public of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she
shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case
For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages."2

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of
Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3,
1997.6 In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time,
Ben's younger brother, Alex, and his wife lived with them too. Sometime in 1995, however,
appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte
where they lived with their two children, namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for the masiaorunner to place a bet.
Arturo did not see appellant arrive but on his way home passing the side of the Genosas'
rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me
when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that
since then, the Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He
was able to get inside through the kitchen door but only after destroying a window to reach a
hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the
police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas'
rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3
Acodesin proceeded to the house and went inside the bedroom where they found the dead
body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben
who only had his briefs on. SPO3 Acodesin found in one corner at the side of anaparador a
metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe
measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom
was not in disarray.
 "About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken
outside at the back of the house before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible
for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and
his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later filed against appellant. She concluded
that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe intracranial
hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15,
1995, she got worried that her husband who was not home yet might have gone gambling
since it was a payday. With her cousin Ecel Araño, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went home despite appellant's request for her
to sleep in their house.

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.
"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben
and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until
the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on
masiao numbers was rampant. I was waiting for the ushers and runners so that I can place
my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic
Genosa' that he should leave her and that Ben would always take her back after she would
leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.
"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos.8)

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified
that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped
through the window of his hut which is located beside the Genosa house and saw 'the
spouses grappling with each other then Ben Genosa was holding with his both hands the
neck of the accused, Marivic Genosa'. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work as he was to go
fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was
the same night as that testified to by Arturo Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive
'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and
I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep in the house as
Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx xxx xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and
the six (6) incidents of physical injuries reportedwas marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who
is qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the
evening. She sought his help to settle or confront the Genosa couple who were experiencing
'family troubles'. He told Marivic to return in the morning, but he did not hear from her again
and assumed 'that they might have settled with each other or they might have forgiven with
each other.'

xxx xxx xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas
lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did
not bother anyone in Manila, rented herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded
by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he
kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his
things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa residence. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at
the time of the incident, and among her responsibilities as such was to take charge of all
medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there,
she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a
blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area
of the head' which she described as a 'fracture'. And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and
further found treachery as an aggravating circumstance, thus sentencing her to the ultimate
penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben Genosa and the re-
examination of the cause of his death; allow the examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of
said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the
only qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and discovered that 'there are lots of
variables that cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion
of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually
think very lowly of themselves and so when the violence would happen, they usually think
that they provoke it, that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion
of himself. But then emerges to have superiority complex and it comes out as being very
arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low
tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and
drugs. And they become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also, they see often
how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave
her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself
which makes her hope her husband will change, the belief in her obligations to keep the
family intact at all costs for the sake of the children.

xxx xxx xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house,
or lock themselves in another room, or sometimes try to fight back triggering 'physical
violence on both of them.' She said that in a 'normal marital relationship,' abuses also
happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and
'even would cause hospitalization on the victim and even death on the victim.'

xxx xxx xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it
was her opinion that Marivic fits the profile of a battered woman because 'inspite of her
feeling of self-confidence which we can see at times there are really feeling (sic) of loss,
such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in
the past.'

xxx xxx xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing
for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.

xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was
in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he
was connected with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-
86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to
become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably
ten to twenty thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing
a woman even to an unconscious state such that the woman is sometimes confined. The
affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.' Dr.
Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic constitutional stamina of the
victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic stress
disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis
or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as
if it were real, although she is not actually being beaten at that time. She thinks 'of nothing
but the suffering.'

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love of the parents. As to the batterer, he
normally 'internalizes what is around him within the environment.' And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is so macho; he shows
his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in her mind or in his mind.'

xxx xxx xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx xxx xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted
for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and
social case studies as a help in forming his diagnosis. He came out with a Psychiatric
Report, dated 22 January 2001.

xxx xxx xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He
said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point in time that things
 happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is
mentally stress (sic) because of the predicament she is involved.'

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated."9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a
pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic
violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.
 "3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death."13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case.14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation.15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this
Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic.17 The defense raised no objection
to these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.18Axiomatic is the rule that a judicial admission is conclusive upon
the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made.19Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of
said acts actually caused the victim's death." Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.20 As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence.21 Well-settled is the rule
that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman."25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence,"27 which has three phases: (1) the tension-building phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually
successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of
control and the growing tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more
the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the
violence "spirals out of control" and leads to an acute battering incident.29

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other.31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to you
and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

 Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your
occurred, after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr.
Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?
A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What
do you mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told
me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month
of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her
pregnancy or for some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I
have a record here, also the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?
 A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night
when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, 'he was not home yet'. I was
worried because that was payday, I was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if
any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light
when the children were there.' At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
 myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one who
was practically the bread earner of the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing being involved in cockfight and going
home very angry and which will trigger a lot of physical abuse. She also had the experience
a lot of taunting from the husband for the reason that the husband even accused her of
infidelity, the husband was saying that the child she was carrying was not his own. So she
was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out." 39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?
 A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering, all
the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42which was based on his interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. "How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have
not been through a similar experience. Expert opinion is essential to clarify and refute common
myths and misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape."46 In her years of research, Dr. Walker found that "the abuse
often escalates at the point of separation and battered women are in greater danger of dying then."47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely
abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
"even if a person has control over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying to escape." He said that it was
the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape.55 Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing
the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In
relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in adequate detail the
typical characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past,
she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house;58 that Ben would seek
her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense60 -- she must have
actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threaton one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of self-
defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
 First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden
and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the
present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'"65 Still, impending danger
(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger.66 Considering such circumstances and the existence of BWS, self-defense
may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the
absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim.68 Thus, Marivic's killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not been raised by the
parties.69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed continuously. Marivic
truly experienced at the hands of her abuser husband a state of psychological paralysis
which can only be ended by an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.71 Expounding thereon, he said:
 "Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is
the public and social support available to the victim. If nobody is interceding, the more she
will go to that disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder
is injury to the head, banging of the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it
is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book specifically that after six (6) months
is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x
his or her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

 A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts.There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 974and 1075 of Article 13 of the Revised Penal Code,
this circumstance should be taken in her favor and considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that
this state of mind is present when a crime is committed as a result of an uncontrollable burst of
passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason.77 To appreciate this circumstance, the following requisites should concur: (1) there
is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time, during which the
accused might recover her normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus.79 His abusive and violent acts, an
aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony80 that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and
the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is
beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted
on her prior to the killing. That the incident occurred when she was eight months pregnant with their
child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence.82 Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER
 (At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not
open it because he did not have the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill me and I smashed his arm and
then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very moment everything on my mind was to pity on
myself, then the feeling I had on that very moment was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:
 Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I
ran to the other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked.86 There is no
showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor.87
 Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty of reclusion temporal in its
medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense.90 Under the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of that which is next lower in degree -- prision
mayor -- and the maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be
released from detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.
However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
 epublic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 123137 October 17, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PO2 ALBERT ABRIOL, MACARIO ASTELLERO, and JANUARIO DOSDOS, accused-appellants.

QUISUMBING, J.:

On appeal is the decision dated May 17, 1995, of the Regional Trial Court of Cebu City, Branch 10,
in Criminal Cases Nos. CBU-30350 for murder and CBU-33664 for illegal possession of firearms,
finding appellants Albert Abriol, Macario Astellero, and Januario Dosdos guilty beyond reasonable
doubt of murder and violation of Presidential Decree No. 1866 on Illegal Possession of Firearms. Its
decretal portion reads:

WHEREFORE, judgment is hereby rendered:

In Criminal Case No. CBU-30350 for Murder, the Court finds accused Albert Abriol, Macario
Astellero and Januario Dosdos, GUILTY of murder beyond reasonable doubt and each is
hereby sentenced to reclusion perpetua, with the accessory penalties provided by law; to
indemnify the heirs of deceased Alejandro Flores the sum of P50,000.00; actual damages of
P30,000.00, representing a reasonable amount for the embalming, vigil, wake, and burial
expenses; P30,000.00 for attorney's fees; and to pay the costs.

For insufficiency of evidence, accused Gaudioso Navales is hereby ACQUITTED with costs
de officio.

In Criminal Case No. CBU-33664 for Illegal Possession of Firearms, accused Albert Abriol,
Macario Astellero and Januario Dosdos, are hereby sentenced to suffer an indeterminate
penalty of 14 years, 8 months and 1 day to 17 years and 4 months and to pay the costs.

The .38 caliber revolver, SN P08445 and the two .45 caliber pistols with SN PGO 13506 and
SN 52469, are hereby confiscated and forfeited in favor of the Government and accordingly,
the Clerk of Court of this Branch is directed to turn over the said firearms to the Chief of
Police, Cebu City, or to the Firearms and Explosives Office (FEO) of the PNP Region 7,
upon proper receipt.

The Cebu City Chief of Police is directed to release immediately upon receipt hereof, the
person of Gaudioso Navales, unless there be any other valid reason for his continued
detention.

SO ORDERED.1
This judgment was the culmination of proceedings beginning with the Amended Information dated
September 6, 1993, docketed as Criminal Case No. CBU-30350, wherein appellants PO2 Albert
Abriol of the Philippine National Police (PNP), Macario Astellero, Januario Dosdos, and PNP P/Chief
Inspector Gaudioso Navales were charged with murder allegedly committed as follows:

That on or about the 5th day of June, 1993, at about 11:50 P.M., in the City of Cebu,
Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with
handguns, conniving and confederating together and mutually helping one another, with
treachery and evident premeditation, with deliberate intent, with intent to kill, did then and
there shot one Alejandro Flores alias Alex with the said handguns, hitting him on the different
parts of his body, thereby inflicting upon him the following physical injuries:

CARDIO RESPIRATORY ARREST DUE TO SHOCK AND HEMORRHAGE

SECONDARY TO MULTIPLE GUNSHOT WOUNDS TO THE TRUNK AND THE
HEAD

as a consequence of which the said Alejandro Flores alias Alex died later.

CONTRARY TO LAW.2

At the time of the incident, appellant Abriol, a policeman previously detailed as a jailguard at the
Bagong Buhay Rehabilitation Center (BBRC) in Cebu City, was himself a detention prisoner in
BBRC. He was charged with murder, a non-bailable offense, in Criminal Case No. CBU-28843
before the RTC of Cebu City, Branch 14.3

Appellant Astellero was a former prisoner at BBRC, who had served time for grave threats.4 The
warden then, Chief Inspector Navales,5 employed him as his personal driver and general
factotum.6 Navales was found guilty of grave misconduct in Administrative Case No. 01-93 for
allowing Abriol and Dosdos out of BBRC on the day of the murder and was summarily dismissed
from the police force.

Dosdos had been convicted by the RTC of Cebu City, Branch 10, of highway robbery in Criminal
Case No. CBU-18152 but Navales failed to act on the mittimus ordering Dosdos' transfer to the
national penitentiary, and he remained in BBRC.7 Abriol and Dosdos enjoyed special privileges at
BBRC as the warden's errand boys8 or "trustees."

The victim, Alejandro Flores alias "Alex," was a former policeman. He was dismissed from the PNP
in August 1992 after testing positive for prohibited drugs.9

Abriol, Astellero, and Dosdos were also indicted for illegal possession of firearms in Criminal Case
No. CBU-33664. The charge sheet reads:

That on or about the 5th day of June 1993 at about 11:48 P.M. in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving
and confederating together and mutually helping one another, with deliberate intent, did then
and there keep under their control and possession the following:

1. one (1) .38 cal. revolver (Armscor) with SN P08445 with six empty shells;

2. one (1) .45 cal. pistol (Colt) with SN P6013506 with 9 live ammunitions (sic);
 3. one (1) .45 cal. Pistol (Colt) with SN 52469 with five live ammunition.

without first obtaining a permit or license therefor from competent authority.

CONTRARY TO LAW.10

When arraigned, all the accused pleaded not guilty to both charges. Since the indictments arose
from the same incident, the cases were jointly tried.

The facts of the case are as follows:

At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a radio news reporter then aboard his
jeep, had just reached the ABS-CBN compound in P. del Rosario Street, Cebu City, when he heard
a couple of gunshots. He looked around and saw a man running unsteadily towards the intersection
of P. del Rosario Street and Jones Avenue (Osmeña Boulevard). The man was shouting "Tabang,
tabang!" ("Help! Help!"). Sta. Cruz, Jr., saw a red "Jiffy" make a U-turn near the gate of the city
central school that nearly ran over the man shouting for help. The man turned back and staggered
towards the direction of Bacalso Avenue and Urgello Private Road, but after a few meters on wobbly
legs, he stopped and collapsed.

Meanwhile, the "Jiffy" followed. It stopped beside the fallen figure and a tall, thin man alighted. The
man fired several shots at the prostrate figure. He boarded the "Jiffy" which sped away towards Leon
Kilat Street. Romeo Sta. Cruz, Jr., moved his jeep and focused its headlights on the victim.

