G.R. No. 124933.

September 25, 1997

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JURRY ANDAL y MERCADO,

RICARDO ANDAL y MERCADO, AND EDWIN MENDOZA, Accused-Appellants.

DECISION

PER CURIAM:

By automatic review, we pass upon another painful imposition of the death penalty.
Accused-appellants Jurry Andal, Ricardo Andal, and Edwin Mendoza seek reversal of
the judgment of Branch 5 of the Regional Trial Court of the Fourth Judicial Region
stationed in Lemery, Batangas, relying on the defenses of denial and alibi. After taking
great pains in reviewing even the minutest of the details of the case at bench; we are
compelled by the evidence on record to affirm.chanrobles virtual lawlibrary

Accused-appellants were initially charged under two separate Informations docketed as

Criminal Cases No. 148-94 and 149-94, for the crimes of Rape with Homicide, and
Robbery, respectively, reading as follows:chanrob1es virtual 1aw library

Criminal Case No. 148-94

The undersigned Special Counsel accuses Jurry Andal y Mercado, Ricardo Andal y
Mercado alias "Ric" and Edwin Mendoza of the crime of Rape with Homicide, defined
and penalized under Articles 335 and 249 in relation to Article 46 of the Revised Penal
Code, committed as follows:chanrob1es virtual 1aw library

That on or about the 6th day of July, 1994, at about 7:00 o’clock in the morning, at
Barangay Mahabang Parang, Municipality of San Luis, Province of Batangas,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together, acting in common accord and mutually
helping one another, by means of force, violence and intimidation, did then and there

1
wilfully, unlawfully and feloniously deliver fist blow on the stomach of the victim, Nancy
Siscar, which render her unconscious, and thereafter, with lewd and unchaste designs,
wilfully, unlawfully and feloniously lie with and have carnal knowledge of her one after
the other against her will and consent, and thereafter, wilfully, unlawfully and feloniously
strangle with her own half slip which caused her instantaneous death.

Contrary to law.

x x x

(p. 7, Rollo.)

Criminal Case No. 149-94

The undersigned Special Counsel accuses Jurry Andal y Mercado, Ricardo Andal y
Mercado alias "Ric" and Edwin Mendoza y Villanueva alias "Eddie" of the crime of
Robbery, defined and penalized under Article 294 of the Revised Penal Code,
committed as follows:chanrob1es virtual 1aw library

That on or about the 6th day of July, 1994, at about 7:00 o’clock in the morning, at
Barangay Mahabang Parang, Municipality of San Luis, province of Batangas, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together, acting in common accord and mutually helping one another,
with intent of gain, by means of force, violence and intimidation, did then and there
wilfully, unlawfully and feloniously take, steal and carry away the following, to wit: wrist
watch worth One Thousand Pesos (P1,000.00); earrings worth One Thousand Pesos
(P1,000.00); ring worth One Thousand Pesos (P1,000.00); and, cash worth One
Thousand Seven Hundred Fifty Pesos (P1,750.00), belonging to one Nancy Siscar, with
a total value of Four Thousand Seven Hundred Fifty Pesos (P4,750.00), Philippine
Currency, to the damage and prejudice of the said owner thereof in the aforementioned

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amount.

Contrary to law.

x x x

(pp. 9-10, Rollo.)

Upon agreement of the prosecution and the defense, the two cases were consolidated.

Accused-appellants having denied both charges, a joint trial on the merits was
undertaken, following which, a judgment of conviction was rendered, the dispositive
portion of which reads:chanrob1es virtual 1aw library

WHEREFORE, in view of the foregoing, JURRY ANDAL Y MERCADO, RICARDO

ANDAL Y MERCADO and EDWIN MENDOZA are found guilty by proof beyond
reasonable doubt of the crime of RAPE WITH HOMICIDE and penalized in accordance
with R.A. No. 7659 (Death Penalty Law) Sec. 11, par. a classifying this offense as one of
the heinous crimes and hereby sentences each of them to suffer the penalty of DEATH;
to indemnify jointly and severally the family of NANCY SISCAR the amount of
P50,000.00 for the death of NANCY SISCAR and P74,470.50 as actual burial and
incidental expenses and P200,000.00 as moral damages. The Court finds them guilty of
robbery as charged in the information and sentences them to suffer the indeterminate
sentence of TEN (10) YEARS of Prision Mayor as minimum to SEVENTEEN (17)
YEARS of Reclusion Temporal as Maximum.

x x x

(p. 52, Rollo.)

The inculpatory facts, as supported by the evidence, were synthesized by the Office of

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the Solicitor General in this wise:chanrob1es virtual 1aw library

On July 4, 1994, the victim, Nancy R. Siscar, a 22-year old elementary school teacher,
was scheduled to report to her new assignment at Mahabang Parang Elementary School
situated in barangay Mahabang Parang, Municipality of San Luis, Batangas (p. 36, TSN,
Sept. 1, 1995). As it was Nancy’s first day to report, her mother, Nenita Siscar,
accompanied her to school (p. 37, ibid.). While the two (2) were walking on their way to
Mahabang Parang Elementary School at about 8:00 to 9:00 o’clock in the morning, three
(3) men standing along the Barangay road, later identified as appellants Jurry Andal,
Ricardo Andal and Edwin Mendoza, whistled several times at the victim (pp. 37-38,
ibid.). They also laughed mockingly at them (pp. 38-40, TSN, Sept. 1, 1995).

On July 6, 1994, between the hours of 6:00 and 7:00 o’clock in the morning, witness
Olimpio Corrales was at the Barangay road of Mahabang Parang (p. 9, TSN, Feb. 10.
1993). He just came from the farm he was tilling and was on his way home (p. 9, ibid.).
While he was walking, he saw the three (3) appellants, Jurry Andal, Ricardo Andal and
Edwin Mendoza, standing along the Barangay road of Mahabang Parang (pp. 5- 9,
ibid.).

The victim came along, on her way to the Mahabang Parang Elementary School (p. 9,
TSN, Feb. 10, 1995). Appellants Jurry Andal hit her on the abdomen (p. 9, TSN, ibid.).
As a result, she fell on her back (p. 10, ibid.). Appellant Jurry Andal then hoisted her on
his shoulder and carried her to the forest (gubat) (pp. 14, 19, ibid.). The other appellants,
Ricardo Andal and Edwin Mendoza, hurriedly picked up the bag, shoes and other
personal belongings of the victim (p. 20, ibid.) and also proceeded to the forest (p. 20,
ibid.).

Corrales immediately ran to his house at Barangay Banoyo (pp. 20-21, tsn, Feb. 10,
1995).

Later, on the same day, the three (3) appellants came to the residence of Corrales and
threatened him not to tell anyone what he witnessed; otherwise, they would kill him (p.
24, TSN, ibid.).

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When the Philippine National Police of San Luis, Batangas received a report about a
lifeless body found in the creek at the boundary of Barangays Banoyo and Mahabang
Parang, then Police Senior Inspector Amelia Amando Maderozo, together with SPO2
Lolito Dinglasan, SPO2 Dante Dawis and SPO3 Ronald Macatangay, immediately
proceeded to the place (pp. 5-6, TSN, Sept. 1, 1995). Thereat, they found the lifeless
and nude body of a woman who was later identified by both the Barangay Captain and
the uncle of the victim as that of Nancy Siscar (p. 7, TSN, Sept. 1, 1995; p. 4, TSN, Aug.
4, 1995). The victim was lying on the ground on her belly (p. 7, TSN, Sept. 1, 1995).
When the victim was turned, her eyes were full of worms and she was already in the
early stage of decomposition (p. 8, ibid.). Her half-slip had been twisted like a rope and
tied tightly around her neck (p. 9, ibid.; p. 7, TSN, Aug. 4, 1995). Scattered beside her
were her shoes, umbrella, bag, pack lunch and school notebooks (pp. 7-9, TSN, Sept. 1,
1995).

The police officers also discovered that a wrist watch, earrings and money amounting to
P2,000.00 were missing (p. 9, TSN, Aug. 4, 1995). The mother of the victim confirmed
that her daughter was wearing her wristwatch, earrings and had cash when the crime
was committed (pp. 43-46, TSN, Sept. 1, 1995). The total amount of the lost items,
including the cash, was P5,000.00 (p. 10, TSN, Aug. 4, 1995). The other personal
belongings found near the body of the victim were identified by the mother of the victim
as belonging to her daughter (pp. 9-10, TSN, Sept. 1, 1995).

Dr. Antonio Ventido y Salcedo, NBI Medico-Legal Officer, performed the autopsy on the
body of the victim (p. 28, TSN, Aug. 4, 1995). He found that the victim was sexually
abused by more than one person (p. 36, TSN, Aug. 4, 1995). He confirmed the presence
of spermatozoa on the vaginal canal of the victim (p. 36, TSN, Aug. 4, 1995). He issued
a postmortem certificate attributing the victim’s death to "asphyxia by strangulation"
(Exhibit F).

On July 18, 1994, at about 11:00 o’ clock in the evening, witness Corrales gave his
written statements to SPO3 Romulo Mercado at Camp General Miguel C. Malvar,
Batangas City, in the presence of Chief Inspector Manuel M. Kalalo (Exhibit A). In his
statement, he narrated what the three (3) appellants did on the fateful day of July 6,
1994 (ibid.).

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Forthwith, or on July 20, 1994, cases of Rape with Homicide and Robbery were filed
before the Municipal Trial Court of San Luis, Batangas (pp. 26-31, TSN, Feb. 10, 1995).
After the preliminary investigation had been conducted, a warrant of arrest was issued
against the three appellants (pp. 26-31, ibid.). When appellants were arrested and
brought to the Police Station of San Luis, Batangas, SPO2 Lolito Dinglasan was ordered
by the Police Senior Inspector to search the suspects for any dangerous weapons (pp.
21-22, TSN, Sept. 1, 1994). Found inside the pocket of appellant Jurry Andal the half of
an earring (p. 22, TSN, Sept. 1, 1994) which was identified by the victim’s mother as the
one she gave to her daughter and worn by her on July 6, 1994 (pp. 43- 44, TSN, Sept. 1,
1995).

Witness Nenita Siscar presented the list of expenses amounting to P74,470.50 incurred
in connection with the death of her daughter (Exhibit L).

(pp. 3-8, Appellee’s Brief. ff. p. 157, Rollo.)

In defense, Accused-appellants plead denial and alibi. All three accused-appellants

denied: (a) whistling and mockingly laughing at Nancy Siscar and her mother; (b) the
punching of Nancy Siscar’s stomach by Jurry Andal which caused Nancy to fall on her
back, the carrying off of Nancy to the forest where she was relentlessly raped and killed;
and (c) threatening Olimpio Corrales, eyewitness to the aforesaid punching incident,
brother-in-law of Jurry Andal and Ricardo Andal, and barrio-mate of Edwin Mendoza.

Jurry Andal asserts that he was at his residence between 6 and 7 o’clock in the morning
of July 6, 1994, and that he left his house only at 11 o’clock that morning to tend to his
cow. He also argues that the earring which was taken from his right ear (not from his
pocket) by SPO2 Lolito Dinglasan was given to him seven years before by his sister-in-
law, Marcianita Andal. He presented three photographs to prove that he was wearing
said earring on three occasions. As regards Olimpio Corrales’ testimony implicating him
in the crimes charged, Jurry stated that Olimpio was angry at him. He referred three
incidents to prove this: (a) Olimpio allegedly threatened him, saying "May araw ka rin sa
akin", after Jurry blamed Olimpio for having frightened Jurry’s cow; (b) Olimpio again
threatening Jurry ("May araw ka rin sa akin") following an incident where water from

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Jurry’s "dampa" passed through Olimpio’s ampalaya garden; (c) Olimpio’s resentment
against Jurry for having mentioned that Olimpio’s house is the nearest to the crime
scene, thus impliedly referring to him as the culprit in the commission of the crimes.

Ricardo Andal argues that between 6 and 7 o’clock on the morning of July 6, 1994, he
was at his residence looking after his child and waiting for the rain to stop. At 9 o’clock,
he tended to his two cows in Barangay Banoyo and returned home at 10 o’clock in the
morning on the same date. On Olimpio’s testimony, Ricardo insists that Olimpio
implicated him and the two other accused-appellants because they pointed to him as the
one whose residence is nearest to the crime scene, mistaking the same as shifting to
him the suspicion for commission of the crimes.

Edwin Mendoza asserts that the night before July 6, 1994, he slept at the house of one
Carling Gaa, and that the following morning, he went to the construction site where he
was working and did not leave said place the whole day. It is also averred that there was
no grudge between him and Olimpio. Carling Gaa was, however, not presented to
corroborate Edwin Mendoza’s testimony.

From the evidence, the trial court deduced the following undisputed facts:chanrob1es
virtual 1aw library

Nancy Siscar was brutally raped and killed on the morning of July 6, 1994 at Barangay
Banoyo, San Luis, Batangas. Her jewelry and money were stolen by her assailants. The
fact of rape is evidenced by lacerations found in her vagina during the medical
examination, as well as the presence of human spermatozoa in her vaginal canal.

Upon observing the demeanor of prosecution witness Olimpio Corrales, the trial court
was convinced that he spoke the truth —

The prosecution was able to prove that between the hours of 6:00 and 7:00 in the
morning of July 6, 1994, while NANCY SISCAR was walking in Barangay Banoyo, San
Luis, Batangas on her way to Mahabang Parang Elementary School, Accused JURRY
ANDAL, RICARDO ANDAL and EDWIN MENDOZA suddenly appeared in front of
NANCY SISCAR. JURRY ANDAL immediately boxed the stomach of the victim who fell

7
down, lifted her and carried her to the forest. RICARDO ANDAL and EDWIN MENDOZA
picked up the things of the victim and followed them in the forest. After committing the
gruesome crime, the three (3) accused proceeded to the residence of star witness
OLIMPIO CORALES and threatened him not to tell anybody what he saw that morning
or else he would be killed.

(pp. 49-50, Rollo.)

