SECOND DIVISION

THIRD DIVISION

[G.R. No. 134981. June 18, 2003]

FREDELITO P. VITTO, petitioner, vs. THE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for certiorari[1] seeking to set aside the Resolution dated August 6, 1998 of the Court of Appeals in CA-G.R. CR No. 20245, People of the Philippines vs. Danilo Pajaron, et al., denying petitioner Fredelito P. Vittos Motion For Leave Of Court To File Appellants Brief.

The facts are as follows:

Fredelito Vitto, petitioner, together with Vic O. Pizarro and Danilo P. Pajaron, were charged with homicide under an Information filed with the Regional Trial Court, Branch 117, Pasay City, docketed as Criminal Case No. 94-5749.

After hearing, or on October 23, 1996, the trial court rendered a decision[2] convicting all the accused of homicide and sentencing them to six (6) years, four (4) months and ten (10) days of prision mayor, as minimum, to twelve (12) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.

All the accused interposed an appeal to the Court of Appeals, docketed as CA-G.R. CR No. 20245. Since then, they have remained at large for failure to post bail on appeal.

On November 13, 1997, the Court of Appeals issued a Resolution[3] requiring them to explain why their appeal should not be deemed abandoned in view of their failure to submit themselves to the proper authorities during the pendency of their appeal.

On December 1, 1997, petitioner, through counsel de parte, submitted his explanation stating that he was not aware that he should surrender to the Court of Appeals. His counsel then requested an additional period, or up to December 20, 1997, within which (a) to contact the accused who is in Mindoro and advise him to submit himself to the jurisdiction of the Court of Appeals; and (b) to file the appellants brief.[4]However, petitioner did not present himself to the Appellate Court within the period requested by his counsel. Neither did he file an appellants brief. Thus, on March 31, 1998, the court issued a Resolution[5] dismissing the appeal.

On July 21, 1998, petitioner, through counsel, filed a Motion For Leave Of Court To File Appellants Brief stating that his failure to surrender himself to the authorities and to file the brief within the time requested was because he works in a remote farm in Mindoro and has no sufficient funds to pay for his transportation to Metro Manila.

In a Resolution dated August 6, 1998, the Court of Appeals denied petitioners motion, thus:

As the Resolution of March 31, 1998 dismissing the respective appeals of the accused-appellants had already become final and executory on May 5, 1998 insofar as the accused-appellant Fredelito Vitto is concerned, the Motion for Leave of Court to File Appellants Brief filed by his counsel only on July 21, 1998 is DENIED outright.[6]Hence, this petition.

Petitioner contends that the Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in denying his Motion For Leave Of Court To File Appellants Brief. He thus prays that the application of the Rules of Court be suspended in his favor and that his brief be admitted considering his predicament.

In his comment on the petition, the Solicitor General prayed that the petition be denied for being unmeritorious.

Section 8, Rule 124 of the Revised Rules of Criminal Procedure of 2000 provides:Sec. 8. Dismissal of appeal for abandonment or failure to prosecute. The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio.

The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal. (8a)

In People vs. Potajo,[7] we held that an appeal by the accused is considered abandoned where he fails to properly prosecute his appeal or does some act inconsistent with its prosecution, such as when he refuses to submit himself to the jurisdiction of the authorities.[8]In the present case, the record shows that petitioner, through counsel, asked the Court of Appeals for an extension until December 20, 1997 within which to submit himself before it and to file the appellants brief.[9] However, petitioner failed to comply with his commitment. Such omission is fatal to his appeal.[10] Thus, the Court of Appeals, in its Resolution of March 31, 1998, considered petitioners appeal as having been abandoned and consequently dismissed the same. The Resolution became final and executory on May 5, 1998.[11] As such, the Appellate Court, in its assailed Resolution dated August 6, 1998, correctly denied petitioners subsequent Motion For Leave To File Appellants Brief submitted on July 21, 1998, or more than two (2) months after the finality of the Resolution dismissing the appeal.

While petitioner, who is being represented by a counsel de parte, wants to avail himself of the opportunity to prove his innocence, yet he insolently refused to submit himself to the jurisdiction of the very same Appellate Court from which he is seeking relief. Such actuation cannot be countenanced.

Petitioners claim that he was not aware that he must surrender himself to the court is a flimsy excuse. It bears stressing that he was represented by counsel throughout the trial and while his case was on appeal. Considering that he was facing a serious charge, it was incumbent upon him to inform his lawyer of his whereabouts and to inquire about the status of his case from time to time. In the same manner, his counsel should have exercised the required diligence incumbent upon him to acquaint his client regarding the proceedings in the appellate court.

Indeed, the law cannot protect a party who sleeps on his rights,[12] or does some acts inconsistent with its prosecution.

In sum, we find that the Court of Appeals did not act with grave abuse of discretion in dismissing petitioners appeal.

WHEREFORE, the instant petition is DISMISSED for lack of merit.

SO ORDERED.

Puno, (Chairman), Panganiban, Corona, and Carpio-Morales, JJ., concur.

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 169431

Appellee,

[Formerly G.R. Nos. 149891-92]

Present:

- versus -

QUISUMBING, J., Chairperson, CARPIO,

CARPIO MORALES,

TINGA, and

JERRY RAPEZA y FRANCISCO, VELASCO, JR., JJ.

Appellant.

Promulgated:

April 3, 2007

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

D E C I S I O N

Tinga, J.:

In the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental power.[1] Once again, the Court extends fresh vitality to the rights of a person under custodial investigation, which, beginning with the 1987 Constitution, has been accorded equal but segregate weight as the traditional right against self-incrimination, to tip the scales of justice in favor of the presumption of innocence and the lot of an unlettered confessant.This treats of the appeal from the Decision[2] dated 1 July 2005 of the Court of Appeals affirming the Consolidated Judgment[3] dated 24 July 2001 of the Regional Trial Court (RTC) of Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 where Jerry Rapeza (appellant) was found guilty of two (2) counts of murder and sentenced to the penalty of reclusion perpetua for each count, plus a total of P100,000.00 as indemnity for the heirs of the two (2) victims.

In two (2) separate Informations, appellant, together with Mike Regino, was charged with the murder of the Spouses Cesar Ganzon and Priscilla Libas,[4] with the following accusatory allegations:

Criminal Case No. 13064

That on or about the 21st day of October, [sic] 1995, more or less 4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, with evident premeditation, treachery and abuse of superior strength, with intent to kill and while armed with bladed weapons, did then and there wilfully [sic], unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, PRI[S]CILLA LIBAS, hitting her in the different vital parts of her body and inflicting upon her multiple stab wounds which causes (sic) hypovolemic shock which were (sic) the direct and immediate cause of her instantaneous death.[5]Criminal Case No. 13202

That on or about the 21st day of October, [sic] 1995, more or less 4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, with evident premeditation, treachery and abuse of superior strength, with intent to kill and while armed with bladed weapons, did then and there wilfully, [sic] unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, CESAR GANZON, hitting him in the different vital parts of his body and inflicting upon him multiple stab wounds which causes hypovolemic shock which were the direct and immediate cause of his instantaneous death.[6]As Mike Regino was at large, only appellant was arraigned and he pleaded not guilty. Forthwith, joint trial ensued which resulted in the judgment of guilt against appellant as co-principal for two (2) counts of murder, with conspiracy and evident premeditation attending the commission of the felonies. Both cases were thereafter elevated to this Court on automatic review, but later referred to the Court of Appeals per People v. Mateo.[7] The Court of Appeals affirmed the judgment of guilt.[8]The prosecution had sought to establish the facts and events recited below.

