Original Supplemental Cases for Section 2

7/30/2019 Original Supplemental Cases for Section 2

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PEOPLE OFTHE PHILIPPINES,

Plaintiff-Appellee,

- versus -

JOSEPHSERRANO andANTHONYSERRANO,

Accused-Appellants.

G.R. No. 179038

Present:

PUNO, C.J. , Chairperson,

CARPIO MORALES, LEONARDO-DE CASTRO, BERSAMIN, and VILLARAMA, JR., JJ.

Promulgated:

May 6, 2010

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

D E C I S I O N

LEONARDO-DE CASTRO, J .:

Submitted for Our review is the Decision [1] dated December 29, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No.00494 which affirmed the decision of the Regional Trial Court (RTC) of Pasig City, Branch 70, in Criminal Case Nos. 12007-Dand 12008-D . In Criminal Case No. 12007-D, both accused-appellants Joseph and Anthony Serrano were found guilty of theillegal sale of methamphetamine hydrochloride (shabu ), a dangerous drug, in violation of Section 5, Article II of Republic ActNo. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, while in Criminal Case No. 12008-D,accused-appellant Anthony Serrano was found guilty of illegal possession of said drug in violation of Section 11, Article II of

the same Act.
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In Criminal Case No. 12007-D, the Information [2] dated January 22, 2003 charged accused-appellants Joseph and

Anthony Serrano with violation of Section 5, Article II of Republic Act No. 9165 [3] as follows:

Criminal Case No. 12007-D

On or about January 18, 2003, in Pasig City and within the jurisdiction of this Honorable Court, the accused,conspiring and confederating together and mutually helping and aiding one another, not being lawfully authorized bylaw, did, then and there willfully, unlawfully and feloniously sell, deliver and give away to PO1 Michael Familara, apolice poseur-buyer, one (1) heat-sealed transparent plastic sachet containing five centigrams ( 0.05 gram ) of whitecrystalline substance, which was found positive to the test for methylamphetamine hydrochloride (shabu) , adangerous drug, in violation of the said law. (Emphases ours.)

While in Criminal Case No. 12008-D, the Information [4] charged accused-appellant Anthony Serrano with violation of

Section 11, Article II of Republic Act No. 9165 ,[5] committed as follows:

Criminal Case No. 12008-D

On or about January 18, 2003, in Pasig City and within the jurisdiction of this Honorable Court, the saidaccused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully andfeloniously have in his possession and under his custody and control four (4) heat-sealed transparent plastic sachetseach containing the following:

a) nineteen decigrams ( 0.19 gram ) b) twenty decigrams ( 0.20 gram ) c) twenty three decigrams ( 0.23 gram ) d) fifteen decigrams ( 0.15 gram )

of white crystalline substance, which were found positive to the test for methylamphetamine hydrochloride (shabu) ,a dangerous drug, in violation of the said law. (Emphases ours.)
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When arraigned, accused-appellants pleaded not guilty to the charges. After the pre-trial conference was terminatedwithout any stipulations or admissions entered into by the parties, Criminal Case Nos. 12007-D and 12008-D were jointly tried.

The prosecution presented the following witnesses: the poseur-buyer, Police Officer (PO) 1 Michael Familara (PO1Familara); the other members of the buy-bust operation team, namely, Senior Police Officer (SPO) 3 Leneal Matias (SPO3Matias) and PO3 Carlo Luna (PO3 Luna); and the forensic chemist, P/Inspector Lourdeliza M. Gural (P/Insp. Gural). PO1Familara, SPO3 Matias and PO3 Luna were all officers of the Pasig Police Station, Drug Enforcement Division, while P/Insp.Gural was a member of the Eastern Police District Crime Laboratory.

The object and documentary evidence for the prosecution included, among others: the five heat-sealed plastic sachetsallegedly recovered from the accused-appellants at the time of the arrest; Chemistry Report No. D-120-03E ,[6] confirming that

the contents of the said plastic sachets were methylamphetamine hydrochloride or shabu ; and the marked money used in thebuy-bust operation.

The Court of Appeals summarized the prosecutions version of events as follows:

In the afternoon of January 18, 2003, Major Jerry Galvan received a telephone call from a concerned citizenabout an illegal drug trade being conducted by a certain alias Tune in Barangay Bambang, Pasig City. Thereafter,Major Galvan coordinated with the Philippine Drug Enforcement Agency (PDEA) for the conduct of a buy-bustoperation. Thus, a team led by SPO3 Leneal Matias, PO3 Carlo Luna and PO1 Michael Familara (PO1 FAMILARA)was formed to buy shabu from Tune with the aid of a confidential inform ant.

Preparations were then made, and two (2) One Hundred Peso bills were marked MRF and delivered to theassigned poseur-buyer, PO1 FAMILARA.

