SECOND DIVISION
[ G.R. No. 102005, January 25, 1993 ]PEOPLE v. FORTUNATO PAMON +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FORTUNATO PAMON, GERSON DULANG ALIAS "TOTO", AND JOHN DOE ALIAS "DODO", ACCUSED-APPELLANTS.
D E C I S I O N
PEOPLE v. FORTUNATO PAMON +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FORTUNATO PAMON, GERSON DULANG ALIAS "TOTO", AND JOHN DOE ALIAS "DODO", ACCUSED-APPELLANTS.
D E C I S I O N
CAMPOS, JR., J.:
This is an appeal from the judgment* of the Regional Trial Court, Branch 6, Dipolog City, convicting accused-appellants Fortunato Pamon and Gerson Dulang of murder and sentencing them to reclusion perpetua.
From the records, the following facts are evident:
In the morning of July 26, 1985, Robert Te drove his 3/4-ton cargo truck from his residence in Sta. Filomena to Sindutan, Roxas, Zamboanga del Norte to buy copra. With him were Hipolito Andig, Victorino Jauculan, Orlando Tapia, and two other laborers. While they were negotiating a road in Lipakan, the truck got stuck in the mud. As a result, the trucks of Lily Wong and Gerson Dulang which were following his truck were blocked and could not proceed. In order to pull the truck from the mud, Robert Te ordered his companions to tie the wrench of the truck to a coconut tree with a cable. Robert Te remained behind the wheel to maneuver the truck. While in that position, a man approached Robert Te and shot him on the bridge of his nose. The latter died instantly. Another shot was fired and Cesar Siga was hit. Thereafter, the truck was burned by another man. The gunman escaped and boarded the last truck which was the one owned by Gerson Dulang.
Initial investigations by the police and the National Bureau of Investigation (NBI) pointed to the New People's Army (NPA) as the killers. However, subsequent investigations by the Criminal Investigation Service (CIS) yielded Fortunato Pamon as the one responsible for Robert Te's death.
On March 14, 1987, Fortunato Pamon was arrested by virtue of a warrant of arrest for a murder charge against him in the RTC of Tangub City. He was detained at the PC stockade at Camp Hamac, Sicayab, Zamboanga del Norte.
On March 18 or 19, 1987, Fortunato Pamon, in the presence of Atty. Rubencio Ligorio of the Citizens Legal Assistance Office (CLAO), executed before Pfc. Roland Salatandre of the CIS a Confession marked as Exhibit "A". He admitted that he shot and killed Robert Te. Furthermore, he implicated John Doe, alias "Dodo", Gerson Dulang, and Inocencio Feras. The following are excerpts from the affidavit:
This extrajudicial confession was subscribed and sworn to before Judge Vicente Aseniero on March 20, 1987. Fortunato Pamon reaffirmed his Confession during the preliminary investigation of the case on March 23, 1987. During the said investigation, he was asked:
During the trial, the prosecution presented the testimonies of Evangeline Te, the widow of Robert Te, Rolando Salatandre, Judge Vicente Aseniero, Victoriano Jauculan and Hipolito Andig.
Evangeline Te testified that at about 9:00 o'clock in the morning of July 25, 1985, she received a call from Gerson Dulang. The latter invited Robert Te to a birthday party in Gerson Dulang's house. Robert Te accepted the invitation, left at half past nine, and returned at 2:00 o'clock in the afternoon, already drunk. While in that state, he revealed to Evangeline, his wife, that Gerson Dulang told him: "We will meet in the mountain to find out who is the better man among us". She also said that before her husband left at 4:30 in the morning on July 26, 1985, he again told her those words.
Rolando Salatandre testified that the extrajudicial Confession of Fortunato Pamon was voluntary and that it was in accordance with the constitutional mandate. This was reaffirmed by Judge Vicente Aseniero in his testimony.
Victoriano Jauculan, an employee of Robert Te, pointed to Fortunato Pamon as the gunman. Hipolito Andig likewise identified Fortunato Pamon as the killer. They both stated that Fortunato Pamon boarded Gerson Dulang's truck after the incident.
Prosecution also presented as evidence the medical certificate issued by Dr. Venusto Bengua on March 20, 1992 which stated that no marks, bruises or signs of torture were found in Fortunato Pamon's body.
