EN BANC

[G.R. No. 144656. May 9, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant. DECISION
PER CURIAM:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 88, Cavite City, sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999. The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide alleged:

That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused, with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the latters will and while raping the said victim, said accused strangled her to death. CONTRARY TO LAW.[2]
Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilty to the crime charged, whereupon trial ensued. Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victims mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorneys Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and Charito ParasYepes, both neighbors of the victim. The victims mother, Ma. Nida Diolola, testified that at around 1:00 oclock in the afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their neighbors house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her lessons. Aimees house, where accused-appellant was also staying, is about four to five meters away from Daisys house. Ma. Nida saw her daughter go to the house of her

tutor. She was wearing pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were looking for a book which accused-appellant could copy to make a drawing or a poster that Daisy would submit to her teacher. After finding the book, Daisy and accused-appellant went back to the latters house. When Ma. Nida woke up at about 5:30 oclock after an afternoon nap, she noticed that Daisy was not yet home. She started looking for her daughter and proceeded to the house of Aimee, Daisys tutor. Aimees mother told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy with her lessons because Aimee was not feeling well as she had her menstrual period. Ma. Nida looked for Daisy in her brothers and sisters houses, but she was not there, either. At about 7:00 oclock that evening, Ma. Nida went back to her neighbors house, and there saw accusedappellant, who told her that Daisy had gone to her classmates house to borrow a book. But, when Ma. Nida went there, she was told that Daisy had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30 oclock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was playing in front of her house that afternoon and even watched television in her house, but that Daisy later left with accused-appellant. Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturday, until the early morning of the following day, June 11, 1999, a Sunday, but their search proved fruitless. Then, at about 10:00 oclock in the morning of June 11, 1999, she was informed that the dead body of her daughter was found tied to the root of an aroma tree by the river after the compuerta by a certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police. The other barangay officers fetched accusedappellant from his house and took him to the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since he was with the victim when she was last seen alive.[3] Another witness, Jessiemin Mataverde, testified that at around 3:00 oclock in the afternoon of that day, she saw Daisy playing with other children outside her house. She asked Daisy and her playmates to stop playing as their noise was keeping Jessiemins one-year old baby awake. Daisy relented and watched television instead from the door of Jessiemins house. About five minutes later, accused-appellant came to the house and told Daisy something, as a result of which she went with him and the two proceeded towards the compuerta. Jessiemin testified that at around 5:00 oclock that afternoon, while she and her daughter were in front of a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro cigarette. Accused-appellant had only his basketball shorts on and was just holding his shirt. They noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.[4] Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 oclock in the afternoon of July 10, 1999, while she and her husband and children were walking towards the compuerta near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who said that it was a good day for catching milkfish (bangus). For this reason, according to this witness, they decided to get some fishing implements. She said they met accused-appellant Gerrico Vallejo near the seashore and noticed that he was uneasy and looked troubled. Charito said that accused-appellant did not even greet them, which was unusual. She

also testified that accused-appellants shorts and shirt (sando) were wet, but his face and hair were not.[5] SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived, Daisys body was already in the barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie Quinto was fishing near the compuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an aroma tree. Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Esting, were also taken into custody because they were seen with accusedappellant in front of the store in the late afternoon of July 10 1999. Later, however, the two were released. Based on the statements of Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-appellant at about 4:00 oclock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball shorts, with the number 9 printed on it, worn by accusedappellant the day before. The shirt and shorts, which were bloodstained, were turned over to the NBI for laboratory examination.[6] Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 oclock in the evening of July 11, 1999, he conducted a physical examination of accused-appellant. His findings[7] showed the following:

PHYSICAL FINDINGS: Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms. Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm. Lacerations, left ring finger, posterior aspect, 0.3 cm. (Living Case No. BMP-9902, p. 101, records)
At about 10:00 oclock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmortem findings:[8]

Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue protruding, bloating of the face and blister formation. Washerwomans hands and feet.

Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect. Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms. Fracture, tracheal rings. Hemorrhages, interstitial, neck, underneath, nailmarks. Petechial hemorrhages, subendocardial, subpleural. Brain and other visceral organs are congested. Stomach, contains rice and other food particles. CAUSE OF DEATH: -Asphyxia by Manual Strangulation. GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 oclock positions, edges with blood clots. [Autopsy Report No. BTNO-99-152]
Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murder at past 10:00 oclock in the evening of June 11, 1999. The mayor said he immediately proceeded to the municipal jail, where accused-appellant was detained, and talked to the latter. Accused-appellant at first denied having anything to do with the killing and rape of the child. The mayor said he told accused-appellant that he could not help him if he did not tell the truth. At that point, accused-appellant started crying and told the mayor that he killed the victim by strangling her. Accused-appellant claimed that he was under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and took him to the police station about 11:00 oclock that evening.[9] Atty. Lupo Leyva corroborated Mayor Abutans testimony. He said that upon arriving at the police station, he asked accused-appellant if he wanted his services as counsel in the investigation. After accused-appellant assented, Atty. Leyva testified that he sort of discouraged the former from making statements as anything he said could be used against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said he advised him