The composite team thereafter proceeded to E. Jacinto St. Brgy. Bambang, Pasig City about 3:00 oclock in t heafternoon, the confidential informant pointed to a house where accused-appellant JOSEPH was found standing. SPO3Leneal Matias and PO3 Carlo Luna positioned themselves at a distance where they can see PO1 FAMILARA, whoapproached the accused-appellant JOSEPH together with the confidential informant.

The confidential informant greeted the accused-appellant JOSEPH and informed him that his companion, PO1

FAMILARA, would buy Php 200.00 worth of shabu.
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Accused- appellant JOSEPH thereafter knocked at the door of Tune, who turned out to be accused -appellantANTHONY. Accused-appellant ANTHONY partially opened the door and conferred with the accused-appellantJOSEPH. PO1 FAMILARA thereafter handed the marked money to the accused-appellant JOSEPH, who in turnhanded the same to the accused-appellant ANTHONY. Upon receiving the money, accused-appellant ANTHONY thentook out a plastic sachet containing a white crystalline substance from his pocket and handed the same to the accused-appellant JOSEPH. Accused-appellant JOSEPH, in turn, handed the plastic sachets to PO1 FAMILARA.

FAMILARA thereafter immediately grabbed accused- appellant JOSEPHs hand while the rest of the teamrushed to the scene to arrest the accused-appellants. Accused-appellant ANTHONY attempted to escape to his housebut was subsequently likewise apprehended.

Both accused-appellants were bodily frisked after their apprehension. Recovered from accused-appellantANTHONY were four heat-sealed plastic sachets with white crystalline substances, two (2) marked one hundred pesobills, a pair of scissors, a disposable lighter and one plastic bag containing several pieces of empty plasticsachets. However, nothing aside from the heat-sealed plastic sachet he previously handed to PO1 FAMILARA was

recovered from accused-appellant JOSEPH.

Thereafter, the accused-appellants were brought to the Pasig Police Station for further investigation, and theevidence recovered were marked and forwarded to the PNP Crime Laboratory for examination.

Upon examination by P/Insp. Lourdeliza Gural, the five heat-sealed plastic sachets containing white crystallinesubstances were found positive [for] Methylamphetamine Hydrochloride or commonly known as shabu. [7]

In their defense, both accused-appellants denied the charges against them. Joseph Serrano averred that he was at his brothers (Anthonys) house at the time of the arrest to fetch the latter because they, in turn, were going to fetch another siblingin Cubao, Quezon City. He also claimed that the plastic sachets containing the white crystalline substance were shown to himonly at the police station .[8]

For his part, Anthony alleged that he was inside the comfort room of his house when he heard a commotion. When hecame out of the comfort room, he saw his brother Joseph in handcuffs and being held by a man with a gun. Anthony allegedlypolitely inquired why the men with guns were holding his brother and the men replied that they were police officers. The said

officers then asked the accused-appellants to go with them to the Pasig Police Station, which the accused-appellants both did
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voluntarily. Anthony further claimed that three police officers searched his house but found nothing and that he and Josephonly came to know the reason for their arrest and detention when they were already in court .[9]

The accused-appellants offered no documentary evidence .[10]

In a Decision [11] dated August 20, 2004, the RTC rendered judgment convicting the brothers Joseph and Anthony Serranofor illegal sale of shabu in Criminal Case No. 12007-D and Anthony Serrano for illegal possession of shabu in Criminal CaseNo. 12008-D. The fallo of the RTC Decision reads:

WHEREFORE , premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 12007-D, filed against accused Anthony Serrano and Joseph Serrano for Violationof Section 5, Article II, Republic Act No. 9165 (illegal sale of shabu), both accused are hereby sentenced to LIFEIMPRISONMENT and to solidarily pay a fine of Five Hundred Thousand Pesos (PHP 500,000.00).

In Criminal Case No. 12008-D , filed only against accused Anthony Serrano for Violation of Section 11, ArticleII, Republic Act No. 9165 (illegal possession of shabu), said accused is hereby sentenced to TWELVE (12) YEARSand ONE (1) DAY to TWENTY (20) YEARS and to pay a Fine of Three Hundred Thousand Pesos(PHP300,000.00) .

Considering the penalty imposed by the Court, the immediate commitment of herein accused to the NationalPenitentiary is hereby ordered.

Pursuant to Section 20 of Republic Act 9165, the amount of Two Hundred Pesos (PHP200.00) recovered fromthe accused representing the proceeds from the illegal sale of the plastic sachet of shabu is hereby ordered forfeited infavor of the government.

Again, pursuant to Section 21 of the same law, the Philippine Drug Enforcement Agency (PDEA) is herebyordered to take charge and have custody of the plastic sachets of shabu and drug paraphernalia, subject of these cases.

