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[G.R. No. 98131. November 22, 2000]
PEOPLE vs. PACIFICO RIZAL @ "EBENG", et al.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated NOV 22 2000.
G.R. No. 98131 (People of the Philippines vs. Pacifico Rizal @ "Ebeng", Julian Pimentel @ "Boy Balbas", Jimmy Castro and Walfredo Gatmaitan @ "Wally".)
On October 17, 1989, the Regional Trial Court, Branch 115, Pasay City convicted accused-appellants, Julian Pimentel and Pacifico Rizal, thus: 1 Rollo, pp. 8-9.
"All premises considered, judgment is rendered finding the accused PACIFICO RIZAL, alias Ebeng and JULIAN PIMENTEL, alias Balbas guilty beyond reasonable doubt of the crime charged, defined and penalized in Section 15, Art III, Republic Act 6425, as amended, and hereby sentences each of them to suffer the penalty of Reclusion Perpetua and to pay the fine of P20,000.00 each, and their proportionate share in the cost of this proceedings.
"The subject Methamphetamine Hydrochloride or shabu in 19 plastic bags and weighing 1,902.661 grams, is ordered confiscated and forfeited to the Government and the Branch Clerk is directed to turn over to the Dangerous Drug Board and the latter is ordered to have them incinerated immediately and the latter is required to submit its report of compliance to this Court 10 days from receipt of copy of this decision.
"SO ORDERED."
Accused-appellants filed their respective notices of appeal. 2 Accused-appellant Julian Pimentel filed his notice of appeal on October 24, 1989 (Rollo, p. 18) and accused-appellant Pacifico Rizal filed his notice of appeal on October 26, 1989 (Rollo, p. 10).
On May 15, 1991, this Court requested the clerk/branch clerk of court of the Regional Trial Court, Branch 115, Pasay City to forward within ten (10) days from receipt of notice three copies of the transcript of stenographic notes (hereinafter referred to as "TSN") taken during the hearings of the case held on the following dates:
(1) June 8, 1989;
(2) September 7, 1989;
(3) June 27, 1989;
(4) July 6, 1989;
(5) July 13, 1989; and
(6) August 10, 1989. 3 Rollo , p. 25.
On July 10, 1991, complying with the aforementioned request, the stenographer of the trial court 4 Ofelia C. Naval. submitted to this Court, 5 Through Atty. Jose A. Illustre, Deputy Clerk of Court, Chief Judicial Records Office original and triplicate copies of the TSNs for the hearings of June 8, 1989 and September 7, 1989. 6 Rollo , p. 26.
On July 16, 1991, this Court again requested the clerk/branch of court, Regional Trial Court, Branch 116, Pasay City for the original and triplicate copies of the TSNs for the hearing dates: July 6, 1989; July 13, 1989; and August 10, 1989. 7 Rollo, p. 28.
On August 7, 1991, Josefina B. Quintos, trial court stenographer to this Court the TSNs for the hearings of July 6 and 13, 1991. 8 Rollo, p. 29.
On January 18, 1992, the Pasay City Hall Building, where the trial court was holding office was razed by fire, resulting in the destruction of all judicial records held therein. 9 Rollo , pp. 34 and 330.
On May 6, 1992, this Court again requested the submission of TSNs for the hearings of June 27, 1989 and August 10, 1989. 10 Rollo, p. 31.
On May 20, 1992, the court stenographer of the trial court informed this Court of the impossibility of complying with the Court's request as the records of the present case were destroyed in the Pasay City Hall fire of January 18, 1992. 11 Rollo, p. 34.
On November 23, 1992, we resolved to accept the appeal and required the public prosecutor 12 State Prosecutor Caridad Junio and counsel for the accused-appellants to furnish this Court with copies of the missing TSNs for the dates June 27, 1989 and August 10, 1989 or to signify their willingness to dispense with the same in case both parties have no copies thereof. 13 Rollo, p. 43.
On January 7, 1993, counsel for accused-appellant Julian Pimentel filed a "Compliance" with this Court stating that: 14 Rollo, p. 46.
