G.R. No.

117487 December 12, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
ARNEL ALICANDO y BRIONES, accused-appellant.

PUNO, J.:

The case at bar involves the imposition of the death  penalty. With all our frailties, we are asked to play the role of an
infallible God by exercising the divine right to give or take away life. We cannot err in the exercise of our judgment for our
error will be irrevocable. Worse, our error can result in the worst of crimes — murder by the judiciary.

The records reveal that appellant Arnel Alicando was charged with the crime of rape with homicide  1 in an Information
which reads:

That on or about the 12th day of June 1994 in the City of Iloilo, Philippines and within the jurisdiction of
this Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force,
violence and intimidation to wit: by then and there pinning down one KHAZIE MAE PENECILLA, a minor,
four years of age, choking her with his right hand, succeeded in having carnal knowledge with her and as
a result thereof she suffered asphyxia by strangulation fractured cervical vertebra and lacerations of the
vaginal and rectal openings causing profuse hemorrhages and other injuries which are necessarily fatal
and which were the direct cause of her death.

CONTRARY TO LAW.

On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of the PAO, Department of
Justice. Appellant pleaded guilty.

After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It also set the case for
reception of evidence for the appellant, if he so desired. 2

The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla, father of the four year old
victim Khazie Mae, was drinking liquor with Ramil Rodriguez and Remus Gaddi in his (Penecilla's) house at Barangay
Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them but every now and then would take leave and return. Appellant was
living in his uncle's house some five (5) arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's group stopped
drinking and left.

Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's length from the house of
appellant. At about 5:30 p.m. of that day, she saw the victim at the window of appellant's house. She offered to buy her
"yemas" but appellant closed the window. Soon she heard the victim crying. She approached appellant's house and
peeped through an opening between its floor and door. The sight shocked her appellant was naked, on top of the victim,
his left hand choking her neck. She retreated to her house in fright. She gathered her children together and informed her
compadre, Ricardo Lagrana, then in her house, about what she saw. Lagrana was also overcome with fear and hastily
left.

Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae. He and his wife searched
for her until 1 o'clock in the morning. Their effort was fruitless. Rebada was aware that the Penecillas were looking for
their daughter but did not tell them what she knew. Instead, Relada called out appellant from her window and asked him
the time Khazie Mae left his house. Appellant replied he was drunk and did not know.

As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to answer the call of nature.
He discovered the lifeless body of Khazie Mae under his house. Her parents were informed and so was the police. At 9:00
a.m., Rebada suffered a change of heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed
the crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally confessed his guilt without
the assistance of counsel. On the basis of his uncounselled verbal confession and follow up interrogations, the police
came to know and recovered from appellant's house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a
stained pillow and a stained T-shirt all of which were presented as evidence for the prosecution.
The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His autopsy report reveals the
following injuries sustained by the victim:

HEAD & NECK/THORACO-ABDOMINAL REGIONS:

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

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

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

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

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

ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES:

a) Fractured, 2nd cervical vertebra.

b) Fractured, crecoid cartilage.

c) Both lungs, expanded with multiple petechial hemorrhages.

d) Other internal organs, congested.

EXTREMITIES:

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

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

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

VAGINAL FINDINGS/ANAL FINDINGS:

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

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

c) Lacerated wound, lateral wall of the vagina up to the level of the promontory of the
sacrum with a length of 8 centimeters.

d) A cylinder with a diameter of 2 cms., easily passes the vaginal and anal openings.

CAUSE OF DEATH:

A) ASPHYXIA BY STRANGULATION.

B) FRACTURED, 2nd CERVICAL VERTEBRA.

C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL & RECTAL OPENINGS.

Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove that the proximate cause of
Khazie Mae's death was asphyxia by strangulation.
On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz:

WHEREFORE, the court hereby finds the accused, Arnel Alicando, GUILTY beyond reasonable doubt for
(sic) the Crime of Rape with Homicide penalized under Article 335 of the Revised Penal Code as
amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No. 7659. Arnel Alicando is hereby
sentenced to suffer a (sic) penalty of death and to indemnify the heirs of the offended party, Khazie Mae
D. Penecilla, the sum of P50,000.00.

The death sentence shall be executed by putting the person under sentence to death by electrocution
(electric chair). As soon as facilities are provided by the Bureau of Prisons, the method of carrying out his
sentence shall be changed by gas poisoning (sic).

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

Cost against the accused.

SO ORDERED.