In the meantime, PO3 Alexander Rustela was at a vulcanizing shop near the intersection of Bacalso
Avenue and Leon Kilat Street, when he heard gunshots coming from the north. He ran towards
where the gunshots came and saw people scampering. All of a sudden, the "Jiffy" with three persons
on board sped past him and made an abrupt left turn at Leon Kilat Street. Rustela immediately
radioed for assistance. Minutes later, patrol car No. 201 with PO2 Herbert Ramos on board arrived.
Rustela boarded the car and they followed the "Jiffy," while broadcasting an alarm to police
headquarters and other mobile patrol cars.

On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo Abellana were cruising aboard
patrol car No. 208, when they heard a radio message that the suspects in the shooting incident were
aboard a "Jiffy." As they turned left at Leon Kilat Street, they saw the "Jiffy" heading towards Carbon
Market. They pursued the "Jiffy" which stopped in front of the Don Bosco Building near BBRC, when
police car No. 205, with PO Eugenio Badrinas and PO2 Gerald Cue aboard, blocked the "Jiffy's"
path. Cue fired a warning shot and three persons alighted. The driver was appellant Astellero, whom
Cue had recognized and seen before at the BBRC. Abrigana and Cue approached the trio who
stood a meter away from the "Jiffy." SPO1 Abrigana frisked Abriol and seized from his waist a .38
caliber revolver with serial number PO8485 with six (6) empty shells in its cylinder.11 Under Abriol's
seat, the police also found a .45 caliber pistol bearing serial number PGO 13506 with nine (9) live
rounds in its magazine and another .45 caliber pistol with serial number 52469 loaded with five (5)
unfired bullets.12

While the patrol cars were chasing the "Jiffy," another police team proceeded to the crime scene in
response to the alarm. This team from Police Station No. 3 in San Nicolas, Cebu City rushed the
victim to the Cebu City Medical Center, where he was pronounced dead on arrival. Meanwhile, PO3
Celso Seville, Jr., a homicide investigator of Police Station No. 3 found four (4) .45 caliber shells
some four (4) feet away from the victim's body, and two (2) deformed slugs where the victim had
lain, and submitted them to the Region 7 PNP Crime Laboratory for ballistics testing.13
Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime Laboratory autopsied the victim's body. He
found that the cause of the victim's death was "cardiorespiratory arrest due to shock and
hemorrhage secondary to multiple gunshot wounds to the trunk and head.''14 Dr. Diola recovered a
.38 caliber slug from the corpse, which he later submitted for ballistics examination.

SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory, reported the following:

1. Fired cartridge cases marked "JA-1" to "JA-3" possesses similar individual characteristics
markings with the test cartridge cases fired from cal .45 with SN: PGO13506;

2. Fired cartridge cases marked "JA-4" and "E-69-6" possesses similar individual
characteristics markings with the test cartridge cases fired from cal .45 pistol with SN: 52469;

3. Fired bullet metal jacket marked "JA-5" possesses similar individual characteristics
markings with test bullets fired from cal .45 pistol with SN: PGO13506;

4. Fired cartridge cases marked "E-45-1 " to "E-45-6" possesses similar individual
characteristics markings with the test cartridge cases fired from cal .38 Rev. SN: P8445;

5. Fired bullets marked as "JA-6" and "LD" possesses similar individual characteristic
markings with the test bullets fired from cal .38 Rev. SN: P8445.15

The following day, appellants underwent a paraffin test. The hands of appellants were found positive
for gunpowder residues. A chemistry test on the firearms showed that the three handguns were also
positive. Inspector Myrna Areola, Chief of the Chemistry Section of the PNP Region 7 Crime
Laboratory, stated in her testimony that the firearms had been fired,16 and that appellants had fired
the guns within a period of seventy-two (72) hours prior to the examination.

The widow and relatives of the victim testified on the possible motive behind the killing. They claimed
the victim, a confessed drug user, may have been "rubbed out" on the orders of Navales for failure to
remit P31,000 as proceeds from pushing prohibited drugs. After failing to deliver the drug money to
Navales, for whom he was repeatedly pushing drugs, the victim went into hiding, but later returned to
Cebu City because he missed his family.17

Appellants deny the accusations. Abriol averred that he and Dosdos were among the several
"trustees" at BBRC assigned to work in the kitchen. Appellant Astellero, who was the warden's
driver, was also in charge of marketing for the prisoners' food. On the day of the incident, Astellero
realized that there was no money for the next day's marketing so he asked Abriol to accompany him
to the house of Navales, but since he was not in, they returned to BBRC and saw Navales an hour
later. After they received the money from Navales' niece on their way back to BBRC, Dosdos heard
gunshots. Abriol ordered Astellero, who was driving, to turn back. Then Abriol claimed he saw a tall,
slim man alight from a "Jiffy" and shoot at a prone figure on the ground. Seconds later, the gunman
returned to the "Jiffy," which sped off. Abriol said he ordered Astellero to chase that "Jiffy" but it had
too much of a headstart and they lost sight of it. Abriol ordered Astellero to proceed to BBRC. At
Colon Street, they heard gunshots behind them and the blaring siren of a police car. They explained
that since they were detention prisoners, they had to evade meeting the police. They heard more
gun shots. Upon reaching BBRC, the gates were closed, so they drove to the old airport. On their
way back to BBRC several police cars blocked them and arrested them. SPO4 Eleazar Abrigana
frisked him and took the .38 service revolver from his waist.18

Abriol also testified that he surrendered his service firearm to the BBRC Administrative Officer when
he was served a warrant of arrest for murder in Criminal Case No. CBU-28843. However, the
handgun was defective and it was returned to him for repair by Armscor, and upon repair he handed
it over to the BBRC armory. The armorer returned it to him since there was no place to keep it. He
said that although he was a detention prisoner, he had yet to be discharged from the service. He
was assigned guard and escort duties by the warden.19 Abriol said that on the day of the incident he
was, as a BBRC jailguard, authorized to carry his service firearm.20 He presented a Memorandum
Receipt21 authorizing him to carry the government-issued .38 revolver.22

On the witness stand, Astellero and Dosdos narrated a similar version of the incident as did Abriol.
Both vehemently denied having any knowledge of the two .45 caliber pistols found by PO3 Cue in
the "Jiffy."23

The defense also presented Dr. Jesus P. Cerna, medico-legal officer of the Cebu City PNP
Command, to testify on the caliber of the firearms which might have caused the gunshot wounds of
the victim. Relying on the Necropsy Report prepared by Dr. Diola, Dr. Cerna declared that wound
nos. 1 and 2, which each measured 0.6 cm. by 0.6 cm., may have been caused by a .38 caliber
firearm. As to wound nos. 3 and 4, which each measured 0.5 cm. by 0.5 cm., it was possible that a
.38 handgun was used, or one with a smaller bore. Dr. Cerna opined that a .45 pistol could not have
inflicted all the foregoing wounds, as the entry points were too small for a .45 caliber bullet. With
respect to the grazing wounds found on the victim's body, Dr. Cerna testified that it was impossible
to determine the caliber of the firearm used.24

The trial court found appellants' version of the incident neither convincing and credible and, as
earlier stated, it believed the prosecution's version. Petitioners' were convicted of the offenses
charged.

Hence, this appeal, with appellants assigning the following errors:

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIMES

OF MURDER AND ILLEGAL POSSESSION OF FIREARMS DESPITE THE FLIMSY AND
UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION.

II

THE LOWER COURT ERRED IN FINDING THE GUILT OF THE ACCUSED-APPELLANTS OF THE
CRIME OF MURDER AND ILLEGAL POSSESSION OF FIREARMS BEYOND REASONABLE
DOUBT.

At issue is whether the prosecution's evidence, which is mainly circumstantial, suffices to convict
appellants for murder and violation of Presidential Decree No. 1866, beyond reasonable doubt.

A. Criminal Case No. CBU-30350

On their conviction for murder, appellants argue that the prosecution's circumstantial evidence
against them is weak, ambiguous, and inconclusive. Specifically, appellants contend that they
should be acquitted because:

First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as the culprits. At no point in
his testimony did eyewitness Sta. Cruz, Jr., positively identify any of the appellants or appellant
Abriol as the gunman. Sta. Cruz, Jr. only gave a general description of the assailants, despite
attempts to make him give a categorical identification. He admitted he found out the name of Abriol
from television and news reports and could not identify Abriol as the one whom he saw shot the
victim. The transcript of his testimony is revealing.

Q: Then after the Jiffy stopped in front of the fallen victim, what happened next?

A: I saw that there was a man who disembarked from the Jiffy. He was a tall, thin fellow
who disembarked from the Jiffy and at the same time, he shot the fallen victim.

Q: How many times did he shoot the victim?

A: I cannot count attorney but I saw him shooting the victim.

Q: In your affidavit, you said that the person who disembarked from the Jiffy, whose
name you know later on as PO2 Albert Abriol, PNP, shot the victim in the different parts of
his body. If Albert Abriol is now in the courtroom, will you please point to him?

A: I will know him attorney because of the TV shows and newspapers.

COURT: (TO WITNESS)

Q: You are referring to the name of that man who disembarked from the Jiffy and fired
several shots at the fallen victim?

A: Yes, I know his name Your Honor on (sic) the news cast.

COURT: (TO WITNESS)

Q: Alright, forget the news. The man you saw when he alighted from the Jiffy and
poured (sic) several bullets on the fallen man, look around if he is in the courtroom?

A: I cannot identify Your Honor.

COURT:

Q: You cannot?

A: But [because] what I saw is a man who is tall and thin because it was dark.

xxx xxx xxx

Q: How many persons fired a shot at the fallen man?

A: I only saw that man Your Honor who alighted from the Jiffy.

Q: Did you see his physical features?

A: Only (t)his, I can only tell his height, he was tall and his body build is thin. Tall and
thin. (Emphasis supplied)25
Since the sole eyewitness could not identify the gunman and his companions, the prosecution relied
on circumstantial evidence from which the trial court could draw its findings and conclusion of
culpability.26Circumstantial evidence may be relied upon, as in this case, when to insist on direct
testimony would result in setting felons free.

Second, appellants assert that the paraffin tests are judicially recognized as unreliable and
inconclusive. A paraffin test could establish the presence or absence of nitrates on the hand.
However, it cannot establish that the source of the nitrates was the discharge of firearms. Nitrates
are also found in substances other than gunpowder. A person who tests positive may have handled
one or more substances with the same positive reaction for nitrates such as explosives, fireworks,
fertilizers, pharmaceuticals, tobacco, and leguminous plants. Hence, the presence of nitrates should
only be taken as an indication of a possibility that a person has fired a gun.27 However, it must be
borne in mind that appellants were not convicted on the sole basis of the paraffin test.

Third, appellants claim that the autopsy report of prosecution witness Dr. Ladislao Diola revealed
serious ambiguities.28 Dr. Jesus P. Cerna, using the same autopsy report, said that the gunshot
wounds measuring 0.6 x 0.6 centimeters could not have been caused by a .45 caliber pistol because
an entrance wound of that size was too small for a .45 caliber bullet.29 Dr. Cerna claimed that a
wound inflicted by a .45 pistol would have an entry point of anywhere from 1.1 to 1.3 centimeters. He
declared that it was with more reason that an entrance wound measuring .5 x .5 centimeters could
not be caused by a caliber .45 bullet.30 Since no firearm smaller than a .38 caliber pistol was seized
from appellants, they claim the observation of Dr. Cerna only shows that they could not have shot
the victim.

We note, however, that during cross-examination, Dr. Diola carefully explained that a firearm's
caliber is not the only basis for determining the cause of the gunshot wound. He said:

ATTY. REMOTIQUE:

Q: So, normally the size of .5 cm x .5 cm which is the point of entry of gunshot wound
No. 3 this may have been caused by a firearm of lesser caliber than caliber .38?

A: Not necessarily. There is a very small difference in the size and this does not
preclude that gunshot wound No. 3 may have also been caused by the same firearm which
caused gunshot wounds Nos. 1 and 2.There are factors which often affect the size of the
wounds at the time of the examination, perhaps a recission (sic) of the skin in the area where
gunshot Wound No. 3 was inflicted so that gunshot wound becomes smaller.

Q: Did you not say that normally the point of entry of the gunshot wounds vary with the
caliber of the firearm which caused it, so that the point of entry caused by one firearm of a
particular caliber may be bigger than the point of entry of a gunshot wound caused by
another firearm of lesser caliber?

A: I told you of other factors that often affect the size of the entry of the bullet although
the caliber is one basis of the size of the wounds.

xxx xxx xxx

Q: Will you explain further on that because my understanding is that .5 cm wound must
perforce be caused by a firearm of lesser caliber than that which caused the .6 cm wound?
 A: As I said there are ranges in the size of the wounds. The variance in the size of the
wound when it is minimal does not exclude the possibility that a wound with a .5 cm size and
.6 cm size could have been caused by the same caliber. (Emphasis supplied).31

The Office of the Solicitor General points out that Dr. Diola's testimony is supported by Dr. Pedro P.
Solis, a medical expert, in his book entitled Legal Medicine. The factors which could make the
wound of entrance bigger than the caliber include: (1) shooting in contact or near fire; (2) deformity
of the bullet which entered; (3) a bullet which might have entered the skin sidewise; and (4) an acute
angular approach of the bullet. However, where the wound of entrance is smaller than the firearm's
caliber, the same may be attributed to the fragmentation of the bullet before entering the skin or to
a contraction of the elastic tissues of the skin (stress supplied).32 Dr. Diola testified that a .45 caliber
pistol could have caused the grazing wounds on the victim's head and extremities.33 Dr. Cerna
corroborated Dr. Diola's findings in this regard.34 Such expert opinions disprove appellants' theory
that the .45 caliber handguns confiscated from them could not have been used in killing the victim.

