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    Memorandum of Appeal

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    Andie David

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    © All Rights Reserved
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    Republic of the Philippines NATIONAL POLICE COM ISSION NAPOLCOM CENTRAL OFFICE NAPOLCOM Bldg., EDSA corner Qt Quezon City PHILIPPINE NATIONAL POLICE, Complainant - Appellee, yzon Avenue Administrative Case No. RIAS3-NMP-ADM-22-022 -versus- For: Gi ‘CONDUC \VE MISCONDUCT and UNBECOMING OF A POLICE OFFICER. PMAJ FERDINAND MANA MENDOZA; PSSG MHARK ANTHONY REYES IRAL; PSSG SANNYRIC — SALANGSANG| ALICANTE; PCPL KENNETH RHEINER| FERRER DELFIN; PCPL RICHMOND) PINAS FRANCIA; PCPL JOHN GERVIC NIEVA FAJARDO; PAT HERMOGINES| ABRERA ROSARIO, JR; and PAT| LEANDRO MANGATE VELOSO, Respondents - Appellants. x MEMORANDUM OF APPEAL TO THIS HONORABLE OF COMMISSION, comes the respondent NATIONAL POLICE appellant, PAT HEROMGINES ABRERA ROSARIO, JR, through by the undersigned counsel, most respectfully af peals the Resolution dated 08 November 2023 and Decision dated 18 August 2022, respectively, and in support thereof, furthel following, to wit- respectfully submit the 4.0 PREFATORY STATEMENT In the assailed Decision rendered by tt the Chief of the Philippine National Poli distinguished Office of on the above-entitled case, and respondent - appellant was |meted the penalty of DISMISSAL from the PNP service in the asspiled Decision dated 18 August 2022. Although, a Motion for Reconsideration was seasonably filed, however, the same has been denied in a Resolution dated 08 November 2023. With all due respect, it is an obvious| violation and disregard of the right to due process was cpmmitted against the respondents - appellants in this case. 1] the assailed Decision is based on mere al e Honorable Office in gations not supported by evidence sufficient to draw a conclusidn so as to comply with Sec. 14, Article VIII of the constitution. Honorable Supreme Court held the followi On this premise, the 9, to wit- "The court finds occasidn to remind courts and quasi-judicial bodies that “[a] decision should faithfully imply with Section 14, Article VIII of the |Constitution which provides that no decision shall be rendered by any court [or body) without expressing th jasi-judicial rein clearly case and Itisa requirement of due process and fair play that the parties to a l explanation of the factual] reasons that led to the conel court [or quasi-judicial body]| igation be led, with an and legal jsions of the A decision that does not clearly and distinctly state the facts and law on which| it is based leaves the parties in the dark as to how it was reached and is prejudicial to the losing p unable to pinpoint the possil the court for quasi-judicial review by a higher tribunal. In administrative proceedings, due pr opportunity to explain one's side or th especially ty, who is le errors of body] for cess simply means the ‘opportunity to seek reconsideration of the action or ruling complained of”. The standard 1 Saballla vs. NLRC, ibid, citing Nicos Industrial Corp vs CA, 206 SCRA 127, 2M, Ramirez Industries vs. The Honorable Secretary of Labor and Employment and Carolyn Alfaro, et al., G.R. No. 89894, January 3, 1997. -2- of due process that must be met in adminis ratve tribunals allows @ certain latitude as long as the element of fairess is not ignored Although respondents — appellants wet however, they were not afforded the proc which includes the right to present one’s ca: support thereof, and more importantly, to and their witnesses. Right to a hearin element of due. process’. In the said administrative hearing, served with summons, ural right to a hearing and submit evidence in mnfront the complainants py is an indispensable herein respondents - rable office could have appellants may be afforded the right to ojo the complainant and his alleged witnesses, and thereafter, this hot evaluated and assessed the instant case in mandated by our constitutional provisions. In addition, administrative due process notice, be it actual or constructive, of| proceedings that may affect a person's opportunity to appear and defend his witnesses and relevant evidence in his constituted as to give him reasonable a impartiality, and one of competent jurisdicti decision by that tribunal supported by subste at the hearing or at least ascertained in th the parties’ Due process is an assurance and a faimess®. It is designed to secure justice sacrifice it by paying undue homage to for Vigilant not for those who, having the right t silent, only to complain later that they must reasonable opportunity to be heard and to 3 Adamson & Adamson, Inc. vs. Amores, 152 SCRA 237. 