The defense, on the other hand, presented the testimony of Gerson Dulang who professed ignorance of the crime; of Raul Curativo, a neighbor of Fortunato Pamon, who described the killer as "short, dark in complexion, with curly hair and was bearded"[4], and who said that Fortunato Pamon was not the killer; of Jaime Gilbero, who said that at the time of the killing, Fortunato Pamon was plowing his field; and of Fortunato Pamon himself who denied the killing and retracted his extrajudicial confession. His affidavit of retraction, dated April 23, 1987, is attached as Annex "B"[5] of Appellant's Brief. He alleged therein that the confession was involuntary on his part as it resulted from torture and coercion. This affidavit was, however, not offered in the trial court as an exhibit.
After trial, the trial court convicted Fortunato Pamon, Gerson Dulang and John Doe alias "Dodo". It held:
In upholding the voluntariness of the extrajudicial Confession, the trial court also observed that only Fortunato Pamon could have known the identities of his co-conspirators and that he did not present evidence that the CIS knew them beforehand. Furthermore, the court also said that assuming that the Confession was inadmissible, there were other evidences which proved beyond reasonable doubt the guilt of accused Fortunato Pamon, among which was the positive identification by witnesses pointing to him as the killer. This, according to the trial court, shattered the defense of alibi of the accused. It also considered Gerson Dulang's demeanor as a basis for convicting the latter for his lack of seriousness in testifying which rendered him incapable of telling the truth. Besides, he had already been implicated by Fortunato Pamon in his Confession. He was held to be principal by induction because according to accused Fortunato Pamon's Confession, he induced co-accused John Doe alias "Dodo" to kill victim Robert Te.[8] The participation of co-accuse Fortunato Pamon was held to be principal by direct participation because according to his Confession, he was the one who actually shot Robert Te to death; John Doe was also held liable because the three were conspirators - their common purpose being to liquidate Robert Te.
After finding the defendants guilty beyond reasonable doubt of the crime of murder, the Court sentenced them as follows:
Fortunato Pamon and Gerson Dulang made separate assignments of errors. Fortunato Pamon averrs that the trial court erred in upholding the validity of his arrest and the voluntariness and admissibility of his extrajudicial Confession, and in not considering the testimony of a witness, Raul Curativo, that Fortunato Pamon was not the killer.
Gerson Dulang, on the other hand, claims that the court erred in trying him under both the original and amended informations since they both did not charge an offense against him; in admitting the amended information after his arraignment on the original information because the amendment was not merely a formal but a substantial amendment, in trying him under the amended information when he was not arraigned under it; and in depriving him of the right to be tried by an impartial judge.
Both allege that their guilt was not proven beyond reasonable doubt. They also assail the admission of the extrajudicial Confession which was involuntarily given and the conviction of Gerson Dulang under the said Confession since apart from it, there was no other evidence to prove the conspiracy and Gerson Dulang's guilt.
This appeal hinges on the admissibility or inadmissibility of the extrajudicial Confession of accused-appellant Fortunato Pamon as evidence against him and his co-accused Gerson Dulang. Both appellants allege that the trial court erred in admitting the Confession as it was violative of Article III, Section 12(1) of the Constitution which guarantees a person under investigation the right to be assisted by an independent counsel of his own choice and the right against torture and violence. Any violation of said guarantees renders an extrajudicial confession inadmissible.
Contrary to the allegations of Fortunato Pamon, We are constrained to uphold the admissibility of his extrajudicial Confession.
A confession constitutes an evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience.[10] This presumption of spontaneity and voluntariness stands unless the defense proves otherwise.[11] A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat, or promise of reward of leniency.[12] In People vs. Quijano,[13] this Court, in dismissing the plea that the trial court erred in admitting the accused's allegedly involuntary extrajudicial confession, held:
The other earmarks of voluntariness which are appreciated by this Court are the following: the signature of Atty. Rubencio Ligorio; the signature of Judge Vicente Aseniero; the presence of details in his Confession.[17]
Aside from holding that the extrajudicial Confession of Fortunato Pamon had been voluntarily given, We also hold that it was given in the presence and with the assistance of counsel.
The evidence presented by the prosecution has adequately established that Atty. Rubencio Ligorio was present when the confession was made and subscribed to. But Fortunato Pamon claimed that Atty. Rubencio Ligorio was not a counsel of his choice.
We are well aware of the constitutional mandate that the counsel present must not be just any counsel, but one who has been chosen by the accused. In a recent case, We affirmed the rule that "x x x no in-custody investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed by the court upon petition either of the detainee himself or by someone in his behalf".[18] Thus, We already had occasion to rule that where counsel is provided for by investigators, the confession taken in the presence of such counsel is inadmissible as evidence because it fails to satisfy the constitutional guarantee.[19] But this doctrine recognizes certain exceptions. Where the counsel has been appointed by the investigators with the conformity of the confessant, the latter's confession is considered as valid and binding upon him.[20] The decision in People vs. Alvarez[21] is also relevant to the case at bar. We said therein that "while it may be that a lawyer was provided by the police, Alvarez never signified to have a lawyer of his choice." Thus, the trial court's findings that Fortunato Pamon was assisted by a counsel of his choice is hereby sustained.