The trial court ruled that the circumstantial evidence adduced is sufficient to prove the
crimes charged taking into consideration the credibility of the prosecution’s star witness
Olimpio Corrales and the absence of a valid reason for him to falsely testify against
accused-appellants of such grave offenses as rape with homicide and robbery.

On accused-appellants’ defense of alibi, the trial court found that all three failed
miserably in proving that it was impossible for them to have been at the crime scene at
the time the offenses were perpetrated since all three accused-appellants’ supposed
places of refuge are located in the same Barangay Banoyo, where the crimes were
committed.

The trial court likewise held that accused-appellants acted in concert to rape, slay, and
rob the victim.

With full moral conviction, the trial court imposed the penalty of death in accordance with
Section 11 of Republic Act No. 7659 which provides that." . . when by reason or on the
occasion of the rape, a homicide is committed, the penalty shall be death."cralaw
virtua1aw library

Hence, the instant appeal and review.

In discussing their six assigned errors, Accused-appellants contend that Olimpio

Corrales is not a credible witness since he did not actually witness the commission of the
offenses charged. He is said to have twice denied knowledge of said crimes during the
first two police investigations and waited 12 days before denouncing accused-appellants
as the perpetrators. His testimony is also described as conflicting, inconsistent, and

8
evasive on "vital points" .

Accused-appellants rely on the fact that an alleged eyewitness, Alfredo Amoguis, who
executed a Sworn Statement which became the basis for the filing of the Information in
court was not presented during the trial, insisting that this gives rise to the presumption
that the prosecution wilfully suppressed evidence.

It is also contended that the earring obtained from Jurry Andal is inadmissible in
evidence because it is the product of an unreasonable and illegal search and seizure as
the police officer who procured the same was not clothed with a search warrant. Further,
it is argued that there was a violation of accused-appellants’ constitutional right to
counsel since they were arrested, detained and investigated without the assistance of
counsel.

Accused-appellants reiterate their defense of alibi, stating that the trial court shifted the
onus probandi to the defense.

Lastly, Accused-appellants assail the trial court’s decision on the basis of such
technicalities as it being unsigned and for being incomplete, for a want of a statement of
facts which could support the trial court’s finding of
conspiracy.chanrobles.com:cralaw:nad

We are not persuaded.

Circumstantial evidence is that which indirectly proves a fact in issue. The fact-finder
must draw an inference from such evidence. It is at times essential to resort to
circumstantial evidence since to insist on direct testimony would, in many cases, result in
setting felons free and deny proper protection to the community (People v. Ramos, 240
SCRA 191 [1995]). An accused can be convicted based on circumstantial evidence
where the circumstances constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused to the exclusion of all others as the guilty
person (People v. Lorenzo, 240 SCRA 624 [1995]). Circumstantial evidence is sufficient
to support a conviction if: (a) there is more than one circumstance; (b) the facts from
which the inferences are derived are proven; and (c) the combination of all the

9
circumstances is such as to produce a conviction beyond reasonable doubt (People v.
Tabao, 240 SCRA 758 [1995]).

In previous decisions, this Court had the opportunity to discuss the intrinsic nature of a
rape case as that which involves only two parties, the rapist and the victim, thus making
it difficult for the accused to disprove (People v. Tacipit, 242 SCRA 241 [1995]).
Conviction or acquittal virtually depends entirely on the credibility of the victim’s
testimony because of the fact that usually only the participants can testify to its
occurrence (People v. Ching, 240 SCRA 267 [1995]). Unfortunately in the case at bench,
we do not have the facility of having the victim’s testimony. She did not survive the
cruelty of her assailants. Hence, the prosecution had to rely on the testimony of its
witness, Olimpio Corrales.

In this regard, we agree with the trial court’s finding that Olimpio Corrales’ testimony,
despite rigorous cross examination and careful perusal by the trial court, hurdles and
musters any test of credibility. Although the trial court was admittedly in the best position
to assess the credibility of Olimpio Corrales, having had the opportunity to observe his
demeanor on the witness stand (People v. Dolar, 231 SCRA 414 [1994]; People v.
Cabalhin, 231 SCRA 486 [1994]), we still took the pains of examining his transcribed
testimony and observed his spontaneity and frankness, his obvious fear and anxiety
notwithstanding.

The testimony of Olimpio Corrales, Nenita Siscar, mother of the victim, Amelia
Maderazo, the senior police inspector, and Dr. Antonio Vertido, the medico-legal officer,
spawn and generate the following facts that constitute an unbroken chain of events
leading to the inevitable conclusion of guilt on the part of accused-appellants, to
wit:chanrob1es virtual 1aw library

1. On July 4, 1994, Nancy Siscar together with her mother, Nenita, were walking to
school between 8 and 9 o’clock in the morning. Three men, standing along the barangay
road, wolf-whistled several times at Nancy and laughed mockingly at both mother and
daughter. Nenita Siscar saw the three men’s faces. With the help of Olimpio Corrales,
she later identified them as Jurry Andal, Ricardo Andal, and Edwin Mendoza (tsn, pp.
36-40, Sept. 1, 1995).

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2. On July 6, 1994, between 6 and 7 o’clock in the morning, Olimpio Corrales was on his
way home from the farm he was tilling. While walking along the barangay road, he saw
the three accused-appellants standing along the road. He was only three meters away
from them (p. 15, Records). Nancy Siscar then came along on her way to school. Jurry
Andal suddenly approached her and hit her on the abdomen. Nancy fell backwards on
the ground Jurry Andal hoisted her on his shoulders and carried her to the forest. The
other accused-appellants hurriedly picked up Nancy’s bag, shoes, and other belongings,
and followed Jurry Andal to the forest (tsn, pp. 5-20, Feb. 10, 1993).

3. Upon seeing the above-stated incident, Olimpio ran to his house full of fear. A short
while later, at around 8 o’clock, Accused-appellants came to Olimpio’s house and
threatened him with death should he tell anyone about what he had witnessed (tsn, pp.
20-21, 24, Feb. 10, 1995).

4. The Philippine National Police of San Luis, Batangas then received a report about a
lifeless body found in the creek at the boundary of Barangay Banoyo and Mahabang
Parang. Police Senior Inspector Amelia Amando Maderazo, together with SPO2 Lolito
Dinglasan, SPO2 Dante Dawis, and SPO3 Ronald Macatangay, immediately proceeded
to the place. There they found the lifeless and nude body of a woman at 11:30 p.m. on
July 6, 1994. The body was later identified as that of Nancy Siscar. She was lying face
down on the ground. When her body was turned, her eyes were full of worms and she
was already in the early stage of decomposition. Further, her half-slip had been twisted
or wound up like a rope and tied tightly around her neck. Scattered beside her were her
shoes, umbrella, bag, and other personal belongings (tsn, pp. 5-7, Sept. 1, 1995).

5. The postmortem examination of the body of Nancy Siscar revealed that she had been
sexually abused (p. 9, Records; tsn, pp. 30-36, Aug. 4, 1995).

All the aforestated circumstances have been proven and established. The combination
of such circumstances is sufficient to prove accused-appellants’ guilt beyond reasonable
doubt.

To discredit the testimony of Olimpio, Accused-appellants rely on his 12-day delay in

11
denouncing the three of them to the police authorities as the perpetrators of the crimes
charged. This argument has no leg to stand on.

We have consistently ruled that a suspect in a crime need not be named by a witness in
a hurried manner. Delay or vacillation in making a criminal accusation does not
necessarily adulterate the credibility of a witness (People v. Plasencia, 249 SCRA 674
[1995]). The initial reluctance of witnesses to volunteer information about a criminal case
and their unwillingness to be involved in criminal investigations due to fear of reprisal are
common and have been judicially declared not to affect credibility (People v. Pacapac,
248 SCRA 77 [1995]).

Olimpio Corrales, an unlettered man, is related by affinity to the brothers Jurry and
Ricardo Andal, his wife being the sister of the brothers Andal. Olimpio’s testimony
greatly displayed that Jurry Andal, who was four years his senior and whom he called
"Manong Jurry", had apparent moral ascendancy over him. Several indicia of this moral
ascendancy may be found in the transcribed testimony of Olimpio. Based on the record,
after Olimpio saw Jurry Andal hitting the victim, hoisting her on his shoulders and taking
her to the forest, Olimpio ran to the safety of his home out of fear (tsn, p. 21, Feb. 16,
1995). That is why he unfortunately was not able to see with his own eyes the actual
rape and killing of the victim. He lost composure and had to recover his mental
disposition. Upon arriving home he was not able to disclose immediately to his wife the
incident that he saw due to his confusion ("Gulong-gulo na po ang isip ko" ; ibid., p. 22).
And when he did, he simply told her, "Marilyn, may sinuntok na maestra ang Manong
Jurry" (ibid. p. 23). Then just an hour or so later, at 8 o’clock that morning, Accused-
appellants went to see Olimpio at his house and his "Manong Jurry" threatened his life
(ibid., pp. 24-25). His "Manong Jurry" successfully intimidated Olimpio for 12 days before
Olimpio could gather courage, regain his composure and come forward to tell the
authorities of what he witnessed, denouncing accused-appellants, two of whom are the
brothers of his own wife.

On the other hand, Jurry Andal and Ricardo Andal attempted to prove motive on the part
of Olimpio to falsely testify against them by painting a picture of an aggressive and
vengeful Olimpio Corrales who, just because he was asked why he frightened or
spooked Jurry Andal’s cow, was provoked to say "May araw ka rin" ; one who

12
challenged Jurry Andal to a bolo fight because water from the latter’s "dampa" traversed
his place; and one who is as cunning and ruthless as someone who would point to the
brothers of his own wife and his longtime barrio-mates as the perpetrators of a serious
crime such as rape with homicide just because it was said that his residence is nearest
to the crime scene. This aggressive and scheming picture of Olimpio is not consistent
with the Olimpio who ran to his house upon initially seeing Nancy Siscar being attacked;
the one who waited for 12 days before he could gain courage to denounce the culprits;
the one who, as testified to by police officers Maderazo and Dinglasan out of fear, even
told the police on July 11, 1994 to keep his statement confidential.

We thus hold that Olimpio Corrales had no reason to testify against accused-appellants
other than the fact that he just wanted to speak the painful truth.

Accused-appellants then resort to noting inconsistencies in Olimpio’s testimony. In his

sworn statement (p. 5, Records), Olimpio said that Ricardo Andal took the victim’s shoes
and Edwin Mendoza took the victim’s bag; he interchanged these actions during his
direct examination; and on cross-examination, when he was confronted with the
inconsistency in his statements, he said that his answers in his sworn statement are the
correct ones. Further, he also could not tell who took the victim’s umbrella, which
accused-appellants described as a "bigger and more conspicuous item than the shoes
and the bag."cralaw virtua1aw library

Could it be that Olimpio Corrales overlooked the aforestated matters since his attention
was focused on the more important and provocative matter of Nancy Siscar being
attacked by the culprits? It has been our consistent ruling that minor incongruences are
actually indicative of honest and unrehearsed declarations and responses of witnesses
and thereby even enhance their credibility (People v. Reyes, 245 SCRA 785 [1995];
People v. Loto, 248 SCRA 59 [1995]; People v. De Leon, 248 SCRA 609 [1995]. The
trivial inconsistencies alluded to by accused-appellants cannot discredit Olimpio’s
testimony, which taken as a whole, is worthy of full credence. It matters little as to who
actually picked up the victim’s shoes and bag, and it is too trivial to quibble over the
hapless victim’s umbrella. What is important and of central significance is that Olimpio
saw the 3 accused-appellants, 2 of whom are his wife’s own brothers, perform all the
acts preparatory to their bestial rape and killing of Nancy.

13
Further, although there may have been some inconsistent statements in Olimpio’s
testimony as to whether or not he denounced accused-appellants during the July 11,
1994 police investigation, this should not change the simple fact that he had personal
knowledge of the incident and was merely initially inhibited by fear in divulging the same
to the police.

All that accused-appellants could offer by way of defense are denial and alibi. These
defenses are inherently weak (People v. Legaspi, 246 SCRA 206 [1995]) and constitute
an unstable sanctuary for felons. They cannot prevail over the positive testimony of
credible prosecution witnesses (People v. Villanueva, 242 SCRA 47 [1995]).

For the defense of alibi to prosper, it must be sufficiently convincing as to preclude any
doubt on the physical impossibility of the presence of the accused at the locus criminis
or its immediate vicinity at the time of the incident. (People v. Sumbillo, Et Al., April 18,
1997; People v. Morin, 241 SCRA 709; People v. Lopez, 249 SCRA 610 [1995]; People
v. Jose, 250 SCRA 319 [1995]). Of course, the trial court did not shift the burden of proof
to accused- appellants when it declared that in invoking the defense of alibi, they
indubitably had the burden of proving such impossibility, in which they failed.

We have to agree with the trial court that Jurry Andal and Ricardo Andal, who alleged
that they were at their respective homes, and Edwin Mendoza, who testified that he was
working in a construction site, during the time of commission of the crimes charged,
were all in one barangay, Banoyo, which is "merely a few minutes walk away from the
crime scene" (p. 50, Rollo). These, in addition to the fact that witnesses for the defense
are all members of the Andal family, can not but create the gravest doubts as to the
veracity of the alibis.

We are likewise convinced that accused-appellants had a common criminal objective

when they attacked Nancy Siscar.

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (People v. Abarri, 242 SCRA 39 [1995]).
It cannot be merely presumed. Similar to the physical act constituting the crime itself, the

14
elements of conspiracy must be proven beyond reasonable doubt (Magsuci v.
Sandiganbayan, 240 SCRA 13 [1995]).

From the chain of circumstances established by the prosecution, specifically the

whistling incident which involved all three accused-appellants, as well as their act of
going over to Olimpio’s house to threaten him, a conspiracy can be deduced. And even if
it was only Jurry Andal who hit the victim, it was established that when Jurry Andal
carried Nancy to the forest, the other two hurriedly picked Nancy’s things and followed
suit. They had their own part to perform.

