarkings.

[77] Exhibit “338”.

[78] Exhibits “341” and “342”, Records, Vol. 21, pp. 6-9, 40, 63-65, 112, 140, 141-145 (Vol. 3).

[79] Exhibits “369” and “364”, Records, Vol. 21, pp. 24, 104-142 (Vol. 4).

[80] Exhibits “207” to”219”.

[81] Exhibit “207-B”.

[82] Exhibit “212-D”, Records, Vol. 21, p. 265 (Vol. 1).

[83] Exhibit “260”.

[84] Exhibit “261”.

[85] Exhibit “262”.

[86] Exhibit “192”, Records, Vol. 21, pp. 253-279 (Vol. 1), 1-7, 157, 158, 169 (Vol. 2), 194 (Vol. 1).

[87] Exhibit “215” “215-B” “215-C”, Records, Vol. 21, pp. 254-256, 272-274 (Vol. 1).

[88] Exhibit “216”; TSN, April 15-17, 1997.

[89] TSN, October 9, 1997, pp. 39-64.

[90] TSN, February 4, 1998, pp. 6-7, 17-30.

[91] TSN, February 9, 1998, pp. 18-19, 21-62.

[92] TSN, January 21, 1998, pp. 14, 39-56.

[93] TSN, February 16, 1998 and February 19, 1998.

[94] TSN, January 22, 1998, pp. 18-21, 40-44.

[95] TSN, January 26, 1998, pp. 91-92, 104-121.

[96] TSN, February 3, 1998, pp. 10-11, 29-42.

[97] TSN, January 14, 1998, pp. 6-7, 9-26, 38-41, 43-47.

[98] TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits “274” and “275”.

[99] TSN, November 12, 1997, pp. 7-8, 17-19, 38-43, 55-72.

[100] TSN, November 17, 1997, pp. 43-73.

[101] Id., at pp. 78-125.

[102] TSN, November 12, 1997, pp. 37-39, 51-52, 91-94.

[103] TSN, November 18, 1997, pp. 37-44.

[104] Records, Vol. 25, pp. 1-171. Penned by Judge Amelita G. Tolentino (now an Associate Justice of the Court of Appeals).

[105] Records, Vol. 25, pp. 170-171.

[106] CA rollo, Vol. IV, pp. 3478-3479.

[107] Justices Renato C. Dacudao and Lucenito N. Tagle dissented. See Dissenting Opinion, CA rollo Vol. IV.

[108] Rollo (G.R. No. 176864), pp. 266-267.

[109] Id., at pp. 356-358.

[110] Id., at pp. 402-404.

[111] People v. Comanda, G.R. No. 175880, July 6, 2007, 526 SCRA 689.

[112] People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828.

[113] People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207.

[114] See photographs, Exhibits “GGGG-1” and “GGGG-4”, Records, Vol. 12, pp. 742-746.

[115] People v. Comiling, G.R. No. 140405, March 4, 1004, 424 SCRA 698, 719, citing Francisco, Evidence, Vol. VII, 1990 ed., p. 743.

[116] People v. Simon, G.R. No. 130531, May 27, 2004, 429 SCRA 330, 352, citing People v. Rostata, G.R. No. 91482, February 9, 1993, 218 SCRA 657.

[117] People v. Zinampan, G.R. No. 126781, September 13, 2000, 340 SCRA 189, 200.

[118] Fukuzume v. People, G.R. No. 143647, November 11, 2005, 474 SCRA 570.

[119] G.R. No. 121039-45, January 25, 1999, 302 SCRA 21.

[120] Id., at p. 50.

[121] TSN, October 17, 1995, pp.12-15, 23, 40-41, 139, 152, 161; TSN, October 18, 1995, p. 180; TSN, July 2, 1996 , pp. 74, 82-86; TSN, July 11, 1996, pp. 43-52.

[122] People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478, 495, citing People v. Quima, No. L-74669, 14 April 1988, 159 SCRA 613 citing People v. Alto, 135 Phil. 136 (1968).

[123] People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 597.

[124] People v. Meneses, G.R. No. 11742, March 26, 1998, 288 SCRA 95, 97, citing People v. Teehankee, Jr., 319 Phil. 128, 179 (1995).

[125] People v. Magallanes, G.R. No. 136299, August 29, 2003, 410 SCRA 183, 197.

[126] People v. Rodrigo, supra at p. 596.

[127] People v. Mosquerra, G.R. No. 129209, August 9, 2001, 362 SCRA 441, 450, citing People v. Batidor, G.R. No. 126027, February 18, 1999, 303 SCRA 335, 350; People v. Realin, G.R. No. 126051, January 21, 1999, 301 SCRA 495, 512; People v. Tulop, G.R. No. 124829, November 21, 1998, 289 SCRA 316, 333.