Having ruled on the constitutionality and admissibility of the Confession, We hereby find that the lower court did not err in convicting accused Fortunato Pamon of murder. Likewise, the trial court committed no error in holding that Fortunato Pamon was validly arrested since he himself admitted that he was taken into custody by virtue of a warrant of arrest issued by a judge who convicted him in an earlier murder case.
However, although We sustain the trial court's conviction of Fortunato Pamon, We are constrained to disagree with the trial court's conviction of Gerson Dulang. Well settled is the rule that the guilt of an accused must be established by proof beyond reasonable doubt. The prosecution failed to meet this quantum of proof with respect to Gerson Dulang. Apart from the extrajudicial Confession of Fortunato Pamon, there is no other evidence linking Gerson Dulang to the crime except the testimonies of the widow of Robert Te and of the latter's employees which We have summarized earlier. The conviction of Gerson Dulang can hardly rest on such very tenuous grounds.
We are, therefore, left with the extrajudicial Confession of Fortunato Pamon. The trial court, in admitting the Confession as evidence against Gerson Dulang said:
The rights of a party cannot be prejudiced by an act, declaration, or omission of another.[23] An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused.[24] This is so because the co-accused has no opportunity to cross-examine the confessant and thus, as against him, the confession is hearsay.[25]
The case of People vs. Plaza[26] is instructive. The ruling of the Court is quoted, thus:
WHEREFORE, premises considered, the decision of the trial court is hereby MODIFIED, We hereby AFFIRM the conviction of accused Fortunato Pamon and REVERSE and SET ASIDE the conviction of Gerson Dulang on reasonable doubt.
SO ORDERED.
Narvasa, C.J., (Chairman), Feliciano, Regalado, and Nocon, JJ., concur.
* Criminal Case No. 4250, penned by Judge Jesus O. Angeles, Acting Presiding Judge.
[1] Exhibit "A", p. 2.
[2] Records, p. 11.
[3] Records, pp. 1-2.
[4] TSN, July 20, 1990, p. 55.
[5] Rollo, p. 149.
[6] Records, pp. 245-247.
[7] Ibid., p. 248.
[8] Exhibit A-22.
[9] Records, pp. 251-252.
[10] People vs. Salvador, 163 SCRA 574 (1988); People vs. Alvarez, 201 SCRA 364 (1991).
[11] People vs. Alvarez, Ibid.
[12] People vs. Parojinog, 203 SCRA 673 (1991).
[13] 197 SCRA 761 (1991).
[14] Exhibits "I", "I-1", "I-2"; TSN, November 25, 1987, pp. 7-8, 13.
[15] 182 SCRA 182, 190-191 (1990).
[16] 190 SCRA 595, 610-611 (1990).
[17] See People vs. Toledo, 140 SCRA 259 (1985); Estacio vs. Sandiganbayan, 183 SCRA 12 (1990).
[18] People vs. Vasquez, 196 SCRA 564 (1991).
[19] See People vs. Olvis, 154 SCRA 513 (1987).
[20] People vs. Quijano, 197 SCRA 761 (1991).
[21] Supra, note 10.
[22] Records, p. 247.
[23] People vs. Jimenez, 204 SCRA 719 (1991); People vs. Bacus, 204 SCRA 81 (1991); People vs. Flores, 195 SCRA 295 (1991); People vs. Ramirez, 169 SCRA 711 (1989); People vs. Ola, 152 SCRA 1 (1987); People vs. Plaza, 140 SCRA 277 (1985).
[24] People vs. Alvarez, supra, note 10.
[25] See People vs. Alvarez, supra, note 10; People vs. Ola, supra, note 23.
[26] Supra, note 23 at pp. 290-291.
[27] See People vs. Flores, supra, note 23; People vs. Victor, 181 SCRA 818 (1990).
[28] Exhibit A-28, Folder of Exhibit, Criminal Case No. 4250, p. 3.