to tell the truth. PO2 Garcia, the investigator, informed accused-appellant of his constitutional rights to remain silent and to be assisted by counsel and warned him that any answer he gave could and might be used against him in a court of law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication that accused-appellant had been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed to killing the victim by strangling her to death, but denied having molested her.[10] Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples from accused-appellant in his office for laboratory examination to determine his blood type. Likewise, the basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victims clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite police for the purpose of determining the presence of human blood and its groups.[11] The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong to Group O. The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches Grizzlies in front and SAMARTINO at the back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small Hello Kitty T-shirt with reddish brown stains; (4) one (1) cut pink short pants with reddish brown stains; (5) one (1) cut dirty white small panty with reddish brown stains, were all positive for the presence of human blood showing the reactions of Group A.[12] Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accused-appellant during which the latter admitted that he had raped and later killed the victim by strangulation and stated that he was willing to accept the punishment that would be meted out on him because of the grievous offense he had committed. Mr. Buan observed that accused-appellant was remorseful and was crying when he made the confession in the presence of SPO1 Amoranto at the NBI laboratory.[13] When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 13, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had executed inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only that he killed the victim but that he had before that raped her. Accused-appellant said he laid down the victim on a grassy area near the dike. He claimed that she did not resist when he removed her undergarments but that when he tried to insert his penis into the victims vagina, she struggled and resisted. Accused-appellant said he panicked and killed the child. He then dumped her body in the shallow river near the compuerta and went home.[14] Atty. Sikat Agbunag, a lawyer from the Public Attorneys Office, testified that at noon of July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accusedappellant about his confession. Atty. Agbunag read the document, informed accused-appellant of his constitutional rights, and warned him that the document could be used against him and that he could be convicted of the case against him, but, according to her, accused-appellant said that he had freely and voluntarily executed the document because he was bothered by his

conscience. Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the document and swore to it before Prosecutor Itoc.[15] At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan took buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples from the parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of the NBI for examination. Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-appellant and the victim.[16] The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo. Their testimonies show that at about 1:00 oclock in the afternoon of July 10, 1999, accused-appellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to ask accused-appellant to draw her school project. After making the request, Daisy left.[17] Accused-appellant did not immediately make the drawing because he was watching television. Accused-appellant said that he finished the drawing at about 3:00 oclock in the afternoon and gave it to the victims aunt, Glory. He then returned home to watch television again. He claimed he did not go out of the house until 7:00 oclock in the evening when he saw Ma. Nida, who was looking for her daughter. Accusedappellant said he told her that he had not seen Daisy. After that, accused-appellant said he went to the pilapil and talked with some friends, and, at about 8:00 oclock that evening, he went home. At 9:00 oclock in the morning of July 11, 1999, barangay officials fetched accusedappellant from his house and took him to the barangay hall, where he was asked about the disappearance of Daisy. He claimed that he did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00 oclock that morning, policemen came and invited him to the police headquarters for questioning. His mother went with him to the police station. There, accused-appellant was asked whether he had something to do with the rape and killing of Daisy. He denied knowledge of the crime. At 4:00 oclock that afternoon, accused-appellant accompanied the police to his house to get the basketball shorts and shirt he was wearing the day before, which were placed together with other dirty clothes at the back of their house. According to accused-appellant, the police forced him to admit that he had raped and killed Daisy and that he admitted having committed the crime to stop them from beating him up. Accused-appellant claimed the police even burned his penis with a lighted cigarette and pricked it with a needle. Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the investigation room of the police station and told him that they would help him if he told the truth. Atty. Leyva asked him whether he wanted him to be his counsel, and accusedappellant said he answered in the affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was because the police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that he had been tortured because the policemen were around and he was afraid of them. It appears that the family of

accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by residents of their barangay.[18] According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when he gave his confession to the police and signed the same. Accused-appellant claims that although Exhibit N was in his own handwriting, he merely copied the contents thereof from a pattern given to him by the police.[19] On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense charged. The dispositive portion of its decision reads:

WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is directed to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. SO ORDERED.[20]
Hence this appeal. Accused-appellant contends that:
I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION. II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSEDAPPELLANT DESPITE THE FACT THAT THE SAME WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL ASSISTANCE.

We find accused-appellants contentions to be without merit. First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed the crime.[21] In rape with homicide, the evidence against an accused is more often than not circumstantial. This is because the nature of the crime, where only the victim and the rapist would have been present at the time of its commission, makes the prosecution of the offense particularly difficult since the victim could no longer testify against the perpetrator. Resort to circumstantial evidence is inevitable and to demand direct evidence proving the modality of the offense and the identity of the perpetrator is unreasonable.[22] Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if:
(a) there is more than one circumstance;

(b)

the facts from which the inferences are derived are proven; and

(c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt.[23]

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of accused-appellant:
1. The victim went to Aimee Vallejos house, where accused-appellant was residing, at 1:00 oclock in the afternoon of July 10, 1999, for tutoring. 2. At around 2:00 oclock in the afternoon, accused-appellant and Daisy went together to the latters house to get a book from which the former could copy Daisys school project. After getting the book, they proceeded to accused-appellants residence. 3. From accused-appellants house, Daisy then went to the house of Jessiemin Mataverde where she watched television. Accused-appellant thereafter arrived and whispered something to Daisy, and the latter went with him towards the compuerta. 4. At about 4:30 oclock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-appellant coming out of the compuerta, with his clothes, basketball shorts, and tshirt wet, although his face and hair were not. According to these witnesses, he looked pale, uneasy, and troubled (balisa). He kept looking around and did not even greet them as was his custom to do so. 5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite) was docked by the seashore. 6. A little before 5:00 oclock in the afternoon, Jessiemin Mataverde also saw accusedappellant buying a Marlboro cigarette from a store. Jessiemen also noticed that accusedappellants clothes were wet but not his face nor his hair. 7. By 5:30 oclock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by accused-appellant that Daisy had gone to her classmate Rosarios house. The information proved to be false. 8. Daisys body was found tied to an aroma tree at the part of the river near the compuerta. 9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused by the thorns of an aroma tree. 10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on accused-appellants clothes and on Daisys clothes were found positive of human blood type A. Accused-appellant has blood type O. The vaginal swabs from Daisys body contained her DNA profile as well as that of accused-appellant.

11. 12.

