EN BANC

[G.R. No. 117487. December 12, 1995.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. ARNEL ALICANDO

Y BRIONES, accused-appellant.

The Solicitor General for plaintiff-appellee.

Jose B. Tiongco for accused-appellant.

DECISION

PUNO, J : p

The case at bar involves the imposition of the death penalty. With all our frailties,
we are asked to play the role of an infallible God by exercising the divine right to give or
take away life. We cannot err in the exercise of our judgment for our error will be
irrevocable. Worse, our error can result in the worst of crimes — murder by the
judiciary.
The records reveal that appellant Arnel Alicando was charged with the crime of
rape with homicide 1 in an Information which reads:
"That on or about the 12th day of June 1994 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, did then and
there willfully, unlawfully and feloniously and by means of force, violence and
intimidation to wit: by then and there pinning down one KHAZIE MAE
PENECILLA, a minor, four years of age, choking her with his right hand,
succeeded in having carnal knowledge with her and as a result thereof she
suffered asphyxia by strangulation, fractured cervical vertebra and lacerations of
the vaginal and rectal openings causing profuse hemorrhages and other injuries
which are necessarily fatal and which were the direct cause of her death.

CONTRARY TO LAW."

On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio
Antiquiera of the PAO, Department of Justice. Appellant pleaded guilty.
After appellant's plea of guilt, the trial court ordered the prosecution to present its
evidence. It also set the case for reception of evidence for the appellant, if he so
desired. 2
The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo
Penecilla, father of the four year old victim Khazie Mae, was drinking liquor with Ramil
Rodriguez and Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo
Bala, Iloilo. Appellant joined them but every now and then would take leave and return.
Appellant was living in his uncle's house some five (5) arm's length from Penecilla's
house. At about 4:30 p.m., Penecilla's group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-
1/2) arm's length from the house of appellant. At about 5:30 p.m. of that day, she saw
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 the victim at the window of appellant's house. She offered to buy her "yemas" but
appellant closed the window. Soon she heard the victim crying. She approached
appellant's house and peeped through an opening between its floor and door. The sight
shocked her — appellant was naked, on top of the victim, his left hand choking her
neck. She retreated to her house in fright.
She gathered her children together and informed her compadre, Ricardo
Lagrana, then in her house, about what she saw. Lagrana was also overcome with fear
and hastily left.
Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find
Khazie Mae. He and his wife searched for her until 1 o'clock in the morning. Their effort
was fruitless. Rebada was aware that the Penecillas were looking for their daughter but
did not tell them what she knew. Instead, Rebada called out appellant from her window
and asked him the time Khazie Mae left his house. Appellant replied he was drunk and
did not know.
As the sun started to rise, another neighbor, Leopoldo Santiago went down from
his house to answer the call of nature. He discovered the lifeless body of Khazie Mae
under his house. Her parents were informed and so was the police. At 9:00 a.m.,
Rebada suffered a change of heart. She informed Romeo Penecilla and his wife Julie
Ann, that appellant committed the crime. Forthwith, appellant was arrested and
interrogated by PO3 Danilo Tan. He verbally confessed his guilt without the assistance
of counsel. On the basis of his uncounseled verbal confession and follow up
interrogations, the police came to know and recovered from appellant's house, Khazie
Mae's green slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained
T-shirt all of which were presented as evidence for the prosecution.
The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal
officer. His autopsy report reveals the following injuries sustained by the victim:
"HEAD & NECK/THORACO-ABDOMINAL REGIONS:

1) Contusion, purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right infraclavicular area.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest
wall.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero-inferior chest wall.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac

crest .

ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

EXTREMITIES:
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 1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd, left
forearm.

2) Old wound, 2 x 1.5 cm. in dia., posterior middle 3rd, left forearm.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd, right
forearm.

