Pemberton vs. De Lima

A petition for certiorari assailing the Secretary of Justice's probable-cause determination is moot and academic once the trial court independently finds probable cause and issues a warrant of arrest; the executive determination becomes irrelevant to the trial. Direct resort to the Supreme Court is improper absent special and important reasons, and probable cause in preliminary investigation may rest on circumstantial evidence.

Petitioner Joseph Scott Pemberton is a member of the United States Marine Corps; private respondent Marilou Laude y Serdoncillo was a transgender woman. The case concerns the executive determination of probable cause during preliminary investigation and the Secretary of Justice's review of the City Prosecutor's action, as distinguished from the trial court's judicial determination of probable cause. The procedural vehicle is a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure.

On October 17, 2014, Joseph Scott Pemberton received a subpoena from the City Prosecutor of Olongapo City giving him 10 days from receipt to file a counter-affidavit in response to a complaint for murder filed by the Philippine National Police-Olongapo City Police Office and Marilou Laude y Serdoncillo. Pemberton is a member of the United States Marine Corps; Laude was a transgender woman. The complaint arose from the killing of Laude.

On October 21, 2014, Laude filed an Omnibus Motion asking the City Prosecutor to issue subpoenas to Pemberton to present himself for the lifting of his fingerprint and buccal swabs during the clarificatory hearing set on November 5, 2014, and to the Philippine National Police Crime Laboratory to assign forensic personnel to gather fingerprints and buccal swabs from Pemberton and subject him to forensic examination and analysis, including DNA testing. Pemberton opposed this on October 27, 2014. He also filed a Manifestation and Omnibus Motion for clarification, to declare absence of probable cause for murder or any other crime, and, in the alternative, to reduce the charge to homicide. During the preliminary investigation on October 27, 2014, the City Prosecutor stated that Pemberton's right to file a counter-affidavit was deemed waived.

In an Order dated October 29, 2014, the City Prosecutor directed the Philippine National Police Crime Laboratory to obtain latent fingerprint and buccal swabs from Pemberton and to submit the results of the forensic examination within three weeks from the date of actual collection of the specimens. Pemberton filed a Manifestation with Omnibus Motion dated November 4, 2014, to determine probable cause on the basis of evidence submitted as of October 27, 2014, and for reconsideration of the October 29, 2014 Order. The City Prosecutor continued to evaluate the evidence and conducted ocular inspections in connection with the preliminary investigation.

Through a Resolution dated December 15, 2014, the City Prosecutor found probable cause against Pemberton for the crime of murder. On the same day, an Information for murder was filed against Pemberton before the Regional Trial Court of Olongapo City. The case was docketed as Criminal Case No. 865-2014 and raffled to Branch 74 of the Regional Trial Court. The trial court issued a warrant of arrest. On December 18, 2014, Pemberton filed his Petition for Review before the Department of Justice. On the same day, he filed a Motion to Defer the Proceedings before the Regional Trial Court. In a Resolution dated January 27, 2015, Secretary De Lima denied Pemberton's Petition for Review and stated that based on the evidence on record, there was no reason to alter, modify, or reverse the resolution of the City Prosecutor of Olongapo City. Pemberton's Motion for Reconsideration was likewise denied for lack of merit in a Resolution dated February 20, 2015.

The City Prosecutor's probable-cause finding, later affirmed by Secretary De Lima, rested on evidence that the killing of Laude was confirmed; CCTV footage of Ambyanz showed Gelviro, Laude, and Pemberton leaving the club together; the testimonies of Gelviro and Gallamos positively identified Pemberton as the person last seen with Laude on the night he died; a general physical examination showed abrasions and light scratches on different parts of Pemberton's body; his latent print was found on one of the condoms at the crime scene; and fellow Marine servicemen who were with him that night gave testimonies. The physical examination of Pemberton and Laude's cadaver, as well as the ocular inspection of the crime scene, were found to demonstrate the qualifying circumstances of treachery, abuse of superior strength, and cruelty. The autopsy results and the examination conducted by the NCIS indicated pressure marks and a circular purplish discoloration around Laude's neck, contusion of the external portion of the right horn of his larynx, and hematoma on the upper inner portions of the larynx below the glottis; the manner of attack rendered Laude unable to defend himself or retaliate. The autopsy also showed that Laude died of asphyxia due to drowning and strangulation, and the evidence indicated that while he was still breathing, Pemberton drowned him by forcefully submerging his head in the water inside the toilet bowl.

