evidence2008.5thset

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SECOND DIVISION

[G.R. No. 123912. June 8, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEVYMONIEVA, accused-apppellant.

D E C I S I O N

BUENA,J.:Accused-appellant Levy Monieva appeals the decision of the Regional TrialCourt at Masbate, Masbate, Branch 47 in Criminal Case No. 6348 entitled"People of the Philippines versus Levy Monieva" convicting him of murderand sentencing him to reclusion perpetua.

On May 20, 1991, an information was filed against Levy Monieva charginghim of murder committed as follows:

"That on or about February 10, 1991 in the afternoonthereof, at Sitio Iraya, Barangay Cagay, Municipality ofMasbate, Province of Masbate, Philippines and within thejurisdiction of this court, the said accused with intent to kill,evident premeditation, treachery and abuse of superiorstrength did then and there willfully, unlawfully and

feloniously stab and hack several times one LeonardoDumalag, hitting the latter on the different parts of his bodythereby inflicting wounds which directly caused hisinstantaneous death.

"CONTRARY TO LAW."

On July 17, 1991, the trial court issued an order referring the accused tothe Masbate Provincial Health Office, Masbate, Masbate for mentalexamination and postponing indefinitely the pre-trial and arraignment ofthe case until the results of the said examination shall have becomeavailable for the consideration of the court.

Considering however the refusal of the Masbate Provincial Health Office toconduct a mental examination on the accused there being no physician inthat office competent enough to conduct the requested mental

examination, the court a quo issued another order on October 1, 1991,referring the accused to the Rodriguez Memorial Mental Hospital, Cadlan,Pili, Camarines Sur for mental examination.

A letter dated April 23, 1993 was sent to the court a quo by Chona C.Belmonte, MD, of the Department of Health Regional Health Office No. 5,Don Susano J. Rodriguez Memorial Mental Hospital, Cadlan, Pili, CamarinesSur. Some portions of her letter are quoted below:

"Dear Sir:

"Preliminary examination was conducted on the subjectLEVY MONIEVA on April 23, 1993 as per request of yourhonorable court dated October 1, 1991.

"As you can see it took the provincial jail almost 2 years tobring the accused here for examination.

"At present, there are no observable psychotic signs andsymptoms noted on him. However, we are still conductingpsychological testing to further evaluate him. At this point,the patient doesnt need any form of treatment."

xxx

Upon arraignment, accused Levy Monieva, assisted by counsel, pleadednot guilty to the crime charged. The Regional Trial Court thereafterproceeded with the trial.

Elvie Mabuti, one of the witnesses for the prosecution, testified that onFebruary 10, 1991 at about 5:30 oclock in the afternoon while she and herhusband Rani Mabuti were inside their house located at Iraya Cagay,Mobo, Masbate, Masbate she saw accused Levy Monieva hack the victimLeonardo Dumalag. She also heard Leonardo Dumalag crying for helpwhile he was running away. The incident happened about 5 meters awayfrom their house. Upon seeing the incident, she and her husband togetherwith their two children jumped from their house and fled to the busheswhere they stayed the whole night. At about 10:00 oclock the followingmorning, they returned home and found the headless body of the victim.The head was recovered two days later on the land tilled by accusedMonieva.

Pacita Dumalag, the wife of the victim, testified that on February 10, 1991at about 7:30 oclock in the evening she was informed by Barangay Tanod

Amador Dalanon and Abner Brioso that her husband was killed by LevyMonieva near the house of their tenant Rani Mabuti at Cagay, Masbate,Masbate. They then went to the place of incident and found the lifelessbody of her husband.


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She also stated that on February 11, 1991, the police arrested LevyMonieva near his house at Cagay, Masbate, Masbate. The bolo used inkilling her husband was recovered from the accused. For the burial of herhusband, she spent Eighteen Thousand Pesos (P18,000.00).

Dr. Artemio Capellan, the Municipal Health Officer of Masbate, Masbatetestified that he conducted a post mortem examination on the body ofvictim Leonardo Dumalag on February 12, 1991. Based on his

examination, the victim sustained four (4) stab wounds, one of which wasthe most fatal because the head of the victim was almost cut off. Theinstrument used to kill the victim was a short bladed instrument and it waspossible that a bolo was used.

The defense presented only one witness, the accused Levy Monieva. Hedenied the allegations that he killed Leonardo Dumalag. He testified thatat the time of the incident he was being attended to by a quack doctornamed Fedir Villanueva in his house located at Cagay, Masbate, Masbateas he had a fever and his body was aching. He only learned about thedeath of Leonardo Dumalag from Barangay Tanod Abner Brioso andAmador Dalanon when he was investigated by the two. On February 11,1991, he was arrested by the police authorities.

On July 10, 1995, a decision was rendered by the trial court convicting the

accused and imposing the following penalty:"WHEREFORE, this court finds accused Levy Monieva guiltybeyond reasonable doubt of the crime charged and herebysentences him to reclusion perpetua; orders him toindemnify the heirs of the victim the sum of P50,000.00without subsidiary imprisonment in case of insolvency; andto pay the cost.

"IT IS SO ORDERED."

Hence, this appeal where accused-appellant assigns the following errorsallegedly committed by the trial court:

I

THE TRIAL COURT ERRED IN GIVING WEIGHT AND

CREDENCE TO THE OTHERWISE UNCORROBORATED,INCREDIBLE AND FABRICATED TESTIMONY OF PROSECUTIONWITNESS ELVIE MABUTI

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT LEVY MONIEVA GUILTY BEYOND REASONABLEDOUBT OF THE CRIME OF MURDER DEFINED ANDPENALIZED UNDER ARTICLE 248 OF THE REVISED PENALCODE, DESPITE THE FAILURE OF THE PROSECUTION TOPROVE THE QUALIFYING AGGRAVATING CIRCUMSTANCECHARGED IN THE INFORMATION.

The appeal is meritorious in the sense that the penalty should be lowered.In his brief accused-appellant contends that Elvie Mabuti is an unreliablewitness because her testimony is contrary to human experience,incredible, fabricated and wholly concocted. He points to the followingincongruities in the said witness testimony and rationalizes why heconsiders them to be such.

a) Elvie Mabuti and her family left their house and fled tothe bushes that are in an open field and that is where theystayed the whole night. It is highly incredible andunbelievable that they would leave their house to hide in anopen field where they could have easily been caught andattacked.

b) Upon their return the following day, February 11, 1991, at

about 10:00 oclock in the morning Elvie Mabuti found thebody of the victim near their house. This does not jibe withthe testimony of the victims wife, Pacita Dumalag, thatupon learning of the death of her husband Leonardo onFebruary 10, 1991 at around 7:30 oclock in the evening sheimmediately went to the place of the incident where shefound his lifeless body;

c) Elvie Mabuti testified that the victim was beheaded andthat the head was recovered two days later. This is falsebecause the post mortem report of Dr. Artemio Capellanstated that the head of the victim was almost cut off but notsevered.

We find the testimony of Elvie Mabuti credible. She testified in a

categorical, straightforward manner manifestations that a witness istelling the truth.

Appellant finds it incredible that Elvie Mabuti and her family opted to fleefrom their house instead of just staying put.


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Elvie Mabuti explains why: "(They) jumped and escaped because (her)husband was afraid."

At first blush it confounds the mind why Rani Mabuti, the husband of Elvie,opted to flee the sanctuary of their abode. Was it cowardice or fear for hisfamilys safety that prompted him to do so? Whatever the reason for theirhasty departure was, we deem it inconsequential for the fact remains thatthey fled when they saw their neighbor Levy Monieva hacking Leonardo

Dumalag.As admitted by Monieva himself except for the Mabuti family he had noother neighbor.Considering then that the Mabutis were witness to a crimetaking place and perhaps propelled by the belief that they could be killednext Rani Mabuti made the decision to flee.

Given the same set of circumstances another person might have had thesame or an entirely different reaction. It is not fair to gauge the action ofElvie Mabuti and her family with that of another for it is difficult toascertain what a persons reactions would be when a startling orfrightening situation suddenly looms before him.

It has been held in the case of People vs. Luzorata,

"(d)ifferent people act differently to a given stimulus or type

of situation, and there is no standard form of behavioralresponse when one is confronted with a strange or startlingor frightful experience."

As to the alleged inconsistency between the testimony of Elvie Mabuti andthe victims wife Pacita Dumalag we find that the time when the body wasfound is immaterial to appellants guilt. Where the inconsistency is not anessential element of murder, such inconsistency is insignificant and cannothave any bearing on the essential fact testified to, that is, the fact ofkilling.

It has been held that inconsistencies and discrepancies in the testimonyreferring to minor details and not upon the basic aspect of the crime donot impair the witnesses credibility. These inconsistencies even tend tostrengthen, rather than weaken, the credibility of witnesses as they negateany suspicion of a rehearsed testimony.

But even if it were proven that that part of Elvie Mabutis testimony wasfalse, this will not cause her entire testimony to be rejected, for

"Even where a witness is found to have deliberately falsifiedthe truth in some particulars, and it was not shown thatthere was such intended prevarication by complainant inthis case, it is not required that the entire testimony berejected, since such portions thereof deemed worthy ofbelief may be credited. It is perfectly reasonable to believethe testimony of a witness with respect to some facts and

disbelieve it with respect to other facts.Finally, appellant was positively and categorically identified by ElvieMabuti as the person who hacked Leonardo Dumalag. More than anything,this carries a great weight in the determination of whether an accused isguilty or not. Some portions of the testimony of the said witness follow:

"COURT

"Q On February 10, 1991 at about 5:30 in the afternoonwhat happened to Leonardo Dumalag?

