People of the Philippines vs. Anthony Escordial

Any identification of an uncounseled accused made in a police line-up or show-up after the start of custodial investigation is inadmissible as evidence against him, because such confrontations are critical stages of the prosecution at which the right to counsel attaches; the inadmissibility of the out-of-court identification does not, however, automatically render the in-court identification inadmissible as fruit of the poisonous tree, and the latter must still be tested for reliability against the requirement of proof beyond reasonable doubt.

Anthony Escordial was employed as a dishwasher, and later as a cashier, at Coffee Break Corner, a café in Bacolod City owned by Fidel Hinolan and situated about two houses away from the boarding house owned by Pacita Aguillon at No. 17 Margarita Extension, Libertad Street, Purok Amelia 2, Barangay 40, Bacolod City. Michelle Darunday, a civil engineer at the City Engineer's Office, boarded in that house together with Erma Blanca and Ma. Teresa Gellaver. The charges of rape and robbery with rape were filed under Article 294, paragraph 1 of the Revised Penal Code, as amended, which at the time carried the capital penalty, and the judgment imposing death reached the Supreme Court on review. The constitutional backdrop consists of Article III, Sections 2 and 12(1) of the 1987 Constitution and Rule 113, Section 5 of the Revised Rules of Criminal Procedure, which define the limits of warrantless arrest and custodial investigation.

Michelle Darunday, a civil engineer at the City Engineer's Office in Bacolod City, boarded in a house owned by Pacita Aguillon at No. 17 Margarita Extension, Libertad Street, Purok Amelia 2, Barangay 40, Bacolod City, sharing a ground-floor bedroom with Erma Blanca and Ma. Teresa Gellaver. About two houses away stood Coffee Break Corner, a café owned by Fidel Hinolan, where Anthony Escordial worked as a dishwasher and later as a cashier.

At around eight o'clock in the evening of December 27, 1996, Jason Joniega, Mark Esmeralda, and Mark Lucena were playing inside a jeepney parked in front of the boarding house when a man seated inside told them to go home lest they meet an accident; Joniega and Esmeralda later identified the man as Escordial. Inside the boarding house, Teresa went to sleep at about 9:30 p.m., while Michelle and Erma watched television before going to bed, sleeping on two beds placed side by side with Teresa nearest the wall, Michelle in the middle, and Erma on the other side. Erma was awakened by the presence of a man whose head was covered with a t-shirt and who carried a knife about four inches long; he warned her not to shout and asked where her money was. Michelle, by then awake, told Erma to give the man her money so he would leave. Erma handed over P300.00, but the man demanded all of it and threatened to kill her if he found more, prompting her to surrender the rest, for a total of P500.00; Michelle gave P3,100.00, while Teresa, whose money was in another room, was not allowed to leave the bedroom. The man then handed a t-shirt to Erma to blindfold Teresa and another to Michelle to blindfold Erma, and blindfolded Michelle himself. He touched Michelle in different parts of her body, ordered her to remove her t-shirt on pain of death, and tried to insert his penis into her vagina; failing, he inserted two fingers, tried again without success, then took soapy water which he inserted into her vagina, after which he finally succeeded. Michelle felt great pain and pleaded with him to stop, but he desisted only after satisfying his lust. Although blindfolded, she felt that her attacker had no cover on his face and that his chest and nape were rough. Erma, for her part, claimed she could see through her blindfold and saw the man's face by the light coming from a lamp post outside, which filtered through the window panes. After the rape, the man sat on the bed and conversed with the three women, telling Michelle that he used to make catcalls at her and call her a beautiful girl whenever she passed by his place, that he was from Hinigaran, and, upon learning that Michelle was from Mindanao, cursing; he also mashed the breasts of Erma and Teresa. He then told Michelle he wanted sex again, and when she pleaded, threatened to call his companions and said it would be worse for her if they did the raping. He ordered her to lie on her stomach and inserted his penis into her anus. When he was through, he gave her a blanket, returned a pair of earrings he had taken, and left, warning the women not to report the matter or he would kill them.

Mark Esmeralda testified that from his second-floor bedroom he saw a man in denim shorts coming out of the boarding house at about 12:30 in the morning, nibbling something and then jumping over the fence; thirty minutes later he told his parents, who went out to check. The three women, too frightened to seek help earlier, told their neighbor Tiyo Anong that a man had come to the house and robbed them, and called Allan Aguillon, son of the boarding house owner, who reported the incident to the police. When the policemen arrived, Michelle said she could identify the assailant only by his voice and his eyes; accompanied by the police, the three women searched the Libertad area but did not find him. At the police station, at Michelle's request, Erma and Teresa did not tell the others that Michelle had been raped. Upon returning home, Michelle found her aunt and uncle, embraced her aunt, and recounted her ordeal; she was taken back to the police headquarters and referred to the Women's Desk to report the rape, reaching her aunt's house at around five to six o'clock in the evening. PO3 Nicolas Tancinco, one of the responding policemen, testified that the assailant was described to him as having long hair, a rough projection on the back of his neck, small eyes, a slim body, and a brown complexion; that Michelle later returned with Allan Aguillon to report the rape; and that on December 28, 1996, he found the intruder had entered through the bathroom window and that the room beside those of the three women had been ransacked. On December 29, 1996, Tancinco learned from Esmeralda and Joniega that they had seen a man inside the jeepney at the time of the incident, and that the person Esmeralda saw inside the jeepney was the same person he later saw coming out of the boarding house. That evening, Tancinco questioned Tiyo Anong and a certain Ramie, who said the description fitted a worker at Coffee Break Corner. On January 2, 1997, Tancinco and companions interviewed the café's security guard and its owner, Fidel Hinolan, who said that Escordial was his helper and had gone home on December 27, 1996 to Barangay Miranda, Pontevedra, Negros Occidental.