Accused-appellant contends that the bloodstains found on his garments were not proven to have been that of the victim as the victims blood type was not determined. The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both accused-appellants and the victims clothing yielded bloodstains of the same blood type A.[24]Even if there was no direct determination as to what blood type the victim had, it can reasonably be inferred that the victim was blood type A since she sustained contused abrasions

all over her body which would necessarily produce the bloodstains on her clothing.[25] That it was the victims blood which predominantly registered in the examination was explained by Mr. Buan, thus:[26]
ATTY. ESPIRITU Q: But you will agree with me that more probably than not, if a crime is being committed, and it results in a bloody death, it is very possible that the blood of the victim and the blood of the assailant might mix in that particular item like the t-shirt, shorts or pants? It is possible when there is a huge amount of blood coming from the victim and the suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which will register. For example, if there is more blood coming from the victim, that blood will be the one to register, on occasions when the two blood mix. But in these specimens number 1 to 5, it is very clear now that only type A and no type O blood was found? Yes, sir.

A:

Q: A:

Accused-appellant also questions the validity of the method by which his bloodstained clothes were recovered. According to accused-appellant, the policemen questioned him as to the clothes he wore the day before. Thereafter, they took him to his house and accused-appellant accompanied them to the back of the house where dirty clothes were kept.[27] There is no showing, however, that accused-appellant was coerced or forced into producing the garments. Indeed, that the accused-appellant voluntarily brought out the clothes sought by the police becomes more convincing when considered together with his confessions. A consented warrantless search is an exception to the proscription in Section 2 of Article III of the Constitution. As we have held, the consent of the owner of the house to the search effectively removes any badge of illegality.[28] The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accused-appellant. He argues that the prosecution failed to show that all the samples submitted for DNA testing were not contaminated, considering that these specimens were already soaked in smirchy waters before they were submitted to the laboratory. DNA is an organic substance found in a persons cells which contains his or her genetic code. Except for identical twins, each persons DNA profile is distinct and unique.[29] When a crime is committed, material is collected from the scene of the crime or from the victims body for the suspects DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim.[30] The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample.[31] The samples collected are subjected to various chemical processes to establish their profile.[32] The test may yield three possible results: 1) The samples are different and therefore must have originated from different sources (exclusion). This conclusion is absolute and requires no further analysis or discussion; 2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the

analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or 3) The samples are similar, and could have originated from the same source (inclusion).[33] In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the Similarity.[34] In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, the bloodstains taken from the clothing of the victim and of accusedappellant, the smears taken from the victim as well as the strands of hair and nails taken from her tested negative for the presence of human DNA,[35] because, as Ms. Viloria-Magsipoc explained:
PROSECUTOR LU: Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim and of the accused gave negative results for the presence of human DNA. Why is it so? What is the reason for this when there are still bloodstains on the clothing? After this Honorable Court issued an Order for DNA analysis, serological methods were already conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew of this case, and we also interviewed the mother who came over to the laboratory one time on how was the state of the specimens when they were found out. We found that these specimens were soaked in smirchy water before they were submitted to the laboratory. The state of the specimens prior to the DNA analysis could have hampered the preservation of any DNA that could have been there before. So when serological methods were done on these specimens, Mr. Byron could have taken such portion or stains that were only amenable for serological method and were not enough for DNA analysis already. So negative results were found on the clothings that were submitted which were specimens no. 1 to 5 in my report, Sir. I also noticed that specimen no. 6-B consisting of the smears taken from the victim also proved negative for human DNA, why is it so? Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide was very, very dry and could have chipped off. I already informed Dr. Vertido about it and he confirmed the state of the specimen. And I told him that maybe it would be the swab that could help us in this case, Sir. And so upon examination, the smears geared negative results and the swabs gave positive results, Sir. How about specimen no. 7, the hair and nails taken from the victim, why did they show negative results for DNA?

A:

Q: A:

Q:

A: The hair samples were cut hair. This means that the hair did not contain any root. So any hair that is above the skin or the epidermis of ones skin would give negative results as the hair shaft is negative for DNA. And then the nails did not contain any subcutaneous cells that would be amenable for DNA analysis also, Sir. Q: A: So its the inadequacy of the specimens that were the reason for this negative result, not the inadequacy of the examination or the instruments used? Yes, Sir.

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the samples had been contaminated, which accounted for the negative results of their examination. But the vaginal swabs taken from the victim yielded positive for the presence of human DNA. Upon analysis by the experts, they showed the DNA profile of accusedappellant:[36]
PROSECUTOR LU: Q: A: So based on your findings, can we say conclusively that the DNA profile of the accused in this case was found in the vaginal swabs taken from the victim? Yes, Sir.

Q: That is very definite and conclusive? A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances which are proved are not only consistent with the guilt of the accused but also inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon the court.[37] This is how it is in this case. Second. Accused-appellant challenges the validity of the oral and written confessions presented as evidence against him. He alleges that the oral confessions were inadmissible in evidence for being hearsay, while the extrajudicial confessions were obtained through force and intimidation. The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:
(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him.

There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coerced confessions, the product of third degree methods such as torture, force, violence, threat, and intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same section.[38] Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NBI Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as these were made by one already under custodial investigation to persons in authority without the presence of counsel. With respect to the oral confessions, Atty. Leyva testified:[39]

PROSECUTOR LU: Q: A: Q: A: Q: A: Q: A: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him? Yes, Sir. Did you ask him whether he really wants you to represent or assist him as a lawyer during that investigation? I did, as a matter of fact, I asked him whether he would like me to represent him in that investigation, Sir. And what was his answer? He said yes. After agreeing to retain you as his counsel, what else did you talk about? I told him that in the investigation, whatever he will state may be used against him, so its a sort of discouraging him from making any statement to the police, Sir.