"A He was killed.

"ATTY. VILLAMOR

"Q By whom?

"A Levy Monieva.

"Q If this Levy Monieva is in Court, can you identify him?

"A Yes, sir.

"Q Please point to Levy Monieva.

"A (Witness pointed to a man who, when asked of his name,identified himself as Levy Monieva.

"Q Now how did Levy Monieva kill Leonardo Dumalag onFebruary 10, 1991?

"A He hacked him.

"Q How many times did Levy Monieva hack LeonardoDumalag?

"A Many times."Q Where?

"A Parts of his body.


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"Q Where particularly in Cagay did Levy Monieva hackLeonardo Dumalag?

"A Near our house.

"Q How many meters away from your house?

"A About five meters.

Appellant denies having committed the crime and interposes the defense

of alibi. He contends that he could not have killed the victim because hewas sick at the time.

It has invariably been held that for an alibi to prosper, it must besufficiently convincing as to preclude any doubt as to the physicalimpossibility of the accused-appellants being present at the locus criminisor its immediate vicinity at the time of the incident.

Appellant Levy Monieva admits that he was being attended by a quackdoctor in his house at Cagay, Masbate, Masbate at the time of theincident. The crime occurred a few meters away from the house of hisnearest neighbor Rani Mabuti. Monieva was not so far away that he couldnot have been physically present at the place of the crime, or itsimmediate vicinity at the time of its commission.

Between the positive identification made by Elvie Mabuti and the denial ofthe appellant, we are more inclined to give weight to the formerstestimony. Moreover, there was no showing that Elvie Mabuti wasmotivated by any ill-will when she testified against the appellant. We haveno reason to believe that she would knowingly put a person behind bars ifhe was not the one who killed the victim.

Positive identification, where categorical and consistent and without anyshowing of ill motive on the part of the eyewitness testifying on thematter, prevails over alibi and denial which, if not substantiated by clearand convincing evidence, are negative and self-serving evidenceundeserving of weight in law.

Anent the second assigned error we hold that the trial court erred inconvicting the appellant of murder. It was not sufficiently proven that thekilling was qualified by the aggravating circumstances of abuse of superior

strength, evident premeditation, and treachery.

We are at a complete loss as to what the sequence of events was from thetime Levy Monieva and Leonardo Dumalag met to the time the victim lay

dead. The record does not disclose this information. What the eyewitness,i.e., Elvie Mabuti saw (appellant chasing and hacking the victim) and heard(the crying of the victim for help) was almost the tail end of the altercationbetween the appellant and the victim. We do not know what the means ofdefense available to the offended party was, if there was any, and whetherhe made use of it from the inception of the altercation.

Abuse of superior strength means topurposelyuse excessive force out of

proportion to the means available to the person attacked to defendhimself. (Emphasis Ours) Before abuse of superior strength may beappreciated, it must be clearly shown that there was deliberate intent onthe part of the malefactor to take advantage thereof.

The prosecution is of the opinion that since the appellant was armed witha bolo and was chasing the unarmed victim who was trying to flee, thisshows that the latter was powerless to offer resistance thereby admittinghis inferiority and the superiority of his assailant.

This is mere conjecture on the part of the prosecution. It was not at allapparent that the appellant consciously adopted that particular means,i.e., the use of a bolo, to harm another.

The prosecution failed to prove the qualifying circumstance of treachery.Treachery is present when the attack comes without warning, is sudden

and unexpected and the unsuspecting victim is not in a position to parrythe assault.In the case of People vs. Pena it was held that treacherycannot be presumed; it must be proved by clear and convincing evidence,or as conclusively as the killing itself.

The mere fact that the victim was running away from the appellant whowas wielding a bolo shows that the victim was aware of the danger tohimself, thus negating the suddenness of the attack for which reasontreachery cannot be appreciated in this case.

Neither was evident premeditation proven for there was no showing as tohow and when the plan to kill was hatched, or what time had elapsedbefore it was carried out.Evident premeditation must be clearly proven,established beyond reasonable doubt, and must be based on external actswhich are evident, not merely suspected, and which indicate deliberate

planning.From the above, we hold that there was an absence of qualifyingcircumstances to justify the conviction of the accused for murder.


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IN VIEW WHEREOF, the conviction of appellant Levy Monieva isAFFIRMED, with the modification that he is declared guilty beyondreasonable doubt of the crime of Homicide and not Murder. Thus, appellantis sentenced to suffer the indeterminate penalty of eight (8) years ofprision mayor, as minimum, to seventeen (17) years and four (4) monthsofreclusion temporal, as maximum. The monetary award of P50,000.00 asindemnity for the death of the victim is also AFFIRMED. Costs against theappellant.

SO ORDERED.


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FIRST DIVISION

[G.R. No. 131116. August, 27, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO L. SANCHEZ,ARTEMIO AVERION, LANDRITO DING PERADILLAS and LUIS CORCOLON,accused.

ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants.

D E C I S I O N

PARDO,J.:

What is before this Court is an appeal from the decision of Regional TrialCourt, Branch 160, Pasig City, finding accused Antonio L. Sanchez, LuisCorcolon y Fadialan, Landrito Ding Peradillas and Artemio Averion guiltybeyond reasonable doubt of murder committed against Nelson Pealosaand Rickson Pealosa, and sentencing each of the accused, as follows:

WHEREFORE, foregoing considered, the Court finds the accused AntonioSanchez, Landrito Ding Peradillas, Luis Corcolon, and Artemio AverionGUILTY beyond reasonable doubt of the crime of MURDER punishableunder ART. 48 of the Revised Penal Code and hereby sentences each of

said accused to suffer the penalty of reclusion perpetua and to pay jointlyand severally, the heirs of the victims each the sum of P100,000.00 for thedeath of Nelson Pealosa and Rickson Pealosa, P50,000.00 as actualdamages and moral damages of P 50,000.00 and exemplary damages ofP30,000.00 and to pay the costs.

SO ORDERED.

City of Pasig.

December 27, 1996.

(s/t) MARIANO M. UMALI

Judge

On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with the

Regional Trial Court, Calamba, Laguna, an information for double murderagainst accused Antonio L. Sanchez, Luis Corcolon y Fadialan, LandritoDing Peradillas and Artemio Averion, the accusatory portion of whichreads:

That on or about April 13, 1991, at about 7:45 p.m. more or less, inBarangay Curba, Municipality of Calauan, Province of Laguna, and withinthe jurisdiction of the Honorable Court, the above-named accusedconspiring, confederating, and mutually aiding one another, with treacheryand evident premeditation, and with the use of a motor vehicle, at nighttime, all the accused then being armed and committed in consideration ofa price, reward or promise and of superior strength, did then and therewillfully, unlawfully, and feloniously shoot with the use of automaticweapons inflicting multiple gunshot wounds upon Nelson Pealosa andRickson Pealosa which caused their instantaneous deaths to the damageand prejudice of their heirs and relatives.

CONTRARY TO LAW.

On March 16, 1994, the case was raffled to Branch 34, Regional Trial Court,Calamba, Laguna. On March 17, 1994, the court ordered the arrest ofaccused Antonio L. Sanchez, Luis Corcolon and Ding Peradillas. On thesame date, Artemio Averion voluntarily surrendered to the court, whichordered Averions transfer to the provincial jail, Sta. Cruz, Laguna.

Thereafter, the trial court committed the accused to the custody of properauthorities.

Upon arraignment on April 10, 1995, all the accused pleaded not guilty.

The trial of the case thereby ensued. On December 27, 1996, the trialcourt convicted all the accused of the complex crime of double murder, ascharged, the dispositive portion of which is set out in the openingparagraph of this opinion.

On February 27, 1997, all the accused, except Ding Peradillas, werepresent for the promulgation of the decision. Peradillas was a member ofthe Philippine National Police and was under the custody of his superiors. The trial court ordered his custodian to explain accuseds non-appearance. On March 14, 1997, P/C Supt. Roberto L. Calinisan, Chief,PNP-PACC Task Force Habagat, denied any knowledge of the murder caseagainst Peradillas. Hence, Peradillas was not suspended from the servicepending trial. However, at the time that Peradillas was to be presented tothe court for the promulgation of the decision, he had disappeared andcould not be located by his custodian. The promulgation of the decision asto him was in absentia. Peradillas and Corcolon did not appeal from thedecision.


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Accused Antonio L. Sanchez and Artemio Averion filed their respectiveappeals to this Court.

The facts are as follows:

On April 13, 1991, at around 10:00 in the morning, state witness VivencioMalabanan, team leader of a group of policemen, went to the BishopCompound in Calauan, Laguna, as part of the security force of mayorAntonio L. Sanchez. After a while, accused Ding Peradillas arrived and

asked for mayor Sanchez. Peradillas informed mayor Sanchez that therewould be a birthday party that night at Dr. Virvilio Velecinas house inLanot, Calauan, Laguna, near the abode of Peradillas. Peradillas assuredmayor Sanchez of Nelson Pealosas presence thereat. Dr. Velecina was apolitical opponent of mayor Sanchez for the mayoralty seat of Calauan,Laguna. Mayor Sanchez then replied, Bahala na kayo mga anak. Ayusinlang ninyo ang trabaho, and left the premises. Peradillas immediatelycalled Corcolon and Averion and relayed the message - Ayos na angpaguusap at humanap na lang ng sasakyan. All the accused, includingMalabanan, understood it as an order to kill Nelson Pealosa, one of thepolitical leaders of Dr. Velecina.