Admittedly, no proof of previous actual agreement among accused-appellants was

adduced at the trial. However, we need but recall that —

. . .direct proof is not essential to show conspiracy. It need not be shown that the parties
actually came together and agreed in express terms to enter into and pursue a common
design. The existence of the assent of minds which is involved in a conspiracy may be,
and from the secrecy of the crime, usually must be, inferred by the court from proof of
facts and circumstances which, taken together, apparently indicate that they are merely
parts of some complete whole. If it is proved that two or more persons aimed by their
acts towards the accomplishment of the same unlawful object, each doing a part so that
their acts, though apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment, then a
conspiracy may be inferred though no actual meeting among them to concert means is
proved (People v. Carbonel, 48 Phil. 868; See also People v. Viray, 147 SCRA 146;
People v. Balignasay, G.R. No. 76743, May 22, 1992; People v. Galit, 230 SCRA 486) . .
.

(People v. Miranday, 242 SCRA 620, 627 [1995])

We now pass upon the contention of accused-appellants regarding violations of their

constitutional rights under Sections 2 and 12 (1) of the fundamental law.

Accused-appellants were arrested by virtue of a warrant on the basis of Olimpio

Corrales’ statement given before SP03 Romulo B. Mercado at Camp Gen. Malvar in

15
Batangas City on July 18, 1994. They were frisked after being brought to the police
station of San Luis, Batangas. Resultantly, SPO2 Lolito Dinglasan was able to recover a
single piece of earring from Jurry Andal’s pocket (tsn, p. 17, Aug. 4, 1995). Jurry Andal
on the other hand claims that said earring was recovered from his right ear lobe (tsn, p.
16, Sept. 22, 1995).

We have ruled that a significant exception to the necessity for a search warrant is when
the search and seizure is effected as an incident to a lawful arrest (People v. Figueroa,
248 SCRA 679 [1995]). An arresting officer may take from the person arrested any
money or property found on his person which was used in the commission of the crime
or was the fruit of the crime or which might furnish the prisoner with the means of
committing violence or escaping, or which may be used in evidence in the trial of the
case (Aballe v. People, 183 SCRA 196, [1990], Moreno v. Ago Chi, 12 Phil. 439 [1909];
People v. Veloso, 48 Phil. 168 [1925]; Alvero v. Dizon, 76 Phil. 637 [1946]). It is clear
from the record that accused-appellants were arrested last July 20, 1994. The earring
was recovered from Jurry Andal while he was being frisked for deadly weapons. And
even if said earring was taken from Jurry Andal’s right ear lobe, the search would still be
valid since jurisprudence allows seizure of evidence in plain view (Harris v. United
States, 390 U. S. 234, 236 [1968]). Hence, there is no question that said earring is
admissible in evidence.

The earring was later identified by Nenita Siscar as the other half of the pair of earrings
she gave Nancy three years before (tsn, pp. 43-44, Sept. 1, 1995). Its admissibility
certainly gives rise to another circumstance which, when added to the unbroken chain of
proven and established events, strengthens the conclusion of guilt.

We, however, find a violation of accused-appellants’ right to counsel during the custodial
investigation. Police Senior Inspector Amelia Maderazo herself admitted on cross-
examination that she did not apprise accused-appellants of their constitutional right to
counsel after their arrest:chanrob1es virtual 1aw library

Q Was it true that you appraised the accused the constitutional right to counsel after
their arrest and after they were brought to the police station of San Luis, Batangas?

16
A I could not remember that I appraised them of their constitutional right because they
were arrested by virtue of warrants.

Q And you are not sure now, you cannot tell this court categorically whether or not you
appraised the three accused of their constitutional right to counsel after their arrest and
before the pockets of Jurry Andal was searched.

ATTY. PRINCIPE:chanrob1es virtual 1aw library

Answered already, your honor, there’s no need for that because it came from his own
pocket.

ATTY. DE CASTRO:chanrob1es virtual 1aw library

I am asking the witness, Atty. Principe is testifying.

ATTY. PRINCIPE:chanrob1es virtual 1aw library

I have the right to object.

COURT:chanrob1es virtual 1aw library

It’s up for the witness, can you answer that?

ATTY. PRINCIPE:chanrob1es virtual 1aw library

I did not appraise.

(tsn, pp. 30-31, Sept. 1, 1995)

The first paragraph of Section 12, Article III of the 1987 Constitution lays down the
safeguards available to any person under custodial investigation. The rights set forth
therein become available when "the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the suspect has been

17
taken into police custody, the police carry out a process of interrogations that lends itself
to eliciting incriminating statements" (Escobedo v. Illinois, 378 U. S. 478 [1964]). These
constitutional guarantees have been made available to protect him from the inherently
coercive psychological, if not physical, atmosphere of such investigation (Miranda v.
Arizona, 384 U. S. 436 [1966]). The right to counsel as provided in said section attaches
upon the start of an investigation or when the investigating officer starts to ask questions
to elicit information and/or confessions or admissions from the respondent or accused
(Gamboa v. Cruz, 162 SCRA 642 [1988]). The presence of counsel during such
investigations is intended to prevent the slightest coercion as would lead the accused to
admit something false (People v. Layuso, 175 SCRA 47 [1989]). Without counsel
present, no evidence obtained as a result of the interrogation can be used against the
accused (Miranda v. Arizona, supra.).

Nevertheless, the aforestated constitutional infirmity cannot affect our conclusion since
accused-appellants did not make any confessions or admissions in regard to the crimes
charged. Further, the earring recovered from Jurry Andal was not obtained in the course
of the investigation itself. As mentioned above, it was obtained through a search incident
to a lawful arrest.

With respect to accused-appellants’ argument that the prosecution suppressed vital and
material evidence when it failed to present Alfredo Amoguis during the trial, suffice it to
say that the evidentiary presumption under Section 3 (e), Rule 131 of the Rules of
Evidence which provides that "evidence wilfully suppressed would be adverse if
produced" does not apply if (a) the evidence is at the disposal of both parties (People v.
Ducay, 225 SCRA 1 [1993]); (b) the suppression was not willful; (c) it is merely
corroborative or cumulative; and (d) the suppression is an exercise of a privilege (People
v. Navaja, 220 SCRA 624 [1993]).

In its brief, the Office of the Solicitor General correctly points out that the People had the
discretion to decide whether or not the aforesaid witness should be presented during the
trial. Then too, the defense had access to the witness and could have moved for the
issuance of a subpoena to compel the witness to testify. This, the defense opted not to
avail of.

18
Lastly, we pass upon the alleged formal defects of the trial court’s decision. We are
convinced of its compliance with Section 3, Rule 120 of the Revised Rules of Court since
the Court’s copy bears the signature of Judge Amando Hernandez. With respect to the
trial court’s finding of conspiracy or concerted action, it is clearly based on the facts
comprehensively stated in the body of the 32-page decision.chanrobles.com : virtual law
library

In fine, although the victim Nancy Siscar may have been silenced by her violent death,
we hold that the evidence presented by the prosecution justly speaks for her and
establishes beyond reasonable doubt that accused-appellants perpetrated the crimes
charged.

As to accused-appellants’ civil liability, the trial court correctly awarded P50,000.00 as

indemnity for death in accordance with current jurisprudence, and P74,470.50 as actual
burial and incidental expenses, the same being supported by documentary evidence and
being admitted by accused-appellants (tsn, Sept. 1, 1995, pp. 51-52). The testimony of
the victim’s mother, Nenita Siscar, justifies moral damages awarded for the physical
suffering, mental anguish, serious anxiety, moral shock, and social humiliation caused
by the manner by which the victim was raped and killed. However, the amount of
P200,000.00 awarded therefor by the trial court seems to be a bit inflated. We believe
that P50,000.00 would be more reasonable.

Wherefore, with two members of the Court voting to reduce the penalty to reclusion
perpetua, the decision under review is hereby AFFIRMED, except for the reduction of
the award of moral damages, as above indicated.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

Mendoza, J., is on leave.

19
 G.R. No. 122485. February 1, 1999

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LARRY MAHINAY Y

AMPARADO, Accused-Appellant.

DECISION

PER CURIAM:

A violation of the dignity, purity and privacy of a child who is still innocent and unexposed
to the ways of worldly pleasures is a harrowing experience that destroys not only her
future but of the youth population as well, who in the teachings of our national hero, are
considered the hope of the fatherland. Once again, the Court is confronted by another
tragic desecration of human dignity, committed no less upon a child, who at the salad
age of a few days past 12 years, has yet to knock on the portals of womanhood, and met
her untimely death as a result of the "intrinsically evil act" of non-consensual sex called
rape. Burdened with the supreme penalty of death, rape is an ignominious crime for
which necessity is neither an excuse nor does there exist any other rational justification
other than lust. But those who lust ought not to last.chanrobles virtual lawlibrary

The Court quotes with approval from the People’s Brief, the facts narrating the horrible
experience and the tragic demise of a young and innocent child in the bloody hands of
appellant, as such facts are ably supported by evidence on record: 1 *

"Appellant Larry Mahinay started working as houseboy with Maria Isip on November 20,
1993. His task was to take care of Isip’s house which was under construction adjacent to
her old residence situated inside a compound at No. 4165 Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila. But he stayed and slept in an apartment also owned by Isip,
located 10 meters away from the unfinished house (TSN, September 6, 1995, pp. 5-10).

"The victim, Ma. Victoria Chan, 12 years old, was Isip’s neighbor in Dian Street. She
used to pass by Isip’s house on her way to school and play inside the compound yard,
catching maya birds together with other children. While they were playing, appellant was
always around washing his clothes. Inside the compound yard was a septic tank (TSN,

20
August 22, 1995, pp. 29-31; September 6, 1995, pp. 17; 20-22).

"On June 25, 1995, at 8 o’clock a.m., appellant joined Gregorio Rivera in a drinking
spree. Around 10 o’clock in the morning, appellant, who was already drunk, left Gregorio
Rivera and asked permission from Isip to go out with his friends (TSN, September 6,
1995, pp. 9-11).

"Meantime, Isip’s sister-in-law, Norgina Rivera, who also owned a store fronting the
compound, saw Ma. Victoria on that same day three to four times catching birds inside
Isip’s unfinished house around 4 o’clock in the afternoon. The unfinished house was
about 8 meters away from Rivera’s store (TSN, September 18, 1995, pp. 9-11).

"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went to his in-law’s
house between 6 to 7 o’clock p.m. to call his office regarding changes on the trip of
President Fidel V. Ramos. The house of his in-laws was near the house of Isip. On his
way to his in-law’s house, Sgt. Suni met appellant along Dian Street. That same
evening, between 8 to 9 o’clock p.m., he saw Ma. Victoria standing in front of the gate of
the unfinished house (TSN, September 27, 1995, pp. 3-7; 14-17).

"Later, at 9 o’clock in the evening, appellant showed up at Norgina Rivera’s store to buy
lugaw. Norgina Rivera informed appellant that there was none left of it. She notice that
appellant appeared to be uneasy and in deep thought. His hair was disarrayed; he was
drunk and was walking in a dazed manner. She asked why he looked so worried but he
did not answer. Then he left and walked back to the compound (TSN, September 18,
1995, pp. 4-8; 12-14).

"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was missing. She last
saw her daughter wearing a pair of white shorts, brown belt, a yellow hair ribbon, printed
blue blouse, dirty white panty, white lady sando and blue rubber slippers (TSN, August
23, 1995, pp. 22, 33).

"Isip testified that appellant failed to show up for supper that night. On the following day,
June 26, 1995, at 2 o’clock in the morning, appellant boarded a passenger jeepney
driven by Fernando Trinidad at the talipapa. Appellant alighted at the top of the bridge of

21
the North Expressway and had thereafter disappeared (TSN, September 20, 1995, pp.
4-9; September 27, 1995; pp. 14-17).

"That same morning, around 7:30, a certain Boy found the dead body of Ma. Victoria
inside the septic tank. Boy immediately reported what he saw to the victim’s parents,
Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).

"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was retrieved
from the septic tank. She was wearing a printed blouse without underwear. Her face
bore bruises. Results of the autopsy revealed the following findings:chanrob1es virtual
1aw library

Cyanosis, lips and nailbeds,

Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,

Anterior aspect, middle third, 4.5 x 3.0 cm.

Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left eye, lateral aspect,
2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral aspect, right, 2.0 x 1.0 cm. and
left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior aspect,
4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm.
lumbar area, left 7.0 x 8.0 cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm
elbows, right, 4.0 x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, lower
rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral
aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0 cm. and left
antero-lower 3rd, 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 x 1.0 cm. lateral
mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.

Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial, subpleural petechial

hemorrhages.

22
Hemorrhage, subdural, left fronto-parietal area.

Tracheo-bronchial tree, congested.

Other visceral organs, congested.

Stomach, contain ¼ rice and other food particles.

CAUSE OF DEATH — Asphyxia by Manual Strangulation; Traumatic Head Injury,

Contributory.

REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00 o’clock position
corresponding to the face of a watch edges congested with blood clots. (TSN, August
18, 1995; p. 4; Record, p. 126)

"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro were informed
by Isip that her houseboy, appellant Larry Mahinay, was missing. According to her, it
was unlikely for appellant to just disappear from the apartment since whenever he would
go out, he would normally return on the same day or early morning of the following day
(TSN, September 6, 1995, pp. 6-11-27).

"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of appellant was
working in a pancit factory at Barangay Reparo, Caloocan City. They proceeded to said
place. The owner of the factory confirmed to them that appellant used to work at the
factory but she did not know his present whereabouts. Appellant’s townmate, on the
other hand, informed them that appellant could possibly be found on 8th Street, Grace
Park, Caloocan City (TSN, August 14, 1995, pp. 8-9).

"The policemen returned to the scene of the crime. At the second floor of the house
under construction, they retrieved from one of the rooms a pair of dirty white short pants,
a brown belt and a yellow hair ribbon which was identified by Elvira Chan to belong to
her daughter, Ma. Victoria. They also found inside another room a pair of blue slippers
which Isip identified as that of appellant. Also found in the yard, three armslength away
from the septic tank were an underwear, a leather wallet, a pair of dirty long pants and a

23
pliers positively identified by Isip as appellant’s belongings. These items were brought to
the police station (TSN, August 14, 1995, pp. 10-13; August 18, 1995, pp. 3-8; August
23, 1995, pp. 21-25).