VAGINAL FINDINGS/ANAL FINDINGS:

a) Lacerated wound, from the fourchette up to the dome of the rectum.

b) Hematoma, from the fourchette up to the rectum.

c ) Lacerated wound, lateral wall of the vagina up to the level of the

promontory of the sacrum with a length of 8 centimeters.
d) A cylinder with a diameter of 2 cms., easily passes the vaginal and anal
openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION.
B) FRACTURED, 2nd CERVICAL VERTEBRA..

C ) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL &

RECTAL OPENINGS."

Appellant adopted the autopsy report of Dr. Doromal as his documentary

evidence to prove that the proximate cause of Khazie Mae's death was asphyxia by
strangulation.
On July 20, 1994, the trial court found appellant guilty and sentenced him to
death, viz:

"WHEREFORE, the court hereby finds the accused, Arnel Alicando,

GUILTY beyond reasonable doubt for (sic) the Crime of Rape with Homicide
penalized under Article 335 of the Revised Penal Code as amended by
paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No. 7659. Arnel Alicando
is hereby sentenced to suffer a (sic) penalty of death and to indemnify the heirs
of the offended party, Khazie Mae D. Penecilla, the sum of P50,000.00.
The death sentence shall be executed by putting the person under
sentence to death by electrocution (electric chair). As soon as facilities are
provided by the Bureau of Prisons, the method of carrying out his sentence shall
be changed by gas poisoning (sic).

Here ends Khazie Mae's quest for justice. Her tormentor must suffer for
the grievous offense he had committed. He deserves no mercy.

Cost against the accused.

SO ORDERED. "

The case is before us on automatic review considering the death penalty

imposed by the trial court. A new counsel, Atty. Joel Tiongco, took the cudgel for
appellant. In his Brief, appellant assails the decision of the trial court as a travesty of
justice.
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 We find that the Decision of the trial court sentencing the appellant to death is
shot full of errors, both substantive and procedural. The conviction is based on an
amalgam of inadmissible and incredible evidence and supported by scoliotic logic.
First. The arraignment of the appellant is null and void. The trial judge failed to
follow section (1) (a) of Rule 116 on arraignment. Said section provides:
xxx xxx xxx

Section 1. Arraignment and plea; how made. —

(a) The accused must be arraigned before the court where the complaint
or information has been filed or assigned for trial. The arraignment must be made
in open court by the judge or clerk by furnishing the accused a copy of the
complaint or information with the list of witnesses, reading the same in the
language or dialect known to him and asking him whether he pleads guilty or not
guilty. The prosecutor may, however, call at the trial witnesses other than those
named in the complaint or information."

The reading of the complaint or information to the appellant in the language or dialect
known to him is a new requirement imposed by the 1985 Rules on Criminal Procedure.
It implements the constitutional right of an appellant ". . . to be informed of the nature
and cause of the accusation against him." 3 The new rule also responds to the reality
that the Philippines is a country divided by dialects and Pilipino as a national language
is still in the process of evolution. 4 Judicial notice can be taken of the fact that many
Filipinos have limited understanding either of the Pilipino or English language, our
official languages for purposes of communication and instruction. 5 The importance of
reading the complaint or information to the appellant in the language or dialect known to
him cannot thus be understated.
In the case at bar, the records do not reveal that the Information against the
appellant was read in the language or dialect known to him. The Information against the
appellant is written in the English language. It is unbeknown whether the appellant
knows the English language. Neither is it known what dialect is understood by the
appellant. Nor is there any showing that the Information couched in English was
translated to the appellant in his own dialect before his plea of guilt. The scanty
transcript during his arraignment, reads: 6
xxx xxx xxx
Prosecutor Edwin Fama — Appearing as public prosecutor

Atty. Rogelio Antiquiera — For the accused, Your Honor. Ready for
arraignment and pre-trial.)

Interpreter — (Reading the information to the accused for arraignment and

pre-trial.)