Afterwards, Peradillas, Corcolon and Averion made arrangements toacquire two-way radios and a vehicle for the operation. At around 2:30 in

the afternoon, Malabanan and the three accused went their separate waysand agreed to meet at mayor Sanchez house at 6:00 in the evening.Malabanan returned to his detachment area at Dayap, proceeded to themunicipal hall, then went home where Peradillas fetched him at 6:00 p.m.They proceeded to mayor Sanchez house where they met Averion andCorcolon, with the car and two-way radios.

At around 7:00 in the evening, Malabanan and the three accused boardedthe car and went to Marpori Poultry Farm in Barangay Lanot, near Dr.Velecinas house. Peradillas alighted and walked towards his own house,near Dr. Velecinas house, to check whether Nelson Pealosa was at theparty.

Thereafter, using the two-way radio, Peradillas informed the occupants ofthe car that Nelson Pealosas jeep was leaving the Velecina compound.Accused Averion immediately drove the car to the front of Peradillashouse and the latter hopped in the cars back seat. Corcolon sat in thefront seat beside him; witness Malabanan sat at the left side of thebackseat and Peradillas stayed at the right side of the back seat. Thegroup pursued Pealosas jeep. When the accuseds car was passing

Victoria Farms, located about 100 meters from Pealosa compound,Corcolon ordered Averion to overtake Pealosas jeep. As the car overtookthe jeep, Peradillas and Corcolon fired at Pealosas jeep, using M-16 andbaby armalite rifles, executed in automatic firing mode. There were threebursts of gunfire. Based on the sketch prepared by Malabanan, illustratingthe relative position of their car and Nelsons jeep at the time of theshooting, the assailants were at the left side of the jeep.

Rickson Pealosa, son of Nelson Pealosa, fell from the jeep. The jeep,however, continued running in a zigzag position until it overturned in frontof Irais Farm. After the shooting, the accused proceeded to the house ofmayor Sanchez in Bai, Laguna, and reported to mayor Sanchez thatPealosa was already dead.

Together with his superior SPO4 Lanorio and photographer RomeoAlcantara, policeman Daniel Escares went to the crime scene. There, hesaw the body of Nelson Pealosa slumped at the driver seat of the owner-type jeep. They recovered the body of Rickson Pealosa slumped on agrassy place not far from where they found Nelson Pealosa. After all theevidence and photographs were taken, they brought the cadavers toFuneraria Seerez. Daniel Escares submitted his investigation report ofthe incident to the Provincial Director, Laguna PNP Command.

Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan,Laguna, conducted an autopsy on the bodies of Nelson and RicksonPealosa. Nelson Pealosa suffered massive intra-cranial hemorrhage anddied of cranial injury due to gunshot wounds. Rickson Pealosa died ofmassive intra thoracic hemorrhage due to gunshot wounds. Dr. Escueta, asa defense witness, testified that based on the points of entrance and exitof the wounds sustained by the Pealosas, it was not possible for theassailants to be at the left side of the victims. It contradicted Malabananstestimony that they were at the left side of the victims when the shootingtook place. He further stated that based on the wounds inflicted on thevictims, the assailants were either in a sitting or squatting position whenthey shot the victims. Some of the wounds indicated an upward trajectoryof the bullets.

On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the

ballistic tests conducted on the twelve (12) empty shells found at thecrime scene and the M-16 baby armalite surrendered by Corcolon. Sheconcluded that the 12 empty shells were fired using three (3) differentfirearms, one of which was the M-16 baby armalite.


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On August 18, 1995, Adelina Pealosa, common law wife of NelsonPealosa and mother of Rickson, testified that the whole family was inmourning and could not eat after what happened. She testified that thefamily incurred P250,000.00 for funeral expenses, but failed to present theappropriate receipts. She also stated that Nelson Pealosa was earningone (1) million pesos per annum from his businesses. However, no incometax return or other proofs were shown to substantiate the statement.

The accused interposed the defense of alibi and denial.Luis Corcolon stated that he spent the whole day of April 13, 1991, until8:30 in the evening, supervising the poultry farm of his employers,Edgardo Tanchico and Orlando Dizon. He denied that he was in thecompany of Averion and Peradillas that day, and that he participated in thePealosa killings. He denied that he was ever assigned as a security guardof mayor Sanchez. He claimed that the murder charges were concoctedagainst them for his refusal to testify against mayor Sanchez in theGomez-Sarmenta case. He alleged that he was maltreated, tortured,electrocuted and forced to implicate mayor Sanchez in the Gomez-Sarmenta rape-slayings. He denied that he owned the M-16 baby armaliteused in killing the Pealosas.

Detention prisoner George Medialdea corroborated Corcolons statement

that they were implicated in the Pealosa killing for their refusal to testifyagainst mayor Sanchez. He claimed that Malabanan confessed to him thatthe latter had killed the Pealosas, but with the aid of CAFGU men and notherein accused. He averred that Corcolon and Averion were wrongfullyimplicated in the murder charges in deference to the wishes of theinvestigators. Zoilo Ama, another detention prisoner, claimed thatMalabanan confessed that he killed the Pealosas, but did not mention theinvolvement of Corcolon, Averion and mayor Sanchez.

Accused Artemio Averion, a godson of mayor Sanchez, denied that he wasinvolved in the Pealosa slayings. On April 13, 1991, he claimed that hewas in Lucena City, attending to his ailing father. He stayed there untilApril 15, 1991. He maintained that he was wrongfully implicated in thePealosa killings for his refusal to testify against mayor Sanchez regardingthe Gomez-Sarmenta rape-slayings. Malabanan asked for his forgiveness

for falsely incriminating them in the Pealosa case. Jesus Versoza, PNP Officer, Camp Crame, denied the allegations ofMedialdea and Averion that they were tortured and forced to testifyagainst mayor Sanchez.

Accused mayor Antonio L. Sanchez stated that on April 12, 1991, he wentto Anilao, Batangas, with his family. Around 1:00 in the afternoon of April13, 1991, his family went to Tagaytay City and stayed overnight at TaalVista Lodge. Around 10:00 in the morning of April 14, 1991, they wenthome to Calauan, Laguna. After reaching his abode in Calauan around12:00 noon, mayor Sanchez learned of the ambush-slayings of thePealosas. He immediately ordered an investigation of the case. Hedenied any involvement in the killing of the victims.

The trial court ruled that the prosecutions evidence clearly andconvincingly established the participation of the four (4) accused in killingthe Pealosas. Malabanan gave a sincere, frank and trustworthy accountof the circumstances surrounding the killing. Furthermore, the trial courtexplained the discrepancies between Malabanans recollection of how thevictims were shot and Dr. Escuestas conclusion on what transpired basedon the injuries sustained by the victims.

The trial court stated that the doctors conclusion was based on theassumption that the victims were in a sitting position inside the jeep.However, it was possible that after the first burst of gunfire, the victimswere hit and fell. During the second burst of gunfire, the victims werelying down or in a crouching position. Thus, the entry-exit points of thebullets did not entirely correspond to Malabanans account, which was

based on the assumption that the victims did not change their positionsduring the shooting incident.

The trial court ruled that the accused conspired in committing the crime. Treachery was present, thereby qualifying the crime to murder. Itappreciated the aggravating circumstances of evident premeditation,nighttime and use of motor vehicle.

The trial court considered the crime as a complex crime of double murderpunishable under Article 48 of the Revised Penal Code. However, at thetime of the commission of the offense on April 13, 1991, there was aconstitutional proscription on the imposition of the death penalty. Thus,each of the accused was sentenced to reclusion perpetua, and to paydamages to the heirs of the victims, as earlier quoted.

Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed

from the decision to the Supreme Court.

In their sole assignment of error, accused mayor Sanchez and Averioncontended that the trial court failed to recognize the material


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inconsistencies between Malabanans testimony and the physical andscientific evidence presented before it. They pointed out the followinginconsistencies, to wit:

1. Malabanan testified that a) when they fired at the victims, they wereabout the same elevation; b) they used two (2) guns in killing the vicitms;c) they were at the left side of the victims when the shooting incidentoccurred. However, Dr. Escuetas autopsy report revealed that: 1) the

assailants were at a lower elevation; 2) three (3) kinds of guns were used;and 3) based on the injuries, assailants were on the right side of thevictims.

2. Malabanans affidavit Exhibit V made on August 16, 1993, and swornto on August 17, 1993, bears two (2) signatures of the affiant Malabananand dated September 15, 1993. However, during cross-examination,Malabanan stated that he executed and signed the affidavit on oneoccasion only, August 15, 1993.

3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings thatMalabanan only responded to the report that Pealosa had been killed. Heaverred that contrary to Malabanans report, the latter was not at thecrime scene.

The two accused further averred that the material inconsistencies between

Malabanans testimony and the autopsy and laboratory findings andconclusions seriously affect his credibility. They stressed that Malabananhas sufficient motive to implicate mayor Sanchez and Corcolon in thePealosa killings due to threats of mayor Sanchez. They alleged thatalthough generally alibi is considered a weak defense, there are timeswhen it is worthy of credence, such as in this case.

The Solicitor General supports the trial courts ruling that the prosecutionadequately established the guilt of the accused beyond reasonabledoubt. Malabanan positively identified the accused as the perpetrators.He testified in a categorical, straightforward, spontaneous and frankmanner. The defense failed to satisfactorily show that Malabanan had anill motive to testify falsely against the accused. The alleged threat toMalabanans life was not adequately established or sufficient for him tofalsely implicate the accused. As regards the supposed inconsistencies

between Malabanans account of the event vis vis the autopsy andballistic reports, the Solicitor General pointed out that both vehicles wererunning at the time of the ambush. It was a matter of instinct for thevictims to shift positions as they were fired upon. Thus, contrary to Dr.