"A police report was subsequently prepared including a referral slip addressed to the
office of the Valenzuela Prosecutor. The next day, SPO1 Virgilio Villano retrieved the
victim’s underwear from the septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).

"After a series of follow-up operations, appellant was finally arrested in Barangay Obario
Matala, Ibaan, Batangas. He was brought to the Valenzuela Police Station. On July 7,
1995, with the assistance of Atty. Restituto Viernes, appellant executed an extra-judicial
confession wherein he narrated in detail how he raped and killed the victim. Also, when
appellant came face to face with the victim’s mother and aunt, he confided to them that
he was not alone in raping and killing the victim. He pointed to Zaldy and Boyet as his
co-conspirators (TSN, August 14, 1995, pp. 13-21).

Thus, on July 10, 1995, appellant was charged with rape with homicide in an Information
which reads: 2

"That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court the above-named accused, by means of force and
intimidation employed upon the person of MARIA VICTORIA CHAN y CABALLERO, age
12 years old, did then and there wilfully, unlawfully and feloniously lie with and have
sexual intercourse with said MARIA VICTORIA CHAN Y CABALLERO against her will
and without her consent; that on the occasion of said sexual assault, the above-named
accused, choke and strangle said MARIA VICTORIA CHAN Y CABALLERO as a result
of which, said victim died.

"Contrary to law." 3

to which he pleaded not guilty. After trial, the lower court rendered a decision convicting
appellant of the crime charged, sentenced him to suffer the penalty of death and to pay a
total of P73,000.00 to the victim’s heirs. The dispositive portion of the trial court’s
decision states:jgc:chanrobles.com.ph

24
"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond reasonable
doubt of the crime charged, he is hereby sentenced to death by electricution (sic). He is
likewise condemned to indemnify the heirs of the victim, Ma. Victoria Chan the amount
of P50,000.00 and to pay the further sum of P23,000.00 for the funeral, burial and wake
of the victim.

"Let the complete records of the case be immediately forwarded to the Honorable
Supreme Court for the automatic review in accordance to Article 47 of the Revised Penal
Code as amended by Section 22 of Republic Act No. 7659.

"SO ORDERED." 4

Upon automatic review by the Court en banc pursuant to Article 47 of the Revised Penal
Code (RPC), as amended, 5 appellant insists that the circumstantial evidence presented
by the prosecution against him is insufficient to prove his guilt beyond reasonable doubt.
In his testimony summarized by the trial court, appellant offered his version of what
transpired as follows:jgc:chanrobles.com.ph

"(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a drinking
spree. Gregorio Rivera is the brother of Maria Isip, appellant’s employer. After
consuming three cases of red horse beer, he was summoned by Isip to clean the
jeepney. He finished cleaning the jeepney at 12 o’clock noon. Then he had lunch and
took a bath. Later, he asked permission from Isip to go out with his friends to see a
movie. He also asked for a cash advance of P300.00 (TSN, October 16, 1995, pp. 4-5).

"At 2 o’clock in the afternoon, appellant, instead of going out with his friend, opted to
rejoin Gregorio Rivera and Totoy for another drinking session. They consumed one case
of red horse beer. Around 6 o’clock p.m., Zaldy, a co-worker, fetched him at Gregorio
Rivera’s house. They went to Zaldy’s house and bought a bottle of gin. They finished
drinking gin around 8 o’clock p.m. After consuming the bottle of gin, they went out and
bought another bottle of gin from a nearby store. It was already 9 o’clock in the evening.
While they were at the store, appellant and Zaldy met Boyet. After giving the bottle of gin

25
to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 6-7).

"On his way home, appellant passed by Norgina Rivera’s store to buy lugaw. Norgina
Rivera informed him that there was none left of it. He left the store and proceeded to
Isip’s apartment. But because it was already closed, he decided to sleep at the second
floor of Isip’s unfinished house. Around 10 o’clock p.m., Zaldy and Boyet arrived carrying
a cadaver. The two placed the body inside the room where appellant was sleeping. As
appellant stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape
the dead body of the child or they would kill him. He, however, refused to follow. Then,
he was asked by Zaldy and Boyet to assist them in bringing the dead body downstairs.
He obliged and helped dump the body into the septic tank. Thereupon, Zaldy and Boyet
warned him that should they ever see him again, they would kill him. At 4 o’clock the
following morning, he left the compound and proceeded first to Navotas and later to
Batangas (TSN, October 16, 1995, pp. 4-13).

"Subsequently, appellant was apprehended by the police officers in Ibaan, Batangas.

The police officers allegedly brought him to a big house somewhere in Manila. There,
appellant heard the police officer’s plan to salvage him if he would not admit that he was
the one who raped and killed the victim. Scared, he executed an extra-judicial
confession. He claimed that he was assisted by Atty. Restituto Viernes only when he
was forced to sign the extra-judicial confession (TSN, October 16, 1995, pp. 9-11)." 6

This being a death penalty case, the Court exercises the greatest circumspection in the
review thereof since "there can be no stake higher and no penalty more severe . . . than
the termination of a human life." 7 For life, once taken is like virginity, which once defiled
can never be restored. In order therefore, that appellant’s guilty mind be satisfied, the
Court states the reasons why, as the records are not shy, for him to verify.

The proven circumstances of this case when juxtaposed with appellant’s proffered
excuse are sufficient to sustain his conviction beyond reasonable doubt, notwithstanding
the absence of any direct evidence relative to the commission of the crime for which he
was prosecuted. Absence of direct proof does not necessarily absolve him from any
liability because under the Rules on evidence 8 and pursuant to settled jurisprudence, 9
conviction may be had on circumstantial evidence provided that the following requisites

26
concur:chanrob1es virtual 1aw library

1. there is more than one circumstance;

2. the facts from which the inferences are derived are proven; and

3. the combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.

Simply put, for circumstantial evidence to be sufficient to support a conviction, all

circumstances must be consistent with each other, consistent with the hypothesis that
the accused is guilty, and at the same time inconsistent with the hypothesis that he is
innocent and with every other rational hypothesis except that of guilt. 10 Facts and
circumstances consistent with guilt and inconsistent with innocence, constitute evidence
which, in weight and probative force, may surpass even direct evidence in its effect upon
the court. 11

In the case at bench, the trial court gave credence to several circumstantial evidence,
which upon thorough review of the Court is more than enough to prove appellant’s guilt
beyond the shadow of reasonable doubt. These circumstantial evidence are as
follows:jgc:chanrobles.com.ph

"FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner of the
unfinished big house where the crime happened and the septic tank where the body of
Maria Victoria Chan was found in the morning of June 26, 1995 is located, categorically
testified that at about 9:00 in the evening on June 25, 1995, Accused Larry Mahinay was
in her store located in front portion of the compound of her sister-in-law Maria Isip where
the unfinished big house is situated buying rice noodle (lugaw). That she noticed the
accused’s hair was disarranged, drunk and walking in sigsaging manner. That the
accused appeared uneasy and seems to be thinking deeply. That the accused did not
reply to her queries why he looked worried but went inside the
compound.chanrobles.com : virtual law library

"SECOND — Prosecution witness Sgt. Roberto G. Suni, categorically testified that on

27
June 25, 1995 between 6:00 and 7:00 in the evening, on his way to his in-law’s house,
he met accused Larry Mahinay walking on the road leading to his in-law’s residence
which is about 50 to 75 meters away to the unfinished big house of Maria Isip. That he
also saw victim Maria Victoria Chan standing at the gate of the unfinished big house of
Maria Isip between 8:00 and 9:00 in the same evening.

"THIRD — Prosecution witness Maria Isip, owner of the unfinished big house where
victim’s body was found inside the septic tank, testified that accused Larry Mahinay is
her houseboy since November 20, 1993. That in the morning of June 25, 1995, a
Sunday, Larry Mahinay asked permission from her to leave. That after finishing some
work she asked him to do accused Larry Mahinay left. That it is customary on the part of
Larry Mahinay to return in the afternoon of the same day or sometimes in the next
morning. That accused Larry Mahinay did not return until he was arrested in Batangas
on July 7, 1995.

"FOURTH — Prosecution witness Fernando Trinidad, a passenger jeepney driver plying

the route Karuhatan-Ugong and vice versa which include Diam St., Gen. T. de Leon,
Valenzuela, Metro Manila, pinpointed the accused Larry Mahinay as one of the
passengers who boarded his passenger jeepney on June 26, 1995 at 2:00 early morning
and alighted on top of the overpass of the North Expressway.

"FIFTH — Personal belongings of the victim was found in the unfinished big house of
Maria Isip where accused Larry Mahinay slept on the night of the incident. This is a clear
indication that the victim was raped and killed in the said premises.

"There is no showing that the testimonies of the prosecution witnesses (sic) fabricated or
there was any reason for them to testify falsely against the accused. The absence of any
evidence as to the existence of improper motive sustain the conclusion that no such
improper motive exists and that the testimonies of the witnesses, therefore, should be
given full faith and credit. (People v. Retubado, 58585 January 20, 1988 162 SCRA 276,
284; People v. Ali L-18512 October 30, 1969, 29 SCRA 756).

"SIXTH — Accused Larry Mahinay during the custodial investigation and after having
been informed of his constitutional rights with the assistance of Atty. Restituto Viernes of

28
the Public Attorney’s Office voluntarily gave his statement admitting the commission of
the crime. Said confession of accused Larry Mahinay given with the assistance of Atty.
Restituto Viernes is believed to have been freely and voluntarily given. That accused did
not complain to the proper authorities of any maltreatment on his person (People v.
delos Santos L-3398 May 29, 1984; 150 SCRA 311). He did not even inform the Inquest
Prosecutor when he was sworn to the truth of his statement on July 8, 1995 that he was
forced, coerced or was promised of reward or leniency. That his confession abound with
details known only to him. The Court noted that a lawyer from the Public Attorneys Office
Atty. Restituto Viernes and as testified by said Atty. Viernes he informed and explained
to the accused his constitutional rights and was present all throughout the giving of the
testimony. That he signed the statement given by the accused. Lawyer from the Public
Attorneys Office is expected to be watchful and vigilant to notice any irregularity in the
manner of the investigation and the physical conditions of the accused. The post mortem
findings show that the cause of death Asphyxia by manual strangulation; Traumatic
Head injury Contributory substantiate. Consistent with the testimony of the accused that
he pushed the victim and the latter’s head hit the table and the victim lost
consciousness.

"Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko siya, tapos
tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya tapos ni-rape ko na
siya."cralaw virtua1aw library

"There is no clear proof of maltreatment and/or tortured in giving the statement. There
were no medical certificate submitted by the accused to sustain his claim that he was
mauled by the police officers.

There being no evidence presented to show that said confession were obtained as a
result of violence, torture, maltreatment, intimidation, threat or promise of reward or
leniency nor that the investigating officer could have been motivated to concoct the facts
narrated in said affidavit; the confession of the accused is held to be true, correct and
freely or voluntarily given. (People v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA
431, People v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.)

"SEVENTH — Accused Larry Mahinay testified in open Court that he was not able to

29
enter the apartment where he is sleeping because it was already closed and he
proceeded to the second floor of the unfinished house and slept. He said while sleeping
Zaldy and Boyet arrived carrying the cadaver of the victim and dumped it inside his
room. That at the point of a knife, the two ordered him to have sex with the dead body
but he refused. That the two asked him to assist them in dumping the dead body of the
victim in the septic tank downstairs. (Tsn pp. 8-9, October 16, 1995). This is
unbelievable and unnatural. Accused Larry Mahinay is staying in the apartment and not
in the unfinished house. That he slept in the said unfinished house only that night of
June 25, 1995 because the apartment where he was staying was already closed. The
Court is at a loss how Zaldy and Boyet knew he (Larry Mahinay) was in the second floor
of the unfinished house.

"Furthermore, if the child is already dead when brought by Zaldy and Boyet in the room
at the second floor of the unfinished house where accused Larry Mahinay was sleeping,
why will Boyet and Zaldy still bring the cadaver upstairs only to be disposed/dump later
in the septic tank located in the ground floor. Boyet and Zaldy can easily dispose and
dump the body in the septic tank by themselves.

"It is likewise strange that the dead body of the child was taken to the room where
accused Larry Mahinay was sleeping only to force the latter to have sex with the dead
body of the child.

"We have no test to the truth of human testimony except its conformity to aver
knowledge, observation and experience. Whatever is repugnant to these belongs to the
miraculous. (People v. Santos L-385 Nov. 16, 1979)"

"EIGHT — If the accused did not commit the crime and was only forced to dispose/dump
the body of the victim in the septic tank, he could have apprised Col. Maganto, a high
ranking police officer or the lady reporter who interviewed him. His failure and omission
to reveal the same is unnatural. An innocent person will at once naturally and
emphatically repel an accusation of crime as a matter of preservation and self-defense
and as a precaution against prejudicing himself. A person’s silence therefore, particularly
when it is persistent will justify an inference that he is not innocent. (People v. Pilones, L-
32754-5 July 21, 1978).

30
"NINTH — The circumstance of flight of the accused strongly indicate his consciousness
of guilt. He left the crime scene on the early morning after the incident and did not return
until he was arrested in Batangas on July 7, 1995." 12

Guided by the three principles in the review of rape cases, to wit: 13

1). An accusation for rape can be made with facility; it is difficult to prove but more
difficult for the person accused, though innocent, to disprove;

2). In view of the intrinsic nature of the crime of rape, where only two persons are usually
involved, the testimony of the complainant is scrutinized with extreme caution; and

3). The evidence of the prosecution stands or falls on its own merits and cannot be
allowed to draw strength from the weakness of the defense.

the foregoing circumstantial evidence clearly establishes the felony of rape with
homicide defined and penalized under Section 335 of the Revised Penal Code, as
amended by Section 11, R.A. 7659, which provides:jgc:chanrobles.com.ph

"When and how rape is committed. — Rape is committed by having carnal knowledge of
a woman under any of the following circumstances.

