SALVADOR SEBASTIAN, SR., petitioner, vs. HON. FRANCIS E. GARCHITORENA, HON. JOSE S. BALAJADIA, and HON. NARCISO T. ATIENZA (SANDIGANBAYAN-First Division), respondents.

Before us is a petition for certiorari under Rule 65^[1] in conjunction with Rule XIX of the
Revised Rules of the Sandiganbayan, seeking to annul the Resolution^[2] dated August 24, 1993 of the
Sandiganbayan, First Division which admitted the sworn statements of petitioner
Salvador Sebastian, Sr. and his co-accused in Criminal Case No. 17904 as
evidence for the prosecution, and the Resolution dated September 27, 1993 which
denied the motion for reconsideration of the said Resolution.

On July 28, 1992, Special Prosecution Officer III Teresita Diaz-Baldoz filed
with the Sandiganbayan an Information for the crime of Malversation of Public
Funds^[3], as defined and penalized under
Article 217 of the Revised Penal Code, against Rosita C. Pada, Teresita B.
Rodriquez, Rachel V. Torres, Lourdes A. Enriquez and Salvador C. Sebastian. It
reads:

That on or about the period comprised between January 1989 and June 21, 1990,
in the City of Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, all public officers, ROSITA C. PADA,
being then the Regional Postage Stamps Custodian, and as such is accountable for
the custody of the postage stamps received and issued by her by reason of the
duties of her office, TERESITA B. RODRIGUEZ, being then the Senior Clerk in the
Postage Stamps Section, RACHEL V. TORRES, being then a Utility Man in the
Postage Stamps Section, LOURDES A. ENRIQUEZ, being then a Senior Clerk in the
Mail Delivery Section and SALVADOR C. SEBASTIAN, being then a Letter Carrier,
all of the Postal Services Office, Region IX, Zamboanga City, while in the
performance of their official functions, taking advantage of their position,
committing the offense in relation to their office, and conspiring and
confederating with one another, did then and there wilfully, unlawfully,
feloniously and with grave abuse of confidence, misappropriate, misapply, and
embezzle and convert to their personal use and benefit the amount of SIX HUNDRED
FORTY NINE THOUSAND TWO HUNDRED NINETY and 05/100 PESOS (P649,290.05),
Philippine Currency, out of the postage stamps in the custody of accused Rosita
C. Pada, to the damage and prejudice of the Government in the aforesaid sum.

Contrary to law.

Rosita C. Pada, Rachel V. Torres, and Salvador C. Sebastian entered separate
pleas of “Not Guilty” on October 13, 1992.^[4]

On April 22, 1993, the marking of the documents to be testified on by the
lone prosecution witness, Auditor Lilibeth Rugayan of the Commission on Audit,
who conducted the audit examination, took place before the Deputy Clerk of Court
of the First Division of the Sandiganbayan. The marking of the exhibits was with
the conformity of all of the accused and their respective counsel.

Upon the completion of the testimony of Auditor Rugayan, the prosecution
rested its case^[5]and formally offered
its evidence on July 6, 1993.^[6] Among
those offered as evidence were the sworn statements made by all the accused,
including that of petitioner, and previously marked as exhibits “Q”, “R”, “S”,
“T”, “U”, and “U-1” for the prosecution. Said exhibits were offered as part of
the testimony of Auditor Rugayan.

On August 19, 1993, all the accused (including petitioner) filed their “Joint
Objections to Formal Offer of Evidence” on the principal ground that the sworn
statements were “hearsay” evidence.^[7]

The Sandiganbayan in its Minute Resolution^[8] dated August 24, 1993, admitted said
evidence, thus:

Acting upon the “FORMAL OFFER OF EVIDENCE” dated July 5, 1993, of the
Prosecution and considering the “JOINT OBJECTIONS TO FORMAL OFFER OF EVIDENCE”
dated August 19, 1993, of accused, the Court RESOLVES the same as follows:

Exhibits A, B, and C are admitted, they being certified true copies of
official documents; Exhibits D up to U and U-1 inclusive of submarkings are
admitted as part of the testimony of Lilibeth Rugayan as examining auditor under
the State Auditing Code (P.D. No. 1445).