At around ten o'clock in the morning of January 3, 1997, Tancinco and fellow officers, together with Michelle Darunday, Allan Aguillon, and Pacita Aguillon, went to Barangay Miranda and sought the assistance of the Pontevedra police. PO2 Rodolfo Gemarino asked a colleague to accompany them, and they found Escordial at the basketball court and "invited" him to the police station for questioning. Michelle remained at the station; when Escordial was brought there, he saw her and blushed, and she looked at him and recognized him as the man who had robbed and raped her. He was asked to take off his t-shirt, and Michelle said she just kept quiet while he tried to talk to her; according to Tancinco, however, Michelle confirmed to him that Escordial was the man, identifying him through a rough projection, or keloid, on the back of his neck and his voice. At the time of his arrest Escordial had a short haircut. Allan Aguillon took his picture at the Pontevedra police station. Barangay Captain Nestor Dojillo of Barangay Miranda testified that he followed the group to the investigating room, where Gemarino asked Michelle whether she could identify Escordial as her attacker, but she replied that she could do so only if she could see a lump on his back; when Escordial removed his t-shirt as ordered, Michelle looked at his back for identifying marks while Aguillon photographed him, and when asked whether Escordial was her attacker, she replied that she was not sure because the attacker had been wearing a mask when she was raped. The Bacolod policemen asked to bring Escordial to Bacolod City, and Dojillo and Gemarino allowed it after asking them not to harm him. Dojillo's testimony was corroborated by Gemarino, Ricardo Villaspen, and Escordial himself. At the Bacolod police station, Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda were taken one by one to the jail cell and asked to point to the person they had seen that night; they picked Escordial out of four people inside the cell. Michelle executed an affidavit dated January 4, 1997 identifying Escordial as the person who had robbed and raped her. She testified that she and her friends had gone to Coffee Break Corner sometime in September or October 1996, that on the way home Escordial approached her and asked her name, which she reluctantly gave, and that she usually passed by the café where he would often whistle at her and call her a beautiful girl, which she simply ignored.

Escordial testified that he was employed by Fidel Hinolan on January 21, 1996, started on August 6, 1996 as a dishwasher, and was later made cashier; that he went home to Pontevedra, Negros Occidental on December 24, 1996, arriving at two o'clock in the afternoon, and gave his mother the P500.00 Hinolan had paid him as a Christmas gift; and that at 5:30 p.m. he returned to Coffee Break Corner. On the evening of December 26, 1996, he asked Hinolan's permission to go home to Pontevedra until January 1997 since the restaurant would be closed, and Hinolan gave permission and paid him P600.00 salary plus a P200.00 bonus. At two o'clock in the afternoon of December 27, 1996, he took the bus home, arriving in Barangay Miranda an hour later, and gave his mother P600.00, telling her to use P400.00 for New Year's Day. He saw Elias Sombito, who told him to look for Aaron Lavilla because a cockfight derby was being held that day; he found Lavilla at the basketball court, and Lavilla's mother asked him to help bring cases of beer to the cockpit, which he did. At the cockpit, Sombito asked him to take care of his cocks; Lavilla, whom he had asked to accompany him, proceeded to the cockpit only after his basketball game. The derby ended at around nine o'clock in the evening, and at about ten o'clock that night he and Lavilla went to the latter's house and slept there. The following day, December 28, 1996, he helped Lavilla's mother with household chores, cutting grass and feeding the cocks, and he stayed in Barangay Miranda until January 3, 1997. His account of his whereabouts from December 27, 1996 to January 3, 1997 was corroborated by Elias Sombito and Aaron Lavilla. As to the circumstances of his arrest, PO2 Rodolfo Gemarino and Ricardo Villaspen testified that at around eleven o'clock in the morning of January 3, 1997, three members of the Bacolod police led by PO3 Tancinco went to the Pontevedra police headquarters to seek help in locating Anthony Escordial; although they showed their mission order, they did not show a warrant of arrest, yet Gemarino directed PO2 Gella and Villaspen, the barangay tanod commander, to help the Bacolod policemen look for him. The arresting party found Escordial at the basketball court watching a game and, after informing him that he was a suspect in a robbery case, invited him to go with them to the police headquarters. Escordial further testified that on the way to Bacolod City, Tancinco beat him and hit him with the butt of a shotgun to force him to admit liability; that because he refused, he was taken to a lodging house where he was stripped, made to lie down, and beaten with a belt; that his mouth was covered and he was taken to the bathroom where Tancinco put a knife to his neck and threatened to kill him if he refused to admit being the culprit; that a child with a covered head was later brought in to identify him but did not react; and that at the headquarters he was again maltreated, left alone in his cell tied to a chair, and later burned on the lips and tongue with a lighted cigarette. At around noon of January 6, 1997, Gemarino, Dojillo, and Villaspen, together with Escordial's grandfather, an Inspector Tamayo, and reporters from Bombo Radyo, visited him at the Bacolod police station and found him tied to a chair; he held up his hands and asked for pity, and he had a limp because his feet were injured. He was brought to the provincial hospital for x-ray and medical treatment and then returned to the police station. Lucila Jocame, Records Officer of the Corazon Locsin Montelibano Memorial Regional Hospital, identified the medical certificate showing linear abrasions and contusion hematomas on the left and right scapular areas, left lateral chest at the level of T12, right leg, right knee, left ankle, right thigh, and right peri-auricular area, with an x-ray dated January 6, 1997 showing no radiographic evidence of fracture. Jerome Jayme, General Manager of Royal Express Transport, Inc., testified that the last bus trip from Kabankalan to Bacolod on December 27, 1996 left at six o'clock in the evening and would reach Bacolod City by 7:40 to 8:00 p.m., that the trip from Kabankalan to Barangay Miranda would take one hour, and that the company's buses were not allowed to pick up passengers along the way to Bacolod City because of highway robbery.