Escuetas conclusion, it was not impossible that the victims were hit fromthe right side of their bodies, even if assailants were physically situated atthe victims left side. Hence, the apparent inconsistencies do not affectwitness Malabanans credibility.

After a careful scrutiny of the evidence on record, we agree with the trialcourt that the prosecution adequately established accuseds guilt beyondreasonable doubt.

Malabanan gave a detailed account of the planning, preparation and theshooting incident. He narrated the participation of each of the accused, towit: (1) the order given by mayor Sanchez to execute Pealosa; (2)Averions acquisition of a vehicle and two-way radios to be used for theoperation and in driving the car; (3) Peradillas act of relaying theinformation that Nelson Pealosas jeep was leaving the Velecinacompound; 4) the way they pursued the victims; and 5) Corcolon andPeradillas act of firing and killing the Pealosas.

The accused concentrated mainly on the seeming contradiction betweenthe narration of Malabanan on how the victims were shot, and thephysicians report on the location of injuries sustained by them.

However, as the Solicitor General stated, both vehicles were running at thetime of the shootout. It was unlikely that the victims drove in a straight

line parallel to that of the assailants. In fact, Malabanan testified thatwhile being fired at, Pealosas jeepney was running in zigzag manner. Itwas a natural reaction for Pealosa to evade the assailants as much aspossible and to try to dodge the bullets. Furthermore, the assailants firedthe guns in automatic firing mode. Thus, the bullets burst out in differentdirections simultaneously. Hence, it was not impossible for the victims tobe hit in different parts of the body.

This Court has held time and again that any minor lapses in thetestimony of a witness tend to buttress, rather than weaken, his or hercredibility, since they show that he or she was neither coached nor werehis or her answers contrived. Witnesses are not expected to rememberevery single detail of an incident with perfect or total recall.

Furthermore, the fact that the trial court relied on the testimony of a single

witness does not affect the verdict of conviction. Criminals are convicted,not on the number of witnesses against them, but on the credibility of thetestimony of even one witness, who is able to convince the court of theguilt of the accused beyond a shadow of doubt. What witness can be more


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credible than someone who was in the planning, preparation andexecution of the crime.

The inconsistency between the affidavit and testimony of Malabanan is toominor to affect his credibility. At any rate, we have held that affidavits aregenerally subordinate in importance to open court declarations. Affidavitsare not complete reproductions of what the declarant has in mind becausethey are generally prepared by the administering officer and the affiant

simply signs them after the same have been read to him.Accused-appellants raised that Malabanans delay in reporting theinvolvement of the accused in the crime casts doubt on his credibility.However, jurisprudence teaches us that delay in revealing the identity ofthe perpetrators of a crime does not necessarily impair the credibility of awitness, especially where such witness gives a sufficient explanation forthe delay. It was natural for Malabanan to keep silent during that time for,aside from being a co-conspirator, mayor Sanchez was a powerfulopponent.

Consequently, we find that accused-appellants defenses of alibi anddenial are bereft of merit. The defenses of alibi and denial are worthless inthe face of positive testimony of a witness showing the involvement ofeach of the accused.

However, we disagree with the trial court that the accused committed asingle complex crime of double murder. Article 48 of the Revised PenalCode provides that when a single act constitutes two or more grave or lessgrave felonies, or when an offense is a necessary means of committing theother, the penalty for the more serious crime in its maximum period shallbe imposed.

The question is whether the act of shooting the victims using armalites inautomatic firing mode constitutes a single act and, thus, the feloniesresulting therefrom are considered as complex crimes. We rule in thenegative.

In People v. Vargas, Jr., we ruled that several shots from a Thompson sub-machine, in view of its special mechanism causing several deaths,although caused by a single act of pressing the trigger, are considered

several acts. Although each burst of shots was caused by one single act ofpressing the trigger of the sub-machinegun, in view of its specialmechanism the person firing it has only to keep pressing the trigger of thesub-machinegun, with his finger and it would fire continually. Hence, it is

not the act of pressing the trigger which should be considered asproducing the several felonies, but the number of bullets which actuallyproduced them. In the instant case, Malabanan testified that he heardthree bursts of gunfire from the two armalites used by accused Corcolonand Peradillas. Thus, the accused are criminally liable for as manyoffenses resulting from pressing the trigger of the armalites. Therefore,accused are liable for two counts of murder committed against the victims,Nelson and Rickson Pealosa, instead of the complex crime of double

murder.

Evidently, treachery was present in the execution of the crimes. Theattack against the victims, who were unarmed, was sudden, catching themunaware and giving them no opportunity to defend themselves. Thepresence of treachery qualifies the crimes to murder.

Conspiracy is likewise adequately established. Notwithstanding the factthat mayor Sanchez was not at the crime scene, we are convinced that hewas not only a co-conspirator, he was the mastermind of the ambushslayings or the principal by inducement. Malabanan testified that NelsonPealosa was killed upon order of mayor Sanchez. After the commission ofthe crime, the assailants reported to mayor Sanchez. In conspiracy, it isnot necessary to show that all the conspirators actually hit and killed thevictim. What is important is that the participants performed specific acts

with such closeness and coordination as unmistakably to indicate acommon purpose or design in bringing about the death of the victim.Conspiracy renders appellants liable as co-principals regardless of theextent and character of their participation because in contemplation oflaw, the act of one conspirator is the act of all.

The trial court properly appreciated the existence of evidentpremeditation. The prosecution clearly showed the presence of thefollowing requisites: a) the time when the accused determined to committhe crime; b) an act manifestly indicating that the accused had clung totheir determination; and c) sufficient lapse of time between suchdetermination and execution to allow them to reflect upon theconsequences of their acts. As early as 10:00 in the morning, the accusedhad conspired to kill Nelson Pealosa. They even looked for two-wayradios and a vehicle to be used for the operation. Indeed, sufficient timehad lapsed to allow the accused to reflect upon the consequences of theiractions.


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Accused specifically used a motor vehicle to execute the crime. Thus, theaggravating circumstance of use of a motor vehicle must be appreciated.

However, we cannot appreciate the generic aggravating circumstance ofnighttime; while the crime was committed at night, the prosecution failedto show that the malefactors specifically sought this circumstance tofacilitate the criminal design. The fact that the crime happened at 7:00 inthe evening does not indicate that accused made use of the darkness to

conceal the crime and their identities.At the time of the commission of the crime on April 13, 1991, the penaltyfor murder under Article 248 of the Revised Penal Code was reclusiontemporal in its maximum period to death. Considering the presence ofaggravating circumstances, the accused should be sentenced to the deathpenalty for each murder. However, in view of the constitutionalproscription of the death penalty at that time, each of the accused issentenced to two (2) penalties ofreclusion perpetua.

Regarding the civil liability of the accused, the trial court ordered theaccused to pay the heirs of Nelson and Rickson Pealosa each, the sum ofP100,000.00, P50,000.00 as actual damages, P50,000.00 as moraldamages, and P30,000.00 as exemplary damages, and to pay the costs.

The P50,000.00 award as actual damages should be deemed as indemnity

for the untimely demise of the victims. We have held that only expensessupported by receipts and which appear to have been actually expendedin connection with the death of the victims may be allowed. No proof waspresented to sustain the award of actual damages.

Similarly, we can not award damages for loss of earning capacity. All thatwas presented in evidence was the testimony of the common law wife,Adelina Pealosa, that Nelson earned P1,000,000.00 a year. We have heldthat for lost income due to death, there must be unbiased proof of thedeceaseds average income. Self-serving, hence unreliable statement, isnot enough.

Considering the attendance of aggravating circumstances, we sustain theaward of exemplary damages of P30,000.00, per victim, in accordancewith Article 2230 of the Civil Code.

As regards moral damages, we affirm the P50,000.00 awarded to the heirsof Rickson Pealosa.His mother, Adelina Pealosa, testified to the sufferingcaused by his death. We also sustain the award of moral damages to theheirs of Nelson Pealosa. His common law wife testified to the mental

anguish suffered by the family due to Nelsons death. Under Article 2206of the Civil Code, the spouse, legitimate and illegitimate descendants andascendants of the deceased may demand moral damages for mentalanguish by reason of the death of the deceased. However, the commonlaw wife is not entitled to share in the award of moral damages.

WHEREFORE, the Court MODIFIES the decision of the Regional Trial Court,Branch 160, Pasig City, and finds accused-appellants Antonio L. Sanchez

and Artemio Averion guilty beyond reasonable doubt of two (2) counts ofmurder, and sentences each of them to suffer two (2) penalties ofreclusion perpetua, and each to pay jointly and severally the respectiveheirs of victims Nelson and Rickson Pealosa, as follows:

1) Indemnity for death - P 50,000.00

2) Moral damages - 50,000.00

3) Exemplary damages - 30,000.00

Total

With costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ.,

concur.


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FIRST DIVISION

[G.R. No. 126028. March 14, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EXPEDITO ALFON,accused-appellant.