Note: (After reading the information to the accused, accused pleads

guilty)"

One need not draw a picture to show that the arraignment of the appellant is a nullity. It
violated section l(a) of Rule 116, the rule implementing the constitutional right of the
appellant to be informed of the nature and cause of the accusation against him. It also
denied appellant his constitutional right to due process of law. 7 It is urged that we must
presume that the arraignment of the appellant was regularly conducted. When life is at
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 stake, we cannot lean on this rebuttable presumption. We cannot assume. We must be
sure.
Second. The plea of guilt made by the appellant is likewise null and void. The trial
court violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant.
Said section provides:

"Sec. 3. Plea of guilty to capital offense; reception of evidence. — When

the accused pleads guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of his
plea and require the prosecution to prove his guilt and the precise degree of
culpability. The accused may also present evidence in his behalf."

The records reveal how the trial judge inadequately discharged this duty of conducting a
"searching inquiry." In the hearing of June 28, 1994, the transcripts reveal the following:
8

xxx xxx xxx

Note
(After reading the information to the accused, accused pleads guilty.)
Court
Question (sic) of the court to the accused.
Q Considering that this is a crime and under the amended law is a heinous crime,
because of your plea of guilty without the consent or even against the
discretion of the court, the court will give you a mandatory death penalty
because of the crime charged, do you understand?
Accused
Yes, Your Honor.
Q Did you enter a plea of guilty on your own voluntary will or without any force or
intimidation from any one or whatever?
Accused
None, Your Honor.
Q Are you sure?
Accused
Yes, Your Honor.
Q Or maybe because you were manhandled or maltreated by anyone and that
will just be the consideration for you to plead guilty?
Accused
No, Your Honor.
Court
Were you not manhandled, please let us see your body?
Note
(Accused raised his prison uniform or shirt and showed to the court his
body from waist up.)
Accused
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 No, Your Honor.
Court
You were not maltreated in the jail?
Accused
No, Your Honor.
Court
Please let us see whether you have bruises so that you will be examined
by a physician to the order of the court?
Accused
No, Your Honor.
Court
If you will plead guilty, that plea of guilty has no use because there will be
a mandatory death penalty, do you still insist on your plea of guilty?
Accused
Yes, Your Honor.
Court
If you plead guilty to the crime charged there will be some effects on your
civil rights but not until the decision will be affirmed by the Supreme Court.
Accused
Yes, Your Honor.
Note
(See Order dated June 28, 1994 attached to the records of this case.)"
In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9

xxx xxx xxx

Fiscal Fama:
Appearing as the public prosecutor, ready, Your Honor.
Our first witness is Dr. Tito Doromal, Your Honor.
Court:
For the accused, Your Honor.
Atty. Antiquiera:
Before the court will proceed with the reception of evidence by the
prosecution Arnel Alicando, please come here. (at this juncture, Arnel
Alicando, come near to the court)
The court is warning you again that this is reception of evidence by the
prosecution after you plead guilty to the crime charged at, do you
understand?
A Yes.
Q Do you still affirm and confirm to your plea of guilty of rape with homicide?
A Yes, Your Honor.