The Regional Trial Court later convicted Pemberton of homicide, as manifested by respondent and noted by the Court. Pemberton filed the present Petition for Certiorari with application for the ex-parte issuance of a temporary restraining order and/or writ of preliminary injunction.

• Grave Abuse of Discretion — Additional Evidence: Petitioner argued that Secretary De Lima took into account additional evidence which the City Prosecutor allegedly had no authority to receive and which Pemberton had no opportunity to address and rebut, thereby denying him due process of law.
• Grave Abuse of Discretion — No Probable Cause: Petitioner argued that Secretary De Lima found probable cause to charge him with the crime of murder when the evidence on record did not support the existence of probable cause to indict him with either homicide or murder.
• Qualifying Circumstances: Petitioner argued that Secretary De Lima found that the killing was attended with the qualifying circumstances of treachery, abuse of superior strength, and cruelty despite prevailing jurisprudence requiring the elements of these qualifying circumstances to be established by direct evidence.
• Direct Resort to the Supreme Court: Petitioner claimed that a direct invocation of the Supreme Court's original jurisdiction was necessary because the case against him had been scheduled for an expedited trial and, without the Court's intervention, the trial might conclude while the issue of whether Secretary De Lima committed grave abuse of discretion remained unsettled.
• Innocence and Lack of Direct Evidence: Petitioner maintained his innocence and pointed out the lack of any direct evidence linking him to the crime.

• Procedural Infirmity — Errors of Judgment: Respondent Secretary De Lima, through the Office of the Solicitor General, pointed out that the Petition is procedurally infirm because it assails the appreciation of evidence and law by Secretary De Lima, which are errors of judgment that cannot be remedied by a writ of certiorari.
• Hierarchy of Courts: Respondent argued that by filing the Petition before the Supreme Court and not the Court of Appeals, Pemberton violated the principle of hierarchy of courts.
• Moot and Academic: Respondent argued that the case is moot and academic, considering that the Regional Trial Court has convicted Pemberton for the crime charged.
• Conviction for Homicide: Respondent manifested that Pemberton had been convicted of homicide.

• Grave Abuse of Discretion and Due Process: Whether respondent Secretary Leila M. De Lima committed grave abuse of discretion in sustaining the finding of probable cause against petitioner Joseph Scott Pemberton, thereby denying petitioner due process of law.
• Hierarchy of Courts: Whether petitioner violated the principle of hierarchy of courts by filing his Petition before the Supreme Court instead of the Court of Appeals.
• Moot and Academic: Whether this case has been rendered moot and academic.

• Grave Abuse of Discretion and Due Process: No. The Secretary of Justice's finding of probable cause was based on a careful evaluation of evidence and was not rendered with grave abuse of discretion; petitioner was afforded due process because he had opportunities to be heard.
• Hierarchy of Courts: Yes. Petitioner violated the hierarchy of courts; direct resort to the Supreme Court was not justified because there were no special and important reasons, and the Court of Appeals had concurrent original jurisdiction under Rule 65.
• Moot and Academic: Yes. The Petition was moot and academic because the trial court had already made an independent judicial determination of probable cause and issued a warrant of arrest; the executive determination of probable cause became irrelevant. The conviction of homicide was well-taken but not necessary to moot the petition.