Fourth, appellants allege that the testimony of P/Inspector Lemuel Caser, the prosecution's ballistics
expert, clearly shows that: (1) He is ignorant about such ballistics instruments such as the
micrometer, goniometer, and pressure barrel.35 (2) He is not conversant with "the required
references concerning ballistics," particularly books on the subject by foreign authorities.36 (3) He
could not "scientifically determine the caliber of a bullet."37 Since P/Inspector Caser lacked adequate
training and expertise in ballistics, they claim that his opinion that the test bullets and cartridges
matched the slugs and cartridges recovered from the scene of the crime was not reliable. Appellants
also assail Caser's failure to take the necessary photographs to support his findings.

An expert witness is "one who belongs to the profession or calling to which the subject matter of the
inquiry relates and who possesses special knowledge on questions on which he proposes to
express an opinion."38 There is no definite standard of determining the degree of skill or knowledge
that a witness must possess in order to testify as an expert. It is sufficient that the following factors
be present: (1) training and education; (2) particular, first-hand familiarity with the facts of the case;
and (3) presentation of authorities or standards upon which his opinion is based.39 The question of
whether a witness is properly qualified to give an expert opinion on ballistics rests with the discretion
of the trial court.40

In giving credence to Caser's expert testimony, the trial court explained:

The defense downgraded the capability of Caser in forensics ballistics and identifying
firearms. Much stress is given to the absence of photographs of his examination.
Nonetheless, the Court is satisfied (with) Caser's examination, findings and conclusions with
the use of a microscope. Caser's conclusion based on his examination deserves credit. He
found the impressions on the primer of the fired cartridges that were test-fired to have the
same characteristics with those recovered at the scene of the crime. Whenever a triggerman
pumps a bullet (into) the body of his victim, he releases a chunk of concrete evidence that
binds him inseparably to his act. Every gun barrel deeply imprints on every bullet its
characteristic marking peculiar to that gun and that gun alone. These marking might be
microscopic but they are terribly vocal in announcing their origin. And they are as infallible for
purposes of identification, as the print left by the human finger.41

We agree with the trial court that P/Inspector Caser qualifies as a ballistics expert. He is a licensed
criminologist, trained at the Ballistics Command and Laboratory Center in Fort Bonifacio, in the PNP
Crime Laboratory in Camp Crame, and in the National Bureau of Investigation. He had previously
testified as an expert witness in at least twenty-seven (27) murder and homicide cases all over the
country.42 An expert witness need not present comparative microphotographs of test bullets and
cartridges to support his findings.43 Examination under a comparison microscope showing that the
test bullet and the evidence bullet both came from the same gun is sufficient.44 Moreover, the
ballistician conclusively found similar characteristic markings in the evidence, test cartridges and
slugs.

Fifth, appellants aver that the prosecution failed to show any plausible motive for appellants to kill
the victim. The prosecution tried to prove that their co-accused Navales instigated them to kill the
victim because Navales had a grudge against him. However, as Navales was acquitted, appellants
insist that Navales' acquittal should redound to their benefit since no motive was imputed on their
part.

Motive is not an essential element of a crime,45 particularly of murder.46 It becomes relevant only
where there is no positive evidence of an accused's direct participation in the commission of a
crime.47 Stated otherwise, proof of motive becomes essential to a conviction only where the evidence
of an accused's participation in an offense is circumstantial.48 A careful perusal of the State's
evidence reveals that the prosecution had established sufficient motive why appellants killed the
victim, independent of any grudge which Navales may have had against the latter. At the time of the
incident, appellants Abriol and Dosdos were both BBRC detention prisoners during Navales' term as
warden. Abriol and Dosdos were treated as highly favored "trustees" of Navales and were never
locked up. Abriol and Dosdos were even allowed to go out of BBRC to do the marketing for the
prison's kitchen. Appellant Astellero, a former detention prisoner, was also a recipient of Navales'
favors. Navales hired Astellero as his personal driver after the latter served his sentence. Navales
and the victim, a former BBRC jailguard, were associates in dealing with prohibited drugs, until they
had a falling out allegedly after the victim failed to remit to Navales proceeds from the sale of illegal
drugs amounting to P31,000. Appellants apparently killed the victim to return the "special favors"
Navales had showered them. Lack of a motive does not necessarily preclude conviction. Persons
have been killed or assaulted for no reason at all, and friendship or even relationship is no deterrent
to the commission of a crime.49

Sixth, in the present case, appellants contend that the PNP cannot be presumed to have done their
work since it committed errors and blunders in transferring possession and custody of the physical
evidence. They allege there was a possibility that the evidence was tainted, planted, or
manufactured. Besides, appellants point out that the presumption of regularity cannot prevail over
the constitutional presumption of innocence of the accused.

The record shows that the police officers did not issue acknowledgment receipts in some instances.
However, minor lapses do not mean that the State had failed to show an unbroken chain of custody
of the subject firearms and ammunition, nor that said firearms and ammunition were tampered. The
slugs and spent shells recovered from the scene of the crime and the victim's corpse were plainly
identified in open court by the PNP investigators. The ballistician testified that the bullets and
cartridges recovered from the crime scene had been fired from the subject handguns. Under these
circumstances, we must respect the presumption of the regularity in the performance of duties.

Seventh, appellants insist that the prosecution failed to show that the red "Jiffy" used by them and
seized by the police officers was the same vehicle used by the gunmen who killed Alejandro Flores.
Appellants point out that PO3 Rustela, who was aboard police car No. 201, testified that they lost
sight of the red "Jiffy" while chasing it along Leon Kilat Street. Appellants argue that the "Jiffy" which
was chased by patrol car No. 208 until it was cornered near BBRC by the other pursuing patrol cars
was not the same vehicle originally sighted and tailed by patrol car No. 201.

In rejecting this theory, the trial court stated that:

 . . . PO3 Rustela who was nearby, immediately ran to the scene of the crime and met the red
jiffy with three persons on board, that speedily passed by him proceeding towards Leon Kilat
Street. Car 208 readily picked up the trail and pursued the red jiffy from Leon Kilat, then
making abrupt turns on downtown streets until other patrol cars joined the chase and
captured them in Lahug, near the BBRC. The identity of the red jiffy was never interrupted.
Members of the Mobile Patrol Cars identified in court without batting an eyelash, the red jiffy
which was the object of the shooting alarm. There was no interruption, no let-up in the chase,
right after Alejandro Flores was shot and there was no other red jiffy that the crews of the
(pursuing) patrol cars noticed.

The Court rejects their claim of innocence, for their very acts belied the same.

Astellero could have stopped the jeep upon noticing that patrol cars were already running
after them with sirens, blinkers and warning shots fired. From Leon Kilat Street to Lahug
airport, there were several police stations that they could have sought shelter and police
assistance. Guilt has many ways of surfacing. Instead of stopping, Abriol ordered Astellero to
accelerate their speed. Their obvious purpose was to elude the patrol cars. Flight is
indicative of guilt.50

But, in this case, is the totality of the circumstantial evidence relied upon by the trial court sufficient
to support a conviction?

Circumstantial evidence is that which indirectly proves a fact in issue. For circumstantial evidence to
be sufficient to support a conviction, all the circumstances must be consistent with each other,
consistent with the theory that the accused is guilty of the offense charged, and at the same time
inconsistent with the hypothesis that he is innocent and with every other possible, rational
hypothesis, except that of guilt.51 An accused can be convicted on the basis of circumstantial
evidence where all the circumstances constitute an unbroken chain leading to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all others, as the culprit.52

In our assessment, the prosecution's evidence constitutes an unbroken chain of events leading to
the inevitable conclusion of guilt on the part of appellants. First, the fatal shooting of Alejandro Flores
occurred at around 11:50 P.M. of June 5, 1993 in front of the ABS-CBN compound in Cebu City. The
gunman, who was tall and thin, alighted from a red "Jiffy," pumped several bullets into the prone
victim, and got back aboard the "Jiffy" which then sped towards Leon Kilat Street. Second,
eyewitness Romeo Sta. Cruz, Jr.'s description of the gunman as "tall and thin" perfectly matches the
physique of appellant Abriol. Third, PO3 Alexander Rustela, who was close to the crime scene,
heard the gunshots and ran towards the place where the sound of gunshots emanated. A red "Jiffy"
with three persons aboard whizzed by him and abruptly turned at Leon Kilat Street. After Sta. Cruz,
Jr. informed him that the gunmen were aboard a red "Jiffy," Rustela boarded patrol car No. 201,
radioed an alarm, and commenced a pursuit of the fleeing vehicle. Police car no. 208 received the
alarm, and on turning into Leon Kilat Street, encountered the speeding red "Jiffy." They immediately
chased the "Jiffy" but failed to catch it. Police cars Nos. 208 and 205 cornered the vehicle in front of
the Don Bosco building near BBRC. PO2 Gerald Cue, on patrol car no. 205 fired a warning shot at
the vehicle and directed all those aboard to disembark. Three men got out, with their hands raised.
SPO1 Abrigana, on patrol car no. 208 and PO2 Cue approached the trio. Abrigana frisked the man
who was seated in the front passenger seat, who turned out to be appellant Abriol, and recovered
from his waist a .38 caliber revolver with six empty shells. Cue searched the red "Jiffy" and found two
loaded .45 caliber pistols under the front seat where Abriol had sat. Other police officers immediately
went to the crime scene where they found the victim barely alive. PO3 Seville retrieved four .45
caliber slugs and two deformed slugs at the spot where the victim was shot. The autopsy of the
victim's remains showed that he died of cardio respiratory arrest due to shock and hemorrhage
secondary to gunshot wounds. A deformed metal jacket of a .38 caliber slug was recovered from the
corpse. Ballistics tests showed that the bullets and cartridges had identical individual characteristics
with those of the test bullets and cartridges. Paraffin tests conducted on each of the appellants, one
day after the incident, revealed that all were positive for gunpowder residues. The subject firearms
were also chemically examined and found positive for gunpowder residue. Before the shooting
incident, appellants were seen at Navales' house until around 7:30 P.M., when they left aboard
Navales' red "Jiffy" with Astellero driving, Abriol in the front passenger seat, and Dosdos in the back
seat.53 Appellants' seating arrangements were exactly the same, several hours later, after they were
pursued and cornered by police cars near BBRC. Appellants admitted that they dropped by the
Navales residence at around 7:00 P.M. and 11:00 P.M.

These unbroken chain of events prove not only appellants' identities but also their participation and
collective responsibility in the murder of Alejandro Flores. They reveal a unity of purpose and
concerted action evidencing their conspiracy to kill him. Against this matrix of facts and
circumstances, appellants' bare denials cannot stand. Their story of chasing a red "Jiffy" is merely a
disingenuous diversion of no evidentiary value for the defense.

Finally, the information for murder alleged treachery and evident premeditation. We note, though,
that the trial court did not state which circumstance qualified the killing into murder.

A review of the record would reveal that there was no evident premeditation. There is evident
premeditation when the following are shown: (a) the time when the accused determined to commit
the crime; (b) an act or acts manifestly indicating that the accused has clung to his determination;
and (c) a lapse of time between the determination to commit the crime and the execution thereof
sufficient to allow him to reflect upon the consequences of his act.54 Evident premeditation indicates
deliberate planning and preparation. Nowhere in the record is it shown when and how appellants
planned and prepared to kill the victim.

Concerning treachery, however, it was shown that: (1) the means of execution employed gave the
person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was
deliberately or consciously adopted.55 These twin requisites were adequately proved.

Appellants had superiority in numbers and weapons. The victim was without any means to defend
himself as no weapon was found or even intimated to be in his possession. The victim was running
away from the "Jiffy" prior to the killing. That he was warned or threatened earlier is of no moment.
Even when the victim is warned of danger to his person, if the execution of the attack made it
impossible for the victim to defend himself or to retaliate, treachery can still be appreciated.56 The
victim was lying prostrate on the ground when he was deliberately and mercilessly riddled with
bullets. The weapons used, the number of assailants, the swift and planned manner of the attack,
and the multiple number of wounds inflicted upon the victim all demonstrate a determined assault
with intent to kill the victim. No doubt there was treachery.

B. Criminal Case No. CBU-33664

On their conviction for illegal possession of firearms, appellants contend that the handguns and
ammunition allegedly taken from them by the police officers were illegally seized. They assert that
the police had no warrant to effect a search and seizure, such that these illegally seized firearms
were inadmissible as evidence, and it was error for the trial court to admit them.