4 Fontelera vs. Amore, 70 SCRA 37. Singson vs. NLRC, G.R. No. 1222389, June 9, 1997. Manila Pest Control, Inc. vs. Workmen’s Compensation Commission, 25 SCRA 700. Albert vs. University Publication Co., Inc., 13 SCRA 84 manner prescribed and includes (a) the right to the institution of the right; (b) reasonable ints and to introduce vor, (¢) a tribunal so lurance of honesty and 1; and (d) a finding or jal evidence presented records or disclosed to \guaranty of justice and 's a living reality, not to ality’. It is only for the be heard, choose to be been heard. Itis the bmit any evidence one may have in support of his defense. It guarantees the observance of both substantive and procedural rights ~ - Iwhatever the source of such sights, be it Constitution itself or only a statute or @ rule of court Based on all the foregoing Supreme| respondents - appellants have definitely constitutional right to due process of law. Court pronouncements, lbeen deprived of their 2.0 TIMELINESS OF THE] APPEAL On 24 November 2023, herein respon a copy of the Resolution dated 08 Nov DENIED respondents’ Motion for Consi dated 18 August 2022 rendered by the Off Hence, herein respondent-appellant lent — appellant received ber 2023 which has ration to the Decision of the Chief PNP. has ten (10) days or precisely until 04 December 2023 within which to file this Notice of ‘Appeal and Memorandum of Appeal, and within the reglementary period. Ithus, the same is filed 3.0 GROUNDS RELIED UPON TER THE GRANT OF THE APPEAL Respondent - Appellant, PAT ROS ABRERA ROSARIO, JR., is very much confident that a second hard look on the following grounds: 3.1. RESPONDENTS - APPE! BEEN DENIED THE Ri PROCESS OF LAW. 3.2 THE ASSAILED DECISI CLEARLY AND DISTINCT} THE ISSUES, AND FUR’ EXTENSIVELY EXPRES‘ AND THE LAW ON BASED. 8 Cong. Aniag, Jr. vs. Comelec, et al., G.R. No. 104961, October 7, 1994, -4- e instant case deserves LLANTS HAVE HHT TO DUE IN DID NOT Y RESOLVED HER DID NOT THE FACTS ICH IT WAS 33 RESPONDENT — sereav DOES iE NOT DESERVED To DISMISSE! D FROM THE SERVICE, | 4.0 DISCUSSION 1 anc)ucars 4.1 RESPONDENT — APPELLANT HAS BEEN DENIED THE RIGHT | TO DUE PROCESS OF LAW. | ———SEPROCESS OF LAW. 4441 As mentioned earlier, alth ugh the respondents — appellants were served with summons, however, they were not afforded the procedural right to a hearing|which includes the right to present one’s case and submit evidence in ‘Support thereof, Right to a hearing is an indispensable it of due process®. Respondents — appellants were irrefragably denied due process, Its to this humbly submission that it is not enough that the respondents - appellants were setved with summons and made to file their counter affidavit and other material evidence. In the summary dismissal proceedings, respondents - appellants should afforded the right to confront the complainants and their alleged witnesses, and thereafter, this honorable office could have evaluated and assessed the instant case in a manner prescribed and mandated by our constitutional provisions. Worth emphasizing that complainants-witnesses have executed a Joint Affidavit of Desistance which has been ignored by the honorable office. | Although an administrative hearing was conducted, however, the respondents — appellants were not given the ‘opportunity fo examine the complainants and his witnesses which is indispensable element of an administrative hearing. Unfortunately, the administrative hearing vas only held purposely to explore the possibilty of setting the issue or dispute. | If only the Honorable had afforded the respondents — appellants the procedural right to a hearing which is an indispensable element of due procass, the