• Grave Abuse of Discretion and Due Process: The Court defined grave abuse of discretion as capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, or the exercise of power in an arbitrary or despotic manner by reason of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Probable cause in preliminary investigation need not be based on clear and convincing evidence of guilt; it implies probability of guilt, requires more than bare suspicion but less than evidence which would justify a conviction, and needs only to rest on evidence showing that more likely than not a crime has been committed by the suspect. The Court found no basis to doubt that Secretary De Lima judiciously scrutinized the evidence. The resolution she affirmed relied on the confirmed killing of Laude; CCTV footage of Ambyanz showing Gelviro, Laude, and Pemberton leaving the club together; the testimonies of Gelviro and Gallamos identifying Pemberton as the person last seen with Laude on the night he died; abrasions and light scratches on Pemberton; his latent print on one of the condoms at the crime scene; and the testimonies of fellow Marine servicemen. The physical examination and autopsy were found to demonstrate treachery, abuse of superior strength, and cruelty. The Court held that absence of direct evidence does not preclude a finding of probable cause, because the prosecution may resort to circumstantial evidence; crimes are usually committed in secret and under conditions where concealment is highly probable. Treachery attended because Pemberton choked Laude from behind, with pressure marks and laryngeal injuries, rendering Laude unable to defend himself or retaliate; the suddenness of the attack and the absence of provocation supported treachery. Abuse of superior strength was shown by Pemberton's membership in the United States Marine Corps, with its rigorous physical and mental training, and the manifest physical disparity between him and Laude, as evidenced by multiple abrasions and contusions. Cruelty was shown by drowning Laude in the toilet bowl while he was still breathing, causing excessive suffering and degrading him. On due process, the Court explained that the essence of due process is a reasonable opportunity to be heard; what the law prohibits is the absolute absence of the opportunity to be heard. Pemberton had multiple opportunities to controvert the evidence, was directed to file a counter-affidavit, and could seek reconsideration of the initial finding of probable cause. His cry of due process failed because he squandered these chances by his own fault or choice. Thus, no grave abuse of discretion was committed.

• Hierarchy of Courts: The Court reiterated that the hierarchy of courts must be observed. The Supreme Court is a court of last resort and should not be burdened with causes that are within the competence of lower courts. The Court of Appeals has concurrent original jurisdiction over petitions for certiorari under Rule 65 and can review petitioner's case. A direct invocation of the Supreme Court's original jurisdiction to issue extraordinary writs should be allowed only when there are special and important reasons clearly and specifically set out in the petition. The Court enumerated exceptions from The Diocese of Bacolod vs. Commission on Elections: genuine issues of constitutionality that must be addressed at the most immediate time; issues of transcendental importance; cases of first impression; constitutional issues better decided by the Supreme Court; the time element; review of the act of a constitutional organ; lack of any other plain, speedy, and adequate remedy in the ordinary course of law; and questions dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or where the orders complained of were patent nullities, or the appeal was clearly an inappropriate remedy. Not all exceptions must concur. In this case, petitioner's argument that the expedited trial necessitated direct resort was bereft of merit. It was not clear why any action by the Court of Appeals could not be considered sufficient for review. The possibility that the trial would conclude was not a reason special and important enough to invoke the Supreme Court's original jurisdiction. Once there has been a judicial finding of probable cause, an executive determination of probable cause is irrelevant; even assuming grave abuse of discretion tainted the executive finding, it would have no effect in the trial. Thus, petitioner violated the hierarchy of courts.