D E C I S I O N

AZCUNA,J.:

Expedito Alfon appeals the December 18, 1995 decision of the RegionalTrial Court (RTC) of San Jose, Camarines Sur (Branch 30) in Criminal CaseNo. T-1249, finding him guilty of murder as follows:

WHEREFORE, the accused Expedito Alfon is hereby sentenced to suffer thepenalty of imprisonment of reclusion perpetua, with the accessorypenalties inherent thereto, to indemnify the heirs of the late Tomas Alferez,through the latters brother Rodolfo Alferez the sum of Fifty ThousandPesos (P50,000.00) [as civil indemnity, and] the sum of Twenty Four Thousand Two Hundred Twenty Pesos (P24,220.00) as actual damages,both [in] Philippine Currency, and to pay the costs.

On April 30, 1993, appellant was charged under an information which

states:

That on or about 2:00 oclock in the afternoon of February 18, 1993 atBarangay Oring, Municipality of Caramoan, Province of Camarines Sur,Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evidentpremeditation while armed with a fan knife (balisong biente nueve)without any warning whatsoever did, then and there willfully, unlawfully,and feloniously attack, assault and stab the victim Tomas S. Alferez hittingthe latter twice on his chest and other parts of the body thereby inflictingstab wounds which directly caused his instantaneous death on February18, 1993 as evidenced by the attached Autopsy Report marked as AnnexA and death certificate marked as Annex A-1 hereof.

That as a consequence of the unlawful acts of the above-named accused,

the heirs of the late Tomas S. Alferez have suffered damages.ACTS CONTRARY TO LAW.

Upon his arraignment on July 28, 1993, appellant, assisted by his counselde oficio, pleaded not guilty. After trial, the court a quo rendered theassailed decision.

The prosecution presented four witnesses: Vicente Eusebio, ManuelRayoso, Dr. Minerva Aguirre, and Rodolfo Alferez. Their testimonies aresummarized below.

Vicente Eusebio testified that on February 18, 1993, he was smoking

cigarettes in front of the house of Purificacion Reazon at Barangay Oring,Caramoan, Camarines Sur. At around 2:00 p.m., he saw the victim walkingfrom the opposite direction being followed by herein appellant ExpeditoAlfon. As soon as the victim and appellant were about six meters awayfrom him, appellant came from behind the unsuspecting victim, andsuddenly stabbed the latter twice with a knife known as balisong 29. Thevictim was hit on the left portion of his ribs and on the right side of hischest. As he fell on the ground face down, appellant ran away towards theseashore. Eusebio shouted for help, and immediately, Manuel Rayoso,Jesus Arranza, and Agripino Lazado responded. They carried the victim to amotorboat and brought him to a doctor in Poblacion, Caramoan.Unfortunately, Tomas Alferez did not survive.

Manuel Rayoso, the second eyewitness, testified that on February 18,1993, at around 2:00 p.m., while walking near the house of PurificacionReazon, he saw the victim walking from the opposite direction beingfollowed by the appellant. Shortly thereafter, when the victim andappellant were six meters away from him, he witnessed the appellantsuddenly hold the victims shoulder and stab the latter with a balisong atthe lower left side of his chest. Appellant then ran away towards theseashore.

Dr. Minerva Aguirre, Municipal Health Officer of Caramoan whoconducted the autopsy of the victims body, testified on her post mortemfindings. As indicated in the autopsy report, she verified that the victimsustained two stab wounds: one on the right lower part of the victimsnipple, and the other on the left lower part of the chest, which she foundto be the more fatal. She also found an incised wound on the dorsal part ofthe victims right index finger. She stated that a sharp-bladed instrument

could have caused the wounds. The cause of death, as declared in saidautopsy report, is profuse hemorrhage secondary to stab wound.

Rodolfo Alferez, the victims brother, testified to prove the civil liability ofappellant. He stated that he spent a total of P24,220.00 for the funeral and


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burial expenses, as itemized in the list of expenses he submitted asevidence.

Appellant Expedito Alfon, on the other hand, interposed the defense ofdenial. He narrated that in the afternoon of February 18, 1993, he was onhis way home from his sisters house. While walking along SampaguitaStreet, the victim and his brother Rodolfo Alferez waylaid him. Rodolfopunched appellant on his left eye and later brought out a knife. Appellant

ran away and the victim chased him. A fistfight then ensued betweenappellant and the victim. Rodolfo soon after caught up with them and triedto stab appellant with a knife. Appellant evaded the thrust and Rodolfo hitTomas instead. Appellant then ran away and later learned that Tomas haddied.

The trial court concluded that the eyewitnesses testimonies convincinglyestablished that appellant had killed the victim with treachery. It, however,ruled out the aggravating circumstance of evident premeditation for lackof proof. It rejected the denial and version of the appellant due to the lackof supporting evidence.

Hence, this appeal.

In his Brief, appellant submits for our consideration the following errorsallegedly committed by the trial court:

I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THETESTIMONIES OF THE PROSECUTION WITNESSES.

II. THE TRIAL COURT ERRED IN HOLDING THAT THE KILLING OF TOMAS S.ALFEREZ WAS QUALIFIED BY TREACHERY.

III. THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OFACCUSED-APPELLANT THAT IT WAS RODOLFO ALFEREZ WHO ACTUALLYSTABBED HIS BROTHER TOMAS S. ALFEREZ.

IV.THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTDESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYONDREASONABLE DOUBT.

V. THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT LIABLE FORACTUAL DAMAGES IN THE AMOUNT OF P24,220.00.

Under the first, third and fourth assigned errors, this Court is called uponto determine whether or not the trial court was correct in finding the

evidence of the prosecution sufficient to prove appellants guilt beyondreasonable doubt, and in rejecting the version of the defense.

Appellant contends that the trial court erred in giving credence to theeyewitnesses testimonies, which he insinuates to be incredible andunreliable.

As his first point, he asserts that considering the circumstances of thestabbing incident as narrated by the prosecution and the location of the

injuries, an attack from behind is hardly believable. He avers thatassuming that he was indeed following the victim prior to the attack, itcould have been easier and more convenient for him to stab the victimsback. However, as it now appears, the injuries are all found on the front ofthe victim. He thus argues that in the ordinary course of things, the attackwas more likely frontal, contradictory to the testimonies of theprosecution.

This Court is not convinced. The two eyewitnesses testified that appellantcame from behind before stabbing the victim since the former wasfollowing the latter prior to the sudden attack. Eusebios detailed accountof the manner of assault explains why the injuries are on the front of thevictim, despite the assailant having come from behind:

xxx

xxx xxxQ: You said a while ago that you saw the accused following the victim,Tomas Alferez [b]efore [he] was stabbed twice. Would you go down thewitness stand and demonstrate to us how Expedito Alfon approachedTomas Al[f]erez and stabbed him?

A: Expedito Alfon went towards the right side of Tomas Alferez comingfrom behind and suddenly stabbed Tomas Alferez using his right hand inan embracing position with his left hand on the victims left shoulder [and]with his right hand striking the victim [with] a swinging motion hitting thevictims left lower rib. The second strike hit the victim on the right portionof his body.

(STENOGRAPHERS NOTE: The witness demonstrated the act by using theInterpreter as medium.)

Though not as specific, the testimony of the second eyewitness, Rayoso, iscorroborative on the aforesaid manner of attack:


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xxxxxx xxx

Q: And when you saw this Expedito Alfon, the accused [whom] you pointeda while ago[,] following this Tomas Alferez , what happened next?

A: He [held] the shoulder and stabbed him.

Q: From behind?

A: From behind.Q: As you said from behind, Tomas Alferez was stabbed. Was he hit whenstabbed by Expedito Alfon?

A: Yes sir.

Q: Where?

A: (Witness pointed to the lower left side of the chest/breast.)

Unrefuted on cross, these testimonies on the manner of attack sufficientlyestablish beyond reasonable doubt that the assailant came from behind,held the shoulder of the victim with one hand, and in a sudden and swiftmanner, stabbed the front of the victim with the other hand. The argumentthat it could have been more convenient for appellant, who was behind thevictim, to stab at the back cannot prevail over the testimonies of the

eyewitnesses. Furthermore, the manner as testified to is the moreplausible one, as it shows that the assailant aimed to stab the front of thevictim while holding the latters shoulder from behind, to ensure theexecution of the act and the instant death of the victim. The evidence isindisputable that one of the injuries inflicted on the victim was so severethat death most likely occurred in not more than five minutes.

As his second point, appellant seeks to inject reasonable doubt on theground of the alleged conflicting evidence of the prosecution on thenumber of stabbing blows executed by the assailant. Witness Eusebiotestified that the victim was stabbed twice, while in the narration ofwitness Rayoso, it appears that the victim was stabbed only once. Dr.Aguirre, on the other hand, opined in her testimony that the assailant mostlikely threw three stabbing blows.

The argument fails. First, with regard to the inconsistencies in theeyewitnesses testimonies, this Court holds that these are insufficient toaffect the essential veracity of their testimonies. It is settled that conflict intestimonies of witnesses in describing details of an event may be due to

differences in observations and memory which do not necessarily implyfalsehood on their part. Inconsistencies on minor details do not impair thecredibility of the witnesses where there is consistency in relating theprincipal occurrence and positive identification of the assailant. In thepresent case, though the two eyewitnesses differed as to the number ofstabbing blows, they were unwavering and consistent in declaring thatthey witnessed no less than the appellant stabbing the victim at the chestwith the use of a balisong. Second, as regards the doctors testimony, this

Court notes that her opinion that the assailant most likely threw threestabbing blows was only surmised from her finding of three injuries. Suchfinding does not discount the possibility that the third wound on thevictims finger could have been caused in the victims attempt to parry theappellants knife. Given these, therefore, the alleged discrepancy fails torender the eyewitnesses testimonies unreliable and incredible. As thisCourt has consistently held, inconsistencies on minor details reinforcerather than weaken credibility.