The trial court convicted Escordial of robbery with rape and sentenced him to death. It gave credence to the prosecution witnesses' identification of Escordial and dismissed the disparity between his appearance and Michelle's description of her attacker by dwelling on the apparent roughness of his skin and the probability that Michelle had felt only the arch of the spinal cord of her assailant. It likewise found that the defense had failed to show the impossibility of Escordial's being in Bacolod on the evening of December 27, 1996, relying on the possibility of his taking a cargo truck from Pontevedra to Bacolod.

• Identity and Alibi: Accused-appellant argued that the trial court erred in disregarding his defense that he could never have been the robber-rapist who ravished Michelle Darunday on the night of December 27, 1996, because he did not have the qualities, character, and expertise of the assailant.
• Absence of Any Prior Description: He maintained that the trial court erred in concluding that the description of the assailant given by the complainant and her witnesses fitted him, when in truth no description of the assailant was ever made by anybody prior to his warrantless arrest, and the affidavits of the complainant and her witnesses were in fact drafted, executed, and signed only several days after he was brought into the custody of the Bacolod police.
• Failure to Identify at Pontevedra: He contended that the trial court erred in disregarding the testimonies of PO2 Rodolfo Gemarino, Barangay Captain Nestor Dojillo, and Ricardo Villaspen to the effect that Michelle Darunday failed to identify him during their encounter at the Pontevedra police station.
• Exclusion of Evidence from the Warrantless Arrest and Uncounseled Custodial Investigation: He argued that the trial court erred in not excluding all testimonial and documentary evidence obtained by the prosecution during his warrantless arrest and his subjection to custodial investigation without being informed of his constitutional rights, particularly his right to counsel of choice.
• Tainted Police Line-Up: He argued that the trial court erred in concluding that the prosecution witnesses positively identified him in a police line-up despite the fact that, of the persons lined up, only he was handcuffed.
• Improbability of Identification: He contended that the trial court erred in giving credence to the testimonies of the prosecution witnesses that they were able to identify the assailant by face on the very evening of December 27, 1996, given the distance, the intensity of light, and the terrifying situation, which all obscure, if not destroy, the clarity of human memory and perception.
• Alibi and Motive: He argued that the trial court erred in concluding that the defense failed to show the impossibility of his going to Bacolod on the evening of December 27, 1996 despite the overwhelming evidence submitted, by simply relying on the possibility of his taking a cargo truck from Pontevedra to Bacolod; and in concluding that he had motive to commit the crime based on the wrong premise that the defense had not refuted the complainant's allegations that he attempted to be acquainted with her and whistled at her several times.

• Legality of the Warrantless Arrest: Whether accused-appellant's arrest without a warrant was lawful, and whether the evidence obtained as a consequence thereof should have been excluded.
• Custodial Investigation and Right to Counsel: Whether accused-appellant's rights under Article III, Section 12(1) of the Constitution were violated by his custodial investigation without the assistance of counsel, and whether the out-of-court identifications made during that investigation are admissible against him.
• Credibility of the Prosecution Witnesses' Identification: Whether the prosecution witnesses' out-of-court and in-court identifications of accused-appellant were credible and reliable.
• Alibi and Proof Beyond Reasonable Doubt: Whether accused-appellant's defense of alibi deserved credence and whether the prosecution established his guilt beyond reasonable doubt.