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 Q Do you still insist that your plea of guilty is voluntary without force, intimidation
or whatsoever?
A Yes.
Q The court is warning you that after reception of evidence, the imposable
penalty is mandatory death?
A Yes, Your Honor.
Q Despite of that, you still insist on your plea of guilty?
A Yes, Your Honor.
Court
Okey, proceed."
Section 3 of Rule 116 which the trial court violated is not a new rule for it merely
incorporated the decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in
an unbroken line of cases. 11 The bottom line of the rule is that the plea of guilt must be
based on a free and informed judgment. Thus, the searching inquiry of the trial court
must be focused on: (1) the voluntariness of the plea, and (2) the full comprehension of
the consequences of the plea. The questions of the trial court failed to show the
voluntariness of the plea of guilt of the appellant nor did the questions demonstrate
appellant's full comprehension of the consequences of his plea. The records do not
reveal any information about the personality profile of the appellant which can serve as
a trustworthy index of his capacity to give a free and informed plea of guilt. The age,
socio-economic status, and educational background of the appellant were not plumbed
by the trial court. The questions were framed in English yet there is no inkling that
appellant has a nodding acquaintance of English. It will be noted too that the trial court
did not bother to explain to the appellant the essential elements of the crime of rape
with homicide.
A cursory examination of the questions of the trial court to establish the
voluntariness of appellant's plea of guilt will show their utter insufficiency. The trial court
simply inquired if appellant had physical marks of maltreatment. It did not ask the
appellant when he was arrested, who arrested him, how and where he was
interrogated, whether he was medically examined before and after his interrogation, etc.
It limited its efforts trying to discover late body marks of maltreatment as if
involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind
eye on the following damning entry on the June 13, 1994 Record of Events of the Iloilo
PNP (Exh. "M") showing that after his arrest, the appellant was mobbed by inmates
while in jail and had suffered hematoma, viz:
"c- 0262-94
INFORMATION
2:50 PM - PO2 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC,
informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this
date when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of
Rizal, Palapala Zone I, CP, been arrested and mobbed by the irate residents of
Zone I, Rizal, Palapala, GP, in connection of the Rape with Homicide case
wherein the victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs. old, residence of
same place who was discovered dead under the house thereat. Suspect when
turned over to this office and put on lock up cell was also mobbed by the angry
inmates thus causing upon him hematoma contusion on different parts of his
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 body."

Likewise, the trial court's effort to determine whether appellant had full
comprehension of the consequences of his plea is fatally flawed. It warned the appellant
he would get the mandatory death penalty without explaining the meaning of
"mandatory". It did not inform the appellant of the indemnity he has to pay for the death
of the victim. It cautioned appellant there ". . . will be some effects on your civil rights "
without telling the appellant what those "effects" are and what "civil rights" of his are
involved.
Appellant's plea of guilt is void and the trial court erred in using it to sentence him
to death. We stress that under the 1985 Rules of Criminal Procedure, a conviction in
capital offenses cannot rest alone on a plea of guilt. Section 3 of Rule 116 requires that
after a free and intelligent plea of guilt, the trial court must require the prosecution to
prove the guilt of the appellant and the precise degree of his culpability beyond
reasonable doubt. This rule modifies prior jurisprudence that a plea of guilt even in
capital offenses is sufficient to sustain a conviction charged in the information without
need of further proof. The change is salutary for it enhances one of the goals of the
criminal process which is to minimize erroneous conviction. We share the stance that "it
is a fundamental value determination of our system that it is far worse to convict an
innocent person than let a guilty man go free." 12
Third. Some prosecution evidence, offered independently of the plea of guilt of
the appellant, were inadmissible, yet, were considered by the trial court convicting the
appellant.
Thus, the trial court gave full faith and credit to the physical evidence presented
by the prosecution. To quote its Decision, 13 viz:
"xxx xxx xxx
Further, there are physical evidence to prove Khazie was raped. These
consists of a pillow with bloodstains in its center 14 and the T-shirt 15 of the
accused colored white with bloodstains on its bottom. These physical evidence
are evidence of the highest order. They strongly corroborate the testimony of
Luisa Rebada that the victim was raped."