In the afternoon of 21 October 1995, an unidentified woman went to the Culion Municipal Station and reported a killing that had taken place in Sitio Cawa-Cawa, Barangay Osmea, Culion, Palawan.[9] The officer-in-charge, SPO2 Ciriaco Gapas, sent to the victims house which was the scene of the crime an investigating team led by SPO2 Crisanto Cuizon, Jr. and PO2 Isidro Macatangay. There they saw two bloodied bodies, that of a woman lying on the floor of the sala and that of a man inside the bedroom. The investigating team wrapped the bodies in blankets and loaded them in a banca to be brought to the morgue.[10] The victims were later identified as Priscilla Libas and Cesar Ganzon.

The Autopsy Reports[11] show that the common cause of death of both victims was hypovolemic shock secondary to massive bleeding secondary to multiple stab wounds and that both bodies were in the early stages of decomposition. The medico-legal officer testified that Ganzon sustained six (6) wounds on different parts of his body while Libas bore sixteen (16) wounds.[12] All the wounds of the victims were fatal and possibly caused by a sharp instrument.

Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the crimes, SPO2 Gapas set out to look for appellant.[13] He found appellant fishing in Asinan Island and invited the latter for questioning. Appellant expressed his willingness to make a confession in the presence of a lawyer.[14] Appellant was then brought to the police station after which SPO2 Gapas requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality.[15] The typewriter at the police station was out of order at that time and Atty. Reyes could not go to the police station as he was suffering from rheumatism.[16] At the house of Atty. Reyes, in the presence of Vice-Mayor Emiliano Marasigan of Culion, two (2) officials of the Sangguniang Barangay, SPO2 Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the death of Libas and Ganzon.

Per the Sinumpaang Salaysay[17] that appellant executed, he was informed of his constitutional rights in the following manner:x x x x

Tanong:Bago kita kunan ng isang salaysay, ikaw ay mayroong karapatan sa ating Saligang Batas na sumusunod:

a) Na, ikaw ay maaaring hindi sumagot sa tanong na sa iyong akala ay makaka-apekto sa iyong pagkatao;

b) Na, ikaw ay may karapatang pumili ng isang manananggol o abogado na iyong sariling pili;

c) Na, kung ikaw ay walang kakayahan kumuha ng isang ab[u]gado ang Pulisya ang siyang magbibigay sa iyo.

d) Na, ang lahat na iyong sasabihin ay maaaring gawing ebidensya pabor o laban sa iyo.

Sagot: Opo, sir.

Tanong:Nakahanda ka na bang ipag-patuloy ang pagsisiyasat na ito, na ang ating gagamiting salita ay salitang Tagalog, na siyang ginagamit nating [sic]?

Sagot:Opo, sir.

x x x[18]Thereupon, when asked about the subsequent events, appellant made the following narration:

x x x

Tanong:Maari mo bang isalaysay ang pang-yayari [sic]?

Sagot:Opo, [n]oong Sabado ng umaga alas 8:00[,] petsa 21 ng Oktobre, 1995, kami ni Mike ay nagkaroon ng pag-iinuman sa kanilang bahay sa Cawa-Cawa at sinabi sa akin [sic] puntahan naming iyong matanda, dahil may galit daw si Mike sa dalawang matanda [Pris]cilla Libas at Cesar Ganzon) na nakatira din sa Cawa-Cawa at ang layo ay humigit-kumulang isang daang metro sa aming pinag-iinuman at kami ay nakaubos ng labing dalawang bote ng beer, mula umaga hanggang alas kuatro ng hapon at habang kami ay nag-iinom aming pinag-uusapan [sic] ang pagpatay sa dalawang matanda. Noong sinasabi sa akin ni Mike, ako umayaw ngunit ako ay pinilit at sinabihan ko rin siya (Mike) at pinag-tatapon [sic] pa niya ang bote ng beer at may sinabi pa si Mike hindi ka pala marunong tumulong sa akin, pamangkin mo pa naman ako. At ang sagot ko sa kanya, ay maghintay ka, mamayang hapon natin[g] puntahan. At noong humigit-kumulang [sa alas] [sic] kuatro ng hapon, amin ng pinuntahan ang bahay ng mag-asawa, at pagdating namin sa bahay na dala naming [sic] ang patalim, tuloy-tuloy na kaming umakyat, at hinawakan ni Mike ang babae (Presing) at nilaslas na ang leeg at sinaksak ng sinaksak niya sa ibat ibang parte ng katawan at ako ay umakyat din sa bahay at nakita kong nakataob ang lalaki (Cesar)[,] aking hinawakan [sic] ko sa kanyang balikat, at siya ay nakaalam [sic] na mayroong tao sa kanyang likuran, akin nang sinaksak sa kaliwang tagiliran [sic] ng kanyang katawan, at hindi ko na alam ang sumunod na pang-yayari [sic] dahil ako[]y tuliro. At kami ay umalis at tumalon sa likod ng kusina, nang alam na naming [sic] na patay [na] iyong dalawang matanda.

x x x x[19]An interpreter was provided appellant as he was not well versed in Tagalog being a native of Samar. As he is illiterate, appellant affixed only his thumbmark on the statement above his printed name. Bonifacio Abad, the interpreter, and Atty. Reyes, as the assisting counsel, also signed the statement. Atty. Reyes signed again as the notary public who notarized the statement.

Thereafter, a complaint for multiple murder was filed against appellant, and Regino was likewise arrested. Judge Jacinto Manalo of the Municipal Trial Court (MTC) of Culion conducted a preliminary investigation. Finding probable cause only as against appellant, Regino was ordered released.[20] The Provincial Prosecutor, however, reversed the finding of the MTC by including Regino in the Informations, but by then the latter had already left Culion.[21]

Testifying in his defense, appellant presented a different story during the trial. The defense presented no other witness.

Appellant testified that he did not know the victims and that he had nothing to do with their deaths. He was a native of Samar and he did not know how to read or write as he never attended school.[22] He arrived in Culion as a fisherman for the Parabal Fishing Boat.[23] As his contract had already expired, he stayed in Culion to look for work. He lived with Regino as the latter was his only friend in Cawa-Cawa.[24] Reginos house was about 40 meters away from the victims house.

Several days after appellants arrival, the killings took place. Appellant, along with Regino and another man named Benny Macabili, was asked by a police officer to help load the bodies of the victims in a banca. Shortly thereafter, appellant was arrested and brought to the municipal hall where he was mauled by PO2 Macatangay and placed in a small cell.[25] Regino, too, was arrested with him. While under detention, appellant told the police that it was Regino who was responsible for the killing of the victims but the police did not believe appellant. But appellant later testified that he implicated Regino only in retaliation upon learning that the latter pointed to him as the perpetrator.[26] Appellant was then asked by SPO2 Gapas to sign a document so that he will be released. When appellant replied that he did not know how to sign his name, SPO2 Gapas took appellants thumb, dipped it in ink and marked it on the document. [27] Appellant claimed he did not resist because he was afraid of being mauled again.

Appellant further denied going to the house of Atty. Reyes or meeting Abad, the alleged interpreter. He never left the jail from the time he was arrested except to attend the hearing before the MTC.[28] When appellant was brought to the MTC, nobody talked to him during the hearing nor did counsel assist him.[29] He was thereafter brought by a police officer to a hut in a mountain where he was told to go a little bit farther. He refused for fear of being shot. The police officer then got angry and punched him in the stomach.[30]

On the basis of appellants extrajudicial confession, the RTC found him guilty of both crimes. The Court of Appeals upheld the trial court.

Appellant submits for our resolution two issues, namely: (1) whether his guilt was proven beyond reasonable doubt; and (2) whether the qualifying circumstance of evident premeditation was likewise proven beyond reasonable doubt.

Appellant mainly contends that the extrajudicial confession upon which the trial court placed heavy emphasis to find him guilty suffers from constitutional infirmity as it was extracted in violation of the due process guidelines. Specifically, he claims that he affixed his thumbmark through violence and intimidation. He stresses that he was not informed of his rights during the time of his detention when he was already considered a suspect as the police had already received information of his alleged involvement in the crimes. Neither did a competent and independent counsel assist him from the time he was detained until trial began. Assuming Atty. Reyes was indeed designated as counsel to assist appellant for purposes of the custodial investigation, said lawyer, however, was not appellants personal choice.