• Legality of the Warrantless Arrest: No. The arrest was illegal, accused-appellant having been arrested a week after the crime while watching a basketball game, outside any of the instances allowed by Rule 113, Section 5 of the Revised Rules of Criminal Procedure; the illegality was nonetheless cured when he pleaded not guilty and participated in the trial without questioning the arrest.
• Custodial Investigation and Right to Counsel: Yes as to the deprivation, but no statement was obtained. Accused-appellant was deprived of his right to be informed of his rights to remain silent and to counsel, yet no inculpatory or exculpatory statement was taken from him; the out-of-court identifications made without counsel were inadmissible, but the objection was waived for failure to object timely under Rule 132, Section 36.
• Credibility of the Prosecution Witnesses' Identification: No. The out-of-court and in-court identifications of Michelle Darunday, and the testimonies of Erma Blanca, Jason Joniega, and Mark Esmeralda, were insufficient to establish accused-appellant as the perpetrator.
• Alibi and Proof Beyond Reasonable Doubt: Yes as to the alibi, and no as to proof of guilt. The corroborated alibi deserved credence given the improbabilities and uncertainties in the prosecution evidence, and the prosecution failed to meet the degree of proof beyond reasonable doubt required in criminal cases.

• Legality of the Warrantless Arrest: Article III, Section 2 of the Constitution guarantees the right of the people to be secure against unreasonable searches and seizures and provides that no warrant of arrest shall issue except upon probable cause to be determined personally by the judge. Rule 113, Section 5 of the Revised Rules of Criminal Procedure permits a warrantless arrest only (a) when, in the officer's presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has just been committed and the officer has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested committed it; and (c) when the person to be arrested is an escaped prisoner. PO3 Nicolas Tancinco admitted that he and his companions arrested accused-appellant without any warrant issued by a judge. The case fell under none of the exceptions: at the time of his arrest, accused-appellant was watching a game at a basketball court in Barangay Miranda, Pontevedra, Negros Occidental, and was neither committing nor attempting to commit a crime, nor was he an escaped prisoner. Neither did paragraph (b) apply, because the crime took place on December 27, 1996 while the arrest occurred only on January 3, 1997, a week later; the arresting officers were not present when the crime was committed and therefore could not have had personal knowledge of the facts and circumstances of its commission so as to be justified in believing accused-appellant guilty. "Personal knowledge" under paragraph (b) must be based on probable cause, meaning an actual belief or reasonable grounds of suspicion founded on actual facts supported by circumstances sufficiently strong in themselves to create the probable cause of guilt, coupled with good faith on the part of the arresting officer. The arresting officers had no reason for not securing a warrant. Nevertheless, the records showed that accused-appellant pleaded not guilty on February 25, 1997 without questioning his warrantless arrest, thereby waiving objection to its legality; any defect in the arrest is deemed cured when the accused voluntarily submits to the jurisdiction of the court, since the legality of an arrest affects only the jurisdiction of the court over the person of the accused, and the technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to culpability.
• Custodial Investigation and Right to Counsel: Article III, Section 12(1) of the Constitution entitles any person under investigation for the commission of an offense to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice, rights that cannot be waived except in writing and in the presence of counsel. It could not be denied that accused-appellant was deprived of his right to be informed of these rights, but he did not show that the police obtained from him any statement, inculpatory or exculpatory, that was used in evidence against him; the records disclosed none, and the trial court did not rely on any such statement. Accused-appellant himself testified that at no point, even under physical torture, did he admit committing the crime. No uncounseled statement was therefore obtained that should have been excluded. Of greater significance, however, was the fact that accused-appellant was never assisted by counsel from the time of his arrest in Pontevedra to his continued detention at the Bacolod police station. Although he made no statement during that period, this fact bore on the admissibility of the out-of-court identifications made by Michelle Darunday, Erma Blanca, Ma. Teresa Gellaver, Mark Esmeralda, and Jason Joniega. As a rule, an accused is not entitled to the assistance of counsel in a police line-up, such being usually not part of the custodial inquest; but these cases were different because accused-appellant, having been the focus of police attention after a certain Ramie pointed to him as the possible perpetrator, was already under custodial investigation when the out-of-court identifications were conducted. An out-of-court identification may take the form of a show-up, where the accused alone is brought face to face with the witness, or a police line-up, where the suspect is identified from a group of persons gathered for that purpose. During custodial investigation, both types have been recognized as critical confrontations of the accused by the prosecution which necessitate the presence of counsel, because their results might well settle the accused's fate and reduce the trial itself to a mere formality. Any identification of an uncounseled accused made in a police line-up, or in a show-up, after the start of the custodial investigation is inadmissible as evidence against him. Accused-appellant was identified by Michelle Darunday in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest; having been made without the assistance of counsel, these out-of-court identifications were inadmissible, and the witnesses' testimonies regarding them should have been held inadmissible as the direct result of the illegal line-up come at by exploitation of the primary illegality. Even so, because the defense failed to object immediately when these witnesses were presented or when specific questions on the matter were asked, as required by Rule 132, Section 36 of the Rules on Evidence, accused-appellant was deemed to have waived his right to object to the admissibility of those testimonies. Furthermore, the inadmissibility of the out-of-court identifications did not render the in-court identification inadmissible as fruit of the poisonous tree; that in-court identification, which formed the basis of the trial court's conviction, was not derived or drawn from the illegal arrest or as a consequence thereof, and was admissible. Whether it satisfied the requirement of proof beyond reasonable doubt was another matter.