From the records, the following facts are evident:
In the morning of July 26, 1985, Robert Te drove his 3/4-ton cargo truck from his residence in Sta. Filomena to Sindutan, Roxas, Zamboanga del Norte to buy copra. With him were Hipolito Andig, Victorino Jauculan, Orlando Tapia, and two other laborers. While they were negotiating a road in Lipakan, the truck got stuck in the mud. As a result, the trucks of Lily Wong and Gerson Dulang which were following his truck were blocked and could not proceed. In order to pull the truck from the mud, Robert Te ordered his companions to tie the wrench of the truck to a coconut tree with a cable. Robert Te remained behind the wheel to maneuver the truck. While in that position, a man approached Robert Te and shot him on the bridge of his nose. The latter died instantly. Another shot was fired and Cesar Siga was hit. Thereafter, the truck was burned by another man. The gunman escaped and boarded the last truck which was the one owned by Gerson Dulang.
Initial investigations by the police and the National Bureau of Investigation (NBI) pointed to the New People's Army (NPA) as the killers. However, subsequent investigations by the Criminal Investigation Service (CIS) yielded Fortunato Pamon as the one responsible for Robert Te's death.
On March 14, 1987, Fortunato Pamon was arrested by virtue of a warrant of arrest for a murder charge against him in the RTC of Tangub City. He was detained at the PC stockade at Camp Hamac, Sicayab, Zamboanga del Norte.
On March 18 or 19, 1987, Fortunato Pamon, in the presence of Atty. Rubencio Ligorio of the Citizens Legal Assistance Office (CLAO), executed before Pfc. Roland Salatandre of the CIS a Confession marked as Exhibit "A". He admitted that he shot and killed Robert Te. Furthermore, he implicated John Doe, alias "Dodo", Gerson Dulang, and Inocencio Feras. The following are excerpts from the affidavit:
He also narrated the circumstances leading to his being hired as a gunman, his meeting with 'Dodo' for the first time in the house of Inocencio Feras, and how they got to Lipakan in the morning of July 26, 1985. Furthermore, he said that he was promised P15,000.00 by Inocencio Feras as payment for the job and that alias "Dodo" would receive the same amount from Gerson Dulang.
This extrajudicial confession was subscribed and sworn to before Judge Vicente Aseniero on March 20, 1987. Fortunato Pamon reaffirmed his Confession during the preliminary investigation of the case on March 23, 1987. During the said investigation, he was asked:
On September 17, 1987, an information for murder was filed against Fortunato Pamon, as principal by direct participation, Inocencio Feras and Gerson Dulang as principals by inducement, and John Doe, alias "Dodo" as accomplice. The original information stated:
"The undersigned, Provincial Fiscal, accuses FORTUNATO PAMON alias "Bebie", as principal by direct participation, Ex-Mayor INOCENCIO FERAS as principal by induction, GERSON DULANG alias "Toto" as principal by induction and JOHN DOE (at large) as accomplice of the crime of MURDER, committed as follows:When Inocencio Feras died during the course of the trial, the information was amended by dropping Feras' name and substituting the name of Gerson Dulang, in the above-quoted paragraph.
That, in the morning, on or about the 26th day of July, 1985, in the municipality of Roxas, Zamboanga del Norte, within the jurisdiction of this Honorable Court, accused Ex-Mayor Inocencio Feras being then the mastermind in the bizarre plot to liquidate one ROBERT TE alias "Dodong", did then and there wilfully, unlawfully and feloniously induce, offer a price and reward to his co-accused conspiring, confederating together and mutually helping with one JOHN DOE alias "Dodo" who is still at large, accused Fortunato Pamon who acted as the triggerman, armed with a 45 caliber pistol and with intent to kill by means of treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot said ROBERT TE alias "Dodong" while the latter was operating his 3/4 ton cargo truck bound for Sindutan of said municipality, thereby inflicting upon him gunshot wound on the bridge of his nose which caused his instantaneous death; that as a result of the commission of the said crime the heirs of the herein victim suffered the following damages, viz:
a) Indemnity for victim's death ------- P30,000.00
b) Loss of earning capacity ----------- 10,000.00
c) Moral and exemplary damages --- 20,000.00
P60,000.00
CONTRARY TO LAW, (Viol. of Art. 248, Revised Penal Code), with the aggravating circumstance of recidivism with respect to accused Fortunato Pamon alias "Bebie" having been convicted in Criminal Case No. 4615 for Murder in Tangub City, and in consideration of price and reward, and the qualifying circumstances of treachery and evident premeditation."[3]
During the trial, the prosecution presented the testimonies of Evangeline Te, the widow of Robert Te, Rolando Salatandre, Judge Vicente Aseniero, Victoriano Jauculan and Hipolito Andig.