Upon cross-examination, Atty. Leyva testified as follows:[40]

Q: A: Q: A: Q: You stated that you personally read this recital of the constitutional rights of the accused? Yes, Sir. But it will appear in this recital of constitutional rights that you did not inform the accused that the statement that he will be giving might be used against him in a court of justice? I did that, Sir. But it does not appear in this statement?

PROSECUTOR LU The best evidence will be the statement, your Honor. ATTY ESPIRITU The only thing that is stated here is that Maaaring gamitin pabor o laban sa iyo. COURT Let the witness answer. A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the truth.

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,[41] it is also confirmed by accused-appellant who testified as follows:[42]
ATTY. ESPIRITU: Q: A: Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are supposed to have executed and signed? Yes, Sir. What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I know about this case, Sir.

Q: A: Q: A:

Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement? Yes, Sir. And did he tell you that what you would be giving is an extra-judicial confession? Yes, Sir.

Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the statements he was to make as well as the written confessions he was to execute. Neither can he question the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. Indeed, counsel should not prevent an accused from freely and voluntarily telling the truth.[43] Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Leyva before the latter acted as his defense counsel.[44] And counsel who is provided by the investigators is deemed engaged by the accused where the latter never raised any objection against the formers appointment during the course of the investigation but, on the contrary, thereafter subscribed to the veracity of his statement before the swearing officer.[45] Contrary to the assertions of accused-appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato Abutan.[46] Accused-appellant contends that the rulings in People vs. Andan[47] and People vs. Mantung[48] do not apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In all these cases, the accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial confessions were held admissible in evidence, being the spontaneous, free, and voluntary admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan was never objected to by the defense. Indeed, the mayors questions to accused-appellant were not in the nature of an interrogation, but rather an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testified:[49]
PROSECUTOR LU: Q: A: Q: A: Q: A: Q: A: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell you? At first he said that he did not do that. That was the first thing he told me. Then I told him that I will not be able to help him if he will not tell me the truth. And what was the reply of the accused? He had been silent for a minute. Then we talked about the incident, Sir. And what exactly did he tell you about the incident? I asked him, Were you under the influence of drugs at that time? What else did he tell you? I told him, What reason pushed you to do that thing? x x x

Q: A:

Please tell us in tagalog, the exact words that the accused used in telling you what happened. He told me that he saw the child as if she was headless at that time. That is why he strangled the child, Sir. (Ang sabi niya po sa kin, nakita niya raw yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya.)

xxx
COURT: Q: A: Q: A:

xxx

xxx

When you told the accused that you will help him, what kind of help were you thinking at that time? I told him that if he will tell the truth, I could help give him legal counsel. And what was the answer of the accused? Yes, he will tell me the truth, Your Honor.

In People vs. Mantung,[50] this Court said:

Never was it raised during the trial that Mantungs admission during the press conference was coerced or made under duress. As the records show, accusedappellant voluntarily made the statements in response to Mayor Marquez question as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even proceeded to explain that he killed the victims because they made him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides, he could have chosen to remain silent or to do deny altogether any participation in the robbery and killings but he did not; thus accused-appellant sealed his own fate. As held in People v. Montiero, a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience.
And in People vs. Andan, it was explained:

Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not prevent him from freely and voluntarily telling the truth. [51]
For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would have this Court exclude this confession on the ground that it was uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was part of the NBI. The issue concerning the sufficiency of the assistance given by Atty. Leyva has already been discussed. On the other hand, the

questions put by Mr. Buan to accused-appellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan testified:[52]
PROSECUTOR LU: Q: A: Q: A: Q: A: Q: A: What was the subject of your conversation with him? It is customary when we examine the accused. During the examination, we talk to them for me to add knowledge on the case, Sir. What did you talk about during your conversation? I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir. And what was the reply of the accused? He said yes, Sir. What else did you ask the accused? I remember that while asking him, he was crying as if feeling remorse on the killing, Sir. .... Q: A: Q: A: Q: A: And it was you who initiated the conversation? Yes, Sir. Do you usually do that? Yes, Sir. We usually do that. Is that part of your procedure? It is not SOP. But for me alone, I want to know more about the case, Sir. And any information either on the victim or from the suspect will help me personally. Its not an SOP, Sir.

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is, therefore, admissible as evidence. Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the ground that these were extracted from him by means of torture, beatings, and threats to his life. The bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient. The standing rule is that where the defendants did not present evidence of compulsion, or duress nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these will be considered as indicating voluntariness.[53] Indeed, extrajudicial confessions are presumed to be voluntary, and, in the absence of conclusive evidence showing that the declarants consent in executing the same has been vitiated, the confession will be sustained.[54] Accused-appellants claim that he was tortured and subjected to beatings by policemen in order to extract the said confession from him is unsupported by any proof:[55]
ATTY. ESPIRITU:

Q: A: Q:

Did they further interrogate you? Yes, sir. What else did they ask you?

A: They were asking me the project, Sir. Q: What else?

A: That is the only thing, Sir. Q: Who was doing the questioning?

A: The investigator, Sir. Q: A: How many were they inside that room? Five, Sir.

Q: They are all policemen? A: Yes, Sir.

xxx
Q: A: Q: Up to 11:00 in the evening, Sir.

xxx

xxx

Until what time did they keep you inside that room? Between 10:30 in the morning up to 11:00 oclock in the evening, what did you do there?

A: They were interrogating and forcing me to admit something, Sir. Q: In what way did they force you to admit something?

A: They were mauling me, Sir. Q: The 5 of them? A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning? A: Q: Yes, Sir. In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir. Q: A: Q: A: Q: A: Q: Who did these things to you? Mercado, Sir. Who is this Mercado? EPZA policemen, Sir. Did the other policemen help in doing these things to you? No, Sir. Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir. Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time, Sir. Q: A: Q: Did they do anything to you to force you to remove your pants? Yes, Sir. What?