• Credibility of the Prosecution Witnesses' Identification: The proper test is whether the prosecution established by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the line-up identification, applying the rule of United States vs. Wade that the evidence must not have been come at by exploitation of the primary illegality but by means sufficiently distinguishable to be purged of the primary taint; among the factors to be considered are the prior opportunity to observe the alleged criminal act, the existence of any pre-line-up description and the defendant's actual description, any identification prior to line-up of another person, the identification by picture of the defendant prior to the line-up, failure to identify the defendant on a prior occasion, the lapse of time between the alleged act and the line-up identification, and the conduct of the line-up. As to Michelle Darunday, her assailant's face was covered with cloth when he entered the room and she was blindfolded when she was raped; she could see only his eyes, which she described as chinito, although she testified that she could also identify his voice. Yet she claimed to have immediately recognized accused-appellant upon seeing him at the Pontevedra police station. A show-up such as that undertaken by the police has been held to be an underhanded mode of identification for being pointedly suggestive, generating confidence where there was none, activating visual imagination, and subverting the reliability of the eyewitness. Michelle knew she was going to identify a suspect; upon seeing accused-appellant escorted by Tancinco and his colleagues, she knew he was the suspect she was supposed to identify, so there could be no doubt as to what was expected of her. The situation was aggravated by the policeman's reply to accused-appellant's protestations of innocence that he was being held for rape, and by her aunt's obvious assumption of his guilt. Social psychological factors likewise increase the danger of suggestibility in a lineup confrontation: witnesses are motivated by a desire to be correct and to avoid looking foolish, feel foolish if they cannot identify anyone and may choose someone despite residual uncertainty, feel a need to reduce psychological discomfort by finding a likely target for hostility, and are highly motivated to conform to those around them, making them vulnerable to clues from the police or other witnesses. Coupled with Michelle's failure to see her assailant's face, the apparent suggestiveness of the show-up placed her credibility in doubt, and the possibility that her identification was merely planted in her mind by the circumstances surrounding the show-up and her determination to seek justice could not be disregarded. Her identification was further rendered dubious by the disparity between her description of her attacker and accused-appellant's appearance: in her affidavit of January 4, 1997 she stated that although blindfolded she could remember his voice, eyes, thin mustache, body structure, the smoothness of his hands, his mouth, the numerous keloids on his body, and his smell, yet in court she admitted that she did not see keloids on accused-appellant although she said his skin was rough, a fact corroborated by PO2 Rodolfo Gemarino, who saw no lump on his back; it appeared that accused-appellant had no such markings but only small patches not readily seen. The trial court's reliance on the roughness of his skin and the probability that Michelle felt only the arch of the spinal cord was mere speculation, and speculation and probabilities cannot take the place of proof beyond reasonable doubt. Considering her educational attainment and professional status as a civil engineer, it was improbable that she was mistaken as to what she felt on her attacker's back; a mere protrusion on the back of the neck could not possibly have been mistaken for keloids. Another circumstance casting doubt was her lack of reaction upon seeing accused-appellant at the Pontevedra police headquarters: defense witnesses Gemarino, Villaspen, and Dojillo testified that she failed to see any identifying marks on him and showed hesitation in pinpointing him as the culprit. With Gemarino a policeman, Villaspen a barangay tanod, and Dojillo a barangay captain, all were in one form or another connected with law enforcement; the prosecution having failed to ascribe any ill motive to them, and they being respectable members of the community, their testimonies deserved greater credence than Tancinco's claim that Michelle confirmed accused-appellant as her attacker. The defense evidence established that Tancinco was an abusive policeman who had made up his mind as to accused-appellant's guilt and had no compunction in doing whatever means necessary, legal or illegal, to ensure his conviction. Their testimonies coincided with Michelle's own admission that she kept quiet at the Pontevedra police station on January 3, 1997, and her reaction upon seeing the man who supposedly raped her twice in an ignominious manner was contrary to human nature. While it was possible she was filled with rage and unable to show emotion, it was equally possible that she did not immediately recognize accused-appellant and pointed to him only upon the promptings of the police and her companions; where the circumstances yield two or more inferences, one consistent with the presumption of innocence and the others compatible with guilt, the court must acquit, because the evidence does not fulfill the test of moral certainty. Both the out-of-court and in-court identification of Michelle Darunday were thus insufficient to establish accused-appellant as the perpetrator. As to Erma Blanca, who claimed she saw the assailant through her blindfold while he was raping Michelle, several circumstances showed that she did not really see the assailant and that her testimony was a mere afterthought. First, the police blotter dated December 28, 1996 prepared by PO3 Tancinco referred to an "unknown suspect" who allegedly entered the boarding house and robbed Ma. Teresa Gellaver and Michelle Darunday, which cast doubt on her credibility because she claimed to have known accused-appellant for a long time prior to December 27, 1996 and to have seen him whenever he passed by the boarding house or stayed in Tiyo Anong's store nearby; had she actually seen him that night, she had every motive as a victim herself to reveal his identity immediately, but she did not, leaving the conclusion that the blotter referred to an unknown suspect because the assailant's identity had not yet been determined when the crime was reported. Second, Erma was not taken along by the police to Pontevedra, Negros Occidental, although she claimed to have recognized accused-appellant; instead the police brought Michelle Darunday, who admitted she had not seen the assailant's face. Third, Erma's affidavit was prepared on January 4, 1997, a day after accused-appellant's arrest and more than a week after the crime, a delay that belied her claim of having seen the assailant through her blindfold, since the normal reaction of one who actually witnessed a crime and recognized the offender is to reveal it to the authorities at the earliest opportunity; delay will not affect credibility if sufficiently explained, but no explanation was given, and the most likely explanation was that she was used merely to corroborate what would otherwise have been a weak claim on the part of Michelle Darunday, the same being true of the testimonies of Jason Joniega and Mark Esmeralda.
• Alibi and Proof Beyond Reasonable Doubt: Accused-appellant's testimony that he was at the cockpit in Barangay Miranda, Pontevedra, Negros Occidental on December 27, 1996 was corroborated by Aaron Lavilla, Elias Sombito, and Nestor Dojillo. Considering the improbabilities and uncertainties surrounding the testimonies of the prosecution witnesses, the defense of alibi deserved credence. The prosecution failed to meet the degree of proof beyond reasonable doubt required in criminal cases, and the acquittal of accused-appellant was thus in order.