[128] Id., at p. 450, citing People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46; People v. Reduca, G.R. Nos. 126094-95, January 21, 1999, 301 SCRA 516, 534; and People v. De Labajan, G.R. Nos. 129968-69, October 27, 1999, 317 SCRA 566, 575.

[129] Id., at p. 451, citing People v. Hillado, G.R. No. 122838, May 24, 1999, 307 SCRA 535, 553 and People v. Balmoria, G.R. Nos. 120620-21, March 20, 1998, 287 SCRA 687, 708.

[130] People v. Florentino Bracamonte, G.R. No. 95939, June 17, 1996, as cited in People v. Aňonuevo, G.R. No. 112989, September 18, 1996, 262 SCRA 22, 36.

[131] G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.

[132] En Banc Resolution, July 21, 2005, 463 SCRA 654, 662-664.

[133] Records, Vol. 25, pp. 122-124.

[134] CA rollo, Vol. IV, pp. 3455-3463.

[135] Bastian v. Court of Appeals, G.R. No. 160811, April 14, 2008, citing People v. Benito, G.R. No. 128072, February 19, 1999, 303 SCRA 468; People v. Canada, No. L-63728, September 15, 1986, 144 SCRA 121; People v. Luces, G.R. No. L-60744, November 25, 1983, 125 SCRA 813; People v. Demeterio, No. L-48255, September 10, 1983, 124 SCRA 914; People v. Romero, No. L-38786, December 15, 1982, 119 SCRA 234; and People v. Zabala, 86 Phil. 251 (1950).

[136] Rollo (G.R. No. 176864), pp. 288-299.

[137] TSN, August 12, 1997, pp. 9-12, 28-30.

[138] Vide: People v. Tagun, G.R. No. 137745, February 15, 2002, 377 SCRA 154, 169.

[139] People v. Malones, G.R. No. 124388-90, March 11, 2004, 425 SCRA 318, 339-340, citing People v. Aliposa, G.R. No. 97935, October 23, 1996, 263 SCRA 471.

[140] Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 605.

[141] Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007, 531 SCRA 1, 31, citing People v. Balacano, G.R. No, 127156, July 31, 2000, 336 SCRA 615, 621.

[142] Sourced from Internet -- http://www.pinoymoneytalk.com/forum/index.php?topic=5848.0; See also “Passport-reading Machine Uncovers Fake Documents” by Tina Santos, Philippine Daily Inquirer, first posted 03:29:00 06/15/2008 at website -- http://newsinfo.inquirer.net/breakingnews/nation/view/20080615-142790/Passport-reading-machine-uncovers-fake-documents; “DFA-RP Passport Exposes Filipinos to Discrimination” by Venorica Uy, inquirer.net, Last Updated 07-05pm (Mla time) 03/13/2007 sourced from http://www.pinoymoneytalk.com/forum/index.php?topic=5848.0

[143] Exhibits “YY”, “DDD” and “213-1-D”, Records, Vol. 9, pp. 1142, 1147 and Records, Vol. 26, p. 270.

[144] Exhibits “XX” and “LLL”, Records, Vol. 9, pp. 1141 and 1157.

[145] Exhibits “30”, “33” and “34”, Records, Vol. 9, pp. 708, 711-713.

[146] Cited by reference in Exhibit III, Records, Vol. 9, p. 1154.

You were informed by the San Francisco District Office of the Immigration and Naturalization Service that no records responsive to you request could be located in its file. It has been determined that this response is correct. For your information, the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants. A notation concerning the entry of a visitor may be made in the Nonimmigrant Information System (NIIS), but many visitors are not entered into this system. The NIIS was searched, and no records pertaining to Mr. Webb are found. I am informed by the San Francisco District Office that this matter is still pending in that office and that a formal response to your request will be issued shortly.

It is possible that either the State Department or the United States Customs Service might have information concerning Mr. Webb’s entry into the country. I suggest you write to those agencies to request the information you seek.

[147] Vide: Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 604.

[148] Exhibit “42-M”, Records, Vol. 9, p. 440.

[149] Records, Vols. 24 & 25, pp. 98-109.

[150] CA rollo, Vol. IV, pp. 2684-2687.

[151] Records, Vol. 25, pp. 143-153.

[152] CA rollo, Vol. IV, pp. 3564-3566.

[153] Id., at p. 3564.

[154] People v. Ortiz, G.R. No. 133814, July 17, 2001, 361 SCRA 274, citing People v. Sumaoy, G.R. No. 105961, October 22, 1996, 263 SCRA 460 and People v. Padao, G.R. No. 104400, January 28, 1997, 267 SCRA 64.