Appellant likewise maintains that although the Sinumpaang Salaysay states that his rights were read to him, there was no showing that his rights were explained to him in a way that an uneducated person like him could understand. On the assumption that the confession is admissible, appellant asserts that the qualifying circumstance of evident premeditation was not amply proven as the trial court merely relied on his alleged confession without presenting any other proof that the determination to commit the crime was the result of meditation, calculation, reflection or persistent attempt.

The Solicitor General, on the other hand, contends that the constitutional guidelines on custodial investigation were observed. Hence, appellants Sinumpaang Salaysay is admissible. Even if appellant was not informed of his constitutional rights at the time of his alleged detention, that would not be relevant, the government counsel argues, since custodial investigation began only when the investigators started to elicit information from him which took place at the time he was brought to the house of Atty. Reyes. Moreover, appellant did not interpose any objection to having Atty. Reyes as his counsel. As to the qualifying circumstance of evident premeditation, the Solicitor General submits that the same was sufficiently proven when accused proceeded to the victims house together with Regino, armed with bladed weapons, in order to consummate their criminal design. He further argues that appellants defense of denial and his lame excuse of being illiterate must be rejected in the face of a valid voluntary extrajudicial confession.

The fundamental issue in this case is whether appellants extrajudicial confession is admissible in evidence to warrant the verdict of guilt.

There is no direct evidence of appellants guilt except for the alleged confession and the corpus delicti. Upon careful examination of the alleged confession and the testimony of the witnesses, we hold that the alleged confession is inadmissible and must perforce be discarded.A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the limits imposed by the 1987 Constitution.[31] Sec. 12, Art. III thereof states in part, to wit:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

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

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

x x x x

Republic Act No. 7438,[32] approved on 15 May 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read:

SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers.

a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel.

x x x x

f. As used in this Act, custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the inviting officer for any violation of law.If the extrajudicial confession satisfies these constitutional standards, it must further be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement,[33] since, to repeat, Sec. 12(2), Art. III of the Constitution explicitly provides:

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

Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessants choice; 3) the confession must be express; and 4) the confession must be in writing.[34]If all the foregoing requisites are met, the confession constitutes evidence of a high order because it is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless prompted by truth and conscience.[35] Otherwise, it is disregarded in accordance with the cold objectivity of the exclusionary rule.[36] The latter situation obtains in the instant case for several reasons. Appellant was not informed of

his constitutional rights in

custodial investigation.

A person under custodial investigation essentially has the right to remain silent and to have competent and independent counsel preferably of his own choice and the Constitution requires that he be informed of such rights. The raison d' etre for this requirement was amply explained in People v. Ayson[37] where this Court held, to wit:

x x x x

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights."

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The situation contemplated has also been more precisely described by this Court.

x x x After a person is arrested and his custodial investigation begins[,] a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance.

x x x x[38]We note that appellant did not voluntarily surrender to the police but was invited by SPO2 Gapas to the police station. There he was detained from 11 oclock in the morning of 22 October 1995 up to the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this juncture, appellant should have been informed of his constitutional rights as he was already considered a suspect, contrary to the finding of the trial court that the mandatory constitutional guidelines only attached when the investigators started to propound questions to appellant on 23 October 1995 in the house of Atty. Reyes.[39] In People v. Dueas, Jr.,[40] we ruled, to wit:

Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect. According to PO3 Palmero, right after appellants arrest, the latter already insinuated to him that he would confess his participation in the killing. As he testified on cross-examination:

QOn December 18, 1996, when you arrested him what did he actually told [sic] you?

ABefore we put him in jail at the Baler Police Station he told us that he has [sic] to reveal something about the death of Elvira Jacob.

QSo you already know [sic] that on December 18, 1996 that whatever Catalino Duenas will reveal to you will give you lead in solving the investigation in connection with the death of Elvira Jacob, isnt it?

AYes, sir.

QSo, you still waited until December 23, 1996 for that revelation, isnt it?

AYes, sir. Thats all, your honor.[41]

In the case at bar, SPO2 Gapas testified:

QBy the way, when you conducted the investigation in the house of Atty. Reyes in Culion, why was Jerry Rapeza there?

AI invited Jerry Rapeza and upon my invitation he voluntarily came to me.

QIn the first place, why did you invite him?

ATo ask [a] question about the crime committed in the Island of Cawa-Cawa.

x x x

QThat was the only reason why you invited him, being a transient in that place you made him a suspect?

AIn the first place[,] Your Honor, he was not a suspect but 2 days after the commission of the crime a certain person came to me and said that Jerry Rapeza requested that he will give his confession but in front of a lawyer, so he said: Puntahan nating [sic] ang isang taong nagngangalang Jerry Rapeza.

x x x

QAnd based on your experienced [sic], would it not be quite strange that a person who committed a crime would voluntarily give confession because ordinarily a criminals [sic] will find a way to escape?

AYes, sir. [B]ut at that time the person who assisted me strongly believed that Jerry Rapeza would confess so I did not make any tanong-tanong in order to solve that crime so I proceeded to that place and talked to the suspect.

QSo you already considered Jerry Rapeza as a suspect?

AWhen that person informed me that Jerry Rapeza would like to confess.

x x x x [Emphasis ours.][42]

Already being held as a suspect as early as 21 October 1995, accused should have been informed of his constitutional rights. SPO2 Gapas admitted that appellant was not so informed, thus:

QWhat was he doing?

AHe was fishing, sir.

QAnd you told him that youre going to arrest him?

AHe did not refuse to go with me, sir.

x x x x

QFrom the Island you brought him to the station?

AYes, sir.

QAnd there you arrived at the station at around 11:00 oclock in the morning?

AYes, sir.

QAnd then you started to conduct the investigation as Investigator of the Police Station?

AYes, sir.x x x x

QAnd what was the[,] result of your investigation?

AAccording to him he would confess and he would give his confession in the presence of a lawyer so I talked to Kgd. Arnel Alcantara.

x x x x[43]QOn October 22, 1995[,] when you brought him to the Police Station, did you start the investigation at that time?

ANot yet sir, I only talked to him.

QWhen did you start the investigation?

AI started the investigation when Jerry Rapeza was in front of his lawyer.

QWhen was that?

AOctober 23, 1995[,] noon time, sir.

QFrom the Island you just talked to him?

AYes, sir.

QYou did not consider that as part of the investigation?

AYes sir, my purpose at that time was to certain (sic) the suspect of the said crime.

x x x x

QPlease answer my question[,] Mr. Witness, on October 22, 1995, did you inform him of his constitutional rights?

ANo sir, I did not.x x x x(Emphasis ours.)[44]

Even supposing that the custodial investigation started only on 23 October 1995, a review of the records reveals that the taking of appellants confession was flawed nonetheless. It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in Tagalog of his right to remain silent, that any statement he made could be used in evidence for or against him, that he has a right to counsel of his own choice, and that if he cannot afford the services of one, the police shall provide one for him.[45] However, there is no showing that appellant had actually understood his rights. He was not even informed that he may waive such rights only in writing and in the presence of counsel.

In order to comply with the constitutional mandates, there should likewise be meaningful communication to and understanding of his rights by the appellant, as opposed to a routine, peremptory and meaningless recital thereof.[46] Since comprehension is the objective, the degree of explanation required will necessarily depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation.[47]

In this case, it was established that at the time of the investigation appellant was illiterate and was not well versed in Tagalog.[48] This fact should engender a higher degree of scrutiny in determining whether he understood his rights as allegedly communicated to him, as well as the contents of his alleged confession.