These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo
City PNP as a result of custodial interrogation where appellant verbally confessed to the
crime without the benefit of counsel. PO3 Tan admitted under cross-examination, viz: 16
xxx xxx xxx
CROSS-EXAMINATION BY ATTY. ANTIOUIERA:
Q Mr. Witness, when for the first time did you see Arnel Alicando?
A June 13, 1994, when I arrested him.
Q Previous to that you have never seen him?
A Yes, sir.
Q When for the first time did you start investigating Arnel Alicando?
A After I finished investigating the body of the victim, Khazie Mae Penecilla.
Q And that was also after you were informed that Arnel Alicando was a suspect in
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 the raping of Khazie Mae Penecilla?
A Yes, sir.
Atty. Antiquiera:
Q And who was that person who informed you of the suspect?
A Luisa Rebada.
Q Mrs. Rebada who is the witness in this case?
A Yes, sir.
Q And you started investigating Arnel Alicando in the morning of June 13, 1994?
A Yes, sir.
Q How long did you interrogate Arnel Alicando in the morning of June 13, 1994?
A I cannot remember the length of time I investigated him.
Q Did it take you the whole morning of June 13, 1994 in interrogating and
investigating Arnel Alicando?
A Yes, sir.
Q And the investigation you conducted continued in the afternoon of the same
date?
A Yes, sir.
Q The following day, June 14, 1994, you still investigated and interrogated Arnel
Alicando.
A Yes, sir.
Q And when did you stop, finally, investigating and interrogating Arnel Alicando?
A After I finished recovering all the exhibits in relation to this case.
Q What date did you stop your investigation?
A June 14, 1994, when I finished recovering the white T-shirt and pair of earring.
Atty. Antiquiera:
Q You testified in this case, Mr. Witness you never informed the court that you
apprised the accused of his constitutional rights, is that correct?
A I apprised him.
Q My question is, during your testimony before this court under the direct
examination of the prosecution you never informed the court that you
apprised the accused of his constitutional rights?
Pros. Fama:
I did not ask him that question. How will he answer?
Court:
Sustained.
Atty. Antiquiera:
Q When did you inform, the date when you informed Alicando of his
constitutional rights?
A On June 13.
Q On what hour did you inform him?
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 A After the witness identified him.
Q What constitutional rights inform Alicando of?
A The right to remain silent and right to get his lawyer and I have interpreted in
Visayan language.
Q And during your investigation for almost two (2) days the accused was never
represented by counsel, is that correct?
A Yes, sir.
Atty. Antiquiera:
Q Are you aware of the law that enjoins a public officer to inform the person of his
constitutional rights?
A Yes, sir.
That is all, Your Honor."
It is now familiar learning that the Constitution has stigmatized as inadmissible evidence
uncounselled confession or admission. Section 12 paragraphs (1) and (3) of Article III
of the Constitution provides:
xxx xxx xxx

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

(3) Any confession or admission obtained in violation of this or the

preceding section shall be inadmissible against him."