Costs against the accused .[12]
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In arriving at its Decision, the RTC relied on the presumption of regularity in the performance of official duty in ascribinggreater credence to the testimonies of the prosecution witnesses vis--vis what it termed as self -serving averments of theaccused-appellants. The trial court further held that in the absence of evidence of improper motive on the part of theprosecution witnesses to testify falsely against the accused-appellants, the testimonies of the former are entitled to full faith andcredit .[13]

In view of the imposition of the penalty of life imprisonment on the accused-appellants, the case was elevated to theCourt of Appeals for automatic review pursuant to this Courts ruling in People v. Mateo .[14]

As we previously stated at the outset, the Court of Appeals, in its assailed Decision of December 29, 2006, affirmed thatof the RTC.

Accused-appellants appealed their convictions via a Notice of Appeal pursuant to Section 13(c), Rule 124 of the Rules of Criminal Procedure, as amended. With the elevation of the records to this Court and the acceptance of the appeal, the partieswere required to file their respective supplemental briefs, if they so desired, within 30 days from notice . [15] In their respectiveManifestations ,[16] the parties waived the filing of supplemental briefs and instead merely adopted their earlier Briefs before theCourt of Appeals.

In their Brief ,[17] accused-appellants assign two errors allegedly committed by the trial court, to wit:

I. THE COURT A QUO GRAVELY ERRED IN FINDING THE EXISTENCE OF CONSPIRACY IN THE CASE ATBAR.

II.

THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY OF THE CRIMESCHARGED DESPITE THE PROSECUTIONS FAILURE TO PROVE THEIR GUILT BEYOND REASONABLEDOUBT.

We are unconvinced that the trial court indeed committed the foregoing errors.
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On the first assigned error, accused-appellants contend that the prosecution evidence was insufficient to establish beyondreasonable doubt the fact of conspiracy between them in the illegal drug sale. They point out that the testimony of the poseur-buyer, PO1 Familara, that it was Joseph who received the marked money from him, was contradictory to his and the otherofficers testimonies that the same was recovered from Anthony by another arresting officer, PO3 Luna .

After a careful perusal of the transcripts of the testimonies of the three police officers who were involved in the buy-bustoperation, we find no contradiction or inconsistency in the testimony of PO1 Familara. He and his fellow officer, SPO3 Matias,narrated that although PO1 Familara handed the marked money to Joseph, Joseph in turn handed the money to his brother,Anthony. It was only after taking the marked bills from Joseph that Anthony produced a sachet of shabu from his pocket whichhe handed to Joseph to give to the poseur-buyer. Thus, the fact that the marked bills were found in the possession of Anthonyduring the arrest was more than sufficiently explained.

Reviewing assiduously the prosecutions evidence, we conclude that the trial court correctly found that there wasconspiracy between the accused-appellants in this case.

It is well-entrenched in our jurisprudence that:

Conspiracy is always predominantly mental in composition because it consists primarily of a meeting of minds and intent. By its nature, conspiracy is planned in utmost secrecy. Hence, for collective responsibility to beestablished, it is not necessary that conspiracy be proved by direct evidence of a prior agreement to commit thecrime as only rarely would such agreement be demonstrable since, in the nature of things, criminal undertakings arerarely documented by agreements in writing.

But the courts are not without resort in the determination of its presence. The existence of conspiracy may beinferred and proved through the acts of the accused, whose conduct before, during and after the commission of thecrime point to a common purpose, concert of action, and community of interest. In short, conduct may establishconspiracy.

An accepted badge of conspiracy is when the accused by their acts aimed at the same object, oneperforming one part and another performing another so as to complete it with a view to the attainment of thesame object, and their acts though apparently independent were in fact concerted and cooperative, indicating closenessof personal association, concerted action and concurrence of sentiments .[18] (Emphases ours.)


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Thus, in People v. Santos ,[19] which has similar factual antecedents as this case, the Court had the occasion to rule that:

There is conspiracy when two or more persons come to an agreement concerning the commission of a felony anddecide to commit it. The same degree of proof necessary to prove the crime is required to support a finding of criminalconspiracy. Direct proof, however, is not essential to show conspiracy. It need not be shown that the parties actuallycame together and agreed in express terms to enter into and pursue a common design. Proof of concerted action before,

during and after the crime, which demonstrates their unity of design and objective is sufficient. As correctly held bythe trial court, the act of appellant Santos in receiving the marked money from PO3 Luna and handing the sameto appellant Catoc, who in turn gave a sachet containing shabu to appellant Santos to give the policeman,unmistakably revealed a common purpose and a community of interest indicative of a conspiracy between theappellants. (Emphasis ours.)

As testified to by the police officers involved in the buy-bust operation, it was accused-appellant Joseph who negotiatedwith the poseur-buyer, PO1 Familara, received the buy-bust money, and handed the same to Anthony. Anthony, after receivingthe money from Joseph, handed the latter the sachet of shabu to be given to PO1 Familara. It was Joseph who delivered theillegal drug to PO1 Familara. When Anthony was frisked during the arrest, the police officers retrieved the marked money thatJoseph gave him, together with other sachets of shabu and paraphernalia used in packing the illegal drug, such as several emptyplastic bags, a disposable lighter and a pair of scissors. Clearly, there was concerted action between the brothers Joseph andAnthony before, during and after the offense which ably demonstrated their unity of design and objective to sell the dangerousdrug.