A: They boxed me, Sir. Q: What else, if any?

A: They hit me with a piece of wood, Sir. Q: A: Q: A: What did you feel when your private part was burned with a cigarette butt? It was painful, Sir. In what part of your body were you pricked by a needle? At my private part, Sir.

These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in the municipal hall from 10:00 oclock in the morning until 11:00 oclock that night of July 10, 1999, during which time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 oclock in the evening of the same day. While the results show that accused-appellant did sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified:[56]
PROSECUTOR LU: Q: A: What were your findings when you conducted the physical examination of the suspect? I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I also found hematoma on the left ring finger, posterior aspect and at the same time, a laceration on the left ring finger.

xxx
Q:

xxx

xxx

In your findings, it appears that the accused in this case suffered certain physical injuries on his person like this abrasion on the thigh, right anterior lateral aspect lower third of the knee, what could have caused this injury? Abrasions are usually caused when the skin comes in contact with a rough surface, Sir. Hematoma are usually caused by a blunt instrument or object and laceration is the forcible contact of the skin from that blunt object. I am particularly interested in your findings hematoma on the left ring finger, posterior aspect and laceration left ring finger posterior aspect, what could have caused those injuries on the accused? My opinion to these hematoma and laceration found on the said left ring finger was that it was caused by a bite, Sir.

A:

Q: A:

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found more than mere abrasions and hematoma on his left finger. Dr. Vertidos findings are more consistent with the theory that accused-appellant sustained physical injuries as a result of the struggle made by the victim during the commission of the rape in the compuerta. At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt. The prosecution witnesses presented a mosaic of circumstances showing accused-appellants guilt. Their testimonies rule out the possibility that the crime was the handiwork of some other evil mind. These witnesses have not been shown to have been motivated by ill will against accused-appellant. On the other hand, no other witness not related to accused-appellant was ever called to corroborate his claim. The defense presented only accused-appellants sister, Aimee Vallejo, to corroborate his story. We have held time and again that alibi cannot prosper if it is established mainly by the accused and his relatives, and not by credible persons.[57] It is well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult to disprove. For this reason, this Court looks with caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives or friends of the accused.[58] Article 266-B of the Revised Penal Code provides that When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.[59] Therefore, no other penalty can be imposed on accused-appellant. WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED. In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this decision, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. SO ORDERED.

SECOND DIVISION

[G.R. No. 130547. October 3, 2000]

LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all surnamed REYES, represented by their mother, LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO, respondents. DECISION
MENDOZA, J.:

This is a petition for review of the decision [1] of the Court of Appeals in CA-G.R. CV No. 36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed a complaint for damages filed by petitioners against respondents. The facts are as follows: Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their children. Five days before his death on January 8, 1987, Jorge had been suffering from a recurring fever with chills. After he failed to get relief from some home medication he was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor. On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with respiratory distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per month.[3] Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear were also made. [4] After about an hour, the medical technician submitted the results of the test from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes. Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges history and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was administered by nurse Josephine Pagente who also gave the

patient a dose of triglobe. As she did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before midnight. At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature rose to 41C. The patient also experienced chills and exhibited respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction machine, and administered hydrocortisone, temporarily easing the patients convulsions. When he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge replied he did not.[5]After about 15 minutes, however, Jorge again started to vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-applied the emergency measures taken before and, in addition, valium was administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a bluish or purplish discoloration of the skin or mucous membrane due to deficient oxygenation of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death was Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever. On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a complaint[6]for damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987, petitioners amended their complaint to implead respondent Mercy Community Clinic as additional defendant and to drop the name of Josephine Pagente as defendant since she was no longer connected with respondent hospital. Their principal contention was that Jorge did not die of typhoid fever.[7] Instead, his death was due to the wrongful administration of chloromycetin. They contended that had respondent doctors exercised due care and diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting sufficient tests on the patients compatibility with said drug. They charged respondent clinic and its directress, Sister Rose Palacio, with negligence in failing to provide adequate facilities and in hiring negligent doctors and nurses.[8] Respondents denied the charges. During the pre-trial conference, the parties agreed to limit the issues on the following: (1) whether the death of Jorge Reyes was due to or caused by the negligence, carelessness, imprudence, and lack of skill or foresight on the part of defendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of its employees; and (3) whether either party was entitled to damages. The case was then heard by the trial court during which, in addition to the testimonies of the parties, the testimonies of doctors as expert witnesses were presented. Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge Reyes to determine the cause of his death. However, he did not open the skull to examine the brain. His findings[9] showed that the gastro-intestinal tract was normal and without any ulceration or enlargement of

the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated that he had not seen a patient die of typhoid fever within five days from the onset of the disease. For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious diseases. He is also a consultant at the Cebu City Medical Center and an associate professor of medicine at the South Western University College of Medicine in Cebu City. He had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients history and positive Widal Test results ratio of 1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares observation regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares autopsy should have included an examination of the brain. [10] The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of Pathologist, associate professor of the Cebu Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although he was partial to the use of the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case was already the maximum by which a conclusion of typhoid fever may be made. No additional information may be deduced from a higher dilution. [11] He said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive. On September 12, 1991, the trial court rendered its decision absolving respondents from the charges of negligence and dismissing petitioners action for damages. The trial court likewise dismissed respondents counterclaim, holding that, in seeking damages from respondents, petitioners were impelled by the honest belief that Jorges death was due to the latters negligence. Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of Appeals affirmed the decision of the trial court. Hence this petition. Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE. II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES.

Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. [12] In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient.[13] There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation. In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which constitutes actionable malpractice.[14] As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. [15]
Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals:[16]

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the

patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during or following an operation for appendicitis, among others.[17]
Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission. This contention was rejected by the appellate court. Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.[18] The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient scheduled for cholecystectomy.[19] In that case, the patient was given anesthesia prior to her operation. Noting that the patient was neurologically sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary person could tell if it was administered properly, we allowed the testimony of a witness who was not an expert. In this case, while it is true that the patient died just a few hours after professional medical assistance was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and

antibiotics given him by his wife. This shows that he had been suffering from a serious illness and professional medical help came too late for him. Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result.[20]
Specific Acts of Negligence

We turn to the question whether petitioners have established specific acts of negligence allegedly committed by respondent doctors. Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the Widal test, diagnosed Jorges illness as typhoid fever, and immediately prescribed the administration of the antibiotic chloromycetin;[21] and (2) Dr. Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first was given.[22] Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not persuaded. First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a specialist on infectious diseases like typhoid fever.Furthermore, although he may have had extensive experience in performing autopsies, he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only about three cases of typhoid fever. Thus, he testified that: [23]

ATTY. PASCUAL: Q Why? Have you not testified earlier that you have never seen a patient who died of typhoid fever? A In autopsy. But, that was when I was a resident physician yet. Q But you have not performed an autopsy of a patient who died of typhoid fever? A I have not seen one. Q And you testified that you have never seen a patient who died of typhoid fever within five days? A I have not seen one. Q How many typhoid fever cases had you seen while you were in the general practice of medicine? A In our case we had no widal test that time so we cannot consider that the typhoid fever is like this and like that. And the widal test does not specify the time of the typhoid fever. Q The question is: how many typhoid fever cases had you seen in your general practice regardless of the cases now you practice? A I had only seen three cases. Q And that was way back in 1964? A Way back after my training in UP. Q Clinically? A Way back before my training.

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in discarding his testimony, which is really inadmissible. In Ramos, the defendants presented the testimony of a pulmonologist to prove that brain injury was due to oxygen deprivation after the patient had bronchospasms[24] triggered by her allergic response to a drug,[25] and not due to faulty intubation by the anesthesiologist. As the issue was whether the intubation was properly performed by an anesthesiologist, we rejected the opinion of the pulmonologist on the ground that he was not: (1) an anesthesiologist who could enlighten the court about anesthesia practice, procedure, and their complications; nor (2) an allergologist who could properly advance expert opinion on allergic mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and toxic effects of the drug allegedly responsible for the bronchospasms. Second. On the other hand, the two doctors presented by respondents clearly were experts on the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is infectious diseases and microbiology and an associate professor at the Southwestern University College of Medicine and the Gullas College of Medicine, testified that he has already treated over a thousand cases of typhoid fever.[26] According to him, when a case of typhoid fever is suspected, the Widal test is normally used,[27] and if the 1:320 results of the Widal test

on Jorge Reyes had been presented to him along with the patients history, his impression would also be that the patient was suffering from typhoid fever. [28] As to the treatment of the disease, he stated that chloromycetin was the drug of choice.[29] He also explained that despite the measures taken by respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease could not be discounted. His testimony is as follows:[30]
ATTY. PASCUAL: Q If with that count with the test of positive for 1 is to 320, what treatment if any would be given? A If those are the findings that would be presented to me, the first thing I would consider would be typhoid fever. Q And presently what are the treatments commonly used? A Drug of choice of chloramphenical. Q Doctor, if given the same patient and after you have administered chloramphenical about 3 1/2 hours later, the patient associated with chills, temperature - 41oC, what could possibly come to your mind? A Well, when it is change in the clinical finding, you have to think of complication. Q And what will you consider on the complication of typhoid? A One must first understand that typhoid fever is toximia. The problem is complications are caused by toxins produced by the bacteria . . . whether you have suffered complications to think of -- heart toxic myocardities; then you can consider a toxic meningitis and other complications and perforations and bleeding in the ilium. Q Even that 40-year old married patient who received medication of chloromycetin of 500 milligrams intravenous, after the skin test, and received a second dose of chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in temperature to 41oC, and then about 40 minutes later the temperature rose to 100oF, cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with seizures: what significance could you attach to these clinical changes? A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis because of the high cardiac rate. Q Even if the same patient who, after having given intramuscular valium, became conscious and coherent about 20 minutes later, have seizure and cyanosis and rolling of eyeballs and vomitting . . . and death: what significance would you attach to this development? A We are probably dealing with typhoid to meningitis. Q In such case, Doctor, what finding if any could you expect on the post-mortem examination? A No, the finding would be more on the meninges or covering of the brain. Q And in order to see those changes would it require opening the skull? A Yes.

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastrointestinal tract was normal, Dr. Rico explained that, while hyperplasia [31] in the payers patches or layers of the small intestines is present in typhoid fever, the same may not always be grossly visible and a microscope was needed to see the texture of the cells.[32] Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine and American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief pathologist at the MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he recognized that the Widal test is used for typhoid patients, although he did not encourage its use because a single test would only give a presumption necessitating that the test be repeated, becoming more conclusive at the second and third weeks of the disease. [33] He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is really the possible complications which could develop like perforation, hemorrhage, as well as liver and cerebral complications.[34] As regards the 1:320 results of the Widal test on Jorge Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio.[35] He also agreed with Dr. Gotiong that hyperplasia in the payers patches may be microscopic.[36] Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians.[37] Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact observed the due care required under the circumstances. Though the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the patients history of fever with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever. Dr. Rico was also justified in recommending the administration of the drug chloromycetin, the drug of choice for typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the petitioners. As they failed to present expert opinion on this, preponderant evidence to support their contention is clearly absent. Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock[38] or possibly from overdose as the second dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson, et. al., in Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better in promoting a favorable clinical response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS Annual, 1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500 mg.) at around nine oclock in the evening and the second dose at around 11:30 the same night was still within medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not administered by the physician-on-duty, the evidence introduced that it was Dra. Blanes who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once more, this Court rejects any claim of professional negligence in this regard. .... As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug, is the skin test of which, however, it has been observed: Skin testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific histamine release, producing a weal-and-flare reaction in normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug. (Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all this means legally is that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the negligence of the appellee-physicians for all that the law requires of them is that they perform the standard tests and perform standard procedures. The law cannot require them to predict every possible reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial court, that the appellee-physicians ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly situated.[39]
Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of observing extraordinary diligence in the vigilance over the goods and for the safety of the passengers,[40] physicians and surgeons should have the same duty toward their patients.[41] They also contend that the Court of Appeals erred when it allegedly