The prosecution underscores the presence of an interpreter in the person of Abad to buttress its claim that appellant was informed of his rights in the dialect known to him. However, the presence of an interpreter during the interrogation was not sufficiently established. Although the confession bears the signature of Abad, it is uncertain whether he was indeed present to assist appellant in making the alleged confession.

For one thing, SPO2 Cuizon did not mention Abad as one of the persons present during the interrogation. He testified:

QWho were present during that investigation?

AVice Mayor Marasigan and the two other SB members.

QCan you identify who are these two SB members?

ASB Mabiran and SB Alcantara.

QWho else?

ANo more, sir.

QSo, there were two SB members, Vice Mayor Atty. Reyes, Gapas and you?

AYes, sir.

x x x x[49]

For another, the prosecution did not present Abad as witness. Abad would have been in the best position to prove that he indeed made the translation from Tagalog to Waray for appellant to understand what was going on. This significant circumstance lends credence to appellants claim that he had never met Abad.

According to the appellate court, appellant admitted in his Brief that the confession was made in the presence of an interpreter. The passage in appellants Brief on which the admission imputed to him was based reads, thus:

The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly not well versed in said language. Even if the confession was made in the presence of an interpreter, there is no showing that the rights of a person under investigation were effectively explained and/or interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said rights were translated in a language understood by accused-appellant. [50]Clearly, the imputation is erroneous. Throughout his Brief, appellant disputes the allegation that he ever met the interpreter much less made the confession with the latters assistance. The evident import of the passage is that on the assumption that there was an interpreter present still there was no indication that the rights of a person under investigation were effectively imparted to appellant, as the interpreter could not translate that which was not even said in the course of the proceeding.

Moreover, SPO2 Gapas testified on direct examination:

QAs a way of refreshing your mind[,] Mr. Witness, can you take a look at this statement [referring to appellants Sinumpaang Salaysay] those appearing on page 1 of the same up to the word Opo sir, kindly take a look at this, do you remember that you were the one who profounded (sic) this (sic) questions?

AYes, sir, I was the one who profounded [sic] that [sic] questions.

QAnd you are very definite that the answer is in [the] affirmative, in your question and answer?

AI am not very sure, sir.

QYou are not very sure because he has a lawyer?

AYes, sir.

x x x x[51]SPO2 Gapas could not say for certain if appellant had indeed understood his rights precisely because he did not explain them to appellant. In any event, SPO2 Gapas would be incompetent to testify thereon because appellants alleged confession was made through an interpreter as he did not understand Tagalog. SPO2 Gapas testimony as regards the contents of appellants confession would in fact be hearsay. In U.S. v. Chu Chio,[52] this Court rendered inadmissible the extrajudicial confession of the accused therein because it was not made immediately to the officer who testified, but through an interpreter. Thus, the officer as witness on the stand did not swear of his own knowledge as to what the accused had said. Similarly in this case, SPO2 Gapass testimony as to what was translated to appellant and the latters responses thereto were not of his personal knowledge. Therefore, without the testimony of Abad, it cannot be said with certainty that appellant was informed of his rights and that he understood them.

Not having been properly informed of his rights prior to questioning and not having waived them either, the alleged confession of appellant is inadmissible.

Confession was not made with

the assistance of competent and

independent counsel of appellants

choice.

Appellant denies that he was ever assisted by a lawyer from the moment he was arrested until before he was arraigned. On the other hand, the prosecution admits that appellant was provided with counsel only when he was questioned at the house of Atty. Reyes to which appellant was allegedly taken from the police station.

SPO2 Gapas testified that he talked to appellant when they got to the police station at 11 oclock in the morning of 22 October 1995 and the result of their talk was that appellant would give his confession in the presence of a lawyer. Appellant was then held in the police station overnight before he was allegedly taken to the house of Atty. Reyes.

The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.[53] Appellant did not make any such waiver.

Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his competence and independence as appellants counsel for purposes of the custodial investigation. The meaning of competent counsel and the standards therefor were explained in People v. Deniega[54] as follows:

The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accuseds behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely be giving a routine, peremptory and meaningless recital of the individuals constitutional rights. In People v. Basay, this Court stressed that an accuseds right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.

Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) should be engaged by the accused (himself), or by the latters relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition. Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic.

x x x The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. x x x x (Emphasis supplied)[55]The standards of competent counsel were not met in this case given the deficiencies of the evidence for the prosecution. Although Atty. Reyes signed the confession as appellants counsel and he himself notarized the statement, there is no evidence on how he assisted appellant. The confession itself and the testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty. Reyes had explained to appellant his constitutional rights. Atty. Reyes was not even presented in court to testify thereon whether on direct examination or on rebuttal. It appears that his participation in the proceeding was confined to the notarization of appellants confession. Such participation is not the kind of legal assistance that should be accorded to appellant in legal contemplation. Furthermore, Atty. Reyes was not appellants counsel of choice but was picked out by the police officers allegedly through the barangay officials. Appellants failure to interpose any objection to having Atty. Reyes as his counsel cannot be taken as consent under the prevailing circumstances. As discussed earlier, appellant was not properly informed of his rights, including the right to a counsel preferably of his own choice. SPO2 Gapas testified thus:x x x x

QNow Mr. Witness, you will agree with me that the accused[,] when he allegedly gave his voluntary confession[,] he [sic] did not read the document when he made his thumbmark?

AHe did not because according to him he is illiterate.

QIlliterate because he only placed his thumbmark and you have all the freedom to manipulate him and in fact he doesnt know that he is entitled to have a lawyer of his own choice?

AHe doesnt know.

x x x x[56]Strikingly, while it was made to appear in the alleged confession that appellant was informed of his right to a counsel of his own choice and that if he cannot afford the services of one, the police shall provide him with one, it was overlooked that it was not similarly made to appear in the same statement that appellant was advised that he had the option to reject the counsel provided for him by the police authorities.[57]

Set against the clear provisions of the Constitution and the elucidations thereof in jurisprudence, the foregoing lapses on the part of the police authorities preclude the admissibility of appellants alleged confession.

Confession is not voluntary.

It is settled that a confession is presumed voluntary until the contrary is proved and the confessant bears the burden of proving the contrary.[58] The trial court found that appellants bare denials failed to overcome this presumption. However, several factors constrain us to hold that the confession was not given under conditions that conduce to its admissibility.

First, the confession contains facts and details which appear to have been supplied by the investigators themselves.

The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with detailswhich could only be supplied by the accusedreflecting spontaneity and coherence, it may be considered voluntary.[59] The trial court applied this rule but without basis. On closer examination of the evidence, the key details in the alleged confession were provided not by appellant but by the police officers themselves.

The prosecution failed to establish the actual date of the killings. This is disturbing, to say the least.The trial court found that the killings were reported to the police at four oclock in the afternoon of 21 October 1995. That when the investigating team arrived at the scene of the crime, the bodies of the victims were already rank and decomposing,[60] and that two days after the crimes were committed, SPO2 Gapas had set out to look for appellant following information from a certain Mr. Dela Cruz that appellant would like to confess to the crimes.

Indeed, SPO2 Gapas testified that he received a report of the killings on 21 October 1995 and sent a team to investigate the incident. On direct examination, he declared that two days after the commission of the crime, he received information that appellant would give his confession in front of a lawyer.[61] However, on cross-examination, he stated that it was on the following day or on 22 October 1995 when he found appellant and invited him to the police station and that appellants custodial investigation had taken place on 23 October 1995.

Likewise, SPO2 Cuizons testimony is far from enlightening. He testified, thus:

x x x x

QNow, on October 24, 1995, where were you?

AI was in Culion Police Station.

QWhile you were there in the Police Station, what happened?

AA woman reported to us regarding this incident.[62]x x x x

QWhen was the investigation conducted?

AOctober 24, 1995.