Dissatisfied, the three accused, on September 13, 1993, jointly filed a
Motion for Reconsideration, but the same was denied by the respondent court in
its Resolution^[9] dated September 27,
1993. It ruled that:

Considering that under the Order of this Court dated April 22, 1993 (p. 85)
the exhibits “off-court” was admitted by the accused through counsel, among
which were exhibits “A”, “B” and “C”, the Motion for Reconsideration filed by
the accused Pada, Torres and Sebastian with regard to the admission of said
exhibits dated September 10, 1993 is denied.

Hence, this petition.

The only issue to be resolved in the present petition is whether or not the
sworn statements of petitioner and his co-accused are admissible in evidence “as
part of the testimony of the prosecution witness”.

Petitioner argues that the said issue should be resolved in the negative on
the ground that the subject sworn statements are hearsay evidence. Petitioner
contends that he and his co-accused were never presented as witnesses, thus,
they were not given the opportunity to identify and authenticate their
respective sworn statements and that Auditor Rugayan had no personal knowledge
of the contents thereof.

We disagree.

As a general rule, hearsay evidence is inadmissible. Thus, the rule
explicitly provides that a witness can testify only on those facts which he
knows of his personal knowledge, that is, which are derived from his own
perceptions.^[10] However, while the
testimony of a witness regarding a statement made by another person, if intended
to establish the truth of the fact asserted in the statement, is clearly hearsay
evidence, it is otherwise if the purpose of placing the statement in the record
is merely to establish the fact that the statement was made or the tenor of such
statement.^[11]

In the present case, the sworn statements executed by the petitioner and
co-accused were offered not to prove the truth or falsity of the facts stated
therein but only to prove that such written statements were actually made and
executed. As stated in the Resolution dated August 24, 1993 of the respondent
court, Exhibits “D” up to “U” and “U-1” were admitted only as part of the
testimony of Lilibeth Rugayan as Examining Auditor. Title II, Chapter I, Section
55 of P.D. 1445, otherwise known as the Government Auditing Code provides that
“the auditor shall obtain through inspections, observation, inquiries,
confirmation and other techniques, sufficient competent evidential matter to
afford himself a reasonable basis for his opinions, judgments, conclusions and
recommendations”.

It is also the contention of petitioner that he never admitted the said sworn
statements during the pre-trial conference; that he agreed merely to the
“marking” of the said sworn statements as exhibits of the prosecution; and that
“marking” is different from “admission”.

The main purpose of a pre-trial is to expedite the trial. Thus, the
respondent court in its Order dated April 22, 1993 ruled that:

By agreement of the parties, the sub-marking of the documents to be testified
to by Auditor Lilibeth Rugayan has been completed and only the other
sub-markings will take place during the proceedings. Additionally, the parties
have informally agreed that all the documents marked today are deemed
authenticated except for the alleged responses of the various postmasters as to
the request for confirmation which the accused dispute both as to their
authenticity as well as to their accuracy assuming that they are authentic. In
view of this, subject to confirmation this afternoon, the direct examination
will be waived and the cross-examination by the accused will take place
primarily to dispute the statement above-mentioned.

This Order of the Sandiganbayan reciting the actions taken, the facts
stipulated, and evidence marked, binds the parties and limits the trial to
matters not disposed of and shall control the course of the action during the
trial, unless modified by the court to prevent manifest injustice.^[12] The record does not show that petitioner
and his co-accused objected to the above-mentioned Order. In any event, any
evidence presented during the pre-trial conference cannot be considered by the
court if not formally offered. It has been held that any evidence which a party
desiring to submit for the consideration of the court must be formally offered
by him.^[13] Such a formal offer is
necessary because it is the duty of the judge to rest his findings of facts and
his judgment only upon the evidence offered by the parties at the trial.

Petitioner in his supplemental pleading claims to have been deprived of his
constitutional rights under Sections 12 and 17, Article III of the 1987
Constitution. Petitioner alleges that nothing in his sworn statement shows
compliance with the constitutional provisions on the right to counsel, the right
to remain silent and the right to waive these rights in the presence of counsel.

Entrenched is the rule that the rights provided in Section 12, Article III of
the Constitution may be invoked only when a person is under “custodial
investigation” or is “in custody investigation.” Custodial investigation has
been defined as any questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.^[14] The
fact-finding investigation relative to the missing postage stamps at the Postage
Stock Section of Zamboanga City conducted by a Enrique G. Saavedra, Chief Postal
Service Officer, is not a custodial investigation. It is merely an
administrative investigation.