• Moot and Academic: The Court distinguished executive from judicial determination of probable cause. Executive probable cause is made during preliminary investigation by the public prosecutor, who has broad discretion to determine whether probable cause exists and to charge those believed to have committed the crime. Judicial probable cause is made by the judge to ascertain whether a warrant of arrest should be issued. The courts do not interfere with the prosecutor's conduct of a preliminary investigation. Once the information is filed in court, the court acquires jurisdiction of the case, and any motion to dismiss or to determine the accused's guilt or innocence rests within the sound discretion of the court. In De Lima vs. Reyes, the Court held that a petition for certiorari questioning the validity of the preliminary investigation in any other venue is rendered moot by the issuance of a warrant of arrest and the conduct of arraignment. Here, the trial court had already determined, independently of any finding or recommendation by the prosecutors, that probable cause existed for the issuance of a warrant of arrest against Pemberton. Probable cause had been judicially determined, and jurisdiction over the case had transferred to the trial court. A petition for certiorari questioning the validity of the preliminary investigation was therefore rendered moot. The Court also noted that respondent's manifestation regarding Pemberton's conviction for homicide was well-taken, but even without the conviction, the Petition had already been rendered moot and academic by the judicial finding of probable cause in the form of the Regional Trial Court's issuance of an arrest warrant.

• Grave abuse of discretion — Defined as capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, or the exercise of power in an arbitrary or despotic manner by reason of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The Court applied this standard to the Secretary of Justice's probable-cause determination and found none.
• Probable cause in preliminary investigation — Probable cause need not be based on clear and convincing evidence of guilt; it implies probability of guilt, requires more than bare suspicion but less than evidence which would justify a conviction, and needs only to rest on evidence showing that more likely than not a crime has been committed by the suspect. The Court held that the Secretary's finding satisfied this standard.
• Circumstantial evidence in probable cause — Absence of direct evidence does not preclude a finding of probable cause; the prosecution may resort to circumstantial evidence because crimes are usually committed in secret and under conditions where concealment is highly probable. The Court upheld the probable-cause finding based on circumstantial evidence.
• Due process in preliminary investigation — The essence of due process is a reasonable opportunity to be heard; what the law prohibits is the absolute absence of the opportunity to be heard. A party who is given several opportunities but squanders them by his own fault or choice cannot claim denial of due process. The Court found Pemberton had such opportunities.
• Hierarchy of courts — Direct resort to the Supreme Court's original jurisdiction to issue extraordinary writs is allowed only when special and important reasons are clearly and specifically set out in the petition. The Court of Appeals has concurrent original jurisdiction over Rule 65 petitions. The Court held Pemberton violated this doctrine.
• Exceptions to hierarchy of courts — The Court enumerated exceptions: genuine constitutional issues, transcendental importance, first impression, constitutional issues better decided by the Supreme Court, time element, review of the act of a constitutional organ, no other plain speedy adequate remedy, and questions dictated by public welfare and advancement of public policy, broader interest of justice, patent nullities, or clearly inappropriate appeal. Not all must concur. None applied to Pemberton.
• Executive vs. judicial determination of probable cause — Executive probable cause is made by the public prosecutor during preliminary investigation and is within his broad discretion; judicial probable cause is made by the judge to determine whether a warrant of arrest should issue. Once the trial court independently finds probable cause and issues a warrant, the executive determination becomes irrelevant.
• Moot and academic — A petition for certiorari questioning the validity of the preliminary investigation is rendered moot by the issuance of a warrant of arrest and the conduct of arraignment. The Court held the petition moot because the trial court had issued a warrant of arrest and arraignment had been conducted.
• Treachery — There is treachery when (1) the means of execution give the persons attacked no opportunity to defend themselves or retaliate, and (2) the means of execution were deliberately or consciously adopted. The Court found probable cause supported treachery because Pemberton choked Laude from behind, rendering him unable to defend himself or retaliate.
• Abuse of superior strength — In appreciating this circumstance, it is necessary to evaluate the physical conditions of the protagonists, the arms or objects employed, and the incidents and episodes constituting the total development of the event. The Court found probable cause supported it based on Pemberton's Marine Corps training and physical disparity with Laude.
• Cruelty — There is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing unnecessary physical pain in the consummation of the criminal act; the test is whether the wrong was deliberately and sadistically augmented or the victim's suffering inhumanly increased or his person or corpse outraged. The Court found probable cause supported cruelty based on drowning Laude in the toilet bowl while he was still breathing.