QOn the same day that you discover [sic] the cadavers?

AThe investigation was conducted on October 25, 1995.

x x x x[63]

The actual date of the commission of the crimes is material in assessing the credibility of the prosecution witnesses and of the admissibility of the alleged confession.

While the prosecution insists through the recitals of the Informations and the testimony of its witnesses that the killings took place on 21 October 1995, the totality of its evidence shows otherwise, i.e. the killings took place earlier. When the bodies were discovered on 21 October 1995, they were already decomposing, a factor that indicates that the victims had been dead long before then. How then could appellant have killed the victims at 4 oclock in the afternoon of 21 October 1995 as expressly stated in the confession, when that was the same date and time when the bodies were discovered? Had appellant voluntarily confessed and had he really been the killer, he would have given the correct date and time when he committed the horrid acts. The only sensible way to sort out the puzzle is to conclude that the police officers themselves supplied 21 October 1995 and four oclock in the afternoon as the date and time of the killings in appellants statement, a barefaced lie on which the prosecution based its allegations in the Informations and which SPO2 Gapas repeated on the witness stand.

Moreover, the police officers went to the house of the victims on 21 October 1995 where they found the bodies. The autopsy on the victimss bodies was done the following day or on 22 October 1995 while appellants statement was allegedly taken on 23 October 1995. By then, the investigators knew how and where the victims were killed, circumstances that could have enabled them to fill up the details of the crime in the extrajudicial confession.[64]

Curiously, the autopsy report on Ganzons body shows that he sustained six (6) stab wounds, four (4) on the right side of his body and two (2) on the left side. Yet, it is stated in appellants extrajudicial confession that he stabbed Ganzon on his left side. Quite oddly, SPO2 Cuizon testified that Ganzon was wounded on the left arm only. His full account on this aspect runs, thus:QWhere did you go?

AI immediately proceeded to the house of the victim.

QWhat did you find out when you went to the house of the victim?

AI have seen blood on the ground floor of the house.

x x x x

QWhen you opened the house[,] you are [sic] with Macatangay?

AYes, sir[.] I was with POII Macatangay but he was a little bit far from the victim and I was the one who opened the door and went upstairs.

QWhat did you find out inside the house?

AI have seen a woman lying down with her hands nakadipa on the ground and blooded (sic).

x x x x

QWhere else did you go when you were already inside the house?

AI went to the other bedroom.

QAnd what did you find out?

AAn old man with his face facing downward.

QThe woman already dead was in the sala?

AYes, sir.

x x x x[65]QDo you know in what bedroom (sic) of her body she was wounded?

AThe neck was slashed and both arms and both foot (sic) were wounded.

QHow about the man?

ALeft arm, sir.QWhere else?ANo more, sir.

x x x x[66] (Emphasis ours.) The prosecutions evidence likewise fails to establish when the custodial investigation had taken place and for how long appellant had been in detention. Strangely, the confession is undated and it cannot be ascertained from it when appellant made the confession or affixed his thumbmark thereon. What emerges only is the bare fact that it was notarized by Atty. Reyes on 23 October 1995. One can only speculate as to the reason behind what seems to be a lack of forthrightness on the part of the police officers.

These unexplained inconsistencies cast doubt on the integrity and voluntariness of appellants alleged confession.

Second, again appellant was not assisted by counsel.

To reiterate, the purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements.[67] And in the event the accused desires to give a confession, it is the duty of his counsel to ensure that the accused understands the legal import of his act and that it is a product of his own free choice.

It bears repeating that appellant was held in the police station overnight before he was allegedly taken to the house of Atty. Reyes. He was not informed of his rights and there is no evidence that he was assisted by counsel. Thus, the possibility of appellant having been subjected to trickery and intimidation at the hands of the police authorities, as he claims, cannot be entirely discounted.Confession was not sufficiently

corroborated.

Courts are slow to accept extrajudicial confessions when they are subsequently disputed unless they are corroborated.[68] There must be such corroboration so that when considered in connection with the confession, it will show the guilt of accused beyond a reasonable doubt.[69]

As a general rule, a confession must be corroborated by those to whom the witness who testified thereto refers as having been present at the time the confession was made[70] or by any other evidence.[71]The inconsistencies in the testimonies of the police officers as well as any lingering doubt as to the credibility of appellants statement could have been laid to rest by the testimonies of Atty. Reyes, of Abad, and of those allegedly present during the custodial investigation. However, they were not presented in court.

Abads testimony was likewise crucial in proving that appellant had understood every part of his alleged confession. Confessions made in a language or dialect not known to the confessant must also be corroborated by independent evidence.[72] As appellant is unschooled and was not familiar with the Tagalog dialect, his confession which was in Tagalog necessarily had to be read and translated to Waray allegedly by Abad. This Court has held that such a multiple process of reading and translating the questions and translating and typing the answers and reading and translating again the said answers is naturally pregnant with possibilities of human, if unintentional, inadequacies and incompleteness which render the said confession unsafe as basis of conviction for a capital offense, unless sufficiently corroborated.[73] A confession may be admissible if it is shown to have been read and translated to the accused by the person taking down the statement and that the accused fully understood every part of it.[74] To repeat, we cannot accept SPO2 Gapas testimony as regards the contents of appellants alleged confession for being hearsay evidence thereon. Since appellant allegedly made the confession to SPO2 Gapas through Abad, Abads testimony is thus indispensable in order to make the confession admissible.

Consequently, the non-production of these material witnesses raises a doubt which must be resolved in favor of appellant[75] and the confession should be disregarded as evidence.[76] Verily, we are left with the unconvincing testimony of two police officers against whose abuse of authority the Constitution protects the appellant. As their respective testimonies are sated with inconsistencies and hearsay evidence, we find the same insufficient bases to hold appellants extrajudicial confession admissible against him.

The only other prosecution evidence under consideration are the autopsy reports with which the alleged confession supposedly dovetails, as the trial court concluded. However, a perusal of the alleged confession would reveal that does not fit the details in the autopsy report. As discussed earlier, Ganzon was found to have sustained six (6) stab wounds on different parts of his body while appellant allegedly admitted stabbing him on his left side only. The confession does not even state how many times appellant stabbed the old man. SPO2 Cuizon testified that he saw only one stab wound on Ganzons body and it was on the latters left arm. Thus, it is not with the autopsy reports that the alleged confession dovetails but rather with what the police authorities would like us to believe as the truth.

Nevertheless, since the confession is inadmissible, it becomes irrelevant whether it dovetails with the autopsy reports. The corroboration that medico-legal findings lend to an extrajudicial confession becomes relevant only when the latter is considered admissible. In People v. De la Cruz,[77] we held, to wit:

It is significant that, with the exception of appellants putative extrajudicial confession, no other evidence of his alleged guilt has been presented by the People. The proposition that the medical findings jibe with the narration of appellant as to how he allegedly committed the crimes falls into the fatal error of figuratively putting the horse before the cart. Precisely, the validity and admissibility of the supposed extrajudicial confession are in question and the contents thereof are denied and of serious dubiety, hence the same cannot be used as the basis for such a finding. Otherwise, it would assume that which has still to be proved, a situation of petitio principii or circulo en probando.[78]No motive could be ascribed

to appellant.

For the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the perpetrator.[79] In view of the inadmissibility of the confession, there is no other evidence that directly points to appellant as the culprit. However, the prosecution failed to show any motive on appellants part to commit the felonies. Appellant consistently denied having known the victims. Although the confession states that Regino allegedly sought appellants help in killing the victims as Regino was his nephew, the fact of their relationship was denied by appellant and was never established by the prosecution. In People v. Aguilar,[80] we held that the absence of apparent motive to commit the offense charged would, upon principles of logic, create a presumption of the innocence of the accused, since, in terms of logic, an action without a motive would be an effect without a cause.[81]

Furthermore, appellants conduct after the killings was not that of a guilty person. He never attempted to flee even if he knew that the police authorities were already investigating the incident as he was summoned to help load the bodies in a banca. Being a transient in the place, he could have easily disappeared and left the island but he remained there to continue looking for work.