Against the evidence presented by the prosecution, which the trial courtfound sufficient and convincing, appellant interposes denial as his defense.He begrudges the trial court for not appreciating his defense that it wasRodolfo Alferez who stabbed the victim.

This Court agrees with the trial courts observation that the version of the

appellant is doubtful. First, the two disinterested eyewitnesses bothtestified that Rodolfo was not at the scene during the incident. This pointin said testimonies was confirmed by Rodolfo himself, and was notchallenged by the defense. Second, appellants version evidently conflictswith the physical evidence showing that the victim suffered three injuries.Assuming that Rodolfo indeed hit the victim by mistake, the two otherwounds remain unexplained. Third, appellant failed to present evidence onany ill-motive Rodolfo and Tomas Alferez would have against appellant.The fact that that there was no bad blood between the families of thebrothers and appellant was even stipulated by the parties. Fourth, andmore importantly, appellant failed to present any independent evidenceother than his own denial to bolster his claim. It is doctrinal that to meritcredibility, denial must be buttressed by strong evidence of non-culpability.If unsubstantiated by clear and convincing evidence, it is negative and

self-serving, deserving no greater value than the testimony of crediblewitnesses who testify on affirmative matters. In the case at bar, appellantmiserably failed to overcome the eyewitnesses testimonies, whichpositively identified him as the perpetrator of the crime.


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In view of the foregoing, this Court concurs with the trial court inattributing full faith and credence to the testimonies of the disinterestedeyewitnesses and in disregarding the denial of appellant. As betweencategorical testimonies that ring of truth on one hand, and a bare denialon the other, the former must prevail. The rule is settled that the trialcourts evaluation of the credibility of witnesses will not be disturbed bythis Court on appeal, absent any arbitrariness or oversight of facts andcircumstances of weight and substance. In this case, this Court finds no

reason to reverse the findings of the court a quo.

In his second assigned error, appellant avers that the killing could nothave been attended by treachery considering that the wounds wereinflicted on the front of the victim. As discussed earlier, he seeks to castdoubt on the prosecutions averment that the attack came from behind,arguing that the attack could be more likely frontal.

The essence of treachery is the unexpected and sudden attack on thevictim which renders the latter unable and unprepared to defend himselfby reason of the suddenness and severity of the attack. This criterionapplies, whether the attack is frontal or from behind. Even a frontal attackcould be treacherous when unexpected and on an unarmed victim whowould be in no position to repel the attack or avoid it. The fact that thelocation of the fatal stab wound is in front does not in itself negate

treachery. In the case at bar, it was established that appellant came frombehind, went towards the right of the victim, and suddenly stabbed thevictims chest while holding the latters left shoulder. Evidence shows that,first, at the time of attack, the victim was not in a position to defendhimself, as he was unarmed and totally unsuspecting when appellantsuddenly held and stabbed him; and second, appellant consciously anddeliberately adopted the particular means of attack, as he was seensurreptitiously following the victim with a balisong tucked under his waist.Clearly therefore, treachery attended the crime.

Finally, as to the civil liability imposed by the trial court, somemodifications are in order. The trial court erred in awarding actualdamages in the amount of P24,220. To recover actual damages, it isnecessary to prove the actual amount of loss with a reasonable degree ofcertainty, on the basis of competent proof and the best evidence

obtainable. The prosecution in this case merely presented the testimony ofthe victims heir, and a list of funeral and burial expenses made by thesame witness without producing any receipt or other evidence to support

the claim. There was thus no sufficient proof to sustain the trial courtsaward of actual damages. Be that as it may, considering that it cannot bedenied that the heirs suffered some pecuniary loss though the exactamount cannot be proved with certainty, an award of P25,000 by way oftemperate damages is appropriate. In addition to this, this Court likewisegrants the amount of P25,000 as exemplary damages given the presenceof the qualifying circumstance of treachery. The civil indemnity for thevictim in the amount of P50,000 is sustained.

All things considered, this Court is convinced that appellant Expedito Alfonis guilty of murder. Given that the crime was committed prior to theeffectivity of the New Death Penalty Law (Republic Act No. 7659), theappropriate penalty under Article 248 of the Revised Penal Code prior to itsamendment is reclusion temporal in its maximum period to death.Inasmuch as there is neither mitigating nor aggravating circumstance, thepenalty ofreclusion perpetua imposed by the trial court is correct.

WHEREFORE, the decision of the court a quo is AFFIRMED with theMODIFICATION that in addition to the civil indemnity of P50,000, appellantis further ordered to pay the heirs of the victim P25,000 as temperatedamages and P25,000 as exemplary damages. The award of actualdamages is deleted. Costs de oficio.

SO ORDERED.


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EN BANC

[G.R. Nos. 126147/ 143925-26*. January 28, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO LAWA,accused-appellant.

D E C I S I O N

PER CURIAM:

For our automatic review is the judgment of conviction dated March 22,1996 rendered by the Regional Trial Court of Sultan Kudarat (Branch 19)finding appellant Leoncio Lawa guilty of the crimes of Murder as charged inCriminal Cases Nos. 2210 and 2211 and of Attempted Murder as chargedin Criminal Case No. 2212. Appellant was meted out the penalty of Deathin Criminal Cases Nos. 2210 and 2211; and imprisonment ranging fromfour (4) years, two (2) months and one (1) day ofprision correccional, asminimum, to ten (10) years and one (1) day of prision mayor,asmaximum, in Criminal Case No. 2212.

Three (3) separate Informations were filed against appellant, alleging thecommission of the crimes as follows:

CRIMINAL CASE NO. 2210That in the evening of April 27, 1994, at Barangay Purikay, Municipality ofLebak, Province of Sultan Kudarat, Philippines, and within the jurisdictionof this Honorable Court, the said accused, in company with alias INTAW,alias ARAFAT and BUCOY OSONG who are at large and whose cases are stillpending preliminary investigation before the 1st Municipal Circuit TrialCourt of Lebak-Kalamansig, Sultan Kudarat, armed with firearms,conspiring, confederating and mutually aiding one another, with intent tokill, with evident premeditation and treachery, did then and there, willfully,unlawfully and feloniously, attack, assault and indiscriminately fire at thehouse of Roger Gregorio where he and his family were asleep at the time,thereby inflicting gunshot wounds upon LOLITA GREGORIO which directlycause (sic) her death.

CONTRARY TO LAW, particularly Article 248 of the Revised Penal Code ofthe Philippines.

CRIMINAL CASE NO. 2211

That in the evening of April 27, 1994, at Barangay Purikay, Municipality ofLebak, Province of Sultan Kudarat, Philippines, and within the jurisdictionof this Honorable Court, the said accused, in company with alias INTAW,alias ARAFAT and BUCOY OSONG who are at large and whose cases are stillpending preliminary investigation before the 1st Municipal Circuit TrialCourt of Lebak-Kalamansig, Sultan Kudarat, armed with firearms,conspiring, confederating and mutually aiding one another, with intent tokill, with evident premeditation and treachery, did then and there, willfully,

unlawfully and feloniously, attack, assault and indiscriminately fire at thehouse of Roger Gregorio where he and his family were asleep at the time,thereby inflicting gunshot wounds upon CULAN GREGORIO which directlycause (sic) her death.

CONTRARY TO LAW, particularly Article 248 of the Revised Penal Code ofthe Philippines.

CRIMINAL CASE NO. 2212

That in the evening of April 27, 1994, at Barangay Purikay, Municipality ofLebak, Province of Sultan Kudarat, Philippines, and within the jurisdictionof this Honorable Court, the said accused, in company with alias INTAW,alias ARAFAT and BUCOY OSONG who are at large and whose cases are stillpending preliminary investigation before the 1st Municipal Circuit TrialCourt of Lebak-Kalamansig, Sultan Kudarat, armed with firearms,

conspiring, confederating and mutually aiding one another, with intent tokill, with evident premeditation and treachery, did then and there, willfully,unlawfully and feloniously, attack, assault and indiscriminately fire at thehouse of Roger Gregorio where he and his family were asleep at the time,thereby inflicting gunshot wounds upon ELVIE GREGORIO, thus performingall the acts of execution of which should have produced the crime ofmurder as a consequence thereof but which nevertheless did not produceit by reasons or causes independent of the will of the accused, that is, bythe time (sic) and able medical assistance rendered to said Elvie Gregoriowhich prevented her death.

CONTRARY TO LAW, particularly Article 248 in relation to Article 6 of theRevised Penal Code of the Philippines, September 21, 1994.

Appellant, assisted by counsel, pleaded not guilty to all three (3)

charges. Joint trial ensued. The lone eyewitness for the prosecution, 10-year old Elvie Gregorio,testified on the events of the crimes as she saw them, thus: At around


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11:30 in the evening of April 27, 1994, she was inside their house with herparents, Roger and Lolita Gregorio, and younger sister, Culan Gregorio,**when there was a burst of gunfire. She immediately stood up, peepedoutside, and saw four people. She was able to identify one of them, hereinappellant Leoncio Lawa, as he is her uncle. Her mother and sisterimmediately died from gunshot wounds while she sustained gunshotinjuries on the forehead.

On cross-examination, Elvie testified that: at the time of the incident, theywere all sleeping beside each other inside their house when she wasawakened by the gunfire; she stood up and peeped through a 3-inchdiameter hole on their wall and saw her uncle at about 2-arms lengthaway, holding a firearm and firing in their direction; she saw her sisterCulan wounded and tried to wake her up but to no avail; she also saw herfather crouching behind a sack of corns.