There are eight (8) instances where a warrantless search and seizure is valid. They are: (1)
consented searches;57 (2) as an incident to a lawful arrest;58 (3) searches of vessels and aircraft for
violation of immigration, customs, and drug laws;59 (4) searches of moving vehicles;60 (5) searches of
automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain
view;"61 (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and
(8) "stop and frisk" operations.62

In this case, the warrantless search and seizure of the subject handguns and ammunition is valid for
two reasons. It was a search incidental to a lawful arrest. It was made after a fatal shooting, and
pursuit of a fast-moving vehicle seeking to elude pursuing police officers, and a more than
reasonable belief on the part of the police officers that the fleeing suspects aboard said vehicle had
just engaged in criminal activity. The urgent need of the police to take immediate action in the light of
the foregoing exigencies clearly satisfies the requirements for warrantless arrests under the Rules of
Court.63 Moreover, when caught in flagrante delicto with firearms and ammunition which they were
not authorized to carry, appellants were actually violating P.D. No. 1866, another ground for valid
arrest under the Rules.64

Appellants further contend that the trial court erred in convicting appellants Astellero and Dosdos of
illegal possession of firearms. They point out that the .38 caliber revolver was recovered from
appellant Abriol, who as a policeman was authorized to carry and possess said firearm, as
evidenced by his Memorandum Receipt (MR), which had "not been recalled, cancelled or revoked
until the time of the trial of these cases." Appellants claim that the two .45 caliber pistols could have
been left in the vehicle by PNP personnel assigned at BBRC, considering that the red "Jiffy" was
generally used as a service vehicle by BBRC personnel. They also argue that the prosecution failed
to prove appellants' ownership, control, and possession of the .45 caliber pistols, considering that
appellants were six meters away from the "Jiffy" when said handguns were allegedly found.

To sustain a conviction for violation of P.D. No. 1866, the prosecution must prove two elements of
the offense: (1) the existence of the subject firearm; (2) the fact that the accused who owned or
possessed the firearm does not have the corresponding license or permit to possess it.65 These the
prosecution did. It presented a .38 caliber revolver with serial number PO8445, a .45 caliber pistol
with serial number PGO 13506 Para Ordinance, and a .45 caliber pistol with serial number 52469.
The .38 caliber handgun was recovered from appellant Abriol, while the two .45 caliber automatics
were found and seized from under the front passenger seat of appellants' vehicle. SPO4 Aquilles
Famoso of the Cebu City PNP Metropolitan District Command's Firearms and Explosive Unit
testified that appellants were not listed as licensed firearm owners in Cebu City.66 The prosecution
also presented a certification from P/Senior Inspector Edwin Roque of the Firearms and Explosives
Division of PNP Headquarters at Camp Crame, Quezon City that appellant Abriol is not licensed to
hold any firearm; that the .45 caliber pistols were unlicensed; and that a certification from the PNP
Firearms and Explosives Office attesting that a person is not a licensee of any firearm, proves
beyond reasonable doubt the second element of illegal possession of firearm.67

Abriol insists that he had a valid MR authorizing him to carry the .38 revolver. We agree with the
observation of the trial court that:

The claim of Abriol that .38 caliber was issued to him, as evidenced by the corresponding
receipt (MR), is of no moment. While an MR is an authority of Abriol to possess the
government firearm that was issued to him, when he was charged and detained at BBRC for
an earlier case of murder, other than the case at bar, he was already then at that moment a
detained prisoner and therefore, (un)authorized to carry a firearm. A military man or a
member of the PNP who commits a crime, is immediately disarmed upon his arrest and
stripped of all the rights and privileges that go with the function of his office, and this
includes, in the case of Abriol, his MR. Thus, when he shot Alejandro Flores with his .38
caliber revolver, this firearm was already unauthorized and its use and possession illegal.68
Even if Abriol's MR was valid, said authorization was limited only to the .38 caliber revolver and not
the two .45 caliber automatic pistols found under the front passenger seat of the "Jiffy." Appellants
were still in the unlawful possession of the .45 caliber pistols. Under P.D. No. 1866, possession is
not limited to actual possession.69 In this case, appellants had control over the pistols. They were all
liable since conspiracy was established and the act of one is the act of all.70

Appellants claim that they were six meters away from the "Jiffy" when it was searched and the two
.45 caliber pistols were seized. They suggest that the policemen who searched the vehicle could
have planted said firearms. The trial court found that they were in fact only one meter away from the
vehicle. Findings of fact of the trial court, when supported by the evidence on record, are binding and
conclusive upon appellate courts.71

All told, on the charge of illegal possession of firearms, no reversible error was committed by the trial
court when it found appellants guilty beyond reasonable doubt.

The Office of the Solicitor General recommends that although appellants were charged with and
convicted of two separate offenses of murder and violation of P.D. No. 1866, R.A. No. 8294, which
amended said decree, should be applied to appellants retroactively, citing People v. Molina, 292
SCRA 742, 779 (1998) interpreting R.A. No. 8294.

We agree. We ruled in Molina that with the passage of R.A. No. 8294 on June 6, 1997, the use of an
unlicensed firearm in murder or homicide is not a separate crime, but merely a special aggravating
circumstance. This was recently reiterated in People v. Castillo, G.R. Nos. 131592-93, February 15,
2000.72 Appellants are thus guilty only of murder with the special aggravating circumstance of use of
unlicensed firearms. The imposition of the penalty of reclusion perpetua cannot however be modified
since the murder took place before the effectivity of R.A. No. 7659.

A final word on the damages. In addition to the award of P50,000 as indemnity ex delicto, the trial
court awarded P30,000 in actual damages, "representing a reasonable amount for the embalming,
vigil, wake and burial expenses," and P30,000 as attorney's fees. To be entitled to actual damages,
it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised
upon competent proof, and on the best evidence obtainable by the injured party.73 No such evidence
was offered. The award of actual damages must, therefore, be deleted. However, temperate
damages may be awarded since the family of the victim has demonstrably spent for the wake,
funeral and burial arrangements. The amount of P20,000 should suffice as temperate damages. In
addition, we find an award of exemplary damages in order, pursuant to Article 2230 of the Civil
Code.74 The killing was attended by the special aggravating circumstance of use of unlicensed
firearms. Moreover, the public good demands that detained prisoners should not abuse their status
as "trustees." Had the police been unsuccessful in their pursuit of appellants, the latter would have
used the BBRC as shelter and as an alibi that they could not have committed the crime since they
were then in detention. Thus, we find an award of P10,000 as exemplary damages in order.
Accordingly, the award of attorney's fees is sustained.75

WHEREFORE, the assailed Decision of the Regional Trial Court of Cebu City, Branch 10, in
Criminal Cases Nos. CBU-30350 and CBU-33664 is hereby MODIFIED. Appellants Albert Abriol,
Macario Astellero, and Januario Dosdos are hereby found GUILTY of murder, qualified by treachery,
with the special aggravating circumstance of use of unlicensed firearms and are hereby sentenced
to suffer the penalty of reclusion perpetua with the accessory penalties provided for by law.
Appellants Abriol, Astellero, and Dosdos are also ordered to pay, jointly and severally, the heirs of
Alejandro Flores the sum of P50,000 as death indemnity, P20,000 as temperate damages, P10,000
as exemplary damages, and P30,000 as attorney's fees, as well as the costs.
ECOND DIVISION

ROWENA PADILLA-RUMBAUA, G.R. No. 166738

Petitioner,
Present:
*
CARPIO-
MORALES, J.,
- versus - Acting Chairperson,
**
CARPIO,
***
CHICO-
NAZARIO,
****
LEONARDO-DE
CASTRO, and
EDWARD RUMBAUA, BRION, JJ.
Respondent.
Promulgated:

August 14, 2009

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

DECISION

BRION, J.:

Petitioner Rowena Padilla-Rumbaua (petitioner) challenges, through her

petition for review on certiorari,[1] the decision dated June 25, 2004[2] and the
resolution dated January 18, 2005[3] of the Court of Appeals (CA) in CA-G.R. CV
No. 75095. The challenged decision reversed the decision[4] of the Regional Trial
Court (RTC) declaring the marriage of the petitioner and respondent Edward
Rumbaua (respondent) null and void on the ground of the latter’s psychological
incapacity. The assailed resolution, on the other hand, denied the petitioner’s
motion for reconsideration.

ANTECEDENT FACTS
 The present petition traces its roots to the petitioner’s complaint for the
declaration of nullity of marriage against the respondent before the RTC, docketed
as Civil Case No. 767. The petitioner alleged that the respondent was
psychologically incapacitated to exercise the essential obligations of marriage as
shown by the following circumstances: the respondent reneged on his promise to
live with her under one roof after finding work; he failed to extend financial
support to her; he blamed her for his mother’s death; he represented himself as
single in his transactions; and he pretended to be working in Davao, although he
was cohabiting with another woman in Novaliches, Quezon City.

Summons was served on the respondent through substituted service, as

personal service proved futile.[5] The RTC ordered the provincial prosecutor to
investigate if collusion existed between the parties and to ensure that no fabrication
or suppression of evidence would take place.[6] Prosecutor Melvin P. Tiongson’s
report negated the presence of collusion between the parties.[7]

The Republic of the Philippines (Republic), through the office of the

Solicitor General (OSG), opposed the petition.[8] The OSG entered its appearance
and deputized the Provincial Prosecutor of Nueva Vizcaya to assist in all hearings
of the case.[9]

The petitioner presented testimonial and documentary evidence to

substantiate her charges.

The petitioner related that she and the respondent were childhood neighbors
in Dupax del Norte, Nueva Vizcaya. Sometime in 1987, they met again and
became sweethearts but the respondent’s family did not approve of their
relationship. After graduation from college in 1991, the respondent promised to
marry the petitioner as soon as he found a job. The job came in 1993, when the
Philippine Air Lines (PAL) accepted the respondent as a computer engineer. The
respondent proposed to the petitioner that they first have a “secret marriage” in
order not to antagonize his parents. The petitioner agreed; they were married
in Manila on February 23, 1993. The petitioner and the respondent, however, never
lived together; the petitioner stayed with her sister in Fairview, Quezon City, while
the respondent lived with his parents in Novaliches.

The petitioner and respondent saw each other every day during the first six
months of their marriage. At that point, the respondent refused to live with the
petitioner for fear that public knowledge of their marriage would affect his
application for a PAL scholarship. Seven months into their marriage, the couple’s
daily meetings became occasional visits to the petitioner’s house in Fairview; they
would have sexual trysts in motels. Later that year, the respondent enrolled
at FEATI University after he lost his employment with PAL.[10]

In 1994, the parties’ respective families discovered their secret

marriage. The respondent’s mother tried to convince him to go to the United
States, but he refused. To appease his mother, he continued living separately from
the petitioner. The respondent forgot to greet the petitioner during her birthday in
1992 and likewise failed to send her greeting cards on special occasions. The
respondent indicated as well in his visa application that he was single.

In April 1995, the respondent’s mother died. The respondent blamed the
petitioner, associating his mother’s death to the pain that the discovery of his secret
marriage brought. Pained by the respondent’s action, the petitioner severed her
relationship with the respondent. They eventually reconciled through the help of
the petitioner’s father, although they still lived separately.

In 1997, the respondent informed the petitioner that he had found a job
in Davao. A year later, the petitioner and her mother went to the respondent’s
house in Novaliches and found him cohabiting with one Cynthia Villanueva
(Cynthia). When she confronted the respondent about it, he denied having an
affair with Cynthia.[11] The petitioner apparently did not believe the respondents
and moved to to Nueva Vizcaya to recover from the pain and anguish that her
discovery brought.[12]

The petitioner disclosed during her cross-examination that communication

between her and respondent had ceased. Aside from her oral testimony, the
petitioner also presented a certified true copy of their marriage contract;[13] and the
testimony, curriculum vitae,[14] and psychological report[15] of clinical psychologist
Dr. Nedy Lorenzo Tayag (Dr. Tayag).

Dr. Tayag declared on the witness stand that she administered the following
tests on the petitioner: a Revised Beta Examination; a Bender Visual Motor Gestalt
Test; a Rorschach Psychodiagnostic Test; a Draw a Person Test; a Sach’s Sentence
Completion Test; and MMPI.[16] She thereafter prepared a psychological report
with the following findings:

TEST RESULTS AND EVALUATION

Psychometric tests data reveal petitioner to operate in an average

intellectual level. Logic and reasoning remained intact. She is seen to be
the type of woman who adjusts fairly well into most situations especially
if it is within her interests. She is pictured to be faithful to her
commitments and had reservations from negative criticisms such that she
normally adheres to social norms, behavior-wise. Her age speaks of
maturity, both intellectually and emotionally. Her one fault lies in her
compliant attitude which makes her a subject for manipulation and
deception such that of respondent. In all the years of their relationship, she
opted to endure his irresponsibility largely because of the mere belief that
someday things will be much better for them. But upon the advent of her
husband’s infidelity, she gradually lost hope as well as the sense of self-
respect, that she has finally taken her tool to be assertive to the point of
being aggressive and very cautious at times – so as to fight with the
frustration and insecurity she had especially regarding her failed marriage.

Respondent in this case, is revealed to operate in a very self-

centered manner as he believes that the world revolves around him.
 His egocentrism made it so easy for him to deceitfully use others for
his own advancement with an extreme air of confidence and
dominance. He would do actions without any remorse or guilt feelings
towards others especially to that of petitioner.