Taken together, these circumstances generate serious doubts that must be resolved in appellants favor, congruently with the constitutional presumption of innocence.

In view of the inadmissibility of appellants confession, which is the sole evidence of the prosecution against him, the resolution of the issue of whether the qualifying circumstance of evident premeditation had attended the commission of the crimes has become academic. Indeed, there exists no other prosecution evidence on which appellants guilt beyond reasonable doubt may be based.

In conclusion, the overriding consideration in criminal cases is not whether appellant is completely innocent, but rather whether the quantum of evidence necessary to prove his guilt was sufficiently met. With the exclusion of appellants alleged confession, we are left with no other recourse but to acquit him of the offenses charged for the constitutional right to be presumed innocent until proven guilty can be overcome only by proof beyond reasonable doubt. In fact, unless the prosecution discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.[82]WHEREFORE, the Decisions of the Regional Trial Court, Branch 52, Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 and the Court of Appeals in CA-G.R. CR-H.C. No. 00642 are REVERSED and SET ASIDE. Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for insufficiency of evidence leading to reasonable doubt. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellant from confinement, unless he is being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof.

SO ORDERED.

DANTE O. TINGA

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate JusticePRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING

Associate Justice Chairperson, Second DivisionCERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice

C E R T I F I C A T I O N

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

REYNATO S. PUNO

Chief JusticeFIRST DIVISION

JAIME M. DE GUZMAN,Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.

G.R. No. 167492 Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ, CORONA,

AZCUNA, and

GARCIA, JJ.

Promulgated:

March 22, 2007

x------------------------------------------------------------------------------------xD E C I S I O N

GARCIA, J.:

Assailed and sought to be set aside in this petition for review under Rule 45 of the Rules of Court is the Resolution[1] dated 12 October 2004 of the Court of Appeals (CA), as reiterated in its Resolution[2] of 17 February 2005, dismissing the petitioners appeal in CA-G.R. CR No. 28277 for failure to file his appellants brief in connection with his appeal from an earlier decision of the Regional Trial Court (RTC) of Dagupan City, Branch 44, which found him guilty beyond reasonable doubt of the crime of Frustrated Homicide against the person of one Antonio De Vera.

Briefly, the material facts may be stated as follows:

On 6 February 2001, in the RTC of Dagupan City, an Information for Frustrated Homicide was filed against petitioner and three others identified only as John Doe, Peter Doe and Paul Doe, allegedly committed as follows:

That on or about the 27th day of June, 2000, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, JAIME BINONG DE GUZMAN, JOHN DOE, PETER DOE and PAUL DOE, being then armed with a deadly weapon, with intent to kill one ANTONIO DE VERA, confederating together, acting jointly and helping each other, did then and there, willfully, unlawfully and criminally, attack, assault and use personal violence upon the latter by stabbing and hitting him on vital parts of his body, the said accused having thus performed all the acts of execution which could have produced the crime of homicide as a consequence but which nevertheless did not produce it by reason of some causes independent of the will of the perpetrator, that is due to the timely and able medical attendance rendered to him, to the damage and prejudice of said ANTONIO DE VERA.

On arraignment, petitioner, as accused, entered a plea of Not Guilty. Thereafter, trial ensued.

In a decision[3] dated 19 May 2003, the trial court found the petitioner guilty beyond reasonable doubt of the crime charged and accordingly sentenced him, thus:

WHEREFORE, the Court finds accused Jaime Binong De Guzman GUILTY beyond reasonable doubt of the crime of Frustrated Homicide and pursuant to law, hereby sentences him to suffer an indeterminate penalty of from Six (6) Years of Prision Correccional, as minimum, to Ten (10) Years of Prision Mayor in its medium period, as maximum, and to pay the costs.

The accused is ordered to pay P46,000.00 representing actual expenses incurred by the complainant.

SO ORDERED.

In time, petitioner filed a Notice of Appeal whereupon the records of the case were elevated to the CA.

In the CA, petitioner, as appellant, through the Public Attorneys Office (PAO), filed a Motion for Extension of Time To File Appellants Brief,[4] therein praying for an extension of sixty (60) days or until 22 August 2004 within which to file his appellants brief. The motion was granted by the appellate court in its Resolution of 2 July 2004.

Unfortunately, no appellants brief was filed by the petitioner within the extended 60-day period. Hence, in the herein assailed Resolution[5] of 12 October 2004, the CA dismissed the appeal, thus:

Despite extension granted which expired on August 22, 2004, appellant failed to file brief.

WHEREFORE, premises considered, appeal is hereby DISMISSED pursuant to Section 8 Rule 124 of the Rules of Criminal Procedure.

SO ORDERED.

Upon receipt of the aforequoted dismissal resolution, petitioner, again through the PAO, filed a Motion for Reconsideration (With Motion to Admit Attached Brief for the Accused-Appellant[6]) therein alleging, through counsel, that it was only upon receipt of the resolution dismissing his appeal that counsel became aware of her inadvertence in failing to file the required brief within the extended period and that the delay in filing the required appellants brief was without any malicious intent to delay the disposition of the case, adding that the admission of the appellants brief attached to the motion will not cause any prejudice to public interest, but would promote and enhance the administration of justice.

In its next assailed Resolution[7] of 17 February 2005, the CA denied the motion for reconsideration:

The Court has studied the PAOs explanations for non-filing of brief for the accused within the extended period prayed for by PAO and We find no cogent reason to revise, amend, and much less, reverse Our October 12, 2004 Resolution dismissing the appeal, for appellants failure to file brief, pursuant to Sec. 8 Rule 124 of the Rules of Criminal Procedure.

WHEREFORE, premises considered, appellants November 9, 2004 Motion for Reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Hence, petitioners present recourse, contending in the main that the CA should have admitted his appellants brief since the failure to file the same within the extended period was due to his counsels inadvertence. He adds that the admission of his brief will not prejudice any party.

We GRANT the petition.

Undoubtedly, this Court has invariably ruled that the right to appeal is neither a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirements of the rules. Failing to do so, the right to appeal is lost. [8]

Nonetheless, we find cogent reason to relax the rule in this case.

Section 8, Rule 124 of the Rules on Criminal Procedure states that the CA may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the period prescribed by the rules, except where appellant is represented by a counsel de oficio.

Clearly, if the appellant is represented by a counsel de parte and he fails to file his brief on time, the appeal may be dismissed on motion of the appellee or by the CA with notice to the appellant. However, the rule takes exception when the appellant is represented by a counsel de oficio as in this case.

For sure, in Foralan v. CA,[9] which is akin to this case, the Court allowed the admission of an appellants brief even if filed out of time because the appellant therein was represented by a counsel de oficio, and ruled that it was error on the part of the appellate court to dismiss the appeal motu proprio instead of first giving to appellant a notice to show cause why his appeal should not be dismissed.

In several cases, the Court had set aside technicalities in the Rules in order to give way to justice and equity. The Court can overlook the short delay in the filing of pleading if strict compliance with the Rules would mean sacrificing justice to technicality. The imminence of a person being deprived unjustly of his liberty due to a procedural lapse of counsel is a strong and compelling reason to warrant suspension of the Rules.[10] A healthy respect for petitioners rights should caution courts against motu proprio dismissals of appeals, especially in criminal cases where the liberty of the accused is at stake. The rules allowing motu proprio dismissals of appeals merely confer a power and do not impose a duty; and the same are not mandatory but merely directory which thus require a great deal of circumspection, considering all the attendant circumstances.[11] Courts are not exactly impotent to enforce their orders, including those requiring the filing of appellants brief. This is precisely the raison detre for the courts inherent contempt power.[12] Motu proprio dismissals of appeals are thus not always called for. Although the right to appeal is a statutory, not a natural, right, it is an essential part of the judicial system and courts should proceed with caution so as not to deprive a party of this prerogative, but instead, afford every party-litigant the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities.[13] More so must this be in criminal cases where, as here, the appellant is an indigent who could ill-afford the services of a counsel de parte.