Thus, we see no reason to disturb the RTCs finding, as affirmed by the Court of Appeals, that:

While it was with accused Joseph Serrano that PO1 Familara transacted regarding the acquisition of shabu and towhom he paid the buy bust money, it was from accused Anthony Serrano that accused Joseph Serrano actually got thedangerous drugs subject of the transaction. From the above scenario, no other conclusion can be drawn but that bothaccused were engaged in the illegal trade .[20]

As for the second assigned error in their Brief, accused-appellants insist that the prosecution failed to establish their guiltbeyond reasonable doubt. They contend that the RTC was mistaken in giving full faith and credence to the testimonies of the
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pol ice officers and in upholding the presumption of regularity in the performance of said officers official functions which the ycontend cannot overcome the constitutional presumption of innocence in their favor.

Contrary to the accused- appellants assert ion, their constitutional right to be presumed innocent was not infringed by thereliance of the trial court on the presumption of regularity in the performance of official functions on the part of the arrestingofficers. In several cases, this Court has relied on such a presumption of regularity in order to determine if the testimonies of the police officers who conducted the buy-bust operation deserve full faith and credit .[21] InPeople v. Llamado ,[22] we held:

In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incidentby the prosecution witnesses especially when they are police officers who are presumed to have performed their dutiesin a regular manner, unless there be evidence to the contrary. Moreover , in the absence of proof of motive tofalsely impute such a serious crime against the appellant , the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over appellants sel f-serving and uncorroborated denial. (Emphasis ours.)

The jurisprudence on this point cited in accused- appellants Brief cannot be applied to their case. In People v.Tan ,[23] People v. Labarias [24] and People v. Dismuke ,[25] the accused had sufficiently proven irregularities in the conduct of thebuy-bust operation and/or ill motives on the part of the police officers which rebutted the presumption of regularity in theperformance of their duty. In the case at bar, accused-appellants did not prove any irregularity in the procedures undertaken bythe police officers nor did they ascribe bad faith or any improper motive to the police officers involved. On the contrary,accused-appellant Joseph Serrano testified on cross-examination that he did not know of any reason for the police to file chargesagainst him .[26]

Verily, we find that the degree of proof required in criminal cases has been met in this instance. Hence, there is no reasonto deviate from both the lower courts findings and conclusions that accused -appellants committed the offenses charged.

Fundamental is the principle that findings of the trial courts which are factual in nature and which involve the credibilityof witnesses are accorded respect when no glaring errors; gross misapprehension of facts; and speculative, arbitrary andunsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position todecide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifyingduring the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals .[27]
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For the successful prosecution of offenses involving the illegal sale of drugs under Section 5, Article II of Republic Act

No. 9165, the following elements must be proven: (1) the identity of the buyer and seller, object, and consideration; and (2) thedelivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is theproof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. [28]

Here, the records bear out that all the elements of the offense have been established beyond reasonable doubt.

The Court finds the testimonies of the prosecution witnesses credible, straightforward and corroborative of each other.Their testimonies sufficiently proved that a legitimate buy-bust operation took place wherein the accused-appellants wereapprehended. Moreover, the shabu subject of the sale was brought to, and properly identified in, court. Accused-appellantswere likewise positively identified as the persons who sold the sachet containing the crystalline substance which was laterconfirmed to be shabu according to the Chemistry Report of the forensic chemist.

PO1 Familara, the poseur-buyer, testified, thus:

Q Mr. Witness, did you proceed to the place of alias Tune as instructed by your chief, Major Galvan?

A Yes, sir. We went to the place. When we reached the place, my companions, SPO3 Leneal Matias and PO3Carlo Luna positioned themselves in a place wherein they could see me.

Q And what is your role in this, you said buy-bust operation to be conducted?

A I was assigned police poseur-buyer, sir.

Q Were you able to meet this alias Tune?

A Upon reaching the place, the confidential informant pointed to us the house wherein we saw a male personstanding, sir.

Q And what did you do next when the confidential informant pointed to a person standing near the house?


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A He told us that the place wherein a male person was standing is the house of Tune and the male person who wasstanding there is Tunes brother, sir.

Q So, what did you do next, Mr. Witness, when the house of Tune was pointed to you by the confidentialinformant?

A When we reached the house, the confidential informant greeted the brother of Tune being familiar to him, sir.

Q And what was (sic) the greetings all about made by the confidential informant to the brother of Tune?

A The confidential informant asked the male person, Pare, kumusta na and the male person answered, Okeylang. Anong kailangan mo?

Q Where were you and the members of your team when the informant greeted the brother of Tune?

A I was there together with the confidential informant, sir.

Q How about the other members of your team? Where were they?

A They positioned themselves in a place farther from us but they could see me, sir.

Q What else happened after the informant greeted the brother of Tune?