REMARKS

Love happens to everyone. It is dubbed to be boundless as it goes

beyond the expectations people tagged with it. In love, “age does matter.”
People love in order to be secure that one will share his/her life with
another and that he/she will not die alone. Individuals who are in love had
the power to let love grow or let love die – it is a choice one had to face
when love is not the love he/she expected.

In the case presented by petitioner, it is very apparent that love

really happened for her towards the young respondent – who used “love”
as a disguise or deceptive tactic for exploiting the confidence she extended
towards him. He made her believe that he is responsible, true, caring and
thoughtful – only to reveal himself contrary to what was mentioned. He
lacked the commitment, faithfulness, and remorse that he was able to
engage himself to promiscuous acts that made petitioner look like an
innocent fool. His character traits reveal him to suffer Narcissistic
Personality Disorder - declared to be grave, severe and
incurable.[17] [Emphasis supplied.]

The RTC Ruling

The RTC nullified the parties’ marriage in its decision of April 19,
2002. The trial court saw merit in the testimonies of the petitioner and Dr. Tayag,
and concluded as follows:
xxxx

Respondent was never solicitous of the welfare and wishes of his wife.
Respondent imposed limited or block [sic] out communication with his wife,
forgetting special occasions, like petitioner’s birthdays and Valentine’s Day;
going out only on occasions despite their living separately and to go to a motel to
have sexual intercourse.

It would appear that the foregoing narration are the attendant facts in this
case which show the psychological incapacity of respondent, at the time of the
celebration of the marriage of the parties, to enter into lawful marriage and to
discharge his marital responsibilities (See Articles 68 to 71, Family Code). This
incapacity is “declared grave, severe and incurable.”
 WHEREFORE, in view of the foregoing, the marriage between petitioner
Rowena Padilla Rumbaua and respondent Edwin Rumbaua is hereby declared
annulled.

SO ORDERED.[18]

The CA Decision

The Republic, through the OSG, appealed the RTC decision to the
CA.[19] The CA decision of June 25, 2004 reversed and set aside the RTC decision,
and denied the nullification of the parties’ marriage.[20]

In its ruling, the CA observed that Dr. Tayag’s psychiatric report did not
mention the cause of the respondent’s so-called “narcissistic personality disorder;”
it did not discuss the respondent’s childhood and thus failed to give the court an
insight into the respondent’s developmental years. Dr. Tayag likewise failed to
explain why she came to the conclusion that the respondent’s incapacity was
“deep-seated” and “incurable.”

The CA held that Article 36 of the Family Code requires the incapacity to be
psychological, although its manifestations may be physical. Moreover, the
evidence presented must show that the incapacitated party was mentally or
physically ill so that he or she could not have known the marital obligations
assumed, knowing them, could not have assumed them. In other words, the illness
must be shown as downright incapacity or inability, not a refusal, neglect, or
difficulty to perform the essential obligations of marriage. In the present case, the
petitioner suffered because the respondent adamantly refused to live with her
because of his parents’ objection to their marriage.

The petitioner moved to reconsider the decision, but the CA denied her
motion in its resolution of January 18, 2005. [21]
 The Petition and the Issues

The petitioner argues in the present petition that –

1. the OSG certification requirement under Republic v.

Molina[22] (the Molina case) cannot be dispensed with because A.M. No.
02-11-10-SC, which relaxed the requirement, took effect only on March
15, 2003;

2. vacating the decision of the courts a quo and remanding the case to the
RTC to recall her expert witness and cure the defects in her testimony, as
well as to present additional evidence, would temper justice with mercy;
and

3. Dr. Tayag’s testimony in court cured the deficiencies in her psychiatric

report.

The petitioner prays that the RTC’s and the CA’s decisions be reversed and
set aside, and the case be remanded to the RTC for further proceedings; in the
event we cannot grant this prayer, that the CA’s decision be set aside and the
RTC’s decision be reinstated.

The Republic maintained in its comment that: (a) A.M. No. 02-11-10-SC
was applicable although it took effect after the promulgation of Molina; (b)
invalidating the trial court’s decision and remanding the case for further
proceedings were not proper; and (c) the petitioner failed to establish respondent’s
psychological incapacity.[23]

The parties simply reiterated their arguments in the memoranda they filed.

THE COURT’S RULING

 We resolve to deny the petition for lack of merit.

A.M. No. 02-11-10-SC is applicable

In Molina, the Court emphasized the role of the prosecuting attorney or

fiscal and the OSG; they are to appear as counsel for the State in proceedings for
annulment and declaration of nullity of marriages:

(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall be handed
down unless the Solicitor General issues a certification, which will be quoted
in the decision, briefly stating therein his reasons for his agreement or
opposition, as the case may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed submitted for resolution of the
court. The Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095. [Emphasis supplied.]

A.M. No. 02-11-10-SC[24] -- which this Court promulgated on March 15,

2003 and duly published -- is geared towards the relaxation of the OSG
certification that Molinarequired. Section 18 of this remedial regulation provides:

SEC. 18. Memoranda. – The court may require the parties and the public
prosecutor, in consultation with the Office of the Solicitor General, to file their
respective memoranda in support of their claims within fifteen days from the date
the trial is terminated. It may require the Office of the Solicitor General to file its
own memorandum if the case is of significant interest to the State. No other
pleadings or papers may be submitted without leave of court. After the lapse of
the period herein provided, the case will be considered submitted for decision,
with or without the memoranda.

The petitioner argues that the RTC decision of April 19, 2002 should be
vacated for prematurity, as it was rendered despite the absence of the required
OSG certification specified in Molina. According to the petitioner, A.M. No. 02-
11-10-SC, which took effect only on March 15, 2003, cannot overturn the
requirements of Molina that was promulgated as early as February 13, 1997.
 The petitioner’s argument lacks merit.

The amendment introduced under A.M. No. 02-11-10-SC is procedural or

remedial in character; it does not create or remove any vested right, but only
operates as a remedy in aid of or confirmation of already existing rights. The
settled rule is that procedural laws may be given retroactive effect,[25] as we held
in De Los Santos v. Vda. de Mangubat:[26]
Procedural Laws do not come within the legal conception of a
retroactive law, or the general rule against the retroactive operation of statues -
they may be given retroactive effect on actions pending and undetermined at the
time of their passage and this will not violate any right of a person who may feel
that he is adversely affected, insomuch as there are no vested rights in rules of
procedure.

A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory

nature of an OSG certification and may be applied retroactively to pending
matters. In effect, the measure cures in any pending matter any procedural lapse
on the certification prior to its promulgation. Our rulings in Antonio v.
Reyes[27] and Navales v. Navales[28] have since confirmed and clarified that A.M.
No. 02-11-10-SC has dispensed with the Molina guideline on the matter of
certification, although Article 48 mandates the appearance of the prosecuting attorney or
fiscal to ensure that no collusion between the parties would take place. Thus, what is
important is the presence of the prosecutor in the case, not the remedial requirement that he
be certified to be present. From this perspective, the petitioner’s objection regarding
the Molina guideline on certification lacks merit.

A Remand of the Case to the RTC is Improper

The petitioner maintains that vacating the lower courts’ decisions and the remand of
the case to the RTC for further reception of evidence are procedurally permissible. She
argues that the inadequacy of her evidence during the trial was the fault of her former
counsel, Atty. Richard Tabago, and asserts that remanding the case to the RTC would
allow her to cure the evidentiary insufficiencies. She posits in this regard that while
mistakes of counsel bind a party, the rule should be liberally construed in her favor to serve
the ends of justice.

We do not find her arguments convincing.

A remand of the case to the RTC for further proceedings amounts to the grant of a
new trial that is not procedurally proper at this stage. Section 1 of Rule 37 provides that an
aggrieved party may move the trial court to set aside a judgment or final
order already rendered and to grant a new trial within the period for taking an appeal. In
addition,a motion for new trial may be filed only on the grounds of (1) fraud,
accident, mistake or excusable negligence that could not have been guarded against
by ordinary prudence, and by reason of which the aggrieved party’s rights have
probably been impaired; or (2) newly discovered evidence that, with reasonable
diligence, the aggrieved party could not have discovered and produced at the trial,
and that would probably alter the result if presented.

In the present case, the petitioner cites the inadequacy of the evidence
presented by her former counsel as basis for a remand. She did not, however,
specify the inadequacy. That the RTC granted the petition for declaration of
nullity prima facie shows that the petitioner’s counsel had not been negligent in
handling the case. Grantingarguendo that the petitioner’s counsel had been
negligent, the negligence that would justify a new trial must be excusable, i.e. one
that ordinary diligence and prudence could not have guarded against. The
negligence that the petitioner apparently adverts to is that cited in Uy v. First Metro
Integrated Steel Corporation where we explained:[29]

Blunders and mistakes in the conduct of the proceedings in the trial court
as a result of the ignorance, inexperience or incompetence of counsel do not
qualify as a ground for new trial. If such were to be admitted as valid reasons for
re-opening cases, there would never be an end to litigation so long as a new
counsel could be employed to allege and show that the prior counsel had not been
 sufficiently diligent, experienced or learned. This will put a premium on the
willful and intentional commission of errors by counsel, with a view to securing
new trials in the event of conviction, or an adverse decision, as in the instant case.

Thus, we find no justifiable reason to grant the petitioner’s requested remand.

Petitioner failed to establish the

respondent’s psychological incapacity

A petition for declaration of nullity of marriage is anchored on

Article 36 of the Family Code which provides that “a marriage contracted by any
party who, at the time of its celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.” In Santos
v. Court of Appeals,[30] the Court first declared that psychological incapacity must
be characterized by (a) gravity; (b) juridical antecedence; and (c) incurability. The
defect should refer to “no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must
be assumed and discharged by the parties to the marriage.” It must be confined to
“the most serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage.”

We laid down more definitive guidelines in the interpretation and

application of Article 36 of the Family Code in Republic v. Court of Appeals where
we said:
(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation
of the marriage and against its dissolution and nullity. This is rooted in the fact
that both our Constitution and our laws cherish the validity of marriage and unity
of the family. Thus, our Constitution devotes an entire Article on the Family,
recognizing it “as the foundation of the nation.” It decrees marriage as legally
“inviolable,” thereby protecting it from dissolution at the whim of the parties.
Both the family and marriage are to be “protected” by the state.
The Family Code echoes this constitutional edict on marriage and the
family and emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision. Article
36 of the Family Code requires that the incapacity must be psychological - not
physical, although its manifestations and/or symptoms may be physical. The
evidence must convince the court that the parties, or one of them, was mentally or
psychically ill to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have given valid
assumption thereof. Although no example of such incapacity need be given here
so as not to limit the application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a psychological illness
and its incapacitating nature fully explained. Expert evidence may be given by
qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at “the time of the
celebration” of the marriage. The evidence must show that the illness was
existing when the parties exchanged their “I do's.” The manifestation of the illness
need not be perceivable at such time, but the illness itself must have attached at
such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. Such incurability may be absolute or even relative only in
regard to the other spouse, not necessarily absolutely against everyone of the
same sex. Furthermore, such incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. x x x
(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. Thus, “mild
characteriological peculiarities, mood changes, occasional emotional outbursts”
cannot be accepted as root causes. The illness must be shown as downright
incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In
other words, there is a natal or supervening disabling factor in the person, an
adverse integral element in the personality structure that effectively incapacitates
the person from really accepting and thereby complying with the obligations
essential to marriage.
(6) The essential marital obligations must be those embraced by Articles
68 up to 71 of the Family Code as regards the husband and wife as well as
Articles 220, 221 and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal
of the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts…
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall be handed
down unless the Solicitor General issues a certification, which will be quoted in
the decision, briefly stating therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from
the date the case is deemed submitted for resolution of the court. The Solicitor
General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.
 These Guidelines incorporate the basic requirements we established
in Santos. To reiterate, psychological incapacity must be characterized by: (a)
gravity; (b) juridical antecedence; and (c) incurability.[31] These requisites must be
strictly complied with, as the grant of a petition for nullity of marriage based on
psychological incapacity must be confined only to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. Furthermore, since the Family
Code does not define “psychological incapacity,” fleshing out its terms is left to us
to do so on a case-to-case basis through jurisprudence.[32] We emphasized this
approach in the recent case of Ting v. Velez-Ting[33] when we explained:

It was for this reason that we found it necessary to emphasize in Ngo

Te that each case involving the application of Article 36 must be treated distinctly
and judged not on the basis of a prioriassumptions, predilections or
generalizations but according to its own attendant facts. Courts should interpret
the provision on a case-to-case basis, guided by experience, the findings of
experts and researchers in psychological disciplines, and by decisions of church
tribunals.