In the case at bar, PO3 Tan did not even have the simple sense to reduce the all
important confession of the appellant in writing. Neither did he present any writing
showing that appellant waived his right to silence and to have competent and
independent counsel. Despite the blatant violation of appellant's constitutional right, the
trial court allowed his uncounselled confession to flow into the records and illicitly used it
in sentencing him to death.
It is not only the uncounselled confession that is condemned as inadmissible, but
also evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains
were evidence derived from the uncounselled confession illegally extracted by the
police from the appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17
xxx xxx xxx
Q Did the accused Arnel Alicando accompany you to the place of the incident?
A Yes, sir.
Q When you arrived at the place of the incident what did you do?
A He pointed to the fish basin.
Q Can you identify this fish basin which you said pointed to you by Arnel
Alicando?
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 A Yes, sir.
Q Please point?
A (Witness pointing to the fish basin already marked as Exhibit "H".)
Q Did you ask the accused what he did with this fish basin?
A I asked the accused what he did with the fish basin and he answered that he
used the fish basin to cover Khazie Mae Penecilla when she was already
dead.
Pros. Fama:
Q You mean to say to conceal the crime ?
A Yes, sir.
Q What else aside from this fish basin, what else did you recover?
A At around 7 o'clock in the evening he further pointed to us the old mat and the
pillow wherein he laid the victim Khazie Mae Penecilla.
Q You mean to say that you returned back to the scene of the incident that time?
A It was already night time and it was only Kagawad Rodolfo Ignacio, my
companion, who went to the place of the incident.
Q You mean to say you were verbally instructed by the accused?
A Yes, sir.
Q In what particular place did you recover those things ?
A Inside the room where he raped child.
Q Whose house is that ?
A The house of Imelda Alicando.
Q The wife of Romeo Alicando?
A Yes, sir.
Q In what particular place is that situated ?
A Inside the room where the accused was sleeping at Rizal-Palapala.
Pros. Fama:
Q You mean to say inside that room the victim was raped by the accused?
A Yes, sir.
Q Can you point that pillow which you said you recovered inside he room of
Imelda Alicando?
A Yes, sir.
Q And the mat?
A (Witness taking out from the fish basin the mat and pillow.)
Q Did you find something on the pillow?
A The pillow have bloodstain in the middle.
This was already marked as Exhibit "J", Your Honor and the mat as Exhibit
"I".
Q Aside from this what did you recover from the place of incident?
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 A On June 14, 1994, at about 10:00 o'clock in the morning the accused Arnel
Alicando further informed me that he kept the gold earring of the victim
and her clothes inside the room of the house of Imelda Alicando.
Q Where?
A I saw the clothes of Khazie Mae Penecilla inside the room where the rape took
place hanged on the clothes line. And I found the pair of earring at the
bamboo post of the fence.
Court:
Q Where is that bamboo post of the fence situated?
A Around the fence of Imelda Alicando situated at the from gate on the right side
.
Pros. Fama:
Q You mean to say you returned back on June 14, you recovered the items
accompanied by the accused?
A No more, I only followed his direction.
Q He made verbal direction to you?
A Yes, sir.
Q Can you please show us the white t-shirt?
A (Witness taking out a white t-shirt from the fish basin.)
Q Please examine that white t-shirt?
A The t-shirt have a bloodstain."
We have not only constitutionalized the Miranda warnings in our jurisdiction. We
have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous
tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of
Nardone v. United States. 18 According to this rule, once the primary source (the "tree")
is shown to have been unlawfully obtained, any secondary or derivative evidence (the
"fruit") derived from it is also inadmissible. 19 Stated otherwise, illegally seized evidence
is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is
the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least
once removed from the illegally seized evidence, but it is equally inadmissible. The rule
is based on the principle that evidence illegally obtained by the State should not be
used to gain other evidence because the originally illegally obtained evidence taints all
evidence subsequently obtained. 20 We applied this exclusionary rule in the recent case
of People vs. Salangga, et al ., 21 a ponencia of Mr. Justice Regalado. Salanga was the
appellant in the rape and killing of a 15-year old barrio lass. He was, however, illegally
arrested. Soldiers took him into custody. They gave him a body search which yielded a
lady's underwear. The underwear was later identified as that of the victim. We acquitted
Salanga. Among other reasons, we ruled that "the underwear allegedly taken from the
appellant is inadmissible in evidence, being a so-called " fruit of the poisonous tree." 22
But even assuming arguendo that the pillow and the t-shirt were admissible
evidence, still, the trial court erred in holding that they "strongly corroborated the
testimony of Luisa Rebada that the victim was raped." For one, there was no basis for
the trial court to conclude that the stains on the pillow and t-shirt were human
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 bloodstains. The pillow and the t-shirt were not examined by any expert. To hold that
they were human bloodstains is guesswork. For another, there was no testimony that
the stains were caused by either the appellant or the victim. In addition, there was no
testimony that the t-shirt was the one worn by the appellant when he allegedly
committed the crime. It must also be noted that it is not unnatural for appellant to have
bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla himself, the
father of the victim, testified he knows the appellant "because he used to accompany
me during butchering of animals." 23
The burden to prove that an accused waived his right to remain silent and the
right to counsel before making a confession under custodial interrogation rests with the
prosecution. It is also the burden of the prosecution to show that the evidence derived
from confession is not tainted as "fruit of the poisonous tree." The burden has to be
discharged by clear and convincing evidence. Indeed, par. 1 of Section 12 of Article III
of the Constitution provides only one mode of waiver — the waiver must be in writing
and in the presence of counsel. In the case at bar, the records show that the
prosecution utterly failed to discharge this burden. It- matters not that in the course of
the hearing, the appellant failed to make a timely objection to the introduction of these
constitutionally proscribed evidence. The lack of objection did not satisfy the heavy
burden of proof that rested on the prosecution.
There is no and there ought not to be any disagreement on basic principles. The
Court should be concerned with the heinousness of the crime at bar and its despicable
perpetration against a 4-year old girl, an impersonation of innocence itself. The Court
should also be concerned with the multiplication of malevolence in our midst for there is
no right to be evil and there are no ifs and buts about the imposition of the death penalty
as long as it remains unchallenged as part of the laws of our land. These concerns are
permanent, norms hewn in stone, and they transcend the transitoriness of time.
Be that as it may, our commitment to the criminal justice system is not only to
convict and punish violators of our laws. We are equally committed to the ideal that the
process of detection, apprehension, conviction and incarceration of criminals should be
accomplished with fairness, and without impinging on the dignity of the individual. In a
death penalty case, the Court cannot rush to judgment even when a lowlife is involved
for an erroneous conviction will leave a lasting stain in our escutcheon of justice.
In sum, the Court cannot send the appellant to die in the electric chair on the
basis of the procedural irregularities committed by, and the inadmissible evidence
considered by the trial court. In Binabay vs. People, et al ., 24 a ponencia of Mr. Chief
Justice R. Concepcion, this Court held that no valid judgment can be rendered upon an
invalid arraignment. Since in the case at bar, the arraignment of the appellant is void,
his judgment of conviction is also void. In fairness to the appellant, and in justice to the
victim, the case has to be remanded to the trial court for further proceedings. There is
no philosophy of punishment that allows the State to kill without any semblance of
fairness and justice.
IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting
accused Arnel Alicando of the crime of Rape with Homicide and sentencing him to
suffer the penalty of death is annulled and set aside and the case is remanded to the
trial court for further proceedings. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Melo, Vitug, Francisco
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 and Panganiban, JJ., concur.