IN VIEW WHEREOF, the petition is GRANTED and the assailed resolutions of the CA are SET ASIDE. The appellate court is ordered to REINSTATE petitioner's appeal in CA-G.R. CR No. 28277, entitled People of the Philippines v. Jaime Binong M. De Guzman, and to accept his appellants brief thereon.

No costs.

SO ORDERED.

CANCIO C. GARCIA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

Chairperson

ANGELINA SANDOVAL-GUTIERREZAssociate JusticeRENATO C. CORONAAssociate Justice

ADOLFO S. AZCUNA

Associate JusticeC E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief JusticeFIRST DIVISION

[G.R. No. 137672. May 31, 2000]

PAZ REYES AGUAM, petitioner, vs. COURT OF APPEALS and BONIFACIO RONSAYRO, respondents.

D E C I S I O N

PARDO, J.:

The case is an appeal via certiorari seeking to set aside the resolution of the Court of Appeals[1] dismissing petitioner's appeal because petitioner's motion for extension to file appellant's brief was filed late by nine (9) days due to counsel's mistake in counting the period for filing the same. The court also denied petitioners motion for reconsideration.[2]The facts are as follows:

On January 8, 1998, the Regional Trial Court, Pasig City, in an action for sum of money and damages arising from malicious mischief filed by petitioner Paz Reyes Aguam against respondent Bonifacio Ronsayro,[3] rendered decision, the dispositive portion of which reads as follows:

"WHEREFORE, in view of the foregoing, judgment is rendered in favor of the defendant dismissing the complaint and ordering the plaintiff to pay the defendant the following:

a) P595,500.00 representing the share of the defendant from the lot plaintiff sold, plus legal interest until the amount is paid from date of demand;

b) The amount of P100,000.00 as moral damages;

c) P50,000.00 as and for attorneys fees; and,

d) Cost of suit."[4]In due time, petitioner filed an appeal to the Court of Appeals.[5]On September 25, 1998, the Court Appeals, through the Clerk of Court, issued a notice addressed to Atty. Carlos G. Nery, Jr., petitioner's counsel, requiring her as plaintiff-appellant to file within forty-five (45) days from receipt an appellant's brief, furnishing a copy of the notice to Atty. Eladio P. Samson, respondent's counsel.[6]The notice was sent by registered mail to petitioner's counsel, Atty. Carlos G. Nery at the latter's address of record, 26 Masbate St., West Ave., 1100 Quezon City.[7] The notice was received by an office clerk of a realty firm with which Atty. Nery was sharing office. She was not an employee of petitioner's counsel and she did not note down the date of receipt.[8]On November 25, 1998, petitioner filed with the Court of Appeals a motion for extension of time to file appellant's brief, asking for ninety (90) days from the expiry date within which to do so.[9]On December 11, 1998, the Court of Appeals denied the motion for extension and accordingly dismissed the appeal for failure of the appellant to file brief within the reglementary period.[10]On December 14, 1998, petitioner filed with the Court of Appeals her appellant's brief.[11] On December 22, 1998, petitioner filed with the Court of Appeals a motion for reconsideration of the denial and to admit appellant's brief.[12]On January 21, 1999, respondent filed an opposition to the motion for reconsideration.[13]On February 23, 1999, the Court of Appeals denied petitioner's motion for reconsideration.[14]Hence, this appeal.[15]The issue raised is whether or not the Court of Appeals acted with grave abuse of discretion in dismissing petitioner's appeal because of the late filing of appellant's brief due to counsel's mistake in the counting of the reglementary period from notice to file appellant's brief.

Technically, the Court of Appeals may dismiss an appeal for failure to file appellant's brief on time.[16] However, the dismissal is directory, not mandatory.[17] It is not the ministerial duty of the court to dismiss the appeal. "The failure of an appellant to file his brief within the time prescribed does not have the effect of dismissing the appeal automatically."[18] The court has discretion to dismiss or not to dismiss an appellants appeal. It is a power conferred on the court, not a duty.[19] The "discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case."[20] Technicalities, however, must be avoided. The law abhors technicalities that impede the cause of justice. The court's primary duty is to render or dispense justice.[21] "A litigation is not a game of technicalities."[22] "Law suits, unlike duels, are not to be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts."[23] Litigations must be decided on their merits and not on technicality.[24] Every party litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the unacceptable plea of technicalities.[25] Thus, dismissal of appeals purely on technical grounds is frowned upon where the policy of the court is to encourage hearings of appeals on their merits and the rules of procedure ought not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure, not override substantial justice.[26] It is a far better and more prudent course of action for the court to excuse a technical lapse and afford the parties a review of the case on appeal to attain the ends of justice rather than dispose of the case on technicality and cause a grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice.

In the case before us, the notice to file appellant's brief was given to counsel of petitioner. The rules require the notice to file brief to be given to the party appellant.[27] The reason is that after taking an appeal, the party may change attorney for purposes of the appeal. Hence, the notice must be given to the party appellant. Thus, there was here a technical violation committed by the clerk of the appellate court that ought not to prejudice the appellant.

Moreover, the notice was sent by registered mail. This is, of course, permitted in the rules.[28] However, the mail matter must be received by the addressee or his duly authorized representative Service of papers which includes every written notice on a person who was not a clerk, employee or one in charge of the attorneys office, is invalid.[29] Here, the notice was received by an employee of a realty firm with which the counsel was sharing office. She was not an employee of petitioner's counsel. He was a solo practitioner.

In the higher interest of justice, considering that the delay in filing a motion for extension to file appellant's brief was only for nine (9) days, and normally, the Court of Appeals would routinely grant such extension, and the appellant's brief was actually filed within the period sought, the better course of action for the Court of Appeals was to admit appellant's brief.

Lapses in the literal observance of a rule of procedure will be overlooked when they arose from an honest mistake, when they have not prejudiced the adverse party.[30] The Court can overlook the late filing of the motion for extension, if strict compliance with the rules would mean sacrificing justice to technicality.[31]Consequently, we find that the Court of Appeals gravely abused its discretion in denying petitioners motion for extension of time to file appellants brief, and in dismissing the appeal.

WHEREFORE, the Court hereby REVERSES and SETS ASIDE the resolutions of the Court of Appeals dismissing the appeal. The Court remands the case to the Court of Appeals for further proceedings, and disposition of the appeal on its merits.

No costs.

SO ORDERED.

Puno, and Kapunan, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.

Ynares-Santiago, J., no part.

THIRD DIVISION

[G.R. No. 129090. April 30, 2003]

RICARDO B. GONZALES, petitioner, vs. COURT OF APPEALS and THE HEIRS OF CONSOLACION C. DE GUZMAN, respondents.

D E C I S I O N

CORONA, J.:

Before us is a petition for certiorari of the resolution[1] of the Court of Appeals denying petitioners motion for extension of time to file appellants brief and, ultimately, dismissing petitioners appeal from the decision[2] of the Regional Trial Court of Manila, Branch XXIV, in Civil Case No. 91-57572. Petitioners motion for reconsideration of the assailed resolution was denied on March 31, 1997.[3]The undisputed facts follow.