distinguished assigned hearing officer could have evaluated personally and more extensively the instant case and more importantly the complainant and his witnesses including that of the respondents, and in a manner prescribed and mandated by our constitutional provisions. As such, the distinguished hearing officer would be able to weigh the pieces of evidence submitted and adduced by the parti ° Fontelera vs. Amore, 70 SCRA 37. “Se 44.2 Though inistrati rocesdi _ Procedural rules in administrative ce are less stringent and often| applied more liberally, fundament ie Proceedings are not exempt from basic and invest ‘al procedural principles, such as the right to due process in igations and hearings. The right to substantive and procedural due process is applicable to administrative proceedings. Well-settled is the rule that the essence of due Process is simply an opportunity to be Heard or, as applied to administrative proceedings, an opportunity ta explain one's side or an opportunity to seek a reconsideration the action or ruling complained of. ? 413 unerqualy, this ue, as & is stated, strips down administrative due process to its most fundamental nature and sufficiently justifies freeing administrative | proceedings from the Tigiity of procedural requirements. In particular, however, due process in administrative proceedings has iso been recognized to include the following: (1) the right to actual rr constructive notice of the institution of proceedings which may affpct a respondent's legal rights; (2) a real opportunity to be heard! personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction and so constituted as to affprd a person charged administratively a reasonable guarantee pf honesty as well as impartiality, and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. 41.4 Hence, even if administrative tribunals exercising quasi-judicial powers are not strictly [bound by procedural requirements, they are still bound by law aye equity to observe the 10 Civil Service Commission v. Lucas, 36 Phil. 486, 491 (1999). 11 Westmont Pharmaceuticals, Inc. v. Samaniego, G.R. Nos. 146653-54, 20 February 2006, 482 SCRA 611, 619. 12 pO2 Ruel C. Montoya Petitioner, vs. Police Director Reynaldo P. Varilla, Regional Director, National Capital Region, Poli Office, and Atty. Rufino Jeffrey L. Mé Regional Legal Affairs Service, Respontlei G.R. No. 180146, December 18, 2008 nts. és {undamental requirements of due process to be heard and widence I of a trivial in iministra the application of th i safegi 'e principle of 445 ne re inicallt the alia mater in_any administrative or ici proceedings. ® In due process, what is sought to be juarded is not lack ‘of previous notice but the denial of the opportunity to be heard ; The cardinal precept is that where there is a violation of basi a ic constitutional rights, cout Jurisdiction, The violation of a partys right s are ousted from their jo due process raises a Serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the ‘ fundamental right of due Process is apparent, a decision rendered in|disregard of that right is void for lack of jurisdiction *® 416 The rule must be equall true for quasi-judicial administrative bodies, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is unqualified by what type of proceedin administrative) he stands to lose the Decision dated 05 February 2020 of this sing fe appellants 4.2 THE ASSAILED DECISION DID NOT CLEARLY AND DISTINCTLY RESOLVED THE ISSUES, AND FURTHER DID 18 National Power Corporation v. National Labor Relations Commission, 339 Phil. 89, 107 (1997); citing Philippine National Construction Corporation v. Ferrer-Calleja, G.R. No. L-80485, 11 November 1988, 167 SCRA 294, 301. 14 Vda. de Emnas v. Emnas, 184 Phil. 419, 424 (1980). 