"x x x 2. That upon verifications from the case records in the office of the undersigned no transcript of stenographic notes were transcribed for the hearings held on the above-stated dates (i.e. June 27, 1989 and August 10, 1989) by the stenographer assigned thereon;
"3. That such being the situation, the undersigned counsel hereby signify willingness to dispense with the same."
On February 17, 1993, we noted accused-appellant Julian Pimentel's compliance and resolved to dispense with the TSNs of June 27, 1989 and August 10, 1989. 15 Rollo, p. 56.
On May 29, 1996, it appearing that accused-appellant Julian Pimentel was still out on bail, this Court ordered the presiding judge, Regional Trial Court, Branch 115, Pasay City 16 Judge Francisco G. Mendiola.to order his bondsmen/sureties to surrender him, to inform this Court of the fact of surrender and to transfer him to the custody of the Bureau of Corrections, Muntinlupa, Metro Manila. 17 Rollo, p. 190.
The presiding judge did not comply with out order. Thus on November 20, 1996, we required the presiding judge to show cause why he should not be disciplinary dealt with. We further ordered the dismissal of the appeal of accused-appellant Julian Pimentel. 18 Rollo, p. 198.
On February 10, 1997, we resolved to accept presiding Judge's explanation 19 "(a) the case was decided by Judge Sergio Amonoy; (b) the directive of the Supreme Court to order the bondsman of accused Julian Pimentel to surrender him could no longer be compiled with as the surety of the accused had been cancelled on October 27, 1989 by Judge Amonoy; (c) whether or not an order for the arrest of Julian Pimentel was issued cannot be determined as he assumed his duties as Presiding Judge only on January 18, 1996 and (d) since the records of the case have been forwarded to the Supreme Court, he recommends that the directive for the arrest of Julian Pimentel be issued by the Supreme Court (Rollo, p. 206)."and ordered that a warrant of arrest be issued against accused-appellant Julian Pimentel. 20 Rollo, p. 206.To this day he remains at large.
On January 13, 1997, we made a partial entry of judgment making final and executory our resolution of November 20, 1996, dismissing the appeal of accused-appellant Julian Pimentel. 21 Entry of Judgment, First Division, Rollo, p. 218.
Thus, the present resolution only pertains to the appeal of accused-appellant Pacifico Rizal.
On November 17, 1997, we appointed Atty. Natividad B. Kwan as counsel de oficio for accused-appellant Pacifico Rizal and directed her to file appellant's brief within thirty days from notice of our order. 22 Rollo, p. 235.
On September 3, 1998, Atty. Kwan filed with this Court an Omnibus Motion to direct the trial court stenographer to transcribe the TSNs of July 20 and 27, 1989, it appearing that the TSNs pertained to the testimony of accused-appellant Pacifico Rizal. 23 Rollo , p. 312-315.
On April 7, 1999, the Judicial Office informed this Court that the untranscribed stenographic notes of the hearings held on June 27, 1989 and August 10, 1989 were those judicial records destroyed in the Pasay City Hall fire of January 18, 1992. 24 Rollo, p. 329.
On October 7, 1999, the Solicitor General manifested its willingness to submit the case for decision sans the untranscribed stenographic notes. 25 Rollo , p. 340.
On October 12, 1999, accused-appellant manifested his unwillingness to submit the case for decision without the TSNs of June 27, 1989 and August 10, 1989.
Through counsel, accused-appellant points out that as he was scheduled to present his evidence during the hearings of July 20 and 27, 1989, and thus the TSNs for such dates are of paramount importance.
If counsel de oficio was more circumspect in reviewing the records, she would have discovered hearings were never held on those dates, thus, saving this Court material time.