Upon query of the trial court, Elvie answered that she was able torecognize her uncle despite the lack of lighting outside their housebecause of the moonlight.

Roger Gregorio testified that: on the night of April 27, 1994, while he wassleeping with his family, his house was fired upon resulting in the death ofhis wife and daughter; he reported the incident to the barangay captain onthe same day; some months before the incident, he had a

misunderstanding with appellant, the husband of his older sister, over aparcel of land they were tilling; he was proposing that they cultivate theland alternately but appellant told him that there will be bloodshed if heplows the land; said misunderstanding, has already been settled; he leftTapudi and transferred to Purikay a year before the shooting incidentbecause of his dispute with appellant.

Roger likewise testified on his suffering, the damages and expenses heincurred because of the death of his wife and daughter.

On cross-examination, Roger stated that: when he heard the gunfire, hesought cover and crouched; he did not call out to his wife and daughtersnor did he see the triggermen; after the gunfire, he opened the door andturned his wifes face which he saw was wounded; when he was going out,Elvie shouted to him, taydo not go down since there were still persons,

but he still went down; he did not see anybody outside the house; hereported the incident to the barangay captain the following day.

Upon clarificatory questions propounded by the trial court, Rogerexplained that when he reported the incident to the barangay captainthat same evening, right after the shooting, he was not able to name theperpetrators because when Elvie shouted to him not to go down, she didnot mention who were the persons outside their house and it was onlythe following day when she told him the identity of one of the assailants.

Next to testify was Dr. Johnny Tan, Municipal Health Officer of Lebak, whotold the court that he examined the cadavers of Lolita and Culan Gregorioin the morning of April 29, 1994, and concluded that the causes of deathof both were the gunshot wounds they each sustained on their heads. Saidshots were fired at a distance of not less than one (1) meter since therewas no powder burn.

On cross-examination, Dr. Tan stated that the victims could have beenstanding, lying or sitting down when hit by the bullets, and that at the timehe examined them, they have been dead for more than twenty-four hoursbut not more than three days.

SPO2 Romeo Blase testified: After receiving a report of a massacre, heconducted a spot investigation on the crime scene in the morning of April28, 1994 and found two dead victims and one injured. After confirming theidentity of the assailant as appellant Leoncio Lawa, he proceeded to thenext barangay to apprehend the suspect with the assistance of the

barangay captain. He brought appellant to the police station forinterrogation. Appellant denied any involvement in the crime.

Upon cross-examination, SPO2 Blase further testified that he learned ofthe incident for the first time on the evening of April 27, 1994 from thebarangay captain of Purikay, Lebak, Sultan Kudarat; and that he found outthe identity of the assailant from surviving witness Elvie Gregorio.

For the defense, Petra Lawa, wife of appellant, was first to testify. Petraconfirmed that her brother, Roger Gregorio, had a misunderstanding withappellant over a parcel of land and that said dispute had already beensettled. She also testified that her husband was home on April 27, 1994although she cannot specifically tell the time when appellant was allegedlyhome.

The next defense witness was Sergio Lausog, a farmer who works on aland owned by one Philip Eleazar located in Bgy. Tapudi. He testified that:the land he works on is located inside a coconut plantation whereappellant also works as a gatherer; appellant is his brother-in-law, having


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married his younger sister; they are neighbors; he knows Roger Gregoriowho used to reside in Bgy. Tapudi; and, Roger had a misunderstandingwith appellant over a parcel of land because Roger wanted to recover theland from appellant.

Further, according to Lausog: On the night of April 27, 1994, he was insidehis house when he heard gunshots. He went out and called out toappellant whose house is located 7 meters away from his, who told him, xx x go back to sleep and be ready and if something will happened (sic),you must vacate your place. The next day, he saw appellant gatheringcoconuts, and it was only later on that he learned that appellant wasarrested. He visited appellant at the Lebak municipal hall and while he wassurprised with appellants arrest, he did not tell the police that he sawappellant on the evening of April 27, 1994.

Finally, appellant testified in his own behalf. He admitted that he had amisunderstanding with his brother-in-law Roger Gregorio over a piece ofland owned by Philip Eleazar. However, said misunderstanding had alreadybeen settled between them before the barangay captain, and at the timeof the incident, Rogers younger brother is cultivating the property subjectof the dispute. Appellant also stated that the Muslims were hunting Rogerbecause he killed one of them at the market place in Tapudi. Appellantdenied any participation in the crimes charged claiming that he was home

at the time of the shooting; that he was merely awakened by SergioLausog who told him of the gunshots being heard; that the next day, hewas arrested and placed in jail without him knowing the reason for hisarrest.

Thereafter, the trial court rendered its judgment of conviction, thedispositive portion of which reads:

Accordingly, however, unpleasant, even painful is the compliance with itsduty to apply the penalty provided by law, the Court hereby sentences:

IN CRIMINAL CASE NO. 2210

(a)- the accused, Leoncio Lawa, to suffer the extreme penalty of DEATH;

(b)-the accused, Leoncio Lawa, to indemnify the heirs of the deceasedvictim, Lolita Gregorio, the amount of TWENTY THOUSAND (P20,000.00)

PESOS, as moral damages; the amount of TEN THOUSAND (P 10,000.00)PESOS, as exemplary damages; and the amount of FIFTY THOUSAND(P50,000.00) PESOS, as indemnity to death.


(a)- the accused, Leoncio Lawa, to suffer the extreme penalty of DEATH;

(b)- the accused, Leoncio Lawa, to indemnify the heirs of the deceasedvictim, Colan Gregorio, the amount of TWENTY THOUSAND (P20,000.00)PESOS, as moral damages; the amount of TEN THOUSAND (P 10,000.00)PESOS, as exemplary damages; and the amount of FIFTY THOUSAND(P50,000.00) PESOS, as indemnity to death.


(a)-the accused, Leoncio Lawa, after applying the Indeterminate SentenceLaw, to suffer the indeterminate penalty of imprisonment, ranging fromFOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prisioncorreccional, as minimum, to TEN (10) YEARS and ONE (1) DAY of prisionmayor, as maximum.

The Court further sentences the accused, Leoncio Lawa, in Criminal CasesNos. 2210 and 2211, to indemnify the heirs of the deceased victims, Lolitaand Colan Gregorio, in the total amount of SIX THOUSAND (P6,000.00)PESOS, as actual damages incurred by way of miscellaneous expensesduring the wake and burial of the said deceased victims; and to pay thecosts of suit in the above-entitled cases.

Being a detention prisoner, the accused, Leoncio Lawa, in Criminal CaseNo. 2212, is entitled to full credit of the entire period of his preventiveimprisonment in accordance with Article 29 of the Revised Penal code, asamended by R.A. No. 6127, provided he had agreed in writing to abide bythe same disciplinary rules imposed upon convicted prisoners, otherwise,with only four-fifths (4/5) thereof.

IT IS SO ORDERED.

Given this 22nd day of March, 1996, at Isulan, Sultan Kudarat, Philippines.

The trial court relied principally on the testimony of eyewitness ElvieGregorio identifying appellant as one of the assailants, ruling that thedefense failed to rebut the identification made by Elvie and impeach hercredibility.

In his Appeal Brief, appellant contends that the trial court erred:

1. IN RELYING TOO MUCH TOO MUCH (sic) ON THE TESTIMONY OF ELVIE GREGORIO WHICH TESTIMONY IS INCREDIBLE AND INCONSISTENT.


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2. IN FAILING TO TAKE NOTICE OF THE INCONSISTENCIES OF THETESTIMONIES OF THE TWO WITNESSES OF THE PROSECUTION.

3. IN FAILING TO GIVE CREDENCE TO THE TESTIMONY OF THE WIFE OF THE ACCUSED WHO IS SISTER-IN-LAW OF THE DECEASED LOLITAGREGORIO AND THE AUNT OF THE DECEASED COLAN GREGORIO.

4. IN FAILING TO CONSIDER THE FACT THAT THE PROSECUTIONWITNESSES HAVE ILL MOTIVE TO TESTIFY AGAINST THE ACCUSED.

Appellant assails the credibility of Elvie Gregorio arguing that sheanswered the questions in a very stiff and mechanical manner and thather testimony suffers from inconsistencies and flaws showing that she wasa coached witness.

It is settled that the determination of the competence and credibility of achild as a witness rests primarily with the trial judge as he had theopportunity to see the demeanor of the witness, his apparent intelligenceor lack of it, and his understanding of the nature of the oath. As many ofthese qualities cannot be conveyed by the record of the case, the trialjudges evaluation will not be disturbed on review, unless it is clear fromthe record that his judgment is erroneous.

In the case at bar, we find no cogent reason to disturb the trial courtsassessment of the credibility of Elvie as a witness. Appellant makes much

ado about the manner in which Elvie testified. A judicious review of Elviestestimony does not reveal anything unusual in the way she testified. Shesimply answered the questions propounded to her by the publicprosecutor. The fact that her responses were direct, positive andcategorical does not mean that she answered in a very stiff andmechanical manner. On the contrary, such testimony bears the earmarksof credibility. Ample margin of error and understanding is accorded toyoung witnesses who, much more than adults, would naturally be grippedwith tension due to the novelty of the experience of testifying before acourt.