1.) By using force or intimidation;

2.) When the woman is deprived of reason or otherwise unconscious; and

3.) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

31
When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on

the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:chanrob1es virtual 1aw library

1.) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim.

2.) When the victim is under the custody of the police or military authorities.

3.) When the rape is committed, in full view of the husband, parent, any of the children or
other relatives within the third degree of consanguinity.

4.) When the victim is a religious or a child below seven (7) years old.

5.) When the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.

6.) When committed by any member of the Armed Forces of the Philippines or Philippine
National Police or any law enforcement agency.

7.) When by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation. 14 14a

At the time of the commission of this heinous act, rape was still considered a crime
against chastity, 15 although under the Anti-Rape Law of 1997 (R.A. No. 8353), rape

32
has since been re-classified as a crime against persons under Articles 266-A and 266-B,
and thus, may be prosecuted even without a complaint filed by the offended party.

The gravamen of the offense of rape, prior to R.A. 8353, is sexual congress with a
woman by force and without consent. 16 (Under the new law, rape may be committed
even by a woman and the victim may even be a man.) 17 If the woman is under 12
years of age, proof of force and consent becomes immaterial 18 not only because force
is not an element of statutory rape, 19 but the absence of a free consent is presumed
when the woman is below such age. Conviction will therefore lie, provided sexual
intercourse is proven. But if the woman is 12 years of age or over at the time she was
violated, as in this case, not only the first element of sexual intercourse must be proven
but also the other element that the perpetrator’s evil acts with the offended party was
done through force, violence, intimidation or threat needs to be established. Both
elements are present in this case.

Based on the evidence on record, sexual intercourse with the victim was adequately
proven. This is shown from the testimony of the medical doctor who conducted post
mortem examination on the child’s body:chanrob1es virtual 1aw library

Q: And after that what other parts of the victim did you examine?

A: Then I examined the genitalia of the victim.

Q: And what did you find out after you examined the genitalia of the victim?

A: The hymen was tall-thick with complete laceration at 4:00 o’clock and 8:00 o’clock
position and that the edges were congested.

Q: Now, what might have caused the laceration?

A: Under normal circumstances this might have (sic) caused by a penetration of an

organ.

Q: So, the laceration was caused by the penetration of a male organ?

33
A: Adult male organ, sir.

Q: You are very sure of that, Mr. Witness?

A: I am very sure of that. 20

Besides, as may be gleaned from his extrajudicial confession, appellant himself admitted
that he had sexual congress with the unconscious child.

"15. T: Ano ang nangyari ng mga sandali o oras na iyon?

S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking bahay na

ginagawa, tapos dumating yung batang babae. Pag-pasok niya sa kuwarto hinawakan
ko siya sa kamay tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na,
nakakatulog na siya tapos ni rape ko na siya.

"16. T: Ano ang suot nung batang babae na sinasabi mo?

S: Itong short na ito, (pointing to a dirty white short placed atop this investigator’s table.
Subject evidence were part of evidences recovered at the crime scene).

"17. T: Bakit mo naman ni rape yung batang babae?

S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.

"18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?

S: Red Horse po at saka GIN.

"19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung batang babae?

S: Sa kuwarto ko po sa itaas.

34
"20. T: Kailan ito at anong oras nangyari?

S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na matandaan kung anong
petsa, basta araw ng Linggo.

"21. T: Saan lugar ito nangyari?

S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M.

"22. T: Alam mo ba ang pangalan ng batang babae na ni rape mo?

S: Hindi ko po alam.

"23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang babae na iyong ni
rape at pinatay ay si MA. VICTORIA CHAN? Matatandaan mo ba ito?

S: Oho.

"24. T: Nung ma-rape mo, nakaraos ka ba?

S: Naka-isa po.

"25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng ‘NAKARAOS’, maaari
bang ipaliwanag mo ito?

S: Nilabasan po ako ng tamod.

"26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae yung iyong ari?

S: Nakapasok po doon sa ari nung babae.

"27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang sumunod mong
ginawa?

35
S: Natulak ko siya sa terrace.

"28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa terrace?

S: Inilagay ko po sa poso-negra.

"29. T: Saan makikita yung poso-negra na sinasabi mo?

S: Doon din sa malaking bahay ni ATE MARIA.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-negra?

S: Doon ko lang po inilagay.

"31. T: Bakit nga doon mo inilagay siya?

S: Natatakot po ako.

"32. T: Kanino ka natatakot?

S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga pulis.

"33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra?

S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa poso-negra.

34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?

S: Nag-iisa lang po ako.chanrobles.com : virtual law library

"35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA CHAN, buhay pa ba
siya o patay na?

S: Buhay pa po.

36
"36. T: Papaano mo siya pinatay?

S: Tinulak ko nga po siya sa terrace." 21

In proving sexual intercourse, it is not full or deep penetration of the victim’s vagina;
rather the slightest penetration of the male organ into the female sex organ is enough to
consummate the sexual intercourse. 22 The mere touching by the male’s organ or
instrument of sex of the labia of the pudendum of the woman’s private parts is sufficient
to consummate rape.

From the wounds, contusions and abrasions suffered by the victim, force was indeed
employed upon her to satisfy carnal lust. Moreover, from appellant’s own account, he
pushed the victim causing the latter to hit her head on the table and fell unconscious. It
was at that instance that he ravished her and satisfied his salacious and prurient desires.
Considering that the victim, at the time of her penile invasion, was unconscious, it could
safely be concluded that she had not given free and voluntary consent to her defilement,
whether before or during the sexual act.

Another thing that militates against appellant is his extrajudicial confession, which he,
however, claims was executed in violation of his constitutional right to counsel. But his
contention is belied by the records as well as the testimony of the lawyer who assisted,
warned and explained to him his constitutionally guaranteed pre-interrogatory and
custodial rights. As testified to by the assisting lawyer:jgc:chanrobles.com.ph

"Q Will you please inform the Court what was that call about?

"A We went to the station, police investigation together with Atty. Froilan Zapanta and we
were told by Police Officer Alabastro that one Larry Mahinay would like to confess of the
crime of, I think, rape with homicide.

"Q And upon reaching the investigation room of Valenzuela PNP who were the other
person present?

37
"A Police Officer Alabastro, sir, Police Officer Nacis and other investigator inside the
investigation room and the parents of the child who was allegedly raped.

"Q And when you reached the investigation room do you notice whether the accused
already there?

"A The accused was already there.

"Q Was he alone?

"A He was alone, sir.

"Q So, when you were already infront of SPO1 Arnold Alabastro and the other PNP
Officers, what did they tell you, if any?

"A They told us together with Atty. Zapanta that this Larry Mahinay would like to confess
of the crime charged, sir.

"Q By the way, who was that Atty. Zapanta?

"A Our immediate Superior of the Public Attorney’s Office.

"Q Was he also present at the start of the question and answer period to the accused?

"A No more, sir, he already went to our office. I was left alone.

"Q But he saw the accused, Larry Mahinay?

"A Yes, sir.

"Q Now, when Atty. Zapanta left at what time did the question and answer period start?

"A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.

38
"Q And when this question and answer period started, what was the first thing that you
did as assisting lawyer to the accused?

"A First, I tried to explain to him his right, sir, under the constitution.

"Q What are those right?

"A That he has the right to remain silent. That he has the right of a counsel of his own
choice and that if he has no counsel a lawyer will be appointed to him and that he has
the right to refuse to answer any question that would incriminate him.

"Q Now, after enumerating these constitutional rights of accused Larry Mahinay, do you
recall whether this constitutional right enumerated by you were reduced in writing?

"A Yes, sir, and it was also explained to him one by one by Police Officer Alabastro.

"Q I show to you this constitutional right which you said were reduced into writing, will
you be able to recognize the same?

"A Yes, sir.

"Q Will you please go over this and tell the Court whether that is the same document you
mentioned?

"A Yes, sir, these were the said rights reduced into writing.

ATTY. PRINCIPE:chanrob1es virtual 1aw library

May we request, Your Honor, that this document be marked as our Exhibit A proper.

"Q Do you recall after reducing into writing this constitutional right of the accused
whether you asked him to sign to acknowledge or to conform?

"A I was the one who asked him, sir. It was Police Officer Alabastro.

39
"Q But you were present?

"A I was then present when he signed.

"Q There is a signature in this constitutional right after the enumeration, before and after
there are two (2) signatures, will you please recognize the two (2) signatures?

"A These were the same signatures signed in my presence, sir.

"Q The signature of whom?

"A The signature of Larry Mahinay, sir.

"ATTY. PRINCIPE:chanrob1es virtual 1aw library

May we request, Your Honor, that the two (2) signatures identified by my compañero be
encircled and marked as Exhibit A-1 and A-2.

"Q After you said that you apprised the accused of his constitutional right explaining to
him in Filipino, in local dialect, what was the respond of the accused?

"A Larry Mahinay said that we will proceed with his statement.

"Q What was the reply?

"A He said "Opo" .

"Q Did you ask him of his educational attainment?

"A It was the Police Officer who asked him.

"Q In your presence?

40
"A In my presence, sir.

"Q And when he said or when he replied "Opo" so the question started?

"A Yes, sir.

"Q I noticed in this Exhibit A that there is also a waiver of rights, were you present also
when he signed this waiver?

"A Yes, sir, I was also present.

"Q Did you explain to him the meaning of this waiver?

"A I had also explained to him, sir.

"Q In Filipino?

"A In Tagalog, sir.

"Q And there is also a signature after the waiver in Filipino over the typewritten name
Larry Mahinay, "Nagsasalaysay", whose signature is that?

"A This is also signed in my presence.

"Q Why are you sure that this is his signature?

"A He signed in my presence, sir.

"Q And below immediately are the two (2) signatures. The first one is when Larry
Mahinay subscribed and sworn to, there is a signature here, do you recognize this
signature?

"A This is my signature, sir.

41
"Q And immediately after your first signature is a Certification that you have personally
examined the accused Larry Mahinay and testified that he voluntary executed the Extra
Judicial Confession, do you recognize the signature?

"A This is also my signature, sir." 23 (Emphasis supplied).

Appellant’s defense that two other persons brought to him the dead body of the victim
and forced him to rape the cadaver is too unbelievable. In the words of Vice-Chancellor
Van Fleet of New Jersey. 24

"Evidence to be believed must not only proceed from the mouth of a credible witness,
but must be credible in itself — such as the common experience and observation of
mankind can approve as probable under the circumstances. We have no test of the truth
of human testimony, except its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the miraculous, and is outside of
judicial cognizance."cralaw virtua1aw library

Ultimately, all the foregoing boils down to the issue of credibility of witnesses. Settled is
the rule that the findings of facts and assessment of credibility of witnesses is a matter
best left to the trial court because of its unique position of having observed that elusive
and incommunicable evidence of the witnesses’ deportment on the stand while
testifying, which opportunity is denied to the appellate courts. 25 In this case, the trial
court’s findings, conclusions and evaluation of the testimony of witnesses is received on
appeal with the highest respect, 26 the same being supported by substantial evidence
on record. There was no showing that the court a quo had overlooked or disregarded
relevant facts and circumstances which when considered would have affected the
outcome of this case 27 or justify a departure from the assessments and findings of the
court below. The absence of any improper or ill-motive on the part of the principal
witnesses for the prosecution all the more strengthens the conclusion that no such
motive exists. 28 Neither was any wrong motive attributed to the police officers who
testified against Appellant.

Coming now to the penalty, the sentence imposed by the trial court is correct. Under
Article 335 of the Revised Penal Code (RPC), as amended by R.A. 7659 "when by

42
reason or on occasion of the rape, a homicide is committed, the penalty shall be death."
This special complex crime is treated by law in the same degree as qualified rape — that
is, when any of the 7 (now 10) "attendant circumstances" enumerated in the law is
alleged and proven, in which instances, the penalty is death. In cases where any of
those circumstances is proven though not alleged, the penalty cannot be death except if
the circumstance proven can be properly appreciated as an aggravating circumstance
under Articles 14 and 15 of the RPC which will affect the imposition of the proper penalty
in accordance with Article 63 of the RPC. However, if any of those circumstances proven
but not alleged cannot be considered as an aggravating circumstance under Articles 14
and 15, the same cannot affect the imposition of the penalty because Article 63 of the
RPC in mentioning aggravating circumstances refers to those defined in Articles 14 and
15. Under R.A. No. 8353, if any of the 10 circumstances is alleged in the
information/complaint, it may be treated as a qualifying circumstance. But if it is not so
alleged, it may be considered as an aggravating circumstance, in which case the only
penalty is death — subject to the usual proof of such circumstance in either case.

Death being a single indivisible penalty and the only penalty prescribed by law for the
crime of "rape with homicide", the court has no option but to apply the same "regardless
of any mitigating or aggravating circumstance that may have attended the commission of
the crime" 29 in accordance with Article 63 of the RPC, as amended. 30 This case of
rape with homicide carries with it penalty of death which is mandatorily imposed by law
within the import of Article 47 of the RPC, as amended, which
provides:jgc:chanrobles.com.ph

"The death penalty shall be imposed in all cases in which it must be imposed under
existing laws, except when the guilty person is below eighteen (18) years of age at the
time of the commission of the crime or is more than seventy years of age or when upon
appeal or automatic review of the case by the Supreme Court, the required majority vote
is not obtained for the imposition of the death penalty, in which cases the penalty shall
be reclusion perpetua." (Emphasis supplied).

In an apparent but futile attempt to escape the imposition of the death penalty, appellant
tried to alter his date of birth to show that he was only 17 years and a few months old at
the time he committed the rape and thus, covered by the proscription on the imposition

43
of death if the guilty person is below eighteen (18) years at the time of the commission of
the crime. 31 Again, the record rebuffs appellant on this point considering that he was
proven to be already more than 20 years of age when he did the heinous act.