The case is before us on automatic review considering the death penalty imposed by the trial court. A new counsel, Atty.
Joel Tiongco, took the cudgel for appellant. In his Brief, appellant assails the decision of the trial court as a travesty of
justice.

We find that the Decision of the trial court sentencing the appellant to death is shot full of errors, both substantive and
procedural. The conviction is on an amalgam of inadmissible and incredible evidence and supported by scoliotic logic.

First. The arraignment of the appellant is null and void. The trial judge failed to follow section (1) (a) — of Rule 116 on
arraignment. Said section provides:

xxx xxx xxx

Sec. 1. Arraignment and plea; how made. —

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

The reading of the complaint or information to the appellant in the language or dialect known to him is a new
requirement imposed by the 1985 Rules on Criminal Procedure. It implements the constitutional right of an
appellant ". . . to be informed of the nature and cause of the accusation against him." 3 The new rule also
responds to the reality that the Philippines is a country divided by dialects and Pilipino as a national language is
still in the process of evolution. 4 Judicial notice can be taken of the fact that many Filipinos have limited
understanding either of the Pilipino or English language, our official languages for purposes of communication
and instruction. 5 The importance of reading the complaint or information to the appellant in the language or
dialect known to him cannot thus be understated.

In the case at bar, the records do not reveal that the Information against the appellant was read in the language or dialect
known to him. The Information against the appellant is written in the English language. It is unbeknown whether the
appellant knows the English language. Neither is it known what dialect is understood by the appellant. Nor is there any
showing that the Information couched in English was translated to the appellant in his own dialect before his plea of guilt.
The scanty transcript during his arraignment, reads: 6

xxx xxx xxx

Prosecutor Edwin Fama — Appearing as public prosecutor

Atty. Rogelio Antiquiera — For the accused, Your Honor. Ready for arraignment.
 Interpreter — (Reading the information to the accused for arraignment and pre-trial.)

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

One need not draw a picture to show that the arraignment of the appellant is a nullity. It violated section 1(a) of
Rule 116, the rule implementing the constitutional right of the appellant to be informed of the nature and cause of
the accusation against him. It also denied appellant his constitutional right to due process of law. 7It is urged that
we must presume that the arraignment of the appellant was regularly conducted. When life is at stake, we cannot
lean on this rebuttable presumption. We cannot assume. We must be sure.

Second. The  plea of guilt made by the appellant is likewise null and void. The trial court violated section 3 of Rule 116
when it accepted the plea of guilt of the appellant. Said section provides:

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

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

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

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

guilty.)

Court Question (sic) of the court to the accused.

Q Considering that this is a crime and under the amended law is a

heinous crime, because of your plea of guilty without the consent or even
against the discretion of the court, the court will give you a mandatory
death penalty because of the crime charged, do you understand?

Accused Yes, Your Honor.

Q Did you enter a plea of guilty on your own voluntary will or without any
force or intimidation from any one or whatever?

Accused None, Your Honor.

Q Are you sure?

Accused Yes, Your Honor.

Q Or maybe because you were manhandled or maltreated by anyone

and that will just be the consideration for you to plead guilty?

Accused No, Your Honor.

Court Were you not manhandled, please let us see your body?

Note (Accused raised his prison uniform or shirt and showed to the court
his body from waist up.)

Accused No, Your Honor.

Court You were not maltreated in the jail?

Accused No, Your Honor.

 Court Please let us see whether you have bruises so that you will be
examined by a physician to the order of the court?

Accused No, Your Honor.

Court If you will plead guilty, that plea of guilty has no use because there
will be a mandatory death penalty, do you still insist on your plea of
guilty?

Accused Yes, Your Honor.

Court If you plead guilty to the crime charged there will be some effects
on your civil rights hut not until the decision will be affirmed by the
Supreme Court.

Accused Yes, Your Honor.

Note (See Order dated June 28, 1994 attached to the records of this
case.)

In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9

xxx xxx xxx

Fiscal Fama: Appearing as the public prosecutor, ready, Your Honor.

Our first witness is Dr. Tito Doromal, Your Honor.

Atty. Antiquiera: For the accused, Your Honor.

Court Before the court will proceed with the reception of evidence by the
prosecution Arnel Alicando, please come here. (at this juncture, Arnel
Alicando, come near to the court)

The court is warning you again that this is reception of evidence by the
prosecution after you plead guilty to the crime charged at, do you
understand?

A Yes.

Q Do you still affirm and confirm to your plea of guilty of rape with
homicide?