In the present case and using the above standards and approach, we find the
totality of the petitioner’s evidence insufficient to prove that the respondent is
psychologically unfit to discharge the duties expected of him as a husband.

a. Petitioner’s testimony did not prove the root cause, gravity and
incurability of respondent’s condition

The petitioner’s evidence merely showed that the respondent: (a)

reneged on his promise to cohabit with her; (b) visited her occasionally from 1993
to 1997; (c) forgot her birthday in 1992, and did not send her greeting cards during
special occasions; (d) represented himself as single in his visa application; (e)
blamed her for the death of his mother; and (f) told her he was working in Davao
when in fact he was cohabiting with another woman in 1997.
 These acts, in our view, do not rise to the level of the “psychological
incapacity” that the law requires, and should be distinguished from
the “difficulty,” if not outright “refusal” or “neglect” in the performance of some
marital obligations that characterize some marriages. In Bier v. Bier,[34] we ruled
that it was not enough that respondent, alleged to be psychologically incapacitated,
had difficulty in complying with his marital obligations, or was unwilling to
perform these obligations. Proof of a natal or supervening disabling factor – an
adverse integral element in the respondent's personality structure that effectively
incapacitated him from complying with his essential marital obligations – had to be
shown and was not shown in this cited case.

In the present case, the respondent’s stubborn refusal to cohabit with the
petitioner was doubtlessly irresponsible, but it was never proven to be rooted in
some psychological illness. As the petitioner’s testimony
reveals, respondent merely refused to cohabit with her for fear of jeopardizing his
application for a scholarship, and later due to his fear of antagonizing his family.
The respondent’s failure to greet the petitioner on her birthday and to send her
cards during special occasions, as well as his acts of blaming petitioner for his
mother’s death and of representing himself as single in his visa application, could
only at best amount to forgetfulness, insensitivity or emotional immaturity, not
necessarily psychological incapacity. Likewise, the respondent’s act of living with
another woman four years into the marriage cannot automatically be equated with
a psychological disorder, especially when no specific evidence was shown that
promiscuity was a trait already existing at the inception of marriage. In fact,
petitioner herself admitted that respondent was caring and faithful when they were
going steady and for a time after their marriage; their problems only came in later.

To be sure, the respondent was far from perfect and had some character
flaws. The presence of these imperfections, however, does not necessarily warrant
a conclusion that he had a psychological malady at the time of the marriage that
rendered him incapable of fulfilling his duties and obligations. To use the words
of Navales v. Navales:[35]

Article 36 contemplates downright incapacity or inability to take cognizance of and

to assume basic marital obligations. Mere “difficulty,” “refusal” or “neglect” in the
performance of marital obligations or “ill will” on the part of the spouse is different from
“incapacity” rooted on some debilitating psychological condition or illness. Indeed,
irreconcilable differences, sexual infidelity or perversion, emotional immaturity and
irresponsibility, and the like, do not by themselves warrant a finding of psychological
incapacity under Article 36, as the same may only be due to a person's refusal or
unwillingness to assume the essential obligations of marriage and not due to some
psychological illness that is contemplated by said rule.

b. Dr. Tayag’s psychological report and court testimony

We cannot help but note that Dr. Tayag’s conclusions about the respondent’s
psychological incapacity were based on the information fed to her by only one side
– the petitioner – whose bias in favor of her cause cannot be doubted. While this
circumstance alone does not disqualify the psychologist for reasons of bias, her
report, testimony and conclusions deserve the application of a more rigid and
stringent set of standards in the manner we discussed above.[36] For, effectively,
Dr. Tayag only diagnosed the respondent from the prism of a third party account;
she did not actually hear, see and evaluate the respondent and how he would have
reacted and responded to the doctor’s probes.

Dr. Tayag, in her report, merely summarized the petitioner’s narrations, and
on this basis characterized the respondent to be a self-centered, egocentric, and
unremorseful person who “believes that the world revolves around him”; and who
“used love as a…deceptive tactic for exploiting the confidence [petitioner]
extended towards him.” Dr. Tayag then incorporated her own idea of “love”; made
a generalization that respondent was a person who “lacked commitment,
faithfulness, and remorse,” and who engaged “in promiscuous acts that made the
petitioner look like a fool”; and finally concluded that the respondent’s character
traits reveal “him to suffer Narcissistic Personality Disorder with traces of
Antisocial Personality Disorder declared to be grave and incurable.”

We find these observations and conclusions insufficiently in-depth and

comprehensive to warrant the conclusion that a psychological incapacity existed
that prevented the respondent from complying with the essential obligations of
marriage. It failed to identify the root cause of the respondent's narcissistic
personality disorder and to prove that it existed at the inception of the marriage.
Neither did it explain the incapacitating nature of the alleged disorder, nor show
that the respondent was really incapable of fulfilling his duties due to some
incapacity of a psychological, not physical, nature. Thus, we cannot avoid but
conclude that Dr. Tayag’s conclusion in her Report – i.e., that the respondent
suffered “Narcissistic Personality Disorder with traces of Antisocial Personality
Disorder declared to be grave and incurable” – is an unfounded statement, not a
necessary inference from her previous characterization and portrayal of the
respondent. While the various tests administered on the petitioner could have been
used as a fair gauge to assess her own psychological condition, this same statement
cannot be made with respect to the respondent’s condition. To make conclusions
and generalizations on the respondent’s psychological condition based on the
information fed by only one side is, to our mind, not different from admitting
hearsay evidence as proof of the truthfulness of the content of such evidence.

Petitioner nonetheless contends that Dr. Tayag’s subsequent testimony in

court cured whatever deficiencies attended her psychological report.

We do not share this view.

A careful reading of Dr. Tayag’s testimony reveals that she failed to

establish the fact that at the time the parties were married, respondent was already
suffering from a psychological defect that deprived him of the ability to assume the
essential duties and responsibilities of marriage. Neither did she adequately explain
how she came to the conclusion that respondent’s condition was grave and
incurable. To directly quote from the records:
ATTY. RICHARD TABAGO:

Q: I would like to call your attention to the Report already marked as

Exh. “E-7”, there is a statement to the effect that his character traits
begin to suffer narcissistic personality disorder with traces of
antisocial personality disorder. What do you mean? Can you please
explain in layman’s word, Madam Witness?

DR. NEDY LORENZO TAYAG:

A: Actually, in a layman’s term, narcissistic personality disorder

cannot accept that there is something wrong with his own
behavioral manifestation. [sic] They feel that they can rule the
world; they are eccentric; they are exemplary, demanding financial
and emotional support, and this is clearly manifested by the fact
that respondent abused and used petitioner’s love. Along the line, a
narcissistic person cannot give empathy; cannot give love simply
because they love themselves more than anybody else; and thirdly,
narcissistic person cannot support his own personal need and
gratification without the help of others and this is where the
petitioner set in.

Q: Can you please describe the personal [sic] disorder?

A: Clinically, considering that label, the respondent behavioral

manifestation under personality disorder [sic] this is already
considered grave, serious, and treatment will be impossible [sic].
As I say this, a kind of developmental disorder wherein it all
started during the early formative years and brought about by one
familiar relationship the way he was reared and cared by the
family. Environmental exposure is also part and parcel of the child
disorder. [sic]

Q: You mean to say, from the formative [years] up to the present?

A: Actually, the respondent behavioral manner was [present] long

before he entered marriage. [Un]fortunately, on the part of the
petitioner, she never realized that such behavioral manifestation of
the respondent connotes pathology. [sic]

xxxx
Q: So in the representation of the petitioner that the respondent is now
lying [sic] with somebody else, how will you describe the
character of this respondent who is living with somebody else?

A: This is where the antisocial personality trait of the respondent [sic]

because an antisocial person is one who indulge in philandering
activities, who do not have any feeling of guilt at the expense of
another person, and this [is] again a buy-product of deep seated
psychological incapacity.

Q: And this psychological incapacity based on this particular deep

seated [sic], how would you describe the psychological incapacity?
[sic]

A: As I said there is a deep seated psychological dilemma, so I would

say incurable in nature and at this time and again [sic] the
psychological pathology of the respondent. One plays a major
factor of not being able to give meaning to a relationship in terms
of sincerity and endurance.

Q: And if this psychological disorder exists before the marriage of the

respondent and the petitioner, Madam Witness?

A: Clinically, any disorder are usually rooted from the early formative
years and so if it takes enough that such psychological incapacity
of respondent already existed long before he entered marriage,
because if you analyze how he was reared by her parents
particularly by the mother, there is already an unhealthy symbiosis
developed between the two, and this creates a major emotional
havoc when he reached adult age.

Q: How about the gravity?

A: This is already grave simply because from the very start

respondent never had an inkling that his behavioral manifestation
connotes pathology and second ground [sic], respondent will never
admit again that such behavior of his connotes again pathology
simply because the disorder of the respondent is not detrimental to
himself but, more often than not, it is detrimental to other party
involved.

xxxx

PROSECUTOR MELVIN TIONGSON:

Q: You were not able to personally examine the respondent here?

DR. NEDY TAYAG:

A: Efforts were made by the psychologist but unfortunately, the

respondent never appeared at my clinic.

Q: On the basis of those examinations conducted with the petitioning

wife to annul their marriage with her husband in general, what can
you say about the respondent?

A: That from the very start respondent has no emotional intent to give
meaning to their relationship. If you analyze their marital
relationship they never lived under one room. From the very start
of the [marriage], the respondent to have petitioner to engage in
secret marriage until that time their family knew of their marriage
[sic]. Respondent completely refused, completely relinquished his
marital obligation to the petitioner.

xxxx

COURT:

Q: Because you have interviewed or you have questioned the

petitioner, can you really enumerate the specific traits of the
respondent?

DR. NEDY TAYAG:

A: One is the happy-go-lucky attitude of the respondent and the

dependent attitude of the respondent.

Q: Even if he is already eligible for employment?

A: He remains to be at the mercy of his mother. He is a happy-go-

lucky simply because he never had a set of responsibility. I think
that he finished his education but he never had a stable job because
he completely relied on the support of his mother.

Q: You give a more thorough interview so I am asking you something

specific?

A: The happy-go-lucky attitude; the overly dependent attitude on the

part of the mother merely because respondent happened to be the
only son. I said that there is a unhealthy symbiosis relationship
 [sic] developed between the son and the mother simply because the
mother always pampered completely, pampered to the point that
respondent failed to develop his own sense of assertion or
responsibility particularly during that stage and there is also
presence of the simple lying act particularly his responsibility in
terms of handling emotional imbalance and it is clearly manifested
by the fact that respondent refused to build a home together with
the petitioner when in fact they are legally married. Thirdly,
respondent never felt or completely ignored the feelings of the
petitioner; he never felt guilty hurting the petitioner because on the
part of the petitioner, knowing that respondent indulge with
another woman it is very, very traumatic on her part yet respondent
never had the guts to feel guilty or to atone said act he committed
in their relationship, and clinically this falls under antisocial
personality. [37]

In terms of incurability, Dr. Tayag’s answer was very vague and inconclusive,
thus:
xxxx

ATTY. RICHARD TABAGO

Q: Can this personally be cured, madam witness?

DR. NEDY TAYAG

A: Clinically, if persons suffering from personality disorder curable,

up to this very moment, no scientific could be upheld to alleviate
their kind of personality disorder; Secondly, again respondent or
other person suffering from any kind of disorder particularly
narcissistic personality will never admit that they are suffering
from this kind of disorder, and then again curability will always
be a question. [sic][38]

This testimony shows that while Dr. Tayag initially described the general
characteristics of a person suffering from a narcissistic personality disorder, she
did not really show how and to what extent the respondent exhibited these
traits. She mentioned the buzz words that jurisprudence requires for the nullity of
a marriage – namely, gravity, incurability, existence at the time of the marriage,
psychological incapacity relating to marriage – and in her own limited way, related
these to the medical condition she generally described. The testimony, together
with her report, however, suffers from very basic flaws.

First, what she medically described was not related or linked to the
respondent’s exact condition except in a very general way. In short, her testimony
and report were rich in generalities but disastrously short on particulars, most
notably on how the respondent can be said to be suffering from narcissistic
personality disorder; why and to what extent the disorder is grave and incurable;
how and why it was already present at the time of the marriage; and the effects of
the disorder on the respondent’s awareness of and his capability to undertake the
duties and responsibilities of marriage. All these are critical to the success of the
petitioner’s case.

Second, her testimony was short on factual basis for her diagnosis because it
was wholly based on what the petitioner related to her. As the doctor admitted to
the prosecutor, she did not at all examine the respondent, only the
petitioner. Neither the law nor jurisprudence requires, of course, that the person
sought to be declared psychologically incapacitated should be personally examined
by a physician or psychologist as a condition sine qua non to arrive at such
declaration.[39] If a psychological disorder can be proven by independent means,
no reason exists why such independent proof cannot be admitted and given
credit.[40] No such independent evidence, however, appears on record to have been
gathered in this case, particularly about the respondent’s early life and associations,
and about events on or about the time of the marriage and immediately
thereafter. Thus, the testimony and report appear to us to be no more than a
diagnosis that revolves around the one-sided and meager facts that the petitioner
related, and were all slanted to support the conclusion that a ground exists to justify
the nullification of the marriage. We say this because only the baser qualities of the
respondent’s life were examined and given focus; none of these qualities were
weighed and balanced with the better qualities, such as his focus on having a job,
his determination to improve himself through studies, his care and attention in the
first six months of the marriage, among others. The evidence fails to mention also
what character and qualities the petitioner brought into her marriage, for example,
why the respondent’s family opposed the marriage and what events led the
respondent to blame the petitioner for the death of his mother, if this allegation is
at all correct. To be sure, these are important because not a few marriages have
failed, not because of psychological incapacity of either or both of the spouses, but
because of basic incompatibilities and marital developments that do not amount to
psychological incapacity. The continued separation of the spouses likewise never
appeared to have been factored in. Not a few married couples have likewise
permanently separated simply because they have “fallen out of love,” or have
outgrown the attraction that drew them together in their younger years.