assumed that the level of medical practice is lower in Iligan City, thereby reducing the standard of care and degree of diligence required from physicians and surgeons in Iligan City. The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the circumstances of each case. . . .
The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly require of doctors the observance of extraordinary diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable skill and competence . . . that a physician in the same or similar locality . . . should apply. WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE GENOSA, appellant.

PHILIPPINES, appellee, DECISION

vs. MARIVIC

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 selfdefense. 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 selfcontrol. 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 childs. 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 Decision [1] 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 Information[3] 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 abovenamed 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 prosecutions 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, Bens 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 Bens 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 masiao runner 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 wont 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 sons 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 an aparador 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 Bens 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 Arao, 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 appellants 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 husbands 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 Bens parents, together with Bens 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. Bens 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 Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness. Mrs. Iluminada Genosa, Marivics 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 Marivics 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 Bens 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 lets 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 couldnt 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 Marivics 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. Caings 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 reported was 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.

xxx

xxx

xxx

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, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants 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 reexamination 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 Marivics 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. Josephs 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 overpampers 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 selfconfidence 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 PostTraumatic 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 individuals 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 faade 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 Marivicc 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 appellants 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 Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan [10] 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 Courts 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. Genosa. The trial court gravely erred in not requiring testimony from the children of Marivic

6. The trial court gravely erred in concluding that Marivics 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 Courts 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 appellants 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 courts 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 17page 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 judges 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 appellants 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.[18] Axiomatic 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.[19] Other 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 Bens 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 victims 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 selfdefense 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 appellants 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 courts 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 selfdefense 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 selfdefense.[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 batterers 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 womans 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 A Q A Q A Q How did you describe your marriage with Ben Genosa? 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. 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? He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me. How many times did this happen? Several times already. What did you do when these things happen to you?

A Q A Q A Q A Q A

I went away to my mother and I ran to my father and we separate each other. What was the action of Ben Genosa towards you leaving home? He is following me, after that he sought after me. What will happen when he follow you? He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry. During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor? Yes, sir. Who are these doctors? The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx
Q A Q A Q A

xxx

xxx

You said that you saw a doctor in relation to your injuries? Yes, sir. Who inflicted these injuries? Of course my husband. You mean Ben Genosa? Yes, sir.

xxx
[Court] /to the witness Q A Q

xxx

xxx

How frequent was the alleged cruelty that you said? Everytime he got drunk. 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? Everytime he got drunk. Is it daily, weekly, monthly or how many times in a month or in a week? Three times a week. Do you mean three times a week he would beat you? Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

A Q A Q A

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 Q A Q A Yes, sir. Who prepared the list of six (6) incidents, Doctor? I did. Will you please read the physical findings together with the record. dates for the

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, 2 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 A Q A Q A Q A Q A

Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct? Yes, sir. Did you actually physical examine the accused? Yes, sir. 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? Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied. What is meant by furuncle axilla? It is secondary of the light infection over the abrasion. What is meant by pain mastitis secondary to trauma? 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. So, these are objective physical injuries. Doctor?

xxx
Q Were you able to talk with the patient?

xxx

xxx

A Q A Q A

Yes, sir. What did she tell you? 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. You mean, Ben Genosa? Yes, sir.

xxx
ATTY. TABUCANON: Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

xxx

xxx

By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened? As per record, yes. What was the date? It was on November 6, 1995. So, did you actually see the accused physically? Yes, sir. On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant? Yes, sir. Being a doctor, can you more engage at what stage of pregnancy was she? Eight (8) months pregnant. So in other words, it was an advance stage of pregnancy? Yes, sir. What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings? No, she was admitted for hypertension headache which complicates her pregnancy. When you said admitted, meaning she was confined? Yes, sir. For how many days? One day. Where? At PHILPHOS Hospital.

xxx

xxx

xxx

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. For what? Tension headache. Can we say that specially during the latter consultation, that the patient had hypertension? 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. What did you deduce of tension headache when you said is emotional in nature? 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. You mean problem in her household? Probably. Can family trouble cause elevation of blood pressure, Doctor? Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. In November 6, 1995, the date of the incident, did you take the blood pressure of the accused? On November 6, 1995 consultation, the blood pressure was 180/120. Is this considered hypertension? Yes, sir, severe. Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure? It was dangerous to the child or to the fetus. [34]

Q A Q A

Q A

Q A Q A Q A Q A Q A

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 testified[36] 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 oclock at night, because the couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels 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 A Please tell this Court, can you recall the incident in November 15, 1995 in the evening? 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. This is evening of November 15, 1995? Yes, sir. What time did Ben Genosa arrive? When he arrived, I was not there, I was in Isabel looking for him. So when he arrived you were in Isabel looking for him? Yes, sir. Did you come back to your house? Yes, sir. By the way, where was your conjugal residence situated this time? Bilwang. Is this your house or you are renting? Renting. What time were you able to come back in your residence at Bilwang? I went back around almost 8:00 oclock. What happened when you arrived in your residence? 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

