[G.R. No. 135894. February 8, 1999]

ROMEO GINETA vs. PEOPLE OF THE PHIL.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information is a resolution of this Court dated FEB 8, 1999.

G.R. No. 135894 (Romeo Gineta vs. People of the Philippines.)

Petitioner-accused files this petition for review on certiorari assailing the decision dated October 13, 1998 of the Court of Appeals in CA-G.R. CR No. 17189 affirming his conviction by the trial court for the crime of Homicide for which he was sentenced to suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum and to pay the heirs of the victim the sum of P50,000.00 as indemnity and P23,000.00 as actual damages, plus costs of suit.1 [In a decision dated July 27, 1994.]

Petitioner filed with this Court a "Notice of Appeal Requesting Extension of Time" on October 30, 1998, alleging inter alia receipt of the assailed decision on October 20, 1998 and praying for an extension of time of sixty (60) days within which to file his petition. Noting that a notice of appeal is not required when appealing from the decision of the Court of Appeals,2 [Section 1, Rule 45 (Appeal by certiorari to the Supreme Court) provides that: "A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court, or the other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth."] we treat the pleading filed as a motion for extension of time.

Petitioner subsequently filed his petition for review on certiorari on December 29, 1998.

We deny the motion for extension of time dated October 30, 1998 (1) for non-compliance with Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure, petitioner having failed to accompany the motion with an explanation why personal service was not made on respondents, and (2) for non-compliance with Sec. 13, Rule 13 of the 1997 Rules of Civil Procedure, petitioner having failed to submit proof of service of the motion, i.e., an affidavit of service.

Considering the denial of petitioner's motion for extension of time, we deny the petition for review on certiorari filed by petitioner on December 29, 1998 for late filing, as it was filed beyond the reglementary period of fifteen (15) days fixed in Section 2, Rule 45 in relation to Sec. 5(g), Rule 56 of the 1997 Rules of Civil Procedure.

Even considering the arguments raised by petitioner, the petition must fail. Petitioner assigns the following errors: "(a) That the lower courts erred in convicting the accused without the Mandatory Preliminary Investigation he started to raise in the trial court; (b) That the lower court erred by admitting the testimony of Jeanlyn Balagtas who only surfaced in January 4, 1993; x x x (c) That the accused was convicted of the stabbing of the deceased (a wanted person) an act he did not commit."3 [At p. 4 of the Petition, Rollo, p. 11.]

We see no reversible error. On the first ground,4 [See par. 16 of the Petition, Rollo, p. 10.] the appellate court emphasized that the Information filed against the petitioner, which forms part of the record of the case, includes a certification by 2nd Assistant Provincial Prosecutor Francisco B. Ibay to the effect that a preliminary investigation was indeed held. We agree with the appellate court that the prosecutor's certification, absent contrary proof, carries the presumption of regularity. The appellate court also correctly stated that petitioner is deemed to have waived his right to preliminary investigation by his failure to invoke the right prior to or at least at the time of his plea.5 [Citing cases at p. 10 of the CA Decision dated October 13, 1998. Also Reynaldo Gonzales y Rivera v. Court of Appeals and People of the Philippines, G.R. No. 95523, August 18, 1997.]

Petitioner again assails, as he did in the appellate court, the testimony of Jeanlyn Balagtas. We agree with the appellate court that "the testimony of Jeanlyn Balagtas has the badges of truthfulness,"6 [At p. 7, CA Decision, Rollo, p. 22, quoting RTC Decision.] with the alleged inconsistencies as merely minor which are rather the manifestations of truth and sincerity.7 [At p. 6, CA Decision, Rollo, p. 21, citing cases.] Further, no ill motive can be ascribed to Jeanlyn.8 [At p. 7, CA Decision, See par. 13 of the Petition, Rollo, pp. 9-10.]

As pointed out by the appellate court, Jeanlyn's identification of petitioner as the victim's assailant was corroborated by another witness, a certain Ana Reyes; materially, the defense had entered into a stipulation anent such corroboration.9 [At p. 3, CA Decision, Rollo, p. 18, citing RTC Decision, p. 70 of the RTC rollo.] The identification made was, furthermore, trustworthy considering that Jeanlyn had known petitioner for some time prior to the incident, and considering that the scene of the crime was well-lighted.10 [At p. 4, CA Decision, Rollo, p. 19, referring to TSN, September 1, 1993.]

The delay in giving her written statement, fallaciously given consequence by petitioner in his defense, does not erode Jeanlyn's credibility, as the records indicate that Jeanlyn went to the police to give her narration of the events on the evening of the very same day of the crime. The delay was also sufficiently explained by the prosecution-Jeanlyn was able to locate the investigating officer only on January 4, 1994 to give a written statement.

Anent the third error, we agree with the appellate court that the guilt of the petitioner was proved by the prosecution beyond reasonable doubt. Petitioner's defense of alibi11 [See par. 15 of the Petition, Rollo, p. 10.] failed, as he failed to show that it was physically impossible for him to be at the scene of the crime at the time of the stabbing, and in the face of the positive identification of him as the assailant.12 [At p. 9, CA Decision, Rollo, p. 24.] Moreover, petitioner's reliance on the testimony of Dr. Emmanuel Aranas, the physician who performed the autopsy on the victim, is misplaced. Petitioner's theory is that there were two (2) assailants using two different weapons stabbed the victim because the two stab wounds differed significantly in depth.13 [See par. 14 of the Petition, Rollo, p. 10.] It must be pointed out that Dr. Aranas testified that the difference in the depth of the wounds of the victim is attributable to the varying strength applied in inflicting the wounds.14 [At p. 7, CA Decision, Rollo, p. 22, referring to TSN, August 9, 1993, pp. 27-28.]

CONSIDERING THE FOREGOING, the Court Resolved to:

(1) DENY the motion for extension of time dated October 30, 1998 (a) for non-compliance with Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure, petitioner having failed to accompany the motion with an explanation why personal service was not made on respondents, and (b) for non-compliance with Sec. 13, Rule 13 of the 1997 Rules of Civil Procedure, petitioner having failed to submit proof of service of the motion, i.e., an affidavit of service.

(2) DENY the petition for review on certiorari filed by petitioner on December 29, 1998, considering the denial of petitioner's motion for extension of time, for late filing, as it was filed beyond the reglementary period of fifteen (15) days fixed in Section 2, Rule 45 in relation to Sec. 5(g), Rule 56 of the 1997 Rules of Civil Procedure, and even if the petition was timely filed, the same must be denied on the ground that there is no reversible error on the part of the appellate court.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court