A Yes, Your Honor.

Q Do you still insist that your plea of guilty is voluntary without force,
intimidation or whatsoever?

A Yes.

Q The court is warning you that after reception of evidence, the

imposable penalty is mandatory death?

A Yes, Your Honor.

Q Despite of that, you still insist on your plea of guilty?

 A Yes, Your Honor.

Court Okey, proceed.

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated the decision of this Court
in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of cases. 11 The bottom line of the rule is that the plea of
guilt must be based on a free and informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1)
the voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. The questions of the trial
court failed to show the voluntariness of the plea of guilt of the appellant nor did the questions demonstrate appellant's full
comprehension of the consequences of his plea. The records do not reveal any information about the  personality profile of
the appellant which can serve as a trustworthy index of his capacity to give  a free and informed plea of guilt. The age,
socio-economic status, and educational background of the appellant were not plumbed by the trial court. The questions
were framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will be noted too
that the trial court did not bother to explain to the appellant the essential elements of the crime of rape with homicide.

A cursory examination of the questions of the trial court to establish the voluntariness of appellant's plea of guilt will show
their utter insufficiency. The trial court simply inquired if appellant had physical marks of maltreatment. It did not ask the
appellant when he was arrested, who arrested him, how and where he was interrogated, whether he was medically
examined before and after his interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as
if involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the following damning entry
on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was
mobbed by inmates while in jail and had suffered hematoma, viz:

c-0262-94

INFORMATION

2:50 PM, — P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC, informed this office thru
SPO1 W. Garcera alleging that at about 9:00 AM this date when the suspect ARNEL ALICANDO Y
BRIONES, 24 yrs. old, residence of Rizal, Palapala Zone I, CP, been arrested and mobbed by the irrate
residents of Zone II Rizal, Palapala, GP, in connection of the Rape with Homicide case wherein the victim
KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place who was discovered dead
under the house thereat. Suspect when turned over to this office and put on lock up cell was also mobbed
by the angry inmates thus causing upon him hematoma contusion on different parts of his body.

Likewise, the trial court's effort to determine whether appellant had full comprehension of the consequences of his plea is
fatally flawed. It warned the appellant he would get the mandatory death penalty without explaining the meaning of
"mandatory" It did not inform the appellant of the indemnity he has to pay for the death of the victim. It cautioned appellant
there ". . . will be some effects on your civil rights" without telling the appellant what those "effects" are and what "civil
rights" of his are involved.

Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We stress that under the 1985
Rules of Criminal Procedure, a conviction in capital offenses cannot rest alone on a plea of guilt. Section 3 of Rule 116
requires that after a free and intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the
appellant and the precise degree of his culpability beyond reasonable doubt. This rule modifies prior jurisprudence that a
plea of guilt even in capital offenses is sufficient to sustain a conviction charged in the information without need of further
proof. The change is salutary for it enhances one of the goals of the criminal process which is to minimize erroneous
conviction. We share the stance that "it is a fundamental value determination of our system that it is far worse to convict
an innocent person than let a guilty man go free. 12

Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant, were inadmissible, yet, were
considered by the trial court in convicting the appellant.

Thus, the trial court gave full faith and credit to the physical evidence presented by the prosecution. To quote its
Decision, 13 viz:

xxx xxx xxx

Further, there are physical evidence to prove Khazie was raped. These consists of a pillow with
bloodstains in its center 14 and the T-shirt 15 of the accused colored white with bloodstains on its bottom.
 These physical evidence are evidence of the highest order. They strongly corroborate the testimony of
Luisa Rebada that the victim was raped.

These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City PNP as a result of
custodial interrogation where appellant verbally confessed to the crime without the benefit of counsel. PO3 Tan
admitted under cross-examination, viz: 16

xxx xxx xxx

CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:

Q Mr. Witness, when for the first time did you see Arnel Alicando?

A June 13, 1994, when I arrested him.

Q Previous to that you have never seen him?

A Yes, sir.

Q When for the first time did you start investigating Arnel Alicando?

A After I finished investigating the body of the victim, Khazie Mae

Penecilla.

Q And that was also after you were informed that Arnel Alicando was a
suspect in the raping of Khazie Mae Penecilla?

A Yes, sir

Atty. Antiquiera:

Q And who was that person who informed you of the suspect?

A Luisa Rebada.

Q Mrs. Rebada who is the witness in this case?

A Yes, sir.