Thus, on the whole, we do not blame the petitioner for the move to secure a
remand of this case to the trial courts for the introduction of additional evidence;
the petitioner’s evidence in its present state is woefully insufficient to support the
conclusion that the petitioner’s marriage to the respondent should be nullified on
the ground of the respondent’s psychological incapacity.

The Court commiserates with the petitioner’s marital predicament. The

respondent may indeed be unwilling to discharge his marital obligations,
particularly the obligation to live with one’s spouse. Nonetheless, we cannot
presume psychological defect from the mere fact that respondent refuses to comply
with his marital duties. As we ruled in Molina,it is not enough to prove that a
spouse failed to meet his responsibility and duty as a married person; it is
essential that he must be shown to be incapable of doing so due to some
psychological illness. The psychological illness that must afflict a party at the
inception of the marriage should be a malady so grave and permanent as to
deprive the party of his or her awareness of the duties and responsibilities of
the matrimonial bond he or she was then about to assume.[41]
 WHEREFORE, in view of these considerations, we DENY the petition
and AFFIRM the decision and resolution of the Court of Appeals dated June 25,
2004 andJanuary 18, 2005, respectively, in CA-G.R. CV No. 75095.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 132164 October 19, 2004

CIVIL SERVICE COMMISSION, petitioner,

vs.
ALLYSON BELAGAN, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

When the credibility of a witness is sought to be impeached by proof of his reputation, it is necessary
that the reputation shown should be that which existed before the occurrence of the circumstances
out of which the litigation arose,1 or at the time of the trial and prior thereto, but not at a period
remote from the commencement of the suit.2 This is because a person of derogatory character or
reputation can still change or reform himself.

For our resolution is the petition for review on certiorari of the Court of Appeals’ Decision3 dated
January 8, 1998, in CA-G.R. SP. No. 44180, the dispositive portion of which reads:

"WHEREFORE, Resolution No. 966213 dated September 23, 1996 and Resolution No.
972423 dated April 11, 1997 of the respondent Civil Service Commission are hereby set
aside. The complaint against petitioner Allyson Belagan filed by Magdalena Gapuz is
hereby DISMISSED.

The dismissal of petitioner Belagan is lifted and he is hereby ordered to be immediately

reinstated to his position without loss of seniority, retirement, backwages and other rights
and benefits.

SO ORDERED."

The instant case stemmed from two (2) separate complaints filed respectively by Magdalena Gapuz,
founder/directress of the "Mother and Child Learning Center," and Ligaya Annawi, a public school
teacher at Fort Del Pilar Elementary School, against respondent Dr. Allyson Belagan,
Superintendent of the Department of Education, Culture and Sports (DECS), all from Baguio City.
Magdalena charged respondent with sexual indignities and harassment, while Ligaya accused him
of sexual harassment and various malfeasances.

Magdalena’s sworn complaint alleges that sometime in March 1994, she filed an application with the
DECS Office in Baguio City for a permit to operate a pre-school. One of the requisites for the
issuance of the permit was the inspection of the school premises by the DECS Division Office. Since
the officer assigned to conduct the inspection was not present, respondent volunteered his services.
Sometime in June 1994, respondent and complainant visited the school. In the course of the
inspection, while both were descending the stairs of the second floor, respondent suddenly placed
his arms around her shoulders and kissed her cheek. Dumbfounded, she muttered, "Sir, is this part
of the inspection? Pati ba naman kayo sa DECS wala ng values?" Respondent merely sheepishly
smiled. At that time, there were no other people in the area.

Fearful that her application might be jeopardized and that her husband might harm respondent,
Magdalena just kept quiet.

Several days later, Magdalena went to the DECS Division Office and asked respondent, "Sir,
kumusta yung application ko?" His reply was "Mag-date muna tayo." She declined, explaining that
she is married. She then left and reported the matter to DECS Assistant Superintendent Peter
Ngabit.

Magdalena never returned to the DECS Division Office to follow up her application. However, she
was forced to reveal the incidents to her husband when he asked why the permit has not yet been
released. Thereupon, they went to the office of the respondent. He merely denied having a personal
relationship with Magdalena.

Thereafter, respondent forwarded to the DECS Regional Director his recommendation to approve
Magdalena’s application for a permit to operate a pre-school.

Sometime in September 1994, Magdalena read from a local newspaper that certain female
employees of the DECS in Baguio City were charging a high-ranking DECS official with sexual
harassment. Upon inquiry, she learned that the official being complained of was respondent. She
then wrote a letter-complaint for sexual indignities and harassment to former DECS Secretary
Ricardo Gloria.

On October 4, 1994, respondent was placed under suspension.

On the part of Ligaya Annawi, she alleged in her complaint that on four separate occasions,
respondent touched her breasts, kissed her cheek, touched her groins, embraced her from behind
and pulled her close to him, his organ pressing the lower part of her back.

Ligaya also charged respondent with: (1) delaying the payment of the teachers’ salaries; (2) failing to
release the pay differentials of substitute teachers; (3) willfully refusing to release the teachers’
uniforms, proportionate allowances and productivity pay; and (4) failing to constitute the Selection
and Promotion Board, as required by the DECS rules and regulations.

The DECS conducted a joint investigation of the complaints of Magdalena and Ligaya. In his
defense, respondent denied their charge of sexual harassment. However, he presented evidence to
disprove Ligaya’s imputation of dereliction of duty.

On January 9, 1995, the DECS Secretary rendered a Joint Decision4 finding respondent guilty of four
(4) counts of sexual "indignities or harassments" committed against Ligaya; and two (2) counts of
"sexual advances or indignities" against Magdalena. He was ordered dismissed from the service.
The dispositive portion of the Joint Decision reads:
 "WHEREFORE, foregoing disquisitions duly considered, decision is hereby rendered in the
two above-entitled cases, finding:

a) Respondent Dr. Allyson Belagan, Superintendent of the DECS Baguio City

Schools Division GUILTY of the four counts of sexual indignities or harassments
committed against the person and honor of complainant Miss Ligaya Annawi, a
Baguio City public school teacher, while in the performance of his official duties and
taking advantage of his office. He is, however, ABSOLVED of all the other charges of
administrative malfeasance or dereliction of duty.

b) Respondent Baguio City Superintendent Allyson Belagan likewise GUILTY of the

two counts of sexual advances or indignities committed against the person and honor
of complainant Mrs. Magdalena Gapuz, a private school teacher of Baguio City, while
in the performance of his official duties and taking advantage of his office.

Consequently, respondent Allyson Belagan is HEREBY ORDERED DISMISSED from the

government service, with prejudice to reinstatement and all his retirement benefits and other
remunerations due him are HEREBY DECLARED FORFEITED in favor of the government.

SO ORDERED."5

Upon appeal, the Civil Service Commission (CSC), on September 23, 1996, promulgated Resolution
No. 9662136affirming the Decision of the DECS Secretary in the case filed by Magdalena but
dismissing the complaint of Ligaya. The CSC ruled that respondent’s transgression against
Magdalena constitutes grave misconduct. Thus:

"The acts of Belagan are serious breach of good conduct since he was holding a position
which requires the incumbent thereof to maintain a high degree of moral uprightness. As
Division Superintendent, Belagan represents an institution tasked to mold the character of
children. Furthermore, one of his duties is to ensure that teachers in his division conduct
themselves properly and observe the proper discipline. Any improper behavior on his part
will seriously impair his moral ascendancy over the teachers and students which can not be
tolerated. Therefore, his misconduct towards an applicant for a permit to operate a
private pre-school cannot be treated lightly and constitutes the offense of grave
misconduct.

WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave misconduct and
imposed the penalty of DISMISSAL from the service with all the accessory penalties. The
decision of the DECS Secretary is modified accordingly."7

On October 29, 1996, respondent seasonably filed a motion for reconsideration, contending that he
has never been charged of any offense in his thirty-seven (37) years of service. By contrast,
Magdalena was charged with several offenses before the Municipal Trial Court (MTC) of Baguio
City, thus:

"1. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December 3, 1980)

2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13, 1982)

3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982)
 4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982)

5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25, 1985)

6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985)

7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30, 1985)

8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18, 1985)

9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18, 1985)

10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985)

11. Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985)

12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991)

13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29, 1991)

14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December 2, 1986)

15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December 2, 1986)

16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October 24, 1986)

17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November 4, 1986)

18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7, 1987)

19. Criminal Case No. 57312 for UNJUST VEXATION (November 29, 1987)

20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES (December 13, 1985)

21. Criminal Case No. 53404 for UNJUST VEXATION (December 13, 1985)

22. Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986)"8

In addition, the following complaints against Magdalena were filed with the Barangay Chairmen of
Barangay Gabriela Silang and Barangay Hillside, both in Baguio City:

"1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS, UNJUST
VEXATION, RUMOR MONGERING

2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for GRAVE THREATS &
ORAL DEFAMATION

3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for ORAL DEFAMATION and
FALSE ACCUSATION
4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT and THREATS

5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for HABITUAL
TROUBLE MAKER

6. Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION

7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL DEFAMATION

8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR MONGERING

9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL DEFAMATION

10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL DEFAMATION

11. WOMEN’S CLUB vs. GAPUZ (February 9, 1979) for ORAL DEFAMATION

12. Vistro Salcedo case (May 8, 1979)

Where Mrs. Gapuz was spreading rumors against Barangay Captain and Police Chief

13. Demolition Scandal (May 10, 1979)

Where she called all the residents of their Barangay for an emergency meeting and
where she shouted invectives against the residents

14. Incident of June 13, 1979

Mrs. Gapuz shouted invectives against the Barangay Sanitary Inspector

15. Incident of August 25, 1979

Mrs. Gapuz shouted invectives against the servants of Mr. De Leon

16. Incident of August 26, 1979

Mrs. Gapuz terrorized the council meeting

17. Incident of September 2, 1978

Mrs. Clara Baoas was harassed by Mrs. Gapuz

18. Incident of September 9, 1979

Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council meeting

19. Incident of September 10, 1979

Mrs. Gapuz was hurling invectives along her alley in the early morning

20. Incident of September 13, 1979

Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Santos with the latter’s consent

21. Incident of September 21, 1979

Mrs. Gapuz was shouting and hurling invectives scandalously around her residence
 22. Incident of September 21, 1979
Mrs. Gapuz was shouting, complaining about alleged poisoned sardines near the
premises of her residence which killed her hen.

23. Incident of September 23, 1979

Mrs. Gapuz was shouting unpleasant words around the neighborhood. She did not like
the actuations of a bayanihan group near the waiting shed."9

Respondent claimed that the numerous cases filed against Magdalena cast doubt on her character,
integrity, and credibility.

In its Resolution No. 97242310 dated April 11, 1997, the CSC denied respondent’s motion for
reconsideration, holding that:

"The character of a woman who was the subject of a sexual assault is of minor significance
in the determination of the guilt or innocence of the person accused of having committed the
offense. This is so because even a prostitute or a woman of ill repute may become a victim
of said offense.

As such, the fact that complainant Magdalena Gapuz is shown to have had cases before the
regular courts for various offenses and was condemned by her community for wrongful
behavior does not discount the possibility that she was in fact telling the truth when she cried
about the lecherous advances made to her by the respondent. x x x"

Respondent then filed with the Court of Appeals a petition for review. As stated earlier, it reversed
the CSC Resolutions and dismissed Magdalena’s complaint.

The Appellate Court held that Magdalena is an unreliable witness, her character being questionable.
Given her aggressiveness and propensity for trouble, "she is not one whom any male would attempt
to steal a kiss." In fact, her "record immediately raises an alarm in any one who may cross her
path."11 In absolving respondent from the charges, the Appellate Court considered his "unblemished"
service record for 37 years.

Unsatisfied, the CSC, through the Solicitor General, filed the instant petition raising the following
assignments of error:

"I. The Supreme Court may rule on factual issues raised on appeal where the Court of
Appeals misappreciated the facts. Furthermore, where the findings of the Court of Appeals
and the trial court are contrary to each other, the Supreme Court may review the record and
evidence. The Court of Appeals erred in not giving credence to the testimony of complainant
Magdalena Gapuz despite convincing and overwhelming signs of its truthfulness.

II. The Court of Appeals committed reversible error when it failed to give due weight to the
findings of the DECS, which conducted the administrative investigation, specifically with
respect to the credibility of the witnesses presented.

III. The Court of Appeals erred in ruling that respondent should be penalized under Sec. 22
(o) of the Omnibus Rules Implementing Book V and not Sec. 22 (e) of said rules."12

In his comment, respondent maintains that Magdalena’s derogatory record undermines the verity of
her charge and that the Court of Appeals is correct in dismissing it.
The petition is impressed with merit.

The pivotal issue before us is whether complaining witness, Magdalena Gapuz, is credible. This is a
question of fact which, as a general rule, is not subject to this Court’s review.