• Waiver of Objection to an Illegal Arrest — The legality of an arrest affects only the jurisdiction of the court over the person of the accused. Any defect in the arrest is deemed cured when the accused voluntarily submits to the jurisdiction of the court, which occurs when he pleads not guilty to the charges and participates in the trial without questioning the warrantless arrest. Consequently, if objections on this ground are waived, the fact that the arrest was illegal is not a sufficient cause for setting aside an otherwise valid judgment rendered after a trial free from error; the technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to culpability. In this case, the warrantless arrest of accused-appellant was illegal because he was arrested a week after the crime while watching a basketball game, outside the exceptions in Rule 113, Section 5, but he waived the objection by pleading not guilty on February 25, 1997 and participating in the trial.
• Right to Counsel in Out-of-Court Identification (Show-Up and Police Line-Up) — As a general rule, an accused is not entitled to the assistance of counsel in a police line-up, since such is usually not part of the custodial inquest. The rule changes once the accused has become the focus of police attention and is already under custodial investigation: an out-of-court identification, whether by show-up (the accused alone is brought face to face with the witness) or by police line-up (the suspect is identified from a group gathered for that purpose), is a "critical confrontation of the accused by the prosecution" that necessitates the presence of counsel, because its results might well settle the accused's fate and reduce the trial itself to a mere formality. Any identification of an uncounseled accused made in a police line-up, or in a show-up, after the start of the custodial investigation is inadmissible as evidence against him. Here, accused-appellant had already been pointed to by a certain Ramie as the possible perpetrator and was thus under custodial investigation when the show-up and line-up identifications were conducted without counsel, rendering them inadmissible.
• Waiver of Objection to Inadmissible Identification Testimony — Under Rule 132, Section 36 of the Rules on Evidence, a party must object immediately when the witness is presented or when a specific question is asked; failure to do so waives the right to object. Accused-appellant's failure to object when the witnesses testified on the out-of-court identifications, or when specific questions on the matter were asked, was deemed a waiver of his right to object to the admissibility of that testimony.
• Fruit of the Poisonous Tree and In-Court Identification — The inadmissibility of an out-of-court identification does not render the in-court identification inadmissible as fruit of the poisonous tree. An in-court identification that is not derived or drawn from the illegal arrest, or as a consequence thereof, is admissible as evidence against the accused. The proper test, drawn from United States vs. Wade, is whether the prosecution established by clear and convincing evidence that the in-court identification was based upon observations of the suspect other than the line-up identification — that is, whether the evidence was come at by exploitation of the primary illegality or by means sufficiently distinguishable to be purged of the primary taint. Relevant factors include the prior opportunity to observe the alleged criminal act, the existence of any pre-line-up description and the defendant's actual description, any identification prior to line-up of another person, the identification by picture of the defendant prior to the line-up, failure to identify the defendant on a prior occasion, the lapse of time between the alleged act and the line-up identification, and the conduct of the line-up. Admissibility, however, is distinct from sufficiency: the in-court identification must still satisfy proof beyond reasonable doubt.
• Suggestiveness of Show-Ups — A show-up has been held to be an underhanded mode of identification for being pointedly suggestive, generating confidence where there was none, activating visual imagination, and subverting the reliability of the eyewitness. Social psychological factors aggravate the danger of suggestibility: witnesses desire to be correct and to avoid looking foolish, may choose someone despite residual uncertainty rather than identify no one, feel a need to reduce psychological discomfort by finding a likely target for hostility, and are highly motivated to conform to those around them, making them vulnerable to clues conveyed by the police or other witnesses as to whom they suspect. In this case, Michelle Darunday knew she was going to identify a suspect, saw accused-appellant escorted by the police, heard a policeman tell him he was being held for rape, and witnessed her aunt's assumption of his guilt — circumstances that rendered her identification unreliable.
• Equipoise Rule — Where the circumstances shown to exist yield two or more inferences, one of which is consistent with the presumption of innocence while the other or others may be compatible with a finding of guilt, the court must acquit the accused, because the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction. The rule was applied to Michelle Darunday's lack of reaction at the Pontevedra show-up and to the overall identification evidence.
• Speculation Cannot Substitute for Proof Beyond Reasonable Doubt — Mere speculations and probabilities cannot take the place of the proof beyond reasonable doubt required by law. The trial court's theory that Michelle might have felt only the arch of her assailant's spinal cord, rather than the numerous keloids she described in her affidavit, was a speculation that could not sustain the conviction.
• Delay in Reporting the Crime or Identifying the Perpetrator — The normal reaction of one who actually witnessed a crime and recognized the offender is to reveal it to the authorities at the earliest opportunity. Delay in reporting the crime or identifying the perpetrator will not affect the credibility of the witness if it is sufficiently explained, but where no explanation is offered, the delay casts doubt on the witness's claim. Erma Blanca's affidavit, executed more than a week after the crime and one day after accused-appellant's arrest, was unexplained and indicated that her testimony was a mere afterthought.
• Credibility of Law Enforcement Witnesses Absent Proof of Ill Motive — Where defense witnesses are law enforcement officers and barangay officials — a policeman, a barangay tanod, and a barangay captain — and the prosecution ascribes no ill motive to them, their testimonies deserve greater credence than the testimony of an abusive policeman shown to have made up his mind as to the accused's guilt and to have resorted to any means, legal or illegal, to secure a conviction.
• Alibi as a Defense — Alibi, when corroborated and considered against improbabilities and uncertainties in the prosecution's evidence, may be credited. Accused-appellant's claim that he was at the cockpit in Barangay Miranda, Pontevedra, Negros Occidental on December 27, 1996, corroborated by Aaron Lavilla, Elias Sombito, and Nestor Dojillo, deserved credence given the weakness of the identification evidence.