1 State Prosecutors v. Muro, Adm. Mat No. RTJ-92-876, 19 September 1994, 236 SCRA 505, 522-523; see also Paulin v. Gimenez , G.R. No. 103323, 21 January 1993, 217 SCRA’ 386, 392. (whether judicial or NOT EXTENSIVELY EXPRESS THE FACTS AND THE LAW ON WHICH IT WAS BASEt 424 With the highest respect tt this Honorable Office, herein respondent ~ appellant strongly cofftends that the assailed decision did not clearly and distinctly resolved the issues, and further eo extensively express the facts and the law on which it was, a 422 In resolving the instant cai or proof of robbery, versus Shotgun conclusion. is the lack of evidence iccusation, of general ‘As aforementioned, the assailed Decision finds and contends that: “Respondents were charged |as'follows . « - “took and carried away) the personal belongings, among others, of|Xiao Han, Hong Zu YI, Qi Chenze, Yang Hai Long. Ma Yun Xin, Li Sheng Qian, Wang Yow Basilio Carolina with intent to their consent” (page 1): Applying the law (Art. 293, ‘elements of the crime of robbery is present (ie, 1. There is taking: 2. Of another's personal property: 3. With animus luerqndi; and 4. With violence, intimidation,or force),|that is, the act of the respondents in forcibly entering the house of the private complainants, ining them with violence and Intimidation, taking the {firearms that belong to the priate complainants with intent to gain constitute the crime of robbery (page 2) ) in the case, the Furthermore, the documer circumstantial pieces of evidence presented by the prosecution are substantial enough and worthy of belief to prove that respondents committed Grave Misconduct (page 3);” 4.2.3 There is nothing in the Decision |which points or refer to any such documentary and circumstantial pieces of evidence allegedly presented by the prosecution which prove substantial enol | ugh and worthy of belief to evidence tt Tesponder i misconduct ascribe to Pondents. There is only such allegation of insinuation 4.24 Itis ele 7 , rendition, muse eementary that a Decision n laying the bass fr ts is finding oF corer ex the reasons br ergumenis supporting Nn. More importantly, tHe facts or evidences that : ; ‘upport Such reason or arguments must be ¢learly and unequivocally Presented and elucidated. However, there was none that was even remotely mentioned in this Decision other than the bare allegation or Statement of prosecution witness stated in th “Affidavit of Arrest’. 4.2.5 Should such adjudication be a obtained thereby can never be valid and a beg the question or issue resolved in evidences of respondents’ guilt for Robbery the Affidavit of Arrest of the prosecution wit of Arrest proves Robbery committed by Affidavit is evidence enough to substantiate ded to, the reasoning pted, for it will always the conclusion that is, re substantial based on sses, thus, the Affidavit respondents as such 1e same. 4.2.6 This is all that the Decision conclusion pronouncing the guilt of respon evidence to clearly and satisfyingly sub: against them. inuates, a generalized nts sans the particular fantiate the accusation 4.2.7 If so (lack of evidence), how fan there even be an appreciation that such (prosecution) evidence are substantial enough and worthy of belief to prove that respontients committed Grave Misconduct? Make no mistake, the assailed Decision clearly made a sweeping generalization of respondents’ |guilt premised on an apparent lack of evidence (other than the bare allegation in the Affidavit of Arrest) and utter disregard of controverting evidences proffered by respondents that exculpate them from such accusation. 4.2.8 Indeed, how can it even be said that the law (Art. 283, RPC) applies in the case when there is not even a single proof of the following elements: (1) "TAKING" of |personal property; (2) “BELONGING TO ANOTHER"; and (3) "WITH INTENT TO GAIN"? \ a. What are these personal properties referred to in the Charge Sheet? b. Whose properties are these, or were they validated to be owned by any of the eight (8) persons stated in the Charge Sheet, or that will just Be simply presumed or assumed therein? ¢. What prosecution exhibits are|these sald personal properties? d. Were the. Se 5 t proves et actually taken away? How so? 0 be so? Is tere any validation or confirmation at all of i away, stolen or iene ‘personal properties taken - If so, bee how was there intent to gain at all if taking of rty is not even established or validated? Again» 9 ais that simply presumed of assumed from the \ffidavit of Arrest of prosecution witnesses? ; ‘evidence therein? IS J What firearm is being referred to fs that firearm licensed so it can treated as personal property? g. Whose firearm is that? Was there any ownership? legally and validly validation of its this case pertinent to an o nature only to the offended party? 