A The confidential informant told the brother of Tune that I will be buying shabu for two pesos (sic) so he

knocked at the door and asked if shabu was available, sir.

Q Now, when the brother of alias Tune knocked on the door, to (sic) whose house did he knock?

A Joseph knocked at the door where he was standing, sir.

Q What happened next, Mr. Witness, after the brother of alias Tune knocked on the door near where he wasstanding?


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A When alias Tune came out of the house, the confidential informant pointed him to me saying that that personis Tune, sir.

Q And what else happened after the man alias Tune came out from the house?

A Joseph and Tune talked and the confidential informant got the money from me so he can pay for the drugs, sir.

Q And what money did the confidential informant got from you after alias Tune came out of the house?

A The money which the confidential informant took from me where (sic) the two 100-peso bills where I placedmy initials (sic) which will be used as buy-bust money for the operation, sir.

Q Did you give that money to the confidential informant?

A No, sir. I was the one who personally handed the money to Joseph.

Q Now, did you tell anything to Joseph when you handed the money?

A Nothing, sir. It was the confidential informant who talked with him, sir.

Q What happened after you gave the money to Joseph?

A After I have given the money to Tunes brother, Joseph again knocked at the door so Tune would come out of the house, sir.

Q Mr. Witness, could you tell us again to whom did you give the money which you said was marked?

A To one named Joseph, sir.

Q That Joseph is the alias Tune?

A No, sir. He is the brother of one alias Tune.

Q After handing the money which you said was marked to Joseph, what happened?


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A After I have given the money to Joseph, Joseph knocked at the door and when Tune opened the door and took

the money from Joseph, Tune took [the] sachet of shabu from his pocket to be given to me. Tune gave firstthe shabu to Joseph and it was Joseph who handed the shabu to me because it was Joseph who was nearer to me,sir.

Q How far were you from alias Tune when he took out from his pocket one sachet of shabu ?

A Dito po hanggang dyan sa upuan .

PROSEC ALBERTO -

Witness pointing to a distance, Your Honor, of at least two meters.

ATTY. SAMSON -

That would be at least three meters from the area where the witness is sitting to this chair.

PROSEC ALBERTO -

We will stipulate that the distance is three meters, Your Honor.

Q How about your distance to Joseph?

A About an arms length, sir.

Q Now, what did Joseph do with the plastic sachet of shabu after alias Tune gave him the sachet of shabu ?

A After that, he immediately handed to me the sachet of shabu , after which, I immediately grabbed his hand andtried to apprehend him, sir.

Q Who in particular gave you the plastic of shabu ?

A The brother of Tune, sir.


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Q What is the name of that brother?

A Joseph Serrano, sir.

Q Mr. Witness, if that Joseph Serrano is present in Court, will you be able to identify him?

A Yes, sir.

Q Please point to him if he is in Court?

COURT INTERPRETER -

Witness tapped the shoulder of a male person who when asked identified himself as Joseph Serrano.

PROSEC ALBERTO -

How about Anthony Serrano? Could you identify him?

A Yes, sir.

Q Please do, Mr. Witness, if he is in Court.

COURT INTERPRETER -

Witness tapping the shoulder of a male person who when asked identified himself as Anthony Serrano .[29]

PO1 Familara further testified that when he grabbed Josephs hand and tried to apprehend the latter, the rest of the buy -bust team approached and helped him in arresting the accused-appellants. Four (4) other plastic sachets of shabu and the marked


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Likewise sustained is the penalty of twelve (12) years and one (1) day to twenty (20) years imprisonment and a fine of

Three Hundred Thousand Pesos (P300,000.00) imposed on accused-appellant Anthony Serrano in Criminal Case No. 12008-Dfor illegal possession of shabu, the total quantity of which is 0.77 gram. Section 11, Article II of Republic Act No. 9165imposes the penalty of imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from ThreeHundred Thousand Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00) if the quantities of dangerous drugsare less than five (5) grams.

WHEREFORE , premises considered, the instant appeal is DENIED . The Decision dated December 29, 2006 of theCourt of Appeals in CA-G.R. CR.-H.C. No. 00494 affirming the Decision of the Regional Trial Court of Pasig City, Branch 70,in Criminal Case No. 12007-D and Criminal Case No. 12008-D is hereby AFFIRMED . No costs.

SO ORDERED .


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JESSE U. LUCAS, Petitioner,

- versus -

JESUS S. LUCAS, Respondent.

G.R. No. 190710

Present:

CARPIO, J.,Chairperson,

NACHURA, PERALTA, ABAD, and MENDOZA, JJ.

Promulgated:

June 6, 2011

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

DECISION

NACHURA, J .:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for reviewon certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailedin this petition are the Court of Appeals (CA) Decision [1] dated September 25, 2009 and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the

Submission of Parties to DNA Testing )[2]

before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner
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narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain AteBelen (Belen) who worked in a prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On oneoccasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship developedbetween the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The nameof petitioners father was not stated in petitioners certificate of live birth. However, Elsie later on told petitioner that his fatheris respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedlyextended financial support to Elsie and petitioner for a period of about two years. When the relationship of Elsie and respondentended, Elsie refused to accept respondents offer of support and decided to raise petitioner on her own. While petitioner wasgrowing up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the peti tion were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate;(c) petitioners college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree inPsychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of thePhilippines, College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musicalprodigy.

Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establishfiliation. His counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC,finding the petition to be sufficient in form and substance, issued the Order [3] setting the case for hearing and urging anyonewho has any objection to the petition to file his opposition. The court also directed that the Order be published once a week forthree consecutive weeks in any newspaper of general circulation in the Philippines, and that the Solicitor General be furnished

with copies of the Order and the petition in order that he may appear and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearanceand Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petitionwas adversarial in nature and therefore summons should be served on him as respondent; (3) should the court agree thatsummons was required, he was waiving service of summons and making a voluntary appearance; and (4) notice by publicationof the petition and the hearing was improper because of the confidentiality of the subject matter .[4]


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On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Tryand Hear the Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be servedwith summons.

After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration .[5] Respondent averred thatthe petition was not in due form and substance because petitioner could not have personally known the matters that were allegedtherein. He argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitionersfather. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.

On July 30, 2008, the RTC, acting on respondents motion for reconsid eration, issued an Orde r[6] dismissing the case. Thecourt remarked that, based on the case of Herrera v. Alba ,[7] there are four significant procedural aspects of a traditionalpaternity action which the parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physicalresemblance between the putative father and the child. The court opined that petitioner must first establish these four proceduralaspects before he can present evidence of paternity and filiation, which may include incriminating acts or scientific evidencelike blood group test and DNA test results. The court observed that the petition did not show that these procedural aspects werepresent. Petitioner failed to establish a prima facie case considering that (a) his mother did not personally declare that she hadsexual relation s with respondent, and petitioners statement as to what his mother told him about his father was clearly hearsay;(b) the certificate of live birth was not signed by respondent; and (c) although petitioner used the surname of respondent, therewas no allegation that he was treated as the child of respondent by the latter or his family. The court opined that, having failedto establish a prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive portion of thesaid Order therefore reads:

WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of atraditional paternity action in his petition, his motion for the submission of parties to DNA testing to establish paternity

and filiation is hereby DENIED. This case is DISMISSED without prejudice.

SO ORDERED .[8]

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in hisfavor. Thus, on October 20, 2008, it issued the Orde r[9] settin g aside the courts previous order, thus:

WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.
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Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22,2009 at 8:30 in the morning .

x x x x

SO ORDERED .[10]

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is prematureconsidering that a full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form andsubstance. It was verified, it included a certification against forum shopping, and it contained a plain, concise, and directstatement of the ultimate facts on which petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in t he petition were not of petitioners personal knowledge is amatter of evidence. The court also dismissed respondents arguments that there is no basis for the taking of DNA test, and th at

jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA Evidence[11]

allows theconduct of DNA testing, whether at the courts instance or upon application of any person who has lega l interest in the matter inlitigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition ,[12] reiterating that (a) the petition was not in due form and substance as no defendant was named in the title, and all thebasic allegations were hearsay; and (b) there was no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing .[13]

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 andJanuary 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailedOrders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172 of
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Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the casedocketed as SP. Proceeding Case No. 30-V-07 is DISMISSED .[14]

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served onhim. Respondents sp ecial appearance could not be considered as voluntary appearance because it was filed only for the purposeof questioning the jurisdiction of the court over respondent. Although respondent likewise questioned the courts jurisdictio nover the subject matter of the petition, the same is not equivalent to a waiver of his right to object to the jurisdiction of the courtover his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testingorder to abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural aspects of atraditional paternity action had been met. The CA further held that a DNA testing should not be allowed when the petitioner hasfailed to establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been intended totrample on the substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment,or extortion. It could have not been intended to legalize unwarranted expedition to fish for evidence. Such will be the situationin this particular case if a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognitioncases is immediately available to the petitioner/complainant without requiring first the presentation of corroborative proof,then a dire and absurd rule would result. Such will encourage and promote harassment and extortion.

x x x x

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNAtesting to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If atanytime, motu proprio and without pre-conditions, the court can indeed order the taking of DNA test in compulsoryrecognition cases, then the prominent and well-to-do members of our society will be easy prey for opportunists andextortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger years could be used as a meansto harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-just in case-bypointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA test forcompulsory recognition case opens wide the opportunities for extortionist to prey on victims who have no stomach forscandal .[15]
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Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit .[16] In this petition for review on certiorari , petitioner raises the following issues:

I.WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OFJURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER RAISEDIN THE PETITION FOR CERTIORARI.

I.AWHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTIONWAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.

I.BWHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THATTHE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OFTHE COURT A QUO .

I.CWHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THATTHE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.