Dr. Consolacion C. de Guzman, who died while this case was pending appeal before this Court and is now substituted by respondent heirs,[4] filed a complaint for damages against petitioner Dr. Ricardo B. Gonzales based on five causes of action. The trial court enumerated the same as follows:

The first cause consists in the act of the defendant in issuing and implementing Hospital Order No. 4, Series of 1990, which allegedly removed the defendant (sic) from a position as Head of the Department of Obstetrics & Gynecology in the Fabella Hospital which was issued unwarrantedly, maliciously and in wanton disregard of plaintiffs constitutional rights, and is a forced demotion in rank, function and status, and subjected plaintiff to social humiliation and embarrassment before all doctors, and members of all hospital staff and employees of Fabella Hospital, and caused plaintiff mental anguish, anxiety and sleepless nights. The second cause of action is the allegation in the complaint that the filing by the defendant of the P6 Million libel case against the plaintiff in the Quezon City Fiscals Office which likewise caused plaintiff to suffer damages and incur attorneys fees. The third cause of action consists in the filing by the defendant of the administrative case with the Department of Health for grave misconduct and conduct prejudicial to the best interest of the service. And the fourth cause of action is the filing by the defendant of the complaint with the Philippine Obstetrics & Gynocology Society for cancellation of the plaintiffs membership as fellow. And the last cause of action is the filing by the defendant of the administrative case with the Philippine Regulatory Commission, to cancel plaintiffs license to practice her profession as a Doctor of Medicine.[5]

On April 7, 1995, the trial court rendered a decision in favor of the deceased plaintiff. The dispositive portion of the said decision read:

Accordingly, the Court awards to the plaintiff and against the defendant the amount of P290,000.00 representing attorneys fees and costs of litigation, by way of actual damages and to compensate plaintiff for the pain, suffering and mental anguish she underwent by reason of the unwarranted filing of the administrative cases against her by the defendant, the Court orders defendant to pay plaintiff the amount of P1,000,000,000 (sic) as moral damages and likewise orders the defendant to pay the amount of P100,000.00 as exemplary damages. All amounts awarded to the plaintiff to bear interest at the legal rate from the date of this decision up to the time of actual payment.[6]Petitioner appealed the said decision to the Court of Appeals. On February 21, 1996, the appellate court sent by registered mail to Atty. Ruben Almadro, petitioners counsel, a notice requiring him to file the appellants brief within 45 days from receipt thereof. According to the postmasters certification, the notice was received on February 26, 1996 by a certain Vicente Mendoza at the residence of Atty. Almadro. The petitioner therefore had 45 days from February 26, 1996 or up to April 11, 1996 to file the appellants brief.

Three months after the expiration of the 45-day period, on July 12, 1996, Atty. Almadro filed a motion for extension of time to file the appellants brief. He alleged that it was only on July 11, 1996, while in the process of transferring his case records and files from his old office to a new one, that he found the unopened letter-envelope sent by the appellate court requiring him to file the appellants brief within 45 days from receipt of the notice. Atty. Almadro surmised that the letter-envelope must have been received by a former househelp who failed to bring it to his attention. He also alleged that there was no indication by his househelp of the exact date of receipt of the said letter. He thus prayed that he be given another period of 30 days from July 12, 1996 or until August 11, 1996 within which to file the appellants brief.

On July 23, 1996, Dr. de Guzman moved to dismiss the appeal on the ground that the petitioners motion for extension of time for filing the brief was filed after the lapse of the original period.

On August 12, 1996, Atty. Almadro filed a manifestation stating that, since August 11, 1996 was a Sunday, he filed thru registered mail two copies of the appellants brief on August 10, 1996. He also manifested that he was filing seven other copies of the appellants brief to complete a total of nine copies, together with the affidavit of service to counsel for then respondent Dr. de Guzman.

On October 10, 1996, respondent Dr. de Guzman filed another motion reiterating her previous motions to dismiss, to expunge the appeal from the records and for the issuance of an entry of judgment.

On December 13, 1996, the appellate court issued a resolution, the dispositive portion of which read:

WHEREFORE, motion for time to file appellants brief is hereby DENIED, for lack of merit, and the appeal is DISMISSED. The appellants brief filed out of time is ordered expunged from the record of the case.

IT IS SO ORDERED.[7]

In dismissing the appeal, the appellate court held that:

Section 15, Rule 46 of the Rules of Court states that Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of time sought to be extended. Defendant-appellant may secure several extensions to file brief provided each extension is predicated on good and sufficient cause and application for extension is filed before the time sought to be extended expires (Gregorio vs. Court of Appeals, 172 SCRA 120-121 cited in Moran, Comments on the Rules of Court, Volume 2, 1979 Edition, p. 489). When defendant-appellant filed a motion for time to file appellants brief on July 12, 1996, 92 days had elapsed since the last day to file appellants brief. Hence, this motion cannot be allowed.

Defendant-appellants reason for not filing his motion for extension of time to file appellants brief seasonably is flimsy and puerile, to say the least. For one, counsel for defendant-appellant alleged in his motion that he discovered that unopened letter envelope containing the notice, only on July 11, 1996, while he was in the process of transferring his various case records and files from his present office/residence to a new office. Up to this very day, however, this Court has not received any notice of change of address from counsel. Counsel further contends that the letter envelope must have been received by one of his previous househelps who must have inadvertently failed to bring said mail matter to his attention. The court has no way of knowing whether this is true as counsel himself was merely speculating. Even granting this to be true, this negligence is simply inexcusable. It is the duty of counsel to adopt and strictly maintain a system that efficiently takes into account all court notices sent to him and not simply allow a househelp, without counsels diligent supervision, to receive important court notices.[8]Hence, this petition for certiorari under Rule 65 of the Rules of Court based on the following assignments of error:

I

THE FAILURE OF PETITIONER TO FILE HIS APPELLANTS BRIEF WITHIN THE PERIOD REQUIRED BY THE COURT OF APPEALS AND/OR TO SEEK AN EXTENSION WITHIN SAID PERIOD WAS DUE TO EXCUSABLE NEGLECT;

II

THE SETTLED RULE IS THAT LITIGATIONS SHOULD, AS MUCH AS POSSIBLE, BE DECIDED ON THEIR MERITS AND NOT ON TECHNICALITIES; and

III

RULES OF PROCEDURE SHOULD NOT BE APPLIED IN A VERY RIGID, TECHNICAL SENSE ESPECIALLY WHERE, AS IN THE CASE AT BAR, THE APPEAL IS VERY MERITORIOUS.[9]The petitioner imputes grave abuse of discretion amounting to lack of jurisdiction to the appellate court for denying his appeal purely on technical grounds. He argues that the failure of his counsel to get hold of the letter-notice of the appellate court for the filing of the brief was due to excusable neglect. Petitioner likewise contends that the appellate court gravely abused its discretion in not allowing the extension sought by the petitioner and in not admitting the appellants brief inspite of the fact that the respondent heirs substantial rights will not be violated by a contrary ruling. Litigations, according to the petitioner, should as much as possible be decided on their merits and not on technicalities. Rules of procedure should not be applied in a very rigid and technical manner as they are intended to promote, not to defeat, substantial justice.

The crucial issue for consideration is whether the negligence of petitioners counsel was inexcusable, thus rendering his plea for equity unmeritorious.

Section 12, Rule 44 of the 1997 Rules of Civil Procedure provides that:

Sec. 12. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended. (underscoring supplied)

Clearly, petitioners counsel was negligent in not filing the motion for extension of time to file the appellants brief within the 45-day period from the date of receipt of notice as required by Section 7, Rule 44 of the 1997 Rules of Civil Procedure. Petitioners counsel, however, blames his househelp who allegedly forgot to give him the said notice or to call his attention to it. Said counsel allegedly discovered the same only when he was arranging his files after transferring to his new office.

We hold that an attorney owes it to himself and to his clients to adopt an efficient and orderly system of receiving and attending promptly to all judicial notices. He and his client must suffer the consequences of his failure to do so particularly where such negligence is not excusable as in the case at bar.[10] A lawyer can adopt an efficient way of handling court mail matters even if his residence also serves as his office.