Q A Q A Q A Q A Q A Q A Q A Q A

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 A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Who was this cousin of yours who you requested to sleep with you? Ecel Arao, the one who testified. Did Ecel sleep with you in your house on that evening? No, because she expressed fears, she said her father would not allow her because of Ben. During this period November 15, 1995, were you pregnant? Yes, 8 months. How advance was your pregnancy? Eight (8) months. Was the baby subsequently born? Yes, sir. Whats the name of the baby you were carrying at that time? Marie Bianca. What time were you able to meet personally your husband? Yes, sir. What time? When I arrived home, he was there already in his usual behavior. Will you tell this Court what was his disposition? He was drunk again, he was yelling in his usual unruly behavior. What was he yelling all about? His usual attitude when he got drunk. You said that when you arrived, he was drunk and yelling at you? What else did he do if any? He is nagging at me for following him and he dared me to quarrel him. What was the cause of his nagging or quarreling at you if you know? 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. You said that he was yelling at you, what else, did he do to you if any? 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 A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q What did he do with the bolo? He cut the antenna wire to keep me from watching T.V. What else happened after he cut the wire? He switch off the light and the children were shouting because they were scared and he was already holding the bolo. How do you described this bolo? 1 1/2 feet. What was the bolo used for usually? For chopping meat. You said the children were scared, what else happened as Ben was carrying that bolo? He was about to attack me so I run to the room. What do you mean that he was about to attack you? When I attempt to run he held my hands and he whirled me and I fell to the bedside. So when he whirled you, what happened to you? I screamed for help and then he left. You said earlier that he whirled you and you fell on the bedside? Yes, sir. You screamed for help and he left, do you know where he was going? Outside perhaps to drink more. When he left what did you do in that particular time? I packed all his clothes. What was your reason in packing his clothes? I wanted him to leave us. During this time, where were your children, what were their reactions? 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. 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)

And he dragged me towards the door backward.

ATTY. TABUCANON: Q A Q A Q A Where did he bring you? 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. So you said that he dragged you towards the drawer? Yes, sir. What is there in the drawer? I was aware that it was a gun.

COURT INTERPRETER: (At this juncture the witness started crying). ATTY. TABUCANON: Q A Q A Were you actually brought to the drawer? Yes, sir. What happened when you were brought to that drawer? 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
ATTY. TABUCANON: Q A Q A Q A Q

xxx

xxx

Talking of drawer, is this drawer outside your room? Outside. In what part of the house? Dining. Where were the children during that time? My children were already asleep. You mean they were inside the room?

A Q A Q A Q A Q A Q A

Yes, sir. 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? Three (3) inches long and 1/2 inch wide. Is it a flexible blade? Its a cutter. How do you describe the blade, is it sharp both edges? Yes, because he once used it to me. How did he do it? He wanted to cut my throat. With the same blade? 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 latters ordeal to the court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you in laymans 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. 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?

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

xxx
Q A Q A Q A Q

xxx

xxx

Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives? I also heard that from her? You heard that from her? Yes, sir. Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives? What I remember that there were brothers of her husband who are also battering their wives. 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? She told me about that. Did she inform you in what hotel in Ormoc? Sir, I could not remember but I was told that she was battered in that room. Several times in that room? Yes, sir. What I remember was that there is no problem about being battered, it really happened. 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? 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 shes 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. I do believe that she is a battered wife. Was she extremely battered? Sir, it is an extreme form of battering. Yes.[40]

A Q A Q A Q A

Q A

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 Q 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. What do you mean by that?

A Q 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[?] And what did you discover on the basis of this objective personality test? She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that Im gathering from her are the truth.[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,[42] which 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 Courts 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, ones 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 latters 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 selfsacrificing 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 latters 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 victims 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 study[53] 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 individuals 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 individuals set of beliefs or perceptions concerning the situation. Battered women dont 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 Bens 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 mothers or fathers 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 others 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 offense[60] -- 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 selfdefense must face a real threat on ones life; and the peril sought to be avoided must beimminent 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 childrens 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 childrens 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 defendants 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 selfdefense.[67] In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.[68] Thus, Marivics 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
Q A

xxx

xxx

You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo? 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. But in terms of the gravity of the disorder, Mr. Witness, how do you classify? We classify the disorder as [acute], or chronic or delayed or [a]typical. Can you please describe this pre[-]classification you called delayed or [atypical]? 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. And in chronic cases, Mr. Witness? 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]

Q A Q A

Q A

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 Q A Yes, your Honor. As you were saying[,] it x x x obfuscated her rationality? 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 9[74] and 10[75]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. Pajarillos testimony[80] 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 A Q A Q A Where did he bring you? 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 So you said that he dragged you towards the drawer? Yes, sir. What is there in the drawer? I was aware that it was a gun.

COURT INTERPRETER (At this juncture the witness started crying) ATTY. TABUCANON: Q A Q A Were you actually brought to the drawer? Yes, sir. What happened when you were brought to that drawer? 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
Q A Q A Q A Q A Q A

xxx

xxx

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? Three (3) inches long and inch wide. It is a flexible blade? Its a cutter. How do you describe the blade, is it sharp both edges? Yes, because he once used it to me. How did he do it? He wanted to cut my throat. With the same blade? Yes, sir, that was the object used when he intimidate me.

xxx
ATTY. TABUCANON: Q A Q

xxx

xxx

You said that this blade fell from his grip, is it correct? Yes, because I smashed him. What happened?

A Q 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. What else happened? 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 A You said you went to the room, what else happened? Considering all the physical sufferings that Ive 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 A You shot him? Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victims position relative to appellants 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 5 [88] 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--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 appellants 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 persons 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 ofreclusion 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.