• "The technicality cannot render subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to the culpability of the accused." — This passage states the rationale for the waiver rule on illegal arrests: because the legality of an arrest affects only the court's jurisdiction over the person of the accused, the defect is cured by voluntary submission to the court's jurisdiction, and the illegal arrest is not a sufficient cause for setting aside an otherwise valid judgment.
• "We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him." — This is the ratio decidendi on out-of-court identification, fixing the point at which the right to counsel attaches to show-ups and line-ups and rendering the resulting identification inadmissible.
• "A show-up, such as what was undertaken by the police in the identification of accused-appellant by Michelle Darunday, has been held to be an underhanded mode of identification for 'being pointedly suggestive, generat[ing] confidence where there was none, activat[ing] visual imagination, and, all told, subvert[ing] their reliability as [an eyewitness].'" — This passage supplies the canonical formulation of the dangers of show-up identifications and explains why Michelle Darunday's identification at the Pontevedra police station was placed in doubt.
• "[W]here the circumstances shown to exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence, while the other or others may be compatible with the finding of guilt, the court must acquit the accused: for the evidence does not fulfill the test of moral certainty and is insufficient to support a judgment of conviction." — This is the equipoise rule, the decisive standard that compelled acquittal once the identification evidence was found to admit of an inference consistent with innocence.