Pursuant to current case law, a victim of simple rape is entitled to a civil indemnity of fifty
thousand pesos (P50,000.00) but if the crime of rape is committed or effectively qualified
by any of the circumstances under which the death penalty is authorized by present
amended law, the civil indemnity for the victim shall be not less than seventy-five
thousand pesos (P75,000.00). 32 In addition to such indemnity, she can also recover
moral damages pursuant to Article 2219 of the Civil Code 33 in such amount as the
court deems just, without the necessity for pleading or proof of the basis thereof. 34 Civil
indemnity is different from the award of moral and exemplary damages. 35 The
requirement of proof of mental and physical suffering provided in Article 2217 of the Civil
Code is dispensed with because it is "recognized that the victim’s injury is inherently
concomitant with and necessarily resulting from the odious crime of rape to warrant per
se the award of moral damages." 36 Thus, it was held that a conviction for rape carries
with it the award of moral damages to the victim without need for pleading or proof of the
basis thereof. 37

Exemplary damages can also be awarded if the commission of the crime was attended
by one or more aggravating circumstances pursuant to Article 2230 of the Civil Code 38
after proof that the offended party is entitled to moral, temperate and compensatory
damages. 39 Under the circumstances of this case, appellant is liable to the victim’s
heirs for the amount of P75,000.00 as civil indemnity and P50,000.00 as moral
damages.

Lastly, considering the heavy penalty of death and in order to ensure that the evidence
against an accused were obtained through lawful means, the Court, as guardian of the
rights of the people lays down the procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his companions must do and observe at the
time of making an arrest and again at and during the time of the custodial interrogation
40 in accordance with the Constitution, jurisprudence and Republic Act No. 7438. 41 It is
high-time to educate our law-enforcement agencies who neglect either by ignorance or
indifference the so-called Miranda rights which had become insufficient and which the

44
Court must update in the light of new legal developments:chanrob1es virtual 1aw library

1. The person arrested, detained, invited or under custodial investigation must be

informed in a language known to and understood by him of the reason for the arrest and
he must be shown the warrant of arrest, if any; Every other warnings, information or
communication must be in a language known to and understood by said person;

2. He must be warned that he has a right to remain silent and that any statement he
makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all times and have the
presence of an independent and competent lawyer, preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer,
one will be provided for him; and that a lawyer may also be engaged by any person in
his behalf, or may be appointed by the court upon petition of the person arrested or one
acting in his behalf;

5. That whether or not the person arrested has a lawyer, he must be informed that no
custodial investigation in any form shall be conducted except in the presence of his
counsel or after a valid waiver has been made;

6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means — telephone, radio, letter or
messenger — with his lawyer (either retained or appointed), any member of his
immediate family, or any medical doctor, priest or minister chosen by him or by any one
from his immediate family or by his counsel, or be visited by/confer with duly accredited
national or international non-government organization. It shall be the responsibility of the
officer to ensure that this is accomplished;

7. He must be informed that he has the right to waive any of said rights provided it is
made voluntarily, knowingly and intelligently and ensure that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he must be informed

45
that it must be done in writing AND in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insist on his waiver and chooses to speak;

9. That the person arrested must be informed that he may indicate in any manner at any
time or stage of the process that he does not wish to be questioned with warning that
once he makes such indication, the police may not interrogate him if the same had not
yet commenced, or the interrogation must cease if it has already begun;

10. The person arrested must be informed that his initial waiver of his right to remain
silent, the right to counsel or any of his rights does not bar him from invoking it at any
time during the process, regardless of whether he may have answered some questions
or volunteered some statements;

11. He must also be informed that any statement or evidence, as the case may be,
obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole
or in part, shall be inadmissible in evidence.

Four members of the Court — although maintaining their adherence to the separate
opinions expressed in People v. Echegaray 42 that R.A. No. 7659, insofar as it
prescribes the death penalty, is unconstitutional — nevertheless submit to the ruling of
the Court, by a majority vote, that the law is constitutional and that the death penalty
should accordingly be imposed.

WHEREFORE, the conviction of appellant is hereby AFFIRMED except for the award of
civil indemnity for the heinous rape which is INCREASED to P75,000.00, PLUS
P50,000.00 moral damages.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the
Revised Penal Code, upon finality of this decision, let the records of this case be
forthwith forwarded to the Office of the President for possible exercise of the pardoning
power.chanroblesvirtual|awlibrary

SO ORDERED.

46
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Martinez, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ.,
concur.

Endnotes:

1. Rollo, pp. 146-154; Appellees Brief filed by the Solicitor General, pp. 2-10.

* Sic is no longer indicated so as not to clutter the narration and other quotations from
the records and the Transcript of Stenographic Notes (TSN).

2. Information docketed as Criminal Case No. 4974-V-95 filed before the Regional Trial
Court (RTC) of Valenzuela, Metro Manila.

3. Rollo, p. 8; RTC Records, p. 2.

4. Decision dated October 25, 1995 penned by Judge Adriano R. Osorio of Branch 171
of the RTC of Valenzuela; Rollo, p. 130.

5. Article 47, Revised Penal Code, as amended by Section 22, R.A. 7659 provides: In
what cases the death penalty shall not be imposed; automatic review of death penalty
cases. — . . . In all cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Supreme Court for automatic review and judgment by
the Court en banc, within twenty (20) days but not earlier than fifteen (15) days after
promulgation of the judgment or notice of denial of any motion for new trial or
reconsideration. The transcript shall also be forwarded within ten (10) days after the
filing thereof by the stenographic reporter. (Emphasis supplied).

6. Rollo, pp. 152-154.

7. People v. Galera, 280 SCRA 492.

8. Section 4, Rule 133, Revised Rules on Evidence.

47
9. People v. Rivera, G.R. No. 117471, September 3, 1998; People v. Quitorio, Et Al.,
G.R. No. 116765, January 28, 1998; People v. Berroya, 283 SCRA 111; People v.
Abrera, 283 SCRA 1; People v. Doro, 282 SCRA 1; People v. Dabbay, 277 SCRA 432;
People v. Bonola, 274 SCRA 238; People v. Grefaldia, 273 SCRA 591.

10. People v. De Guia, 280 SCRA 141.

11. People v. Alberca, 257 SCRA 613 citing People v. Abitona, 240 SCRA 335.

12. Rollo, pp. 126-129; RTC Decision pp. 15-18.

13. People v. Gallo, 284 SCRA (1998) 590.

14. Article 335 of the Revised Penal Code (RPC), as amended by R.A. No. 7659 and
further amended by R.A. No. 8353, was renumbered to Articles 266-A and 266-B of the
RPC which reads:chanrob1es virtual 1aw library

Art. 266-A. Rape; When and how committed. — Rape is committed —

1.) By a man who shall have carnal knowledge of a woman under any of the following
circumstances;

a.) Through force, threat, or intimidation;

b.) When the offended party is deprived of reason or otherwise unconscious;

c.) By means of fraudulent machination or grave abuse of authority; and

d.) When the offended party is under twelve years of age or is demented, even though
none of the circumstances mentioned above be present.

2.) By any person who, under any of the circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault by inserting his penis into another person’s

48
mouth or anal orifice, or any instrument or object, into the genital or anal orifice of
another person.

Art. 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be
punished by reclusion perpetua.

"Whenever the rape is committed with use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be reclusion perpetua to death.

"When the rape is attempted and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, homicide is committed, the penalty
shall be death.

"The death penalty shall also be imposed if the crime of rape is committed with any of
the following aggravating/qualifying circumstances:chanrob1es virtual 1aw library

1.) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim;

2.) When the victim is under the custody of the police or military authorities or any law
enforcement or penal institution;

3.) When the rape is committed in full view of the spouse, parent, any of the children or
other relatives within the third degree of consanguinity.

4.) When the victim is a religious engaged in legitimate religious vocation or calling and
is personally known to be such by the offender before or at the time of the commission of
the crime;

49
5.) When the victim is a child below seven (7) years old;

6.) When the offender knows that he is afflicted with Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible
disease and the virus or disease is transmitted to the victim;

7.) When committed by any member of the Armed Forces of the Philippines or Philippine
National Police or any law enforcement agency.

8.) When by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation.

9.) When the offender knew of the pregnancy of the offended party at the time of the
commission of the crime; and

10.) When the offender knew of the mental disability, emotional disorder and/or physical
handicap of the offended party at the time of the commission of the crime.

"Rape under paragraph 2 of the next preceding Article shall be punished by prision
mayor.

"Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be prision mayor to reclusion temporal.

"When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be reclusion temporal.

"When the rape is attempted and the homicide is committed by reason or on occasion
thereof, the penalty shall be reclusion temporal or reclusion perpetua.

"When by reason or on the occasion of the rape, homicide is committed, the penalty
shall be reclusion perpetua.

50
"Reclusion temporal shall also be imposed if the rape is committed with any of the ten
aggravating/qualifying circumstances mentioned in this article."cralaw virtua1aw library

15. This case occurred after the passing of the Death Penalty Law (R.A. No. 7659)
which took effect on December 31, 1993.

16. People v. Philip Tan, Jr., 264 SCRA 425.

17. Article 266-A, Revised Penal Code, as amended by R.A. No. 8353.

18. People v. Lagrosa, Jr., 230 SCRA 298; The two elements of statutory rape are: (1)
that the accused had carnal knowledge of a woman; and (2) that the woman is below
twelve years of age. (People v. Andres, 253 SCRA 751).

19. People v. Abordo, 328 Phil. 80, People v. Oarga, 328 Phil. 395; People v. Ligotan,
331 Phil 98.

20. TSN, September 1, 1995, Dr. Antonio Vertido, pp. 18-19.

21. Sinumpaang Salaysay of appellant Larry Mahinay, dated July 8, 1995; RTC Records
p. 20.

22. People v. Ligotan, 331 Phil 98; People v. Lazaro, 249 SCRA 234.

23. TSN, August 11, 1995, morning session, Atty. Restituto Viernes, pp. 6-11.

24. Cited in Daggers v. Van Dyck, 37 N.J. Eq., 130, 132; See also People v. Cara, 283
SCRA 96.

25. People v. Philip Tan, Jr. 264 SCRA 425.

26. People v. Baccay, 284 SCRA 296; People v. Tenorio, 284 SCRA 420.

27. People v. Dio, 44 SCAD 559; People v. Matrimonio, 215 SCRA 613.

51
28. People v. Ravanes, 284 SCRA 634.

29. People v. Ramos, G.R. No. 129439, September 25, 1998.

30. "Rules for the application of indivisible penalties. — In all cases in which the law
prescribes a single indivisible penalty. It shall be applied by the courts regardless of any
mitigating or aggravating circumstance that may have attended the commission of the
deed . . ."cralaw virtua1aw library

31. Article 47, RPC, as amended.

32. People v. Perez, G.R. No. 122764, September 24, 1998; People v. Bernaldez, G.R.
No. 109780, August 17, 1998 citing People v. Victor y Penis, G.R. No. 127903, July 9,
1998.

33. "Moral damages may be recovered in the following and analogous

cases:chanrob1es virtual 1aw library

x x x

(3) seduction, abduction, rape or other lascivious acts:chanrob1es virtual 1aw library

x x x

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of
this Article, may also recover moral damages."cralaw virtua1aw library

34. People v. De los Santos, G.R. No. 121906, September 17, 1998; People v. Victor y
Penis, supra.

35. People v. Prades, G.R. No. 127569, July 30, 1998 cited in People v. Mostrales, G.R.
No. 125937, August 28, 1998.

52
36. People v. Perez, supra.

37. People v. Bartolome, G.R. No. 129054, September 29, 1998 citing People v. Prades,
People v. Alfeche, G.R. No. 124213, August 17, 1998; See also Article 2219(3), New
Civil Code.

38. People v. Bernaldez, supra.

39. People v. Ramos, G.R. No. 129439, September 25, 1998; People v. Tabugoca, 285
SCRA 312.

40. People v. Dicierdo, 149 SCRA 496.

41. Under R.A. No. 7438 (AN ACT DEFINING CERTAIN RIGHTS OF PERSON
ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE
DUTIES OF THE ARRESTING, DETAINING, AND INVESTIGATING OFFICERS AND
PROVIDING PENALTIES FOR VIOLATIONS THEREOF) which took effect only on July
7, 1992, "custodial investigation" includes the practice of issuing an "invitation" to a
person who is investigated in connection with an offense he is suspected to have
committed.

42. 267 SCRA 682(1997).

53
 G.R. No. 121344. October 29, 1999

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDUARDO ALTABANO y

ELLORIN, BENJAMIN CARO y YU, CYNTHIA ALTABANO y CARO, CORAZON
CARO-LASCANO AND RUBEN LASCANO alias Bentot, Defendants-Appellants.

DECISION

PURISIMA, J.:

This is a an appeal from the Decision 1 of the Regional Trial Court of Caloocan City,
Branch 121, 2 in Criminal Case No. 121344, finding Eduardo Altabano y Ellorin and
Benjamin Caro y Yu, guilty of Murder and sentencing them thus:chanrobles virtual
lawlibrary

"WHEREFORE, in view of the foregoing premises, this Court finds accused EDUARDO
ALTABANO Y ELLORIN and BENJAMIN CARO Y YU GUILTY beyond reasonable
doubt for the crime of MURDER and hereby sentences them to suffer the penalty of
RECLUSION PERPETUA, to pay the sum of FORTY EIGHT THOUSAND PESOS
(P48,000.00) as actual and compensatory damages, to indemnify the heirs of the victim
the sum of FIFTY THOUSAND PESOS (P50,000.00) and another sum of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages.

The case against accused RUBEN LASCANO is now presently being tried considering
that he escaped and was arrested only after the case against his four (4) co-accused
has already been submitted for decision.

The Court, however, finds accused CORAZON CARO-LASCANO and CYNTHIA CARO-
ALTABANO NOT GUILTY for the crime of MURDER under Art. 248 of the RPC and the
information against them is hereby DISMISSED. With cost de oficio.

SO ORDERED." 3

54
Filed on September 5, 1994, the Amended Information charging the accused with the
crime of Murder, alleges:jgc:chanrobles.com.ph

"That on or about the 31st day of August 1994, in Kalookan City, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and mutually helping one another, with intent to kill, with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault and
shot one ARNOLD FERNANDEZ Y MCOLL, with the use of a gun, hitting the latter on
the left breast, thereby inflicting upon the latter serious physical injuries, which injuries
ultimately caused death.