Evangeline Te testified that at about 9:00 o'clock in the morning of July 25, 1985, she received a call from Gerson Dulang. The latter invited Robert Te to a birthday party in Gerson Dulang's house. Robert Te accepted the invitation, left at half past nine, and returned at 2:00 o'clock in the afternoon, already drunk. While in that state, he revealed to Evangeline, his wife, that Gerson Dulang told him: "We will meet in the mountain to find out who is the better man among us". She also said that before her husband left at 4:30 in the morning on July 26, 1985, he again told her those words.
Rolando Salatandre testified that the extrajudicial Confession of Fortunato Pamon was voluntary and that it was in accordance with the constitutional mandate. This was reaffirmed by Judge Vicente Aseniero in his testimony.
Victoriano Jauculan, an employee of Robert Te, pointed to Fortunato Pamon as the gunman. Hipolito Andig likewise identified Fortunato Pamon as the killer. They both stated that Fortunato Pamon boarded Gerson Dulang's truck after the incident.
Prosecution also presented as evidence the medical certificate issued by Dr. Venusto Bengua on March 20, 1992 which stated that no marks, bruises or signs of torture were found in Fortunato Pamon's body.
The defense, on the other hand, presented the testimony of Gerson Dulang who professed ignorance of the crime; of Raul Curativo, a neighbor of Fortunato Pamon, who described the killer as "short, dark in complexion, with curly hair and was bearded"[4], and who said that Fortunato Pamon was not the killer; of Jaime Gilbero, who said that at the time of the killing, Fortunato Pamon was plowing his field; and of Fortunato Pamon himself who denied the killing and retracted his extrajudicial confession. His affidavit of retraction, dated April 23, 1987, is attached as Annex "B"[5] of Appellant's Brief. He alleged therein that the confession was involuntary on his part as it resulted from torture and coercion. This affidavit was, however, not offered in the trial court as an exhibit.
After trial, the trial court convicted Fortunato Pamon, Gerson Dulang and John Doe alias "Dodo". It held:
"The prosecution's thesis that accused Pamon was the author of the death of Robert Te finds support in the Confession (Exhibit "A") of said accused admitting his role as particeps criminis or criminal partner of his co-accused, Inocencio Feras, Gerson Dulang, and John Doe alias "Dodo" admitting having killed the victim on that ill-fated morning of July 26, 1985 at Linapakan, Roxas, Zamboanga del Norte. Of course, said accused repudiated his Confession during trial claiming, among others, that he was not assisted by counsel during his investigation by CIS Pfc. Ronald Salatandre on March 18-19, 1987 at the CIS Office, Dipolog City, considering, according to him, that his supposed counsel, Atty. Rubencio Legorio, arrived in said Office when his Confession was already prepared (TSN, Hamoy, Oct. 10, 1990, p. 71) by which he meant that Atty. Legorio was not present when his Confession was taken; but this is belied by Exhibit H-3 showing Atty. Legorio while Pfc. Salatandre was typing (Exhibit H-1) his investigation of said accused, as well as latter's claim under discussion is toppled by his "unexplained failure" (People vs. Sosing, 111 SCRA 368, 374, Par. 3) to present Atty. Legorio to bolster his claim that latter lawyer was not present when his Confession was taken. Such unexplained failure of accused Pamon constituted a conduct (Underscoring supplied) on his part granting truth or verity to the prosecution's assertion that, indeed, by the latter's (prosecution's) Exh. 3-A, supra, Atty. Legorio was actually present during, and not after his (accused Pamon's) investigation, for Atty. Legorio, as a PAO attorney, would not have affixed his signature (Exhibit A-15) if Pfc. Ronald Salatandre had threatened and coerced accused Pamon into giving his sworn statement/Confession. On this point, the Supreme Court said -The trial court also considered the argument of the defense that Atty. Rubencio Ligorio was not Fortunato Pamon's choice as his counsel during the custodial investigation because Fortunato Pamon was only forced to sign a paper which turned out to be a letter to Atty. Rubencio Ligorio. Anent this allegation, the court said that there was no violation of the constitutional right of the accused to have competent and independent counsel of his own choice "because Pamon did not also refuse Atty. Legorio to assist him during his investigation, for he did not even declare during the trial that he, in fact, refused Atty. Legorio to assist him during the investigation, thus, indicating after all, his choice of Atty. Legorio as his counsel during his custodial investigation".[7]
"Surely, the CLAO attorney would not have affixed his signature had Pat. Muy, as alleged, threatened and coerced Appellant MENDOZA into giving his sworn statement." (People vs. Yap, 185 SCRA 227, Par. 5.)