• United States vs. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967) — Controlling precedent on the admissibility of in-court identification following an illegal line-up; the Court adopted its "come at by exploitation of that illegality" test and its enumeration of factors for determining whether an in-court identification is purged of the primary taint.
• Gilbert vs. California, 388 U.S. 263, 18 L.Ed.2d 1178 (1967) — Cited for the rule that the testimonies of witnesses regarding out-of-court identifications should have been held inadmissible as the direct result of the illegal line-up come at by exploitation of the primary illegality.
• People vs. Macam, 238 SCRA 306 (1994) — Cited as authority that any identification of an uncounseled accused made in a police line-up after the start of custodial investigation is inadmissible as evidence against him.
• People vs. Timon, 281 SCRA 577 (1997) — Cited for the waiver rule: objections based on the irregularity of the arrest are waived by pleading not guilty and participating in trial, and the defect is deemed cured by voluntary submission to the court's jurisdiction.
• People vs. Pacistol, 284 SCRA 520 (1998) — Cited both for the waiver of objections to an illegal arrest and for the rule that the inadmissibility of an out-of-court identification does not render the in-court identification inadmissible as fruit of the poisonous tree.
• People vs. Teehankee, Jr., 249 SCRA 54 (1995) — Cited for the distinction between a show-up, where the accused alone is brought face to face with the witness for identification, and a police line-up, where the suspect is identified from a group of persons gathered for that purpose.
• People vs. Niño, 290 SCRA 155 — Cited, along with People vs. Cruz, for the holding that a show-up is an underhanded mode of identification for being pointedly suggestive and subverting the reliability of the eyewitness.
• People vs. Salazar, 277 SCRA 67 (1997) and People vs. Manzano, 248 SCRA 239 (1995) — Cited for the rule that an in-court identification not derived from the illegal arrest is admissible notwithstanding the inadmissibility of the out-of-court identification.
• People vs. Hermoso, 343 SCRA 567 (2000) — Cited for the requirement under Rule 132, Section 36 of the Rules on Evidence that objection be made immediately, failing which the right to object is waived.
• Posadas vs. Ombudsman, 341 SCRA 388 (2001), citing People vs. Doria, 301 SCRA 668 (1991) — Cited for the definition of "personal knowledge" in warrantless arrests under Rule 113, Section 5(b) as based on probable cause, meaning an actual belief or reasonable grounds of suspicion founded on actual facts and coupled with good faith.
• People vs. Sapal, 328 SCRA 417 (2000) — Cited for the equipoise rule requiring acquittal where the circumstances yield two or more inferences, one of which is consistent with the presumption of innocence.
• People vs. Padua, 215 SCRA 266 (1992), citing People vs. Nicolas, 204 SCRA 191 (1991) — Cited for the rule that mere speculations and probabilities cannot take the place of proof beyond reasonable doubt.
• People vs. Delmendo, 109 SCRA 350 (1981), with People vs. Aquino, 93 SCRA 772 (1979), People vs. Bulawin, 29 SCRA 710 (1969), People vs. Baquiran, 20 SCRA 451 (1967), and People vs. Cunanan, 19 SCRA 769 (1967) — Cited for the rule that the normal reaction of one who witnessed a crime and recognized the offender is to reveal it to the authorities at the earliest opportunity.
• People vs. Arlalejo, 333 SCRA 604 (2000) — Cited for the qualification that delay in reporting the crime or identifying the perpetrator will not affect the witness's credibility if sufficiently explained.
• People vs. Galera, 280 SCRA 492 (1997) — Cited for the principle that a victim's reaction to a show-up that is contrary to human nature casts doubt on the identification.
• People vs. Padilla, 177 SCRA 129 (1989) — Cited as authority that the defense of alibi may be credited when corroborated and considered against the improbabilities and uncertainties in the prosecution's evidence.
• De la Torre vs. Court of Appeals, 294 SCRA 196 (1998) and People vs. Timple, 237 SCRA 52 (1994) — Cited for the general rule that an accused is not entitled to the assistance of counsel in a police line-up, such being usually not part of the custodial inquest.

• Article III, Section 2, 1987 Constitution — Guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, particularly describing the place to be searched and the persons or things to be seized. The provision supplied the standard against which accused-appellant's warrantless arrest was measured and found wanting.
• Rule 113, Section 5, Revised Rules of Criminal Procedure — Enumerates the only instances when a peace officer or a private person may arrest a person without a warrant: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has just been committed and he has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it; and (c) when the person to be arrested is a prisoner who has escaped. The Court held that accused-appellant's arrest fell under none of these, since he was watching a basketball game and was not an escaped prisoner, and since the arresting officers, not being present at the commission of the crime a week earlier, could not have had personal knowledge of the facts and circumstances of its commission.
• Article III, Section 12(1), 1987 Constitution — Provides that 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; that if he cannot afford the services of counsel, one must be provided; and that these rights cannot be waived except in writing and in the presence of counsel. The Court found that accused-appellant was deprived of these rights, but that no statement, inculpatory or exculpatory, was obtained from him or used in evidence; the deprivation was material instead to the admissibility of the out-of-court identifications made during custodial investigation.
• Rule 132, Section 36, Rules on Evidence — Requires that objection be made immediately when a witness is presented or when a specific question is asked, failing which the right to object is waived. Accused-appellant's failure to object to the testimonies on the out-of-court identifications was deemed a waiver of his right to object to their admissibility.
• Article 294, paragraph 1, Revised Penal Code, as amended — Defines and penalizes robbery with rape, the offense of which accused-appellant was convicted by the trial court and from which he was acquitted on review.
• Article 14, paragraphs 3, 6, and 14, Revised Penal Code — Enumerate nighttime, dwelling, and craft, fraud, or disguise as aggravating circumstances; the trial court appreciated all three in imposing the death penalty.
• Article 63, paragraph 1, Revised Penal Code — Governs the application of indivisible penalties and was invoked by the trial court in imposing the maximum penalty of death.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.