4.2.10 The foregoing queries a d refutation are vital matters that need to be cicessed more than simply pronouncing ine respondents are guilty and must be dismissed from service. For the foregoing clearly spells not merely of an al trary Decision but more importantly of plain denial of due process where, simply, the facts an application of the law is not only rende fed doubtful but fatally incongruent to evidence submitted (if not lack of evidence at all). 4.2.11 Thus, Article Ill, Section 4 bf the 1987 Constitution provides that "No person shall be deprived of life, liberty and property Without due process of law’. And lest it be forgotten, ‘employment, like any personal or real property, is such a right to property in that it is the source of sustenance of a person's incame and means of living for himself and his family. Thus, being such a property right, no less than the Constitution mandates that before a person be deprived to his right of employment or property, due process of law must first be afforded him. 4.2.12 This circumstance scenario is exactly that sort depicted in the case of Sps. Boyboy v. Atty. Yabut, to which the Supreme Court heavily warns — “Looking at the present instance with an absolutely objective eye, we are not disposed to accept as gospel truth complainants imputation and proof. The Should by oe y ° e fittingly treated for what speculate re accusatidns founded on temerity m pane Conjecture; if not sheer lawye rhaps we may hot realize it, but unsubstantiated worse, e1 Prevaricated-claims. (emphasis, ours) xxx We must emphasize that a|mere charge or allegation of wrongdoing dbes not suffice. Accusation is not synonymous, with guilt. There must always be sufficient evidence to support the charge. T XXX The standard of substantial evidence required in administrative proceedings is more than a mere scintilla (Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 [1940].|. . While rules of evidence prevalling in courts df law and equity shall not be controlling. . . , this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without basis in evidence having rational probative force (Ang Tibay). XxX | Lamentably, the evidence against _ the respondent does not meet| the mandated standard. At best, complainants would indulge in presumptions which, unfortunately, cannot be a valid basis to slap respondents with administrative sanctions. XXX To be sure, it will take re than mere pleadings and unreliable affidavits to lend an aura of respectability a credibility to complainants accusations. A| finding of guilt should only come from strength of complainants evidence, not from the weakness of respondents defense.” | -u- | | | of Property Receipt 0 were duly submitted 1), Was the prosecution personal property being were not listed in the n bare or general 42.13 prepared by Pggt {Me onset, Receipt (ANNEXES 8 ‘Sg Alicante and Pat Vel (ANNEXES 8 to 12, of Respondents| Ans claimed by “and ‘Prove any missing item o Receipt of Pra eight (8) complainants, th allegation)? perty Receipt prepared (other thar 4.2.14 With the foregoi things come to scr ER foregoing, numerous mind. Either all complainant's statement are outright afforded prima facie proof or treated as gosP truth, (invincible and incapable of susceptibility for dispute a id refutation, however versely, that all much such refutation may be)i_ oF, complained police officers "we °) ociptely presumed Gulty unless they can prove their innocence fhereof? [such that Sif respondents’ controverting evidences easily aide brushed aside; that any and all such defenses by [respon iea deserve scant consideration nor careful valuation of their P' and countervailing evidences]? i ication, it 42.15 If the foregoing are the ™ rms in adju would certainly be a pity for Recused public officers: who rendered decades of their life in “I 01 oa ply th performance of their duty (that can be si scrupulous allegation against them Tcoupled with hasty appreciation of the merits of the opposing party's ¢ Is arguments and evidence). | 4.2.16 For it bears to remind that, | | le

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