It is a rule of long standing that factual findings of the Court of Appeals, if supported by substantial
evidence, are conclusive and binding on the parties and are not reviewable by this Court.13 This
Court is, after all, not a trier of facts. One of the exceptions, however, is when the findings of the
Court of Appeals are contrary to those of the trial court or a quasi-judicial body, like petitioner
herein.14

Here, the Court of Appeals and the CSC are poles apart in their appreciation of Magdalena’s
derogatory record. While the former considered it of "vital and paramount importance" in determining
the truth of her charge, the latter dismissed it as of "minor significance." This contrariety propels us
to the elusive area of character and reputation evidence.

Generally, the character of a party is regarded as legally irrelevant in determining a

controversy.15 One statutory exception is that relied upon by respondent, i.e., Section 51 (a) 3, Rule
130 of the Revised Rules on Evidence, which we quote here:

"SEC. 51. Character evidence not generally admissible; exceptions. –

(a) In Criminal Cases:

xxx xxx

(3) The good or bad moral character of the offended party may be proved if it
tends to establish in any reasonable degree the probability or improbability of
the offense charged."

It will be readily observed that the above provision pertains only to criminal cases, not to
administrative offenses. And even assuming that this technical rule of evidence can be applied here,
still, we cannot sustain respondent’s posture.

Not every good or bad moral character of the offended party may be proved under this provision.
Only those which would establish the probability or improbability of the offense charged. This means
that the character evidence must be limited to the traits and characteristics involved in the type of
offense charged.16 Thus, on a charge of rape - character for chastity, on a charge of assault -
character for peaceableness or violence, and on a charge of embezzlement - character for
honesty.17 In one rape case, where it was established that the alleged victim was morally loose and
apparently uncaring about her chastity, we found the conviction of the accused doubtful.18

In the present administrative case for sexual harassment, respondent did not offer evidence that has
a bearing on Magdalena’s chastity. What he presented are charges for grave oral defamation, grave
threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Certainly, these
pieces of evidence are inadmissible under the above provision because they do not establish the
probability or improbability of the offense charged.

Obviously, in invoking the above provision, what respondent was trying to establish is Magdalena’s
lack of credibility and not the probability or the improbability of the charge. In this regard, a different
provision applies.
Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a
person’s integrity, and to the fact that he is worthy of belief.19 A witness may be discredited by
evidence attacking his general reputation for truth,20 honesty21 or integrity.22 Section 11, Rule 132 of
the same Revised Rules on Evidence reads:

"SEC. 11. Impeachment of adverse party’s witness. –A witness may be impeached by the
party against whom he was called, by contradictory evidence, by evidence that his general
reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other
times statements inconsistent with his present testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the witness, or the record
of the judgment, that he has been convicted of an offense."

Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to
character or reputation attack pursuant to the principle that a party who becomes a witness in his
own behalf places himself in the same position as any other witness, and may be impeached by an
attack on his character or reputation.23

With the foregoing disquisition, the Court of Appeals is correct in holding that the character or
reputation of a complaining witness in a sexual charge is a proper subject of inquiry. This leads us to
the ultimate question – is Magdalena’s derogatory record sufficient to discredit her credibility?

A careful review of the record yields a negative answer.

First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to acts committed in
the 80’s, particularly, 1985 and 1986. With respect to the complaints filed with the Chairmen of
Barangay Gabriela Silang and Barangay Hillside, the acts complained of took place in 1978 to 1979.
In the instant administrative case, the offense was committed in 1994. Surely, those cases and
complaints are no longer reliable proofs of Magdalena’s character or reputation. The Court of
Appeals, therefore, erred in according much weight to such evidence. Settled is the principle that
evidence of one’s character or reputation must be confined to a time not too remote from the time in
question.24 In other words, what is to be determined is the character or reputation of the person at
the time of the trial and prior thereto, but not at a period remote from the commencement of the
suit.25 Hence, to say that Magdalena’s credibility is diminished by proofs of tarnished reputation
existing almost a decade ago is unreasonable. It is unfair to presume that a person who has
wandered from the path of moral righteousness can never retrace his steps again. Certainly, every
person is capable to change or reform.

Second, respondent failed to prove that Magdalena was convicted in any of the criminal cases
specified by respondent. The general rule prevailing in a great majority of jurisdictions is that it is not
permissible to show that a witness has been arrested or that he has been charged with or
prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility.26 This
view has usually been based upon one or more of the following grounds or theories: (a) that a mere
unproven charge against the witness does not logically tend to affect his credibility, (b) that innocent
persons are often arrested or accused of a crime, (c) that one accused of a crime is presumed to be
innocent until his guilt is legally established, and (d) that a witness may not be impeached or
discredited by evidence of particular acts of misconduct.27 Significantly, the same Section 11, Rule
132 of our Revised Rules on Evidence provides that a witness may not be impeached by evidence
of particular wrongful acts. Such evidence is rejected because of the confusion of issues and the
waste of time that would be involved, and because the witness may not be prepared to expose the
falsity of such wrongful acts.28 As it happened in this case, Magdalena was not able to explain or
rebut each of the charges against her listed by respondent.
But more than anything else, what convinces us to sustain the Resolution of the CSC is the fact that
it is supported by substantial evidence. As aptly pointed out by the Solicitor General, Magdalena
testified in a straightforward, candid and spontaneous manner. Her testimony is replete with details,
such as the number of times she and respondent inspected the pre-school, the specific part of the
stairs where respondent kissed her, and the matter about her transient boarders during summer.
Magdalena would not have normally thought about these details if she were not telling the truth. We
quote her testimony during the cross-examination conducted by DECS Assistant Secretary Romeo
Capinpin and Undersecretary Antonio Nachura, thus:

"Q Was there any conversation between you and Dr. Belagan during the inspection on the
first floor and the second floor?

A There was, sir. It was a casual conversation that we had with regard to my family,
background, how the school came about, how I started with the project. That was all, sir.

Q Nothing about any form of sexual harassment, in words or in deeds?

A Sir, because he inspected the second floor twice, sir. We went up to the stairs twice, sir.

Q Why?

A I really don’t know what was the reason behind, sir. But on the second inspection, sir, I told
him that as of that time I had some transients with me. I was making use of the premises for
transients because that was summer then, sir. And I already started paying the place so I
said, ‘Sir, I have some transients with me in the evening’ and he said, You know Mrs. Gapuz,
I am interested to stay in one of the rooms as one your boarders. But I respectfully declined
saying, ‘Sir, I think for delicadeza I cannot accept you. Not that I don’t want you to be here
but people might think that I am keeping you here and that would prejudice my permit, sir.’

ASEC R. CAPINPIN:

Q When did the alleged kissing occur? Was it during the first time that you went up with him
or the second time?

A No, sir, on the second time, sir.

Q Second time?

A Yes, sir. We were going down, sir.

Q And you were going down?

A Yes, sir.

Q Do you recall what portion of the stairs where you were during the alleged kissing?

A Sir, on the topmost of the stairs.

Q Before you went down?

 A Yes, sir. At the topmost because there is a base floor going up to the stairs and it has 16
steps.

Q So, it was not on the 16th step but still on the topmost?

A Yes sir.

Q Part of the floor of the building?

A Yes, sir. Topmost, sir?

ASEC R. CAPINPIN:

Q Will you kindly tell us your relative position at that time?

A Sir, on the second time that we went up and I mentioned about these transients that I had
then and he wanted to stay in the place in one of the rooms and then I declined and I was
still showing the rooms simultaneously. On the last, the biggest room that I had, he said, ‘No.
Never mind, I am not going to see that anymore.’ So he waited for me there and upon
reaching the place, as I was to step down on the first step going down, he placed his arm
and held me tightly and planted the kiss on my cheek, sir.

Q You said that he wanted to stay in one of the rooms?

A Yes, sir, as a boarder.

Q Is that room used for transients?

A During that time, sir, during the summertime, I made use of the time to get some
transients.

Q And he was telling you that he wanted to occupy one of the rooms?

A Yes, but I declined, sir for delicadeza.

Q At that time, there were no transients yet.

A When he came over for the inspection sir, nobody was there."29

The above testimony does not stand in isolation. It is corroborated by Peter Ngabit, DECS Assistant
Division Superintendent. Ngabit testified that Magdalena reported to him that respondent kissed her
and asked her for a "date."

"Q I would like to call your attention to Exhibit ‘A’ which is the affidavit of Mrs. Magdalena B.
Gapuz, particularly item no. 8, and may I read for your information – ‘That the Monday after
the incident, I went to the DECS Division Office expecting to get favorable recommendation
from the DECS Regional Office for the issuance of my permit. That I proceeded to the
Superintendent and asked him, ‘Sir, kumusta ‘yung application ko’ and he said, ‘mag date
muna tayo’ but I refused and explained that I am married, after which I proceeded to the
 Office of Asst. Superintendent Peter Ngabit to relate the incident and then left the Division
Office.’ Do you remember if Mrs. Gapuz went to your Office on the particular day?

A Yes, sir.

Q What time was that?

A I cannot remember, sir.

Q Was it morning, afternoon?

A I think it was in the morning, sir.

Q Morning.

A Yes, sir.

Q Early morning?

A About noon, sir.

Q What transpired between you and Mrs. Gapuz in your office?

A When she came to my Office, she was relating about that and she was even insulting me
saying among others that I was a useless fixture in that Office because I cannot do anything
with the processing of her paper or application.

Q It says here that she would relate the incident to you. Did she relate any incident?

A Yes, she did sir.

Q What was that incident all about?

A She was saying that when Mr. Belagan went to visit her school, he stole a kiss from
her and that she was saying that when she asked Supt. Belagan for her papers, she
was asked for a date before the Indorsement. After that, she left."30

With Magdalena’s positive testimony and that of Ngabit, how can we disregard the findings of the
DECS and the CSC? Surely, we cannot debunk it simply because of the Court of Appeals’ outdated
characterization of Magdalena as a woman of bad reputation. There are a number of cases where
the triers of fact believe the testimony of a witness of bad character31 and refuse to believe one of
good character.32 As a matter of fact, even a witness who has been convicted a number of times is
worthy of belief, when he testified in a straightforward and convincing manner.33

At this juncture, it bears stressing that more than anybody else, it is the DECS investigating officials
who are in a better position to determine whether Magdalena is telling the truth considering that they
were able to hear and observe her deportment and manner of testifying.34

In reversing the CSC’s Resolutions, the Court of Appeals ruled that "there is ample evidence to show
that Magdalena had a motive" in accusing respondent, i.e., to pressure him to issue a permit. This is
unconvincing. The record shows that respondent had already issued the permit when Magdalena
filed her letter-complaint. Indeed, she had no more reason to charge respondent administratively,
except of course to vindicate her honor.

Petitioner prays that we sustain its ruling penalizing respondent for grave misconduct and not merely
for disgraceful or immoral conduct which is punishable by suspension for six (6) months and one (1)
day to one (1) year for the first offense.35 Misconduct means intentional wrongdoing or deliberate
violation of a rule of law or standard of behavior, especially by a government official.36 To constitute
an administrative offense, misconduct should relate to or be connected with the performance of the
official functions and duties of a public officer.37 In grave misconduct as distinguished from simple
misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of
established rule, must be manifest.38 Corruption as an element of grave misconduct consists in the
act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to
procure some benefit for himself or for another person, contrary to duty and the rights of
others.39 This is apparently present in respondent’s case as it concerns not only a stolen kiss but
also a demand for a "date," an unlawful consideration for the issuance of a permit to operate a pre-
school. Respondent’s act clearly constitutes grave misconduct, punishable by dismissal.40

We are, however, not inclined to impose the penalty of dismissal from the service. Respondent has
served the government for a period of 37 years, during which, he made a steady ascent from an
Elementary Grade School Teacher to Schools Division Superintendent. In devoting the best years of
his life to the education department, he received numerous awards.41 This is the first time he is being
administratively charged. He is in the edge of retirement. In fact, he had filed his application for
retirement when Magdalena filed her complaint. Section 16, Rule XIV, of the Rules Implementing
Book V of Executive Order No. 292 provides:

"SEC. 16. In the determination of penalties to be imposed, mitigating and aggravating

circumstances may be considered. x x x."

The mitigating circumstances are enumerated in Section 53, Rule IV, of the Uniform Rules on
Administrative Cases in the Civil Service,42 which reads in part:

"SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. – In the

determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered.

The following circumstances shall be appreciated:

xxx xxx

j. length of service

xxx xxx

l. and other analogous cases."

Conformably with our ruling in a similar case of sexual harassment,43 and respondent’s length of
service, unblemished record in the past and numerous awards,44 the penalty of suspension from
office without pay for one (1) year is in order.
While we will not condone the wrongdoing of public officers and employees, however, neither will we
negate any move to recognize and remunerate their lengthy service in the government.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated January 8,
1998 in CA-G.R. SP No. 44180 is REVERSED. The CSC Resolution Nos. 966213 and 972423
are AFFIRMED, subject to the modification that respondent ALLYSON
BELAGAN is SUSPENDED from office without pay for ONE (1) YEAR, with full credit of his
preventive suspension.

SO ORDERED.