In fact, accused Pamon declared that he, together with his counsel Atty. Legorio, signed his Confession (Tsn, Hamoy, Oct. 10, 1990, p. 72). A confession constitutes evidence of high order because it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless he is prompted by truth and his conscience. x x x
There was, therefore, compliance by the custodial investigator with the jural mandate in PEOPLE VS. GALIT, 135 SCRA 465 prescribing the assistance of counsel for the validity/admissibility of a Confession, in which case, accused Pamon's Confession (Exh. A, supra) is valid and admissible, not only against him, but also against his co-accused Dulang and John Doe alias "Dodo". (People vs. Ramirez, 169 SCRA 71- A SENSU CONTRARIO, because the latter authority says, 'Confessions obtained in violation of Art. III, Sec. 12(1) of the Constitution are not admissible against the declarants and much less against third persons')."[6]
In upholding the voluntariness of the extrajudicial Confession, the trial court also observed that only Fortunato Pamon could have known the identities of his co-conspirators and that he did not present evidence that the CIS knew them beforehand. Furthermore, the court also said that assuming that the Confession was inadmissible, there were other evidences which proved beyond reasonable doubt the guilt of accused Fortunato Pamon, among which was the positive identification by witnesses pointing to him as the killer. This, according to the trial court, shattered the defense of alibi of the accused. It also considered Gerson Dulang's demeanor as a basis for convicting the latter for his lack of seriousness in testifying which rendered him incapable of telling the truth. Besides, he had already been implicated by Fortunato Pamon in his Confession. He was held to be principal by induction because according to accused Fortunato Pamon's Confession, he induced co-accused John Doe alias "Dodo" to kill victim Robert Te.[8] The participation of co-accuse Fortunato Pamon was held to be principal by direct participation because according to his Confession, he was the one who actually shot Robert Te to death; John Doe was also held liable because the three were conspirators - their common purpose being to liquidate Robert Te.
After finding the defendants guilty beyond reasonable doubt of the crime of murder, the Court sentenced them as follows:
"x x x judgment is hereby rendered declaring accused, Fortunato Pamon and Gerson Dulang, guilty beyond reasonable doubt of the crime of murder charged in the Information and are hereby correspondingly sentenced each to suffer the penalty of reclusion perpetua with the accessories of the law, and to indemnify jointly and severally the heirs of deceased victim, Robert Te, in the total sum of ninety thousand pesos (not sixty thousand as mistakenly alleged in the original and amended information) (P90,000.00), inclusive of indemnity for victim's death -P60,000.00; loss of earning capacity -P10,000.00; and moral and exemplary damages -P20,000.00.From this judgment of conviction, the defendants appealed.
Accused, Fortunato Pamon, is not entitled to the full credit of his preventive imprisonment in view of his being a recidivist (Article 29, No. 1, Revised Penal Code) by reason of his previous conviction for Murder in Criminal Case No. 4615 by the Regional Trial Court of Tangub City.
Upon application filed with the Court and after due notice to the prosecution, the bailbond of accused Gerson Dulang shall be cancelled upon his surrender for the execution of this judgment.
Costs against both convicted accused."[9]
Fortunato Pamon and Gerson Dulang made separate assignments of errors. Fortunato Pamon averrs that the trial court erred in upholding the validity of his arrest and the voluntariness and admissibility of his extrajudicial Confession, and in not considering the testimony of a witness, Raul Curativo, that Fortunato Pamon was not the killer.
Gerson Dulang, on the other hand, claims that the court erred in trying him under both the original and amended informations since they both did not charge an offense against him; in admitting the amended information after his arraignment on the original information because the amendment was not merely a formal but a substantial amendment, in trying him under the amended information when he was not arraigned under it; and in depriving him of the right to be tried by an impartial judge.
Both allege that their guilt was not proven beyond reasonable doubt. They also assail the admission of the extrajudicial Confession which was involuntarily given and the conviction of Gerson Dulang under the said Confession since apart from it, there was no other evidence to prove the conspiracy and Gerson Dulang's guilt.
This appeal hinges on the admissibility or inadmissibility of the extrajudicial Confession of accused-appellant Fortunato Pamon as evidence against him and his co-accused Gerson Dulang. Both appellants allege that the trial court erred in admitting the Confession as it was violative of Article III, Section 12(1) of the Constitution which guarantees a person under investigation the right to be assisted by an independent counsel of his own choice and the right against torture and violence. Any violation of said guarantees renders an extrajudicial confession inadmissible.
Contrary to the allegations of Fortunato Pamon, We are constrained to uphold the admissibility of his extrajudicial Confession.