Moreover, the alleged inconsistency pointed out by appellant in Elviestestimony does not affect her credibility. Appellant insists that Elvie gaveconflicting answers as to whether she was already peeping through thewall before the spate of gunfire because when she was asked during cross-examination: (B)efore you heard the gunburst what are you doing at thetime?, she replied, I peeped, sir; and, upon questioning by the trial

court, she declared that she was sleeping before she peeped and that shewas awakened by the gunfire.

We find such alleged inconsistency more apparent than real. Appellantconveniently overlooked Elvies categorical narration during directexamination, viz.:

Q:- At around 11:30 in the evening, of April 27, when you were in yourhouse together with your parents and sister, do you remember of anything

unusual incident (sic) that happened in your house?A:- Yes, sir.

Q:- What was that all about?

A:- Gunburst, sir.

Q:- How many gunburst did you hear?

A:- Many, sir.

Q:- And when you heard this gunburst, what did you do?

A:- I stood up, sir.

Q:- And what did you do after standing up?

A:- I peeped, sir.

and a portion of her response to the clarificatory questions of the courtand the succeeding questions of counsel for appellant on cross-examination, to wit:

COURT:

Q:- Before you peep where did you come from?

A:- I was sleeping, your Honor.

Q:- You mean you were awakened?

A:- Yes, your Honor.

Q:- Why were you awakened?

A:- I heard gunburst, your Honor.

COURT:

Continue.

ATTY. ARMADA:


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Q:- When you were sleeping who were besides (sic) you when you weresleeping?

A:- Colan, sir.

Q:- And where was your father and your mother at the time?

A:- They were sleeping together, sir.

Q:-Your sister, your mother and your father and you were sleeping in one

room?A:- Yes, sir.

Q:- You mentioned that when you heard a gunburst you stood up, is thatcorrect?

A:- Yes, sir.

Q:- When you stood up were you already hit at the forehead when youstood up?

A:- Yes, sir.

xxx xxx xxx

ATTY. ARMADA:

Q:- And when you stood up were there still gunburst?

A:- Yes, sir.

Clearly therefrom, Elvie, who was sleeping, heard gunfire shots. It wasthen that she stood up, peeped outside, and saw four people, one of whomwas appellant. Thus, there is nothing inconsistent or contradictory with hertestimony. Moreover, the alleged inconsistency, if any, is far too minor andtrivial to denigrate Elvies credibility.

What is important is that she positively identified appellant who is heruncle as one of the perpetrators. She positively declared on the witnessstand:

Q:- And what have you seen (sic) outside when you peeped?

A:- Four persons, sir.

Q:- Do you know who were those persons whom you have seen outside?

A:- I only know one of the persons (sic), sir.

Q:- What is the name of that person whom you said you know?

A:- Leoncio Lawa.

Q:- If you are asked to identify Leoncio Lawa will you be able to identifyhim?

A:- Yes, sir.

Q:- Will you please look around the courtroom and please point to LeoncioLawa if he is in court?

A:- He is there, sir. (Witness pointed to the second person when asked hisname he stood up and said his name is LEONCIO LAWA.)

Q:- Why do you know that it was Leoncio Lawa when you peeped outside?

A:- He is my uncle.

Q:- Why do you say that Leoncio Lawa is your uncle?

A:- The husband of my aunt, sir.

Appellant further contends that Elvies testimony contradicted that of herfathers, Roger Gregorio. In particular, appellant cites Elvies statementthat during the gunfire, her father called out to her and told her that hewill go to the barangay captain, while Roger stated during cross-examination that he did not call out to his family at that time. Again,appellant opted to disregard Elvies response to the question of the trial

court -- that his father called out her name after the gunfire -- thusshowing that Roger, indeed, did not call out to his family during the gunfirebut it was only afterwards that he did so.

Appellant also focused on Elvies statement that her father told her that hewas going to the barangay captain that same night, while Roger statedthat he went there the next day. The alleged inconsistencies orcontradictions between their statements refer only to minor and collateraldetails which do not damage their credibility or the integrity of theirtestimonies. As held in People v. Mercado:

A witness testimony may likewise contradict that of another witness. Aslong as the contradiction involves minor details and collateral matters, thecredibility of both witnesses will not be deemed impaired. After all, no twowitnesses could testify on a matter from the same point of view orperception. The recollection of different witnesses with respect to the time,place, and other circumstances of a criminal event would naturally differ invarious details. Absolute uniformity in every detail of testimonies cannotbe expected of witnesses who by nature react differently to what they see
http://www.supremecourt.gov.ph/jurisprudence/2000/nov2000/116239.htmhttp://www.supremecourt.gov.ph/jurisprudence/2000/nov2000/116239.htmhttp://www.supremecourt.gov.ph/jurisprudence/2000/nov2000/116239.htmhttp://www.supremecourt.gov.ph/jurisprudence/2000/nov2000/116239.htm


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and hear depending upon their situation and state of mind. On thecontrary, if witnesses should agree on every detail of a transaction thatoccupied a considerable space of time and should undertake to tell all thatoccurred in precisely the same order, each giving the same incidents asthe others in precisely the same words, that fact should make theirtestimonies suspect.

Furthermore, we noted from a perusal of the transcript of stenographicnotes that the incident took place at 11:30 in the evening of April 27,1994; that Roger immediately went to the house of the barangay captainwho contacted the police; and he left at 3:00 in the morning. Evidently,Roger had interchangeably referred to the same time as the followingday or same evening which is not difficult to understand consideringthat the subject incident happened at 11:30 in the evening of April 27,1994, after which he went to the house of the barngay captain andremained there until 3:00 in the morning which is already April 28, 1994but still dark and which may have been reasonably confused as stillevening by Roger.

Nonetheless, the testimony of Roger Gregorio regarding the incident mayeven be dispensed with as it serves only to corroborate that of Elvieswhose testimony, standing alone, is sufficient to support the conviction ofappellant as she was the one who actually identified appellant as one of

the assailants.Appellant also reproves the trial court for disregarding the testimony of hiswife exculpating him from the incident. His wife backed up his alibi,testifying that appellant was at home at the time of the incident.

Alibi is an inherently weak defense, and should be rejected when theidentity of the accused is sufficiently and positively established by theprosecution. Eyewitness Elvie Gregorio had categorically identifiedappellant as one of the assailants.

To overcome the prosecutions evidence, the defense must successfullyprove the element of physical impossibility of appellants presence at thecrime scene at the time of the perpetration of the offense. In the presentcase, appellant not only failed to prove that it was physically impossiblefor him to be present at the scene of the crime on the night the Gregorio

family was attacked; but also, his wifes declaration cannot be givencredence as she was not able to state categorically the particular timewhen appellant was supposedly at home, viz.:

Q:- What was the participation of your husband to the killing of wife anddaughter of Roger Gregorio?

A:- None, sir, because we were in house (sic) at that time.

Q:- What particular time are you referring to that you were in your house?

A:- I do not know, sir.

Consequently, the alibi of appellant fails.

Appellant imputes ill motive on Roger Gregorios part in testifying againsthim, i.e., their dispute over the parcel of land owned by Philip Eleazarwhich both Roger and appellant wanted to cultivate. In order that thetestimony of a witness may be considered biased, the presence ofpersonal motive on his part to testify in favor of the victim and against theaccused should be supported by satisfactory proof. In the case at bar, theallegation that there was animosity between Roger and appellant is notsufficient proof of motive or bias. As admitted by both Roger andappellant, their disagreement over the property had already beenpreviously settled before the barangay captain. Moreover, if, indeed, Rogerhad any motive at all to testify falsely against appellant, Roger could justhave easily identified appellant as one of the perpetrators of the subjectcrimes and not involve his young daughter. He did not have to drag hisdaughter into the mess and subject her to the ordeal of a court trial if her

testimony were not true. It is unnatural for the relatives of the victim/swho seek justice to commit an injustice by imputing the crime to innocentpersons and not those who were actually responsible therefor. In addition,Roger and Elvie Gregorios relationship to the victims do not automaticallyaffect the veracity of their testimonies or their credibility.

More significantly, motive is not essential when the accused has beenpositively identified by a competent witness, as in the case at bar.

Finally, the fact that it took Roger Gregorio some time to report theidentity of one of the assailants does not make his testimony not credible.Roger Gregorio reported the incident to the barangay captain immediatelyright after the gunfires. At that time, however, he did not know yet theidentity of the gunmen as Elvie informed him thereof only the day after.Obviously, he could not have told the barangay captain that appellant was

one of the assailants because he did not yet know the same at the time hereported the incident. There is no rule that a witness should immediatelyname the suspect in a crime.


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All told, we find no reversible error in the trial courts judgment ofconviction and in the imposition of the corresponding penalty of DEATH onaccused-appellant in Criminal Cases Nos. 2210 and 2211, andimprisonment from four (4) years, two (2) months and one (1) day ofprision correccional, as minimum, to ten (10) years and one (1) day ofprision mayor,as maximum in Criminal Case No. 2212.

In Criminal Cases Nos. 2210-2211, the trial court correctly imposed thepenalty of death on appellant. Article 248 of the Revised Penal Code, as

amended by Section 6 of Republic Act No. 7659 provides:

ART. 248. Murder. - Any person who, not falling within the provision s ofArticle 246 shall kill another, shall be guilty of murder and shall bepunished by reclusion perpetua to death if committed with any of thefollowing attendant circumstances:

1. With treachery, taking advantage or superior strength, with the aidof armed men, or employing means to weaken the defense or of means ofpersons to insure or afford impunity.

xxx xxx xxx

5. With evident premeditation.

The prosecution was able to prove beyond reasonable doubt the presenceof treachery and eviden

evidence2008.5thset

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