CONTRARY TO LAW." 4

With all the accused except Ruben Lascano alias Bentot, who was then at large,
pleading Not Guilty upon arraignment on November 21, 1994, 5 trial ensued.

Testified on by prosecution witnesses SPO1 Antonio Peñaranda, PO3 Feliciano

Almojuela, Ofelia Ibacuado, Jonathan Siloran, SPO1 Alexander Flores, Estelita Mallari,
PO3 Eduardo Roderno and Dr. Antonio R. Vertido, and as summarized in the Appellee’s
Brief, the version of the People runs as follows:jgc:chanrobles.com.ph

"At around 9:00 o’clock in the evening of 31 August 1994, Estelita de Guzman Mallari
arrived at the store of Angela Macapagal located along L. Lupa St., Maypajo, Kalookan
City, in order to buy some mosquito coil repellant (i.e., ‘katol’). She noticed a neighbor,
Ofelia Ibacuado making a call at the store’s telephone and another neighbor, Arnold
Fernandez, sitting on the store’s cement stairs and drinking a bottle of
beer.chanroblesvirtuallawlibrary

Estelita Mallari then saw Ruben Lascano, accompanied by Eduardo Altabano and
Benjamin Caro, curse Arnold Fernandez and then kick the latter. These three (3)
individuals then proceeded to kick and maul Arnold Fernandez simultaneously, causing
the latter to fall on the store’s cement floor face up; while Ruben Lascano uttered:
"walanghiya ka, oras mo na." At this point, Accused Corazon Caro-Altabano and Cynthia
Caro-Altabano arrived at the scene, giving verbal encouragement to Ruben Lascano to

55
shoot Arnold Fernandez. Ruben Lascano drew a gun from his waist and shot Arnold
Fernandez once in the chest. All the accused then left the scene, leaving the accused
sprawled on the ground bleeding. Bystanders came forward to carry Arnold Fernandez
to the hospital; but some had noted he was already dead. Aside from Estelita Mallari,
this entire incident was likewise seen by Ofelia Ibacuado, who stood transfixed (i.e.,
‘tulala’) at the store’s telephone unit.

Responding policeman arrested four (4) of the accused, except Ruben Lascano, later
that same evening and they were brought to the police station. They were identified
thereat by eyewitnesses Estelita Mallari and Ofelia Ibacuado as the assailants, (together
with Ruben Lascano), of Arnold Fernandez. The eyewitnesses recognized the assailants
who were particularly long-time neighbors of Estelita Mallari in the same community,
since the crime scene right in front of the store was well lighted at the time of the
incident." 6

Prosecution witness SPO3 Eduardo Roderno testified 7 that recovered from the scene of
the crime were one magazine of a .45 caliber pistol, seven live ammunitions and one
empty shell.chanrobles.com : virtual law library

The last to testify for the prosecution was Dr. Antonio S. Vertido who conducted an
autopsy of the victim’s cadaver. On re-direct examination, he averred 8 that a .38 caliber
has almost the same characteristics as a .45 caliber, so that the gunshot wound
sustained by the victim might have been caused by a .38 caliber or a .45 caliber
pistol.chanroblesvirtual|awlibrary

Appellants placed reliance on denial and alibi as their defense. They alleged that they
were inside Cynthia Caro-Altabano’s house together with their children, friends and
relatives, while accused Ruben Lascano was with Renato Alipio, Cynthia Altabano’s
brother-in-law, on board a Nelbusco bus bound for Isabela.

The theory of the defense, as narrated by Corazon Caro-Lascano, and corroborated by

the defense witnesses, Julius Lascano, Elena Villareal, Benjamin Caro, and Cynthia
Altabano Y Caro, is to the following effect:jgc:chanrobles.com.ph

56
"At around 5:00 o’clock in the afternoon of August 31, 1994, the witness was standing in
front of the gate of her house when the victim, Arnold Fernadez approached and cursed
her. Accordingly, Fernandez told accused Corazon Lascano that she is ‘pakantutin’.
Thereafter, a heated argument ensued between them but both were pacified by
Corazon’s sister who advised the said accused to file a case against Fernandez at
Sangandaan Police Headquarters. Later, Corazon was accompanied by her husband,
Ruben Lascano in lodging a complaint against Fernandez at the said police
headquarters. At about 6:00 o’clock in the evening, Ruben Lascano, hurriedly packed
some of his personal belongings and rode an owner-type jeep as he was bound for
Isabela that night. Afterwards, Accused Corazon Lascano together with her two (2) small
children went to her sister’s (Cynthia Caro-Altabano) house which is just a few meters
away from her own house. Also at the house of Cynthia were Benjamin Caro, Elena
Villareal, Pilomer Adrales and Cynthia herself. At about 9:00 o’clock in the evening they
heard a gunshot and after five (5) minutes, some members of the Fernandez clan
started stoning Cynthia’s house. She saw Agustin Fernandez on board of a Ford Fierra
throw a bottle towards the house and in the process hit a balot vendor who was then in
front of the gate. Herein accused then called up for assistance to the mobile patrol which
arrived 30 minutes later at the barangay hall. The policeman then invited Corazon,
Cynthia Caro-Altabano, Eduardo Altabano and Benjamin Caro to the police
headquarters for investigation. Corazon’s husband, Ruben Lascano has not reported to
work up to the present and neither has she seen him since the latter left on August 31,
1994. She also stated that she has no knowledge of her husband’s whereabouts and
has not communicated to her in any manner.

. . . She also maintained that all the accused never set foot on the crime scene at the
night of the incident since her husband had left earlier while herein witness was then
inside her sister’s house together with Benjamin Caro and her sister Cynthia and
accused Eduardo Altabano were inside the sari-sari store of the former. . ." 9

On the basis of the evidence on record, the Trial Court rendered its decision convicting
appellants Eduardo Altabano y Ellorin and Benjamin Caro y Yu of the crime of Murder,
and acquitting Corazon Caro-Lascano and Cynthia Altabano y Caro for want of the
requisite evidence against the two.

57
Dissatisfied with the aforesaid decision, the appellants, Benjamin Caro y Yu and
Eduardo Altabano y Caro interposed the appeal at bar anchored on the assignment of
errors, that:jgc:chanrobles.com.ph

"1. RESPONDENT TRIAL COURT COMMITTED GRAVE ERRORS OF LAW IN

CONVICTING THE ACCUSED APPELLANTS EDUARDO ALTABANO AND BENJAMIN
CARO OF THE CRIME OF MURDER ALLEGEDLY IN CONSPIRACY WITH RUBEN
LASCANO.chanrobles virtual lawlibrary

2. RESPONDENT TRIAL COURT COMMITTED GRAVE ERRORS OF LAW IN NOT

ACQUITTING THE ACCUSED APPELLANTS EDUARDO ALTABANO AND BENJAMIN
CARO, IN THE SAME MANNER AS WHAT IT DID WITH THE ACCUSED CYNTHIA
ALTABANO AND CORAZON CARO, AT LEAST ON GROUNDS OF REASONABLE
DOUBT." 10

Firmly settled is the doctrine "that for the defense of alibi to prosper, the accused must
prove not only that he was at some other place at the time the crime was committed but
that it was likewise physically impossible for him to be at the locus criminis at the time of
the alleged crime." 11 In the case under scrutiny, appellants failed to prove and
demonstrate the physical impossibility of their being at the scene of the crime at the
approximate time of its commission. The house of Cynthia Altabano where they
(appellants) claim to have stayed, was only five (5) to six (6) houses away 12 from the
scene of the felony. Moreover, "defense of alibi cannot prevail over the positive
identification of the accused by the eyewitness who had no untoward motive to falsely
testify." 13 Prosecution witnesses Ofelia Ibacuado and Estelita Mallari, who were both
one (1) meter 14 away from the crime scene, positively identified the appellants. They
recounted 15 how Ruben Altabano, Benjamin Caro and Eduardo Altabano took turns in
kicking Arnold Fernandez and how Ruben Altabano shot the victim then laying prostrate
on the floor. These witnesses could not have been mistaken in their identification of
appellants who were all known to them, being their long time neighbors, and considering
that the place was well-illuminated by the light bulbs of the store. They (witnesses)
testified in their own right and as independent narrators of what happened.

"Where there is no evidence to show improper motive on the part of the prosecution

58
witnesses to testify falsely against the appellants or falsely implicate them in the
commission of the crime, as in the instant case, the logical conclusion is that no such
improper motive existed and that their testimonies are worthy of full faith and credit." 16

The declaration of Dr. Antonio S. Vertido who examined the victim’s cadaver that the
fatal shot could have come from a .45 caliber pistol strengthened the submission and
further buoyed up the theory of the prosecution — that the victim was shot on the chest
with a single bullet from a .45 caliber pistol.chanroblesvirtuallawlibrary

Appellants contend that they should not be held liable for the shooting perpetrated by
Ruben Lascano, as they did not agree to kill the victim. The most that they can be liable
is for the crime of physical injuries as their kicking the victim could not have caused his
death.

This stance of appellants is not impressed with merit. As aptly ratiocinated and found
below, conspiracy attended the commission of the crime. The trial court succinctly
concluded:jgc:chanrobles.com.ph

"Accused Ruben Lascano and his relatives had a vengeful motive to kill the victim due to
the latter’s offensive remark towards Lascano’s wife, Corazon, several hours before
Fernandez was killed. ‘The evidence establish the actual agreement which shows the
pre-conceived plan, motive, interest or purpose in the commission of the crime;
conspiracy is shown by the coordinated acts of the assailants’ (People v. Regalio, 220
SCRA 368). Accused Ruben Lascano, Eduardo Altabano, and Benjamin Caro ganged
up on the victim, hitting and kicking him until the latter was lying prostrate and helpless
on the ground. Their intent to kill Fernandez upon approaching the latter who was then
drinking alone was evident from Ruben Lascano’s words: "Walanghiya ka, oras mo na",
and the fact that he was armed with gun. The community of criminal purpose among the
three (3) accused men was likewise shown by the failure of Benjamin Caro and Eduardo
Altabano to prevent their companion from firing the fatal shot at the victim’s chest." 17

Indeed, even if only Ruben Lascano shot the victim, appellants cannot escape liability.
Conspiracy having been established, "all the conspirators are liable as co-principals
regardless of the manner and extent of their participation since in contemplation of law,

59
the act of one would be the act of all." 18

In acquitting accused Cynthia Altabano y Caro and Corazon Caro-Lascano, the lower
court found:jgc:chanrobles.com.ph

"On the other hand, the Court finds insufficient evidence to induce that moral certitude
exacted by the fundamental law to prove the guilt of the two (2) women accused for the
crime charged. There is no showing that they conspired with the three (3) men to kill the
victim considering that they came later than the trio at the crime scene. ‘For the
utterances of an accused to make him a principal by inducement, the same must be of a
nature and uttered in such manner as to become the determining cause of the crime,
and that the inducement precisely was intended to serve that purpose’ (People v.
Balderama, 226 SCRA 537).

In the case at bar, it is apparent that the three (3) accused men have already resolved
and conspired to kill the victim before the two women accused made their utterances,
hence, the same can not be considered as the determining cause of the crime.
Triggerman Ruben Lascano never hesitated in his action which culminated in the killing
of the victim. Even without the utterances of the two women, the crime would still have
been committed by Ruben Lascano, Eduardo Altabano and Benjamin Caro who were
impelled by the same criminal resolution." 19

From the foregoing, it is thus decisively clear that the Trial Court erred not in acquitting
the two (2) accused women and in convicting the appellants.

But the Court upholds the conclusion arrived at by the Trial Court that treachery is not
available to have qualify the offense.chanrobles lawlibrary : rednad

"Treachery as a qualifying circumstance, can not be properly appreciated in the absence

of any evidence tending to show that the commission of the crime was characterized by
a sudden attack, without according the victim any opportunity to make any defense
against the assault on his person by the accused." 20

As correctly ruled by the Court a quo, there was no treachery in the commission of the

60
crime since Arnold Fernandez was aware of the hostility of the assailants just before the
attack and he had the opportunity to observe the commencement of the assault as he
was facing his assailants. 21

As regards the qualifying circumstance of evident premeditation, it is proper to review

the appreciation of the same even if not raised as an error in the appeal, in line with the
jurisprudence

"that an appellate court is cloth with ample authority to review rulings even if they are not
assigned as errors on appeal, and this is especially so if the court finds that their
consideration is necessary in arriving at a just decision of the case before it." 22

Evident premeditation cannot be appreciated against appellants. Although the

defamatory words uttered by the victim against Corazon Caro-Lascano must have
spawned the grudge of appellants towards the victim, the evidence for the prosecution
has not established all the elements 23 of evident premeditation, to wit: (1) the time the
offender determined to commit the crime; (2) an act indicating that the offender had
clung to his determination; and (3) sufficient lapse of time between the determination to
commit the crime and the execution thereof to allow the offender to reflect upon the
consequences of his act.

In some cases, the Court held that the lapse of more than three (3) hours, as in the
present case, sufficed for the offender to reflect on the consequences of his intended
crime. But in this case, the prosecution failed to prove the first element of evident
premeditation. As has been consistently ruled, evident premeditation should not be
appreciated where "there is neither evidence of planning or preparation to kill nor the
time when the plot was conceived." 24 Here, the Trial Court merely inferred the
existence of evident premeditation from the acts of the assailants, concluding as
follows:jgc:chanrobles.com.ph

"The fact that the three assailants approached the victim at the time he was drinking
alone several hours after the latter had an argument with Ruben Lascano’s wife,
Corazon, showing that indeed there was a pre-determined plan on the part of the
assailants to attack the victim. The presence of a firearm in Ruben Lascano’s

61
possession and the assailant’s superior number clearly bespeaks of a deliberate plan on
their part to ensure the execution of the crime."25cralaw:red

Evidently, the prosecution has not proven the necessary "direct and positive evidence"
26 to qualify the killing to murder.chanrobles lawlibrary : rednad

All things duly considered, the Court is of the conclusion, and so finds, that appellants
can only be guilty of homicide, absent any circumstance to qualify the felonious killing
complained of to murder. Considering the absence of any mitigating or aggravating
circumstance to modify the penalty of reclusion temporal prescribed by Article 249 of the
Revised Penal Code, the same penalty should be imposed in its medium period. With
the application of the Indeterminate Sentence Law, appellants have to suffer the penalty
27 of eight (8) years of prision mayor, minimum, to fourteen (14) years, eight (8) months
and one day of reclusion temporal, as maximum.