A confession constitutes an evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience.[10] This presumption of spontaneity and voluntariness stands unless the defense proves otherwise.[11] A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat, or promise of reward of leniency.[12] In People vs. Quijano,[13] this Court, in dismissing the plea that the trial court erred in admitting the accused's allegedly involuntary extrajudicial confession, held:
"Finally, the alleged use of force and intimidation has not been substantiated by evidence other than the statements of the appellants. As has been pointed out, such allegation is another naive attempt of appellants to backtrack from their prior voluntary admission of guilt. x x x."We believe that Fortunato Pamon has not presented enough proof to overcome this presumption. Apart from his testimony that he was maltreated, Fortunato Pamon presented no other substantial proof to buttress his claim. He did not submit any medical certificate which would attest to his allegation that he was mauled and was hit on the head. On the other hand, the prosecution's witness testified that the examining physician, Dr. Venusto Bengua, found no sign of physical maltreatment in Fortunato Pamon's body.[14] Neither did he file any complaint against his manhandlers with the proper authorities. In People vs. Solis,[15] We held:
"A careful scrutiny of the records belie the assertions of maltreatment. We find that the appellants were afforded the services of counsel during the time they executed their statements. There was also an instance when the Presiding Judge visited Joveniano's detention cell and inquired about his condition and complaints x x x. Cabug was, likewise, brought before the Fiscal before whom the former subscribed to the veracity of his statement x x x. With all these chances to report the alleged maltreatment, appellants kept silent. They did not even file a complaint against their alleged tormentors or ask their counsel or relatives to do so. x x x. We have already ruled that a confession is deemed to have been made voluntarily if the accused did not complain to the proper authorities regarding the alleged maltreatment despite the opportunity to do so x x x. Appellants neither asked for medical attention nor presented any medical certificate to attest to the bruises or injuries on their persons." (Underscoring Ours).The more recent case of People vs. Damaso,[16] quoting earlier cases, reiterated the aforementioned ruling. We quote:
"In addition, bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient in view of the standing rule x x x "that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors indicating voluntariness"."In the case at bar, Fortunato Pamon had several chances to deny the voluntariness of his Confession. First, when he and Atty. Rubencio Ligorio conferred; second, when he subscribed the Confession before Judge Vicente Aseniero on March 20, 1987; and third, when he was before the investigating officer on March 23, 1987. In the last instance, instead of repudiating his Confession, he reaffirmed it.
The other earmarks of voluntariness which are appreciated by this Court are the following: the signature of Atty. Rubencio Ligorio; the signature of Judge Vicente Aseniero; the presence of details in his Confession.[17]
Aside from holding that the extrajudicial Confession of Fortunato Pamon had been voluntarily given, We also hold that it was given in the presence and with the assistance of counsel.
The evidence presented by the prosecution has adequately established that Atty. Rubencio Ligorio was present when the confession was made and subscribed to. But Fortunato Pamon claimed that Atty. Rubencio Ligorio was not a counsel of his choice.
We are well aware of the constitutional mandate that the counsel present must not be just any counsel, but one who has been chosen by the accused. In a recent case, We affirmed the rule that "x x x no in-custody investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed by the court upon petition either of the detainee himself or by someone in his behalf".[18] Thus, We already had occasion to rule that where counsel is provided for by investigators, the confession taken in the presence of such counsel is inadmissible as evidence because it fails to satisfy the constitutional guarantee.[19] But this doctrine recognizes certain exceptions. Where the counsel has been appointed by the investigators with the conformity of the confessant, the latter's confession is considered as valid and binding upon him.[20] The decision in People vs. Alvarez[21] is also relevant to the case at bar. We said therein that "while it may be that a lawyer was provided by the police, Alvarez never signified to have a lawyer of his choice." Thus, the trial court's findings that Fortunato Pamon was assisted by a counsel of his choice is hereby sustained.
Having ruled on the constitutionality and admissibility of the Confession, We hereby find that the lower court did not err in convicting accused Fortunato Pamon of murder. Likewise, the trial court committed no error in holding that Fortunato Pamon was validly arrested since he himself admitted that he was taken into custody by virtue of a warrant of arrest issued by a judge who convicted him in an earlier murder case.
However, although We sustain the trial court's conviction of Fortunato Pamon, We are constrained to disagree with the trial court's conviction of Gerson Dulang. Well settled is the rule that the guilt of an accused must be established by proof beyond reasonable doubt. The prosecution failed to meet this quantum of proof with respect to Gerson Dulang. Apart from the extrajudicial Confession of Fortunato Pamon, there is no other evidence linking Gerson Dulang to the crime except the testimonies of the widow of Robert Te and of the latter's employees which We have summarized earlier. The conviction of Gerson Dulang can hardly rest on such very tenuous grounds.