On November 11, 1998, the Judicial Records Office informed the Clerk of Court of this Court's First Division that the scheduled hearings for July 20, and 27, 1989 were not transcribed because the hearings were never held. 26 Rollo, p. 322.The hearing of July 20, 1989 was cancelled because accused-appellant's counsel was ill. The hearing was reset to July 27, 1989. 27 Rollo , p. 324.However, the hearing of July 27, 1989 was also cancelled as the presiding judge was then attending a seminar and convention in Quezon City. The hearing wherein accused-appellant Rizal was to testify was thus rescheduled to August 10, 1989. 28 Rollo , p. 326.The stenographic notes covering the hearing date were untranscribed. 29 This is confirmed by an admission of the lower court itself made on September 7, 1989, to wit: "COURT: ORDER: "After the conclusion of the testimonies of Atty. Carlos Caabay and Atty. Jose Limayog, on motion of the prosecution the continuation of hearing for the reception of rebuttal evidence on the ground that Fiscal Caridad Junio needs the transcript of stenographic notes of the testimony of accused Pacifico Rizal which has not transcribed yet (sic) and without objection of the counsel for the accused, is set on September 18, 1989 at 2:00 o'clock in the afternoon. SO ORDERED (underscoring ours)."These notes were among those judicial records destroyed in the Pasay City Hall fire of January 18, 1992. 30 Rollo, p. 329.
Accused-appellant argues that the trial court's decision should be reversed as the lower court convicted him without delving into the evidence he addressed in his defense. Through counsel de oficio, he posits that a resolution of the present appeal without the TSN referred to will grossly violate his right to be heard.
We agree only in part.
A reversal of the trial court's decision is not in order. The fact that his testimony was not transcribed does not mean that the lower court did not give him a right to be heard. In Feria v. Court of Appeals, 31 G.R. No. 122954, February 15, 2000.we ruled that if the records of a criminal case are destroyed or lost after conviction, release of the accused is not justified. The remedy of reconstitution of judicial records is proper. This remedy gives him a right to be heard on appeal.
Judicial records are subject to reconstitution without exception, whether they refer to pending cases or finished cases. Reconstitution is not limited to pending cases; finished cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated. 32 Sangle v. Court of Appeals, G.R. No. 109024, November 25, 1999.
Act 3110 33 An Act to Provide and Adequate Procedure for the Reconstitution of the Records of Pending Judicial Proceedings and Books, Documents, and Files of the Office of the Register of Deeds, Destroyed by Fire or Other Public Calamities, and for other Purposes is applicable in cases where there is partial or total loss or destruction of a judicial record. 34 Act 3110, Sec. 43.The Act is also applicable even if the judicial record is destroyed or lost from causes other than fire or public calamity. 35 Supra , Sec. 44.
Relevant is Sec. 14 of the Act which provides that if the testimony of a witness has already been taken, it shall be reconstituted, by means of an authenticated copy thereof. But if it is impossible to obtain an authentic copy of the evidence and if the stenographic notes have been destroyed, the case shall be heard anew as if it had never been tried. There is thus, as in the present case, a need to re-take accused-appellant's testimony.
As obiter, we cite the case of Almario v. Ibanez. 36 81 Phil. 594 (1948).There, this Court acknowledge that Act 3110 does not specify whether there should be trial de novo or whether only specific testimonies should be taken. In that case, we recognized that since the law is procedural and adjective, it is only a means to accomplish an end - serve as an aid to substantive law. There we said that if the original witness is available, the retaking of testimony should be limited to him. There is no necessity or justification for calling new or additional witnesses whose testimony would render the reconstituted decision inapplicable and, therefore, its reconstitution of no avail. The re-taken testimony should be forwarded to this Court, without the lower court rendering a new decision. 37 Madalang v. Court of First Instance, 49 Phil. 487 (1926).
Counsel de oficio should personally represent accused-appellant upon re-taking of his testimony. A counsel de oficio is expected to do his utmost. A mere pro-forma appointment of de oficio counsel who fails to genuinely protect the interests of the accused merits disapprobation. The exacting demands expected of a lawyer should be no less than stringent when one is a counsel de oficio. He must take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No lawyer is to be excused from this responsibility except only for the most compelling and cogent reasons. 38 People v. Bernas, G.R. No. 120420, 306 SCRA 135 (1999).
WHEREFORE, the manifestation/motion of accused appellant, Pacifico Rizal dated October 12, 1999, is PARTIALLY GRANTED.
The presiding judge of the court of origin, Regional Trial Court, Branch 115, Pasay City is ORDERED to retake the testimony of accused-appellant, Pacifico Rizal, in Criminal Case No. 89-2488-P, and the RECONSTITUTED transcribed stenographic notes covering such testimony shall be forwarded to this Court with all deliberate dispatch for resolution of his appeal.
No costs.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
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