WHEREFORE, as above indicated, the appealed Decision is accordingly MODIFIED.

Appellants EDUARDO ALTABANO Y ELLORIN and BENJAMIN CARO Y YU are
adjudged guilty of Homicide and are hereby sentenced to suffer the indeterminate
penalty of eight (8) years of prision mayor, as minimum, to fourteen (14) years, eight (8)
months and one day of reclusion temporal, as maximum. The judgment appealed from is
affirmed in all other respects. No pronouncements as to costs.

SO ORDERED.

Melo, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.

Endnotes:

1. Dated May 29, 1995; Rollo, pp. 16-35.

2. Presided by Judge Adoracion G. Angeles.

3. Rollo, p. 35.

62
4. Rollo, p. 3.

5. Original Records, p. 32.

6. Appellee’s Brief, pp. 4-6.

7. Decision, Rollo, p. 24.

8. Decision; Rollo, p. 25.

9. Rollo, pp. 28-29.

10. Appellants’ Brief, Rollo, pp. 79-80.

11. People v. Umali 242 SCRA 17, p .23, citing People v. Hortillano 177 SCRA 729, 739
and People v. Baylon 57 SCRA 114.

12. Decision, Rollo, p. 33.

13. People v. Morales, 241 SCRA 267, p. 275, citing People v. Javier, 229 SCRA 638.

14. Rollo, pp. 31-32.

15. See Decision, Rollo, pp. 20 and 23.

16. People v. Pija 245, SCRA 80, p. 85, citing People v. Rostata, Jr., 218 SCRA 657.

17. Rollo, p. 34.

18. People v. Salvatierra, 257 SCRA 489, p. 506, citing People v. Apawan, et. al., 235
SCRA 355.

19. Rollo, pp. 34-35.

63
20. People v. Pagsanjan, 221 SCRA 735, p. 745.

21. Rollo, p. 35.

22. Servicewide Specialist, Inc. v. Court of Appeals, et. al., 257 SCRA 643.

23. People v. Magsombol, 252 SCRA 187, p. 200, citing People v. De la Cruz, 242
SCRA 129.

24. People v. Nazareno, et. al., 260 SCRA 256 p. 282 , (1996), citing People v.
Salvador, 224 SCRA 819 (1993); People v. Wenceslao, 212 SCRA 560, p. 569 (1992),
citing People v. Caraig, G.R. No. 91162, October 3, 1991.

25. Rollo, p. 35.

26. People v. Aquino, 158 SCRA 212.

27. People v. Ocsimar, 253 SCRA 689, p. 698 (1996).chanrobles lawlibrary : rednad

64
65
 G. R. No. 138886 - October 9, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SPO1 WILFREDO LEAO, SPO1

FERDINAND MARZAN, SPO1 RUBEN B. AGUSTIN, SPO2 RODEL T.
MADERAL,* SPO2 ALEXANDER S. MICU and SPO4 EMILIO M. RAMIREZ, accused,
SPO1 WILFREDO LEAO, SPO1 FERDINAND MARZAN, SPO1 RUBEN B. AGUSTIN,
SPO2 ALEXANDER S. MICU, and SPO4 EMILIO M. RAMIREZ, appellants.

DE LEON, JR., J.:

Before us on appeal is the Decision1 dated April 22, 1999 of the Regional Trial Court of
Manila, Branch 41, in Criminal Case No. 97-160355, finding appellants Wilfredo Leaño,
Ferdinand Marzan, Ruben Agustin, Alexander Micu and Emilio Ramirez, guilty of two (2)
counts of murder for killing Elizer Tullao and Vicente Bauzon.

The Information2 charging the appellants and accused Rodel Maderal with double
murder, reads as follows:

That on or about the 8th day of March, 1996, in the municipality of Ramon, province of
Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
being all members of the Philippine National Police of Santiago City, and taking
advantage of their positions as such police officers, conspiring, confederating together
and helping one another, with intent to kill and with evident premeditation, treachery,
abuse of superior strength, cruelty, ignominy, employing means to afford impunity and
with the use of motor vehicles, did then and there, attack and hit for several times with
blunt instruments, hack and stab for several times with pointed/bladed instruments the
persons of ELZER TULIAO3 and VICENTE BAUZON, inflicting upon them multiple
fractures, hack and stab wounds on the different parts of their bodies, which directly
caused their deaths, after which, the said accused, in pursuance of their conspiracy,
brought the cadavers of the said victims to Barangay Purok Ni Bulan in said municipality
and by deliberately and inhumanly augmenting, outraging and scoffing at the corpses of
the said victims and to conceal the commission of the crime, cover the corpses with rice
straws and set fire upon them.

Contrary to law.4

66
When arraigned on June 6, 1996, appellants Alexander Micu, Ruben Agustin, Wilfredo
Leaño and Emilio Ramirez pleaded not guilty to the charge.5 On November 19, 1997
appellant Ferdinand Marzan was arraigned and entered a plea of "not guilty" to the
offense charged.6 Their co-accused, Rodel T. Maderal, is still at large.

The appellants filed a petition for bail but the same was denied on April 17, 1998.7

The prosecution presented thirteen (13) witnesses, namely: Elizabeth Feliciano,8 live-in
partner of the victim Elizer Tullao; Lucero Mendoza,9 Police Chief Inspector of Santiago
City; Dionisio Secolles,10 a tricycle driver, Homer De Imos,11 Wilbert Zara12 and
Cresencio Quimat,13 all duck raisers; Virgilio Tullao,14 father of the victim Elizer Tullao;
SPO1 Rogelio Sanchez,15 police investigator on duty on March 8, 1996; Dr. Antonio
Vertido,16 Medico Legal Officer of the National Bureau of Investigation (NBI); Narciso
Tullao,17 brother of Virgilio Tullao; Nestor Pascual,18 Atty. Constantino Joson,19 and Atty.
Mario Sison,20 all NBI Special Investigators.

The evidence for the prosecution shows that on March 3, 4, and 5, 1996 appellants
Ferdinand Marzan, Alexander Micu, Emilio Ramirez, Ruben Agustin, and Wilfredo Leaño
went to the Lucky One Cocktail Lounge and asked Elizabeth Feliciano, an employee of
the said lounge, about the whereabouts of her live-in partner, Elizer Tullao. Elizabeth
Feliciano testified that she noticed during the first visit of the appellants that Wilfredo
Leaño was carrying a bolo aside from his firearm; and that the last time she saw the
victim, Elizer Tullao, alive was in the restaurant on March 7, 1996 from 9:00 o'clock in
the evening up to 12:00 o'clock midnight, when he was with the other victim, Vicente
Bauzon.21

At past 2:00' o'clock in the early morning of March 8, 1996, Dionisio Secolles was driving
his tricycle along the provincial road when he met the police service Anfra jeep and a
motorcycle without cover proceeding towards the town of Ramon, Isabela. On board the
Anfra jeep were five (5) policemen, all wearing white T-shirts and fatigue pants. The
motorcycle was driven by appellant Marzan with co-accused Maderal as passenger.22

Two (2) hours later, between 4:00 o'clock and 5:00 o'clock in the morning, Homer De
Imos and Wilbert Zara were asleep in a hut in Purok Nibulan, Ramon, Isabela when they
were awakened by the smell of something burning. Homer De Imos went out of the hut

67
to investigate and saw appellants Leaño and Micu burning two (2) cadavers. When
appellants Leaño and Micu noticed Homer De Imos, the two (2) ran towards a parked
jeep and a motorcycle with uncovered sidecar, both colored white. The said two (2)
appellants boarded the white jeep from the back and together with the motorcycle sped
towards the town of Ramon, Isabela. Before the vehicles left, Homer De Imos and
Wilbert Zara noticed another person wearing a white T-shirt and fatigue pants standing
beside the motorcycle, but they were unable to recognize the said person.23

Lucero Mendoza, Police Chief Inspector of Santiago City, prepared the disposition of
policemen during the month of March 1996, and he confirmed that there were only two
(2) patrol jeeps assigned to the night duty patrol teams, one of which was an Anfra jeep
assigned to the North Patrol Section composed of appellants SPO4 Emilio Ramirez,
team leader and driver, SPO1 Wilfredo Leaño and SPO1 Ruben Agustin, as members.
Not one of the members of the team assigned to the North Patrol Section filed a leave of
absence or went AWOL in the month of March, 1996, particularly on March 7 and 8,
1996.

When the bodies of the victims, Elizer Tullao and Vicente Bauzon, were exhumed on
March 13, 1996, Dr. Antonio Vertido, NBI medico-legal officer, conducted an autopsy
which revealed that the cadavers were already in the early stage of post-mortem
decomposition, which means that the victims had been dead for more than forty-eight
(48) hours. Dr. Vertido declared that the assailants of victim Elizer Tullao could have
been more than one considering the number of injuries he found in the body of the
latter.24 Virgilio Tullao, father of the victim, Elizer Tullao, declared that ex-Mayor Jose
"Pempe" Miranda of Santiago City had the motive to order the killing of his son Elizer
Tullao. Virgilio was the "table manager" of the jueteng operations in Santiago City from
1991 to 1994 operated and maintained by former Mayor Miranda. The appellants are
bodyguards of Miranda and allegedly benefactors of the jueteng operation.25 Since
Virgilio testified in the Senate Blue Ribbon Committee about the alleged jueteng
operation of former Mayor Miranda, he claimed that the ex-mayor had the motive to
order the killing of his son, Elizer Tullao; and that Dr. Bining Acosta and Virgilio
Languban, close friends and political supporters of ex-mayor Miranda, offered him
through his brother, Narciso Tullao, to drop this case of double murder for and in the
proposed consideration of one condominium unit and One Million Pesos

68
(P1,000,000.00) in cash.26Narciso Tullao corroborated his brother's testimony to the
effect that efforts to settle the case against the appellants were made.

Each of the appellants categorically denied the charge against them and interposed
different alibis.

Appellant Alexander Micu claimed that on the night of March 7, 1996 he attended the
wake of the father of his wife's co-employee, Evelyn Samanejo, where he played "tong-
its"27 and left early morning on the following day.28 Samuel Dupitas and Vilma dela Cruz
corroborated his testimony.29

Appellant Emilio Ramirez, on the other hand, claimed that at the time material to the
case he was the team leader of the police force patrolling the north sector of Santiago
City. While his team has two (2) members, only appellant Leaño was with him because
appellant Agustin was still in Solana, Cagayan to follow-up a case. On March 7, 1996,
their tour of duty was from 6:00 o'clock p.m. up to 6:00 o'clock in the morning of the
following day. Ramirez declared that on the night of March 7, 1996 he and appellant
Wilfredo Leaño went to Canlang Hospital; that because of lack of gasoline, he requested
to use the L-200 pick-up of Chief of Police Lucero Mendoza for that purpose. At 1:30 in
the morning of March 8, 1996, they responded to a call for police assistance at Starlight
Disco Club where they apprehended a certain Moncao Manotok. They brought Manotok
to the police station and stayed there up to 3:00 o'clock in the morning, and thereafter
they again conducted their patrol up to 5:00 o'clock in the morning.30 Appellants Wilfredo
Leaño, Ruben Agustin and Ferdinand Marzan waived their right to testify during the trial
of the case at bar.

The lower court rendered its decision on April 22, 1999, the dispositive portion of which
reads:

WHEREFORE, judgment is hereby rendered finding the accused Wilfredo Leaño,

Ferdinand Marzan, Ruben Agustin, Alexander Micu and Emilio Ramirez guilty beyond
reasonable doubt of the crime of Murder (2 counts) and sentencing each of them to
suffer the penalty of reclusion perpetua for the death of each victim or a total of two
reclusion perpetua and to jointly and severally pay the heirs of each victim the amount of
P50,000.00 for the life of the victim and P200,000.00 for moral and exemplary damages.

69
Let a warrant of arrest issue against accused at large Rodel Maderal.

SO ORDERED.

Hence, this appeal with eleven (11 ) assigned errors, to wit:31

THE TRIAL COURT ERRONEOUSLY IN CONVICTING THE ACCUSED-APPELLANTS

OF THE CRIME OF MURDER DESPITE THE INSUFFICIENCY OF THE
PROSECUTION'S EVIDENCE TO PROVE THEIR GUILT BEYOND REASONABLE
DOUBT.

II

THE TRIAL COURT ERRED IN HOLDING THAT WHILE THERE IS NO DIRECT

EVIDENCE SHOWING THE ACTUAL KILLING OF THE TWO VICTIMS, THE
PROSECUTION HAS ESTABLISHED SUFFICIENT CIRCUMSTANTIAL EVIDENCE
THAT WOULD SHOW THAT THE ACCUSED-APPELLANTS WERE AMONG THE
PERPETRATORS OF THE CRIME CHARGED, ESPECIALLY THAT THE
PROSECUTION FAILED TO ESTABLISH THE CORPUS DELICTI AND THE IDENTITY
OF THE PERPETRATOR OR PERPETRATORS OF THE CRIME.

III

THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANTS

ALEXANDER MICU AND WILFREDO LEAÑO WERE POSITIVELY IDENTIFIED AS
THE TWO PERSONS WHO WERE BURNING THE CADAVERS OF THE TWO
VICTIMS, RELYING ON THE TESTIMONY OF PROSECUTION WITNESS HOMER DE
IMOS, DESPITE THE FACT THAT DE IMOS' TESTIMONY WAS NOT ONLY
FANTASTIC AND INCREDIBLE BUT ALSO CONTRARY TO HUMAN EXPERIENCE.

IV

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE

TESTIMONIES OF THE PROSECUTION WITNESSES DESPITE