While an investigation conducted by an administrative body may at times be
akin to a criminal proceeding, the fact remains that under existing laws, a
party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent’s capacity to
represent himself, and no duty rests on such a body to furnish the person being
investigated with counsel.^[15] It has
been held in the case of Lumiqued v. Exevea^[16] that the right to counsel is not
imperative in administrative investigations because such inquiries are conducted
merely to determine whether there are facts that merit disciplinary measures
against erring public officers and employees, with the purpose of maintaining
the dignity of government service.

Petitioner, likewise contends that the Ombudsman acted with grave abuse of
discretion in filing the Information for malversation against him. He argues
that in its first Resolution dated March 18, 1992 of the Office of the
Ombudsman, Graft Investigation Officer Rodolfo Rojas, Jr. recommended the filing
of an Information for Malversation of Public Funds against Rosita C. Pada only.
However, in its subsequent resolution dated July 28, 1992, Special Prosecution
Officer Teresita Daiz-Baldos recommended the prosecution of the four other
accused, including petitioner, stating that:

Thus, for purposes of prosecution, it would be more expedient to indict all
the respondents for Malversation and let them explain in court the actual extent
of their individual accountability. x x x x x x

WHEREFORE, premises considered, the undersigned respectfully recommends the
prosecution of Rosita Pada, Teresita Rodriguez, Rachel Torres, Lourdes Enriquez
and Salvador Sebastian, for Malversation of Public Funds, and the exclusion for
liability of Florecita Doromal.”

Hence, petitioner now questions the disposition of the Ombudsman as merely
engaging in a fishing expedition in this case.

This Court has consistently refrained from interfering with the exercise by
the Ombudsman of his constitutionally mandated investigatory and prosecutory
power. Otherwise stated, it is not for this Court to review the exercise of
discretion of the Ombudsman in prosecuting or dismissing a complaint filed
before his Office. Such initiative and independence are inherent in the
Ombudsman who, beholden to no one, acts as the champion of the people and
preserver of the integrity of the public service.^[17]

Lastly, the Court noted that the petition, as described therein, is one filed
under Rule 45 of the Rules of Court. However, under Rule 45, a petition for
review on certiorari is a mode of appeal from judgments or final orders or
resolutions and limited to questions of law. Petitioner’s choice of remedy
therefore is clearly an error. The resolutions of the Sandiganbayan herein
sought to be reviewed or set aside are not in any sense judgments or final
orders or resolutions; they are interlocutory in nature and from which no appeal
lies.

WHEREFORE, the petition is hereby DISMISSED for lack
of merit.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ.,
concur.

^[1] Denominated by petitioner as Rule
45.

^[2] Signed by Justices Francis E.
Garchitorena, Jose S. Balajadia and Narciso T. Atienza, Rollo, p. 69.

^[3] Docketed as Criminal Case No.
17904; Original Records, pp. 1-2.

^[4] Original Records, p. 59.

^[5] Id., p. 113.

^[6] Id., pp. 125-147.

^[7] Id., pp. 160-163.

^[8] Id., p. 164.

^[9] Original Records, p. 194.

^[10] Sec. 36, Rule 130, Revised Rules
of Court.

^[11] People v. Cusi, Jr. 14
SCRA 944,946 [1965], citing People v. Lew Yon, 97 Cal. 224; VI Wigmore
177-8.

^[12] Sec. 3, Rule 118.

^[13] De Castro v. The Court of
Appeals, 75 Phil. 834; Ayala v. Valencia, 56 Phil. 182.

^[14] Navallo v. Sandiganbayan,
234 SCRA 175, 183-184[1994]; People v. Loveria, 187 SCRA 47, 61 [1990].

^[15] Lumiqued v. Exevea, 282
SCRA 125, 140 [1997] citing Bancroft v. Board of Governors of Registered
Dentists of Oklahoma, 210 P. 2d 666 (1949).

^[16] Supra.

^[17] Alba v. Nitorreda, 254
SCRA 753, 765-766 [1996]; Ocampo IV v. Ombudsman, 225 SCRA 725; Fernando
v. Sandiganbayan, 212 SCRA 680, 687 [1992].