II.WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THEPETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO ) FORTHE CONDUCT OF DNA TESTING.

II.AWHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THATDNA TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMAFACIE PROOF OF FILIATION.

III.WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASEOF HERRERA VS. ALBA,
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ESPECIALLY AS R EGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONALPATERNITY ACTION. [17]

Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned.At any rate, respondent had already voluntarily submitted to the jurisdiction of the trial court by his filing of several motionsasking for affirmative relief, such as the (a) Motion for Reconsideration of the Order dated September 3, 2007; (b) ExParte Motion to Resolve Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsiderationof the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admittedthat he has waived his right to summons in his Manifestation and Comment on Peti tioners Very Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondentsname, the body of the petition clearly indicates his name and his known address. He maintains that the body of the petition iscontrolling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since itis not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it shouldhave simply denied the motion .[18] Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that theremust be a prior proof of filiation before DNA testing can be ordered. He adds that the CA erroneously relied on the foursignificant procedural aspects of a paternity case, as enunciated in Herrera v. Alba .[19] Petitioner avers that these proceduralaspects are not applicable at this point of the proceedings because they are matters of evidence that should be taken up duringthe trial .[20]

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merelyreiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petit ionersassertion, he raised the issue before the CA in relation to his claim that the petition was not in due form and substance.Respondent denies that he waived his right to the service of summons. He insists that the alleged waiver and voluntaryappearance was conditional upon a finding by the court that summons is indeed required. He avers that the assertion of
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affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as waiver of thedefense of lack of jurisdiction over such person.

The petition is meritorious.

Prim arily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss thepetition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither terminates norfinally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. Assuch, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, whichis a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss bethe subject of an appeal unless and until a final judgment or order is rendered. In a number of cases, the court has granted theextraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction .[21] In the present case, we discern no grave abuse of discretion on the partof the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over h is person due to theabsence of summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation, which isequivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction over the person of respondent, or whether respondent waived his right to the service of summons. We find that theprimordial issue here is actually whether it was necessary, in the first place, to serve summons on respondent for the court toacquire jurisdiction over the case. In other words, was the service of summons jurisdictional? The answer to this questiondepends on the nature of petitioners action, that is, whether it is an action in personam, in rem, or quasi in rem .

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thingitself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person'sinterest in a property to a corresponding lien or obligation. A petition directed against the "thing" itself or the res , whichconcerns the status of a person, like a petition for adoption, annulment of marriage, or correction of entries in the birthcertificate, is an action in rem .[22]
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In an action in personam , jurisdiction over the person of the defendant is necessary for the court to validly try and decidethe case. In a proceeding in rem or quasi in rem , jurisdiction over the person of the defendant is not a prerequisite to confer

jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) bythe seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of theinstitution of legal proceedings, in which the power of the court is recognized and made effective. [23]

The herein petition to establish illegitimate filiation is an action in rem . By the simple filing of the petition to establishillegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latterthereby acquired jurisdiction over the case. An in rem proceeding is validated essentially through publication. Publication isnotice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objectionof any sort to the right sought to be established .[24] Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but merely for satisfying the due process requirements .[25] This is but proper in order to afford the person concernedthe opportunity to protect his interest if he so chooses .[26] Hence, failure to serve summons will not deprive the court of its

jurisdiction to try and decide the case. In such a case, the lack of summons may be excused where it is determined that theadverse party had, in fact, the opportunity to file his opposition, as in this case. We find that the due process requirement withrespect to respondent has been satisfied, considering that he has participated in the proceedings in this case and he has theopportunity to file his opposition to the petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we furthe r hold that the hereinpetition to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the

name of a defendant, the failure to implead respondent as defendant, and the non-service of summons upon respondent. Aproceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter anopportunity to contest it .[27] In this petition classified as an action in rem the notice requirement for an adversarialproceeding was likewise satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directedby the trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, whichrequires the complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his

claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate .[28]

A
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complaint states a cause of action when it contains the following elements: (1) the legal right of plaintiff, (2) the correlativeobligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right .[29]

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent.Respondent, however, contends that the allegations in the petition were hearsay as they wer e not of petitioners personalknowledge. Such matter is clearly a matter of evidence that cannot be determined at this point but only during the trial whenpetitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determinationis the sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must hypothetically admit the truth of the facts alleged in the complaint .[30] The inquiry is confined to the four corners of the complaint, and no other .[31] The test of the sufficiency of the facts alleged inthe complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same inaccordance with the prayer of the complaint .[32]

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it isincumbent upon the court to deny the motion to dismiss and require the defendant to answer and go to trial to prove hisdefense. The veracity of the assertions of the parties can be ascertained at the trial of the case on the merits . [33]