Footnotes

1. Criminal Case No. 43663, RTC of Iloilo City, Br. 38.

2. Order of June 28, 1994.

3. Section 14 (2) of Article III of the Constitution.

4. See section 6, Article XIV of the Constitution.

5. See section 7, Article XIV of the Constitution.

6. TSN, June 28, 1994, p. 2.

7. Section 1, Article III of the Constitution provides: "No person shall be deprived of life, liberty,
property without due process of law . . ."

8. TSN, June 28, 1994, pp. 2-3.

9. TSN, July 11, 1994, pp. 2.

10. 24 SCRA 798, [1968].

11. E.g., People v. Abrea, 112 SCRA 83 [1982]; People vs. Alibasa, 118 SCRA 183 [1982];
People vs. Havana, 199 SCRA 805; People vs. Petalcorin, et. al., 180.
12. In re: Winship, 397, US 358, 90 S. Ct., 1068, 25 L. Ed. 2d 368 [1970].

13. Decision, page 7; Records, p. 96.

14. Exh. "J".

15. Exh. "F".

16. TSN, July 12, 1994, pp. 18-21.

17. TSN, July 12, 1994, pp. 14-17.

18. 308 US 388, 60 S. Ct. 266, 84 L. ed. 307 [1939].

19. The genesis of the doctrine was laid down in Silverthorne Lumber Co. v. US, 251 US 385,
40 S. Ct. 182, 64 L. Ed. 319 [1920].

20. Del Carmen, Criminal Procedure, Law and Practice, 3rd Ed., pp. 64-65.

21. G.R. No. 100910, July 25, 1994, 234 SCRA 407.
22. Ibid, p. 416.

23. TSN, July 12, 1994, p. 28.

24. No. L-31008, January 10, 1971, 37 SCRA 445.

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