[155] TSN, October 10, 1995, pp. 97-98

[156] Id., at pp. 129-131.

[157] CA rollo, Vol. IV, pp. 3542-3550.

[158] TSN, October 10, 1995, p. 81.

[159] Id., at p. 88.

[160] Id., at p. 97.

[161] TSN, October 16, 1995, pp. 117-119.

[162] TSN, October 17, 1995, pp. 72-79, 95.

[163] People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324, 335.

[164] Article 8, The Revised Penal Code, as amended; People v. Amodia, G.R. No. 173791, April 7, 2009, 584 SCRA 518, citing People v. Pelopero, G.R. No. 126119, October 15, 2003, 413 SCRA 397, 410.

[165] People v. Lagarto, G.R. Nos. 118828 & 119371, February 29, 2000, 326 SCRA 693, 748, citing People v. Layno, G.R. No. 110833, November 21, 1996, 264 SCRA 558; People v. Sumalpong, G.R. No. 124705, January 20, 1998, 284 SCRA 229; People v. Obello, G.R. No. 108772, January 14, 1998, 284 SCRA 79; People v. Pulusan, G.R. No. 10037, May 21, 1998, 290 SCRA 353; People v. Medina, G.R. No. 127157, July 10, 1998, 292 SCRA 436; and People v. Chua, G.R. No. 121792, October 7, 1998, 297 SCRA 229.

[166] People v. Sicad, G.R. No. 133833, October 15, 2002, 391 SCRA 19, 34, citing People v. Diaz, G.R. No. 110829, April 18, 1997, 271 SCRA 504, 515 and People v. Abordo, G.R. No. 107245, December 17, 1999, 321 SCRA 23, 39 .

[167] CA rollo, Vol. IV, p. 3081.

[168] People v. Antonio, G.R. No. 128900, July 14, 2000, 335 SCRA 646, 677, citing People v. Malvenda, G.R. No. 115351, March 27, 1998, 288 SCRA 225.

[169] People v. Magana, G.R. No. 105673, July 26, 1996, 259 SCRA 381, 402.

[170] A.M. No. 06-11-5-SC.

[171] Id., Sec. 4.

[172] Rollo (G.R. No. 176389), pp. 531-542.

[173] Id., at pp. 543-554.

[174] Id., at pp. 560-563.

[175] Id., at pp. 580-585.

[176] 373 U.S. 83 (1963).

[177] Rollo (G.R. No. 176389), pp. 586-592.

[178] See City Prosecution Office of General Santos City v. Bersales, A.M. No. MTJ-04-1552, June 9, 2004, 431 SCRA 430, 436.

[179] Id., pp.

[180] 149 Misc. 2d 844, 570 N.Y.S. 2d 765 (Sup. Ct. Westchester Co. 1990).

[181] 467 U.S. 479 (1984).

[182] 373 U.S. 83 (1963).

[183] Id.

[184] Supra note 180.

[185] Supra note 181,

[186] Matter of Dabbs v. Vergari, supra.

[187] G.R. No. 150224, May 19, 2004, 428 SCRA 504.

[188] Id., at pp. 514-517.

[189] A Litigator’s Guide to DNA From the Laboratory to the Courtroom by Ron C. Michaelis, Robert G. Flanders, Jr. and Paula H. Wulff, 2008 published by Elsevier Inc., p. 370.

[190] 488 U.S. 51 (1988), 102 L Ed 281, 109 S Ct 333.

[191] People v. Bato, G.R. No. 134939, February 16, 2000, 325 SCRA 671, 678, citing People v. Juntilla, G.R. No. 130604, September 16, 1999, 314 SCRA 568, 583; People v. Sacapaño, G.R. No. 130525, September 3, 1999, 313 SCRA 650, 659; and People v. Manuel, G.R. No. 121539, October 21, 1998, 298 SCRA 184.

[192] People v. Pascual, G.R. No. 172326, January 19, 2009, 576 SCRA 242, 260, citing People v. Sevilleno, G.R. No. 152954, March 10, 2004, 425 SCRA 247, 257.

[193] Nueva España v. People, G.R. No. 163351, June 21, 2005, 460 SCRA 547, 555-556, citing People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.

[194] G.R. No. 166723, August 2, 2007, 529 SCRA 109, 118.

[195] People v. Arellano, G.R. No. 176640, August 22, 2008, 563 SCRA 181, 189.

[196] Id.

[197] People v. Pascual, supra at 260-261.

[198] Nueva España v. People, supra at 558.