The statement in Herrera v. Alba [34] that there are four significant procedural aspects in a traditional paternity case whichparties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-calledprocedural aspects during trial, when the parties have presented their respective evidence. They are matters of evidence that

cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. TheCAs observation that petitioner failed to est ablish a prima facie case the first procedural aspect in a paternity case istherefore misplaced. A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNAtesting since no evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, underthe circumstances, a DNA testing order is warranted considering that no such order has yet been issued by the trial court. Infact, the latter has just set the said case for hearing.
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At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well takenand deser ves the Courts attention. In light of this observation, we find that there is a need to supplement the Rule on DNAEvidence to aid the courts in resolving motions for DNA testing order, particularly in paternity and other filiation cases. We,thus, address the question of whether a prima facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence inthe judicial system. It provide s the prescribed parameters on the requisite elements for reliability and validity ( i.e., the properprocedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admissionof DNA test results a s evidence as well as the probative value of DNA evidence. It seeks to ensure that the evidence gathered,using various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, moreimportantly, shall c ontinue to ensure that DNA analysis serves justice and protects, rather than prejudice the public. [35]

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard theaccuracy and integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order . The appropriate court may, at any time, either motu proprio oron application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shallissue after due hearing and notice to the parties upon a showing of the following:

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

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

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

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

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy orintegrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party,

including law enforcement agencies, before a suit or proceeding is commenced.
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This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said

conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein theapplicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or goodcause for the holding of the test. [36] In these states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. TheSupreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches andseizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have differed

regarding the kind of procedures which are required, but those jurisdictions have almost universally found that apreliminary showing must be made before a court can constitutionally order compulsory blood testing in paternitycases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory bloodtesting, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in casesin which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show causehearing must be held in which the court can determine whether there is sufficient evidence to establish a prima

facie case which warrants issuance of a court order for blood testing .[37]

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassmentsuits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish areasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon thecourt. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is alreadypreponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in itsdiscretion, disallow a DNA testing.


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WHEREFORE , premises considered, the petition is GRANTED . The Court of Appeals Decision dated September 25,2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE . The Orders dated October 20, 2008 andJanuary 19, 2009 of the Regional Trial Court of Valenzuela City are AFFIRMED .

SO ORDERED .


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BRICCIO Ricky A. POLLO, Petitioner,

- versus -

CHAIRPERSON KARINACONSTANTINO-DAVID, DIRECTOR IV RACQUEL DEGUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III

G.R. No. 181881

Present:

CORONA, C.J ., CARPIO,

VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO , ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO, REYES, and PERLAS-BERNABE, JJ.

ENGELBERT ANTHONY D.UNITE AND THE CIVIL SERVICECOMMISSION,

Respondents.

Promulgated:

October 18, 2011

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

DECISION

VILLARAMA, JR., J .:

This case involves a search of office computer assigned to a government employee who was charged administratively andeventually dismissed from the service. The employees personal files stored in the computer were used by the government

employer as evidence of misconduct.
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Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside theDecision [1] dated October 11, 2007 and Resolution [2] dated February 29, 2008 of the Court of Appeals (CA). The CA dismissedthe petition for certiorari (CA- G.R. SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify the proceedingsconducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conductprejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Chargeof the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson KarinaConstantino-David which was marked Confidential and sent through a courier service (LBC) from a certain Alan SanPascual of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSCCentral Office. Following office practice in which documents marked Confidential are left unopened and instead sent to theaddressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman Civil Service Commission Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of youragency to be a lawyer of an accused govt emplo yee having a pending case in the csc. I honestly think this is a violation of law andunfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of theMamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in ourgovt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and goodoffice is being tainted.
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Concerned Govt employee [3]

Chairperson David immediately formed a team of four personnel with background in information technology (IT), andissued a memo directing them to conduct an investigation and specifically to back up all the files in the computers found in theMamamayan Muna (PALD) and Legal divisions. [4] After some briefing, the team proceeded at once to the CSC-ROIV officeat Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV,respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of ChairpersonDavids directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessedby several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m.,Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing themof the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by

petitioner read: Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PA LD and LSD per instruction of the Chairman. If you canmake it here now it would be better.

All PCs Of PALD and LSD are being backed up per memo of the chair.

CO IT people arrived just now for this purpose. We were not also informed about this.

We cant do anything about it its a directive from chair.

Memo of the chair was referring to an anonymous complaint; ill send a copy of the memo via mms [5]

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get alawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC mainoffice: Sir may mga taga C.O. daw sa kuarto natin. [6] At around 10:00 p.m. of the same day, the investigating team finishedtheir task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the filesstored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers wereturned over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs

(OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being
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used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letter s[7] in connection with administrativecases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-CauseOrde r[8] dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following

observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative casesthat may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It isalso of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents inadministrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aidingand advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked todiscipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates thatsuch person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naiveteor credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary

practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was theone responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control anddisposition .[9]

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had noattachments to it, because he is not a lawyer and neither is he lawyering for people with cases in the CSC. He accused CSCofficials of conducting a fishing expedition when they unlawfully copied and pr inted personal files in his computer, andsubsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he hadprotested the unlawful

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