• "Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon probable cause of reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction. A finding of probable cause needs only to rest on evidence showing that more likely than not, a crime has been committed by the suspect." — This passage defines the quantum of evidence for probable cause in preliminary investigation and is the standard the Court applied in rejecting Pemberton's grave-abuse claim.
• "The essence of due process is that a party is afforded a reasonable opportunity to be heard in support of his case; what the law abhors and prohibits is the absolute absence of the opportunity to be heard. When the party seeking due process was in fact given several opportunities to be heard and to air his side, but it was by his own fault or choice that he squandered these chances, then his cry for due process must fail." — This passage states the due-process standard in preliminary investigation and explains why Pemberton's claim of denial of due process failed.
• "A direct invocation of this Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons clearly and specifically set out in the petition." — This passage states the controlling rule on hierarchy of courts and direct resort to the Supreme Court's original jurisdiction.
• "A petition for certiorari questioning the validity of the preliminary investigation in any other venue is rendered moot by the issuance of a warrant of arrest and the conduct of arraignment." — This passage is the ratio for the Court's holding that the petition was moot and academic once the trial court issued a warrant of arrest and arraignment proceeded.

• Alafriz vs. Nable, 72 Phil. 278 (1941) — Defined grave abuse of discretion; cited as the standard for determining whether certiorari lies.
• Ching vs. Secretary of Justice, 517 Phil. 151 (2006) — Explained the evidence required for probable cause; held that probable cause need not be based on clear and convincing evidence.
• Chan vs. Formaran III, et al., 572 Phil. 118 (2008) — Reiterated the definition of probable cause as facts and circumstances leading a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty.
• The Diocese of Bacolod vs. Commission on Elections, G.R. No. 205728, January 21, 2015 — Explained the role of the Supreme Court and the doctrine of hierarchy of courts, and enumerated exceptions allowing direct resort.
• Bañez, Jr. vs. Concepcion, 693 Phil. 399 (2012) — Explained the necessity of the hierarchy of courts and that the Court may act on extraordinary writs only when absolutely necessary or serious and important reasons exist.
• Vergara vs. Suelto, 240 Phil. 719 (1987) — Cited for the policy that original jurisdiction to issue extraordinary writs should generally be exercised relative to actions before the Court of Appeals or other tribunals not controllable by the Court of Appeals.
• De Lima vs. Reyes, G.R. No. 209330, January 11, 2016 — Held that a petition for certiorari questioning the validity of the preliminary investigation is rendered moot by the issuance of a warrant of arrest and the conduct of arraignment.
• People vs. Castillo and Mejia, 607 Phil. 754 (2009) — Distinguished executive from judicial determination of probable cause and explained that once the information is filed, jurisdiction over the case transfers to the trial court.
• Crespo vs. Mogul, 235 Phil. 465 (1987) — Held that once a complaint or information is filed in court, any disposition of the case as to dismissal, conviction, or acquittal rests in the sound discretion of the court; the fiscal cannot impose his opinion on the trial court.
• Suyan vs. People, G.R. No. 189644, July 2, 2014 — Cited for the essence of due process as a reasonable opportunity to be heard and that squandering such opportunities by one's own fault defeats a due-process claim.

• Rule 65, 1997 Rules of Civil Procedure — Governs petitions for certiorari. The Court noted that the Court of Appeals has concurrent original jurisdiction under this Rule, and that direct resort to the Supreme Court is allowed only upon special and important reasons.
• Rule 110, Section 1, Rules of Court — Cited in the quoted discussion of Crespo vs. Mogul regarding the institution of criminal actions; the filing of the complaint or information initiates the criminal action and vests jurisdiction in the court.

Carpio (Chairperson), Brion, Del Castillo, and Mendoza, JJ., concur.