Q And you started investigating Arnel Alicando in the morning of June

13, 1994?

A Yes, sir.

Q How long did you interrogate Arnel Alicando in the morning of June 13,
1994?

A I cannot remember the length of time I investigated him.

Q Did it take you the whole morning of June 13, 1994 in interrogating and
investigating Arnel Alicando?

A Yes, sir.

Q And the investigation you conducted continued in the afternoon of the

same date?
A Yes, sir.

Q The following day, June 14, 1994, you still investigated and
interrogated Arnel Alicando.

A Yes, sir.

Q And when did you stop, finally, investigating and interrogating Arnel
Alicando?

A After I finished recovering all the exhibits in relation to this case.

Q What date did you stop your investigation?

A June 14, 1994, when I finished recovering the white T-shirt and pair of
earring.

Atty. Antiquiera:

Q You testified in this case, Mr. Witness, you never informed the court
that you apprised the accused of his constitutional rights, is that correct?

A I apprised him.

Q My question is, during your testimony before this court under the direct
examination of the prosecution you never informed the court that you
apprised the accused of his constitutional rights?

Pros. Fama:

I did not ask him that question. How will he answer?

Court:

Sustained.

Atty. Antiquiera:

Q When did you inform, the date when you informed Alicando of his
Constitutional rights?

A On June 13.

Q On what hour did you inform him?

A After the witness identified him.

Q What constitutional rights did you inform Alicando of?

A The right to remain silent, and right to get his lawyer and I have
interpreted in Visayan language.

Q And during your investigation for almost two (2) days the accused was
never represented by counsel, is that correct?

A Yes, sir.
 Atty. Antiquiera:

Q Are you aware of the law that enjoins a public officer to inform the
person of his constitutional rights?

A Yes, sir.

That is all, Your Honor.

It is now familiar learning that the Constitution has stigmatized as inadmissible evidence uncounselledconfession

or admission. Section 12 paragraphs (1) and (3) of Article III of the Constitution provides:

xxx xxx xxx

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

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible against him.

In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important confession of the appellant in
writing. Neither did he present any writing showing that appellant waived his right to silence and to have competent and
independent counsel despite the blatant violation of appellant's constitutional right, the trial court allowed his uncounselled
confession to flow into the records and illicitly used it in sentencing him to death.

It is not only the uncounselled confession that is condemned as inadmissible, but also evidence derived therefrom. The
pillow and the T-shirt with the alleged bloodstains were evidence derived from the uncounselled confession illegally
extracted by the police from the appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17

xxx xxx xxx

Q Did the accused Arnel Alicando accompany you to the place of the incident?

A Yes, sir.

Q When you arrived at the place of the incident what did you do?

A He pointed to the fish basin.

Q Can you identify this fish basin which you said pointed to you by Arnel Alicando?

A Yes, sir.

Q Please point?

A (Witness pointing to the fish basin already marked as Exhibit "H".)

Q Did you ask the accused what he did with this fish basin?

A I asked the accused what he did with the fish basin and he answered that he used the
fish basin to cover Khazie Mae Penecilla when she was already dead.

Pros. Fama:
Q You mean to say to conceal the crime?

A Yes, sir.

Q What else aside from this fish basin, what else did you recover?

A At around 7 o'clock in the evening he further pointed to us the old mat and
the  pillowwherein he layed the victim Khazie Mae Penecilla

Q You mean to say that you returned back to the scene of the incident that time?

A It was already night time and it was only Kagawad Rodolfo Ignacio, my companion,
who went to the place of the incident.

Q You mean to say you were verbally instructed by the accused?

A Yes, sir.

Q In what particular place did you recover those things?

A Inside the room where he raped the child.

Q Whose house is that?

A The house of Imelda Alicando.

Q The wife of Romeo Alicando?

A Yes, sir.

Q In what particular place is that situated?

A Inside the room where the accused was sleeping at Rizal-Palapala.

Pros. Fama:

Q You mean to say inside that room the victim was raped by the accused?

A Yes, sir.

Q Can you point that pillow which you said you recovered inside the room of Imelda
Alicando?

A Yes, sir.

Q And the mat?

A (Witness taking out from the fish basin the mat and pillow.)

Q Did you find something on the pillow?

A The pillow have bloodstain in the middle.

. . This was already marked as Exhibit "J", Your Honor and the mat as Exhibit "I".