We are, therefore, left with the extrajudicial Confession of Fortunato Pamon. The trial court, in admitting the Confession as evidence against Gerson Dulang said:
"There was, therefore, compliance by the custodial investigator with the jural mandate x x x in which case, accused Pamon's Confession (Exh. "A", supra) is valid and admissible, not only against him, but also against his co-accused Dulang x x x (People vs. Ramirez, 169 SCRA 711- A SENSU CONTRARIO, because the latter authority says, 'Confessions obtained in violation of Article III, Sec. 12(1) of the Constitution are not admissible against the declarants and much less against third persons'.)"[22] (Underscoring Ours).We cannot sustain the trial court's reasoning that if the confession is not admissible against the accused, it will not also be admissible against those who had been implicated therein. But, if it is admissible against the former, then it will also be admissible against the latter. This simply ignores the doctrine: RES INTER ALIOS ACTA ALTERI NOCER I NON DEBET.
The rights of a party cannot be prejudiced by an act, declaration, or omission of another.[23] An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused.[24] This is so because the co-accused has no opportunity to cross-examine the confessant and thus, as against him, the confession is hearsay.[25]
The case of People vs. Plaza[26] is instructive. The ruling of the Court is quoted, thus:
"In short, the extra-judicial confessions/statements of the Napal brothers are inadmissible against Plaza first, because as earlier stated they lack the indispensable requisite of corroboration by other evidence and, second, because during the trial the Napal brothers not only denied that their co-accused Plaza participated in the killing of Luna but went on to repudiate their statements as having been extracted from them through the use of force, violation [sic] and intimidation."The same situation obtains in this case. The Confession was repudiated by Fortunato Pamon during the trial. Consequently, it did not become a judicial admission which would have been admissible against all those implicated.[27] Moreover, We also want to point out that Fortunato Pamon had no personal knowledge of Gerson Dulang's participation. He only heard from alias "Dodo" that Gerson Dulang hired him to kill Robert Te.[28] Thus, the confession of Fortunato Pamon vis-a-vis Gerson Dulang was, as the appellant called it, double hearsay.
WHEREFORE, premises considered, the decision of the trial court is hereby MODIFIED, We hereby AFFIRM the conviction of accused Fortunato Pamon and REVERSE and SET ASIDE the conviction of Gerson Dulang on reasonable doubt.
SO ORDERED.
Narvasa, C.J., (Chairman), Feliciano, Regalado, and Nocon, JJ., concur.
* Criminal Case No. 4250, penned by Judge Jesus O. Angeles, Acting Presiding Judge.
[1] Exhibit "A", p. 2.
[2] Records, p. 11.
[3] Records, pp. 1-2.
[4] TSN, July 20, 1990, p. 55.
[5] Rollo, p. 149.
[6] Records, pp. 245-247.
[7] Ibid., p. 248.
[8] Exhibit A-22.
[9] Records, pp. 251-252.
[10] People vs. Salvador, 163 SCRA 574 (1988); People vs. Alvarez, 201 SCRA 364 (1991).
[11] People vs. Alvarez, Ibid.
[12] People vs. Parojinog, 203 SCRA 673 (1991).
[13] 197 SCRA 761 (1991).
[14] Exhibits "I", "I-1", "I-2"; TSN, November 25, 1987, pp. 7-8, 13.
[15] 182 SCRA 182, 190-191 (1990).
[16] 190 SCRA 595, 610-611 (1990).
[17] See People vs. Toledo, 140 SCRA 259 (1985); Estacio vs. Sandiganbayan, 183 SCRA 12 (1990).
[18] People vs. Vasquez, 196 SCRA 564 (1991).
[19] See People vs. Olvis, 154 SCRA 513 (1987).
[20] People vs. Quijano, 197 SCRA 761 (1991).
[21] Supra, note 10.
[22] Records, p. 247.
[23] People vs. Jimenez, 204 SCRA 719 (1991); People vs. Bacus, 204 SCRA 81 (1991); People vs. Flores, 195 SCRA 295 (1991); People vs. Ramirez, 169 SCRA 711 (1989); People vs. Ola, 152 SCRA 1 (1987); People vs. Plaza, 140 SCRA 277 (1985).
[24] People vs. Alvarez, supra, note 10.
[25] See People vs. Alvarez, supra, note 10; People vs. Ola, supra, note 23.
[26] Supra, note 23 at pp. 290-291.
[27] See People vs. Flores, supra, note 23; People vs. Victor, 181 SCRA 818 (1990).
[28] Exhibit A-28, Folder of Exhibit, Criminal Case No. 4250, p. 3.