Q Aside from this what did you recover from the place of incident?
 A On June 14, 1994, at about 10:00 o'clock in the morning the accused Arnel Alicando
further informed me that he kept the gold earring of the victim and her clothes inside the
room of the house of Imelda Alicando.

Q Where?

A I saw the clothes of Khazie Mae Penecilla inside the room where the rape took place
hanged on the clothes line. And I found the pair of earring at the bamboo post of the
fence.

Court:

Q Where is that bamboo post of the fence situated?

A Around the fence of Imelda Alicando situated at the from gate on the right side.

Pros. Fama:

Q You mean to say you returned back on June 14, you recovered the items accompanied
by the accused?

A No more, I only followed his direction.

Q He made verbal direction to you?

A Yes, sir.

Q Can you please show us the white t-shirt?

A (Witness taking out a white t-shirt from the fish basin.)

Q Please examine that white t-shirt?

A The t-shirt have a bloodstain.

We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian
exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the
celebrated case of Nardone v. United States. 18 According to this rule, once the primary source (the "tree") is
shown to have been unlawfully obtained, any secondary or derivative evidence (the " fruit " ) derived from it is also
inadmissible. 19 Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas
the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at
least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the
principle that evidence illegally obtained by the State should not be used to gain other evidence because the
originally illegally obtained evidence taints all evidence subsequently obtained. 20 We applied this exclusionary
rule in the recent case of People vs.Salanga, et al., 21 a ponencia of Mr. Justice Regalado. Salanga was the
appellant in the rape and killing of a 15-year old barrio lass. He was, however, illegally arrested. Soldiers took him
into custody. They gave him a body search which yielded a lady's underwear. The underwear was later identified
as that of the victim. We acquitted Salanga. Among other reasons , we ruled that "the underwear allegedly taken
from the appellant is inadmissible in evidence, being a so-called "fruit of the poisonous tree." 22

But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the trial court erred in holding
that they "strongly corroborated the testimony of Luisa Rebada that the victim was raped." For one, there was no basis for
the trial court to conclude that the stains on the pillow and t-shirt were human bloodstains. The pillow and the t-shirt were
not examined by any expert. To hold that they were human bloodstains is guesswork. For another, there was no
testimony that the stains were caused by either the blood of the appellant or the victim. In addition, there was no
testimony that the t-shirt was the one worn by the appellant when he allegedly committed the crime. It must also be noted
that it is not unnatural for appellant to have bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla
himself, the father of the victim, testified he knows the appellant "becausehe used to accompany me during butchering of
animals." 23
The burden to prove that an accused waived his right to remain silent and the right to counsel before making a confession
under custodial interrogation rests with the prosecution. It is also the burden of the prosecution to show that the evidence
derived from confession is not tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and
convincing evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides only one mode of waiver — the
waiver must be in writing and in the presence of counsel. In the case at bar, the records show that the prosecution utterly
failed to discharge this burden. It matters not that in the course of the hearing, the appellant failed to make a timely
objection to the introduction of these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy
burden of proof that rested on the prosecution.

There is no and there ought not to be any disagreement on basic principles. The Court should be concerned with the
heinousness of the crime at bar and its despicable perpetration against a 4-year old girl, an impersonation of innocence
itself. The Court should also be concerned with the multiplication of malevolence in our midst for there is no right to be
evil, and there are no ifs and buts about the imposition of the death penalty as long as it remains unchallenged as part of
the laws of our land. These concerns are permanent, norms hewn in stone, and they transcend the transitoriness of time.

Be that as it may, our commitment to the criminal justice system is not only to convict and punish violators of our laws. We
are equally committed to the ideal that the process of detection, apprehension, conviction and incarceration of criminals
should be accomplished with fairness, and without impinging on the dignity of the individual. In a death penalty case, the
Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction will leave a lasting stain in our
escutcheon of justice.

In sum, the Court cannot send the appellant to die in the electric chair on the basis of the procedural irregularities
committed by, and the inadmissible evidence considered by the trial court. In Binabay vs. People, et al., 24ponencia of Mr.
Chief Justice R. Concepcion, this Court held that no valid judgment can be rendered upon an invalid arraignment. Since in
the case at bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness to the
appellant, and in justice to the victim, the case has to be remanded to the trial court. for further proceedings. There is no
philosophy of punishment that allows the State to kill without any semblance of fairness and justice.

IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel Alicando of the crime of Rape
with Homicide and sentencing him to suffer the penalty of death is annulled and set aside and the case is remanded to the
trial court for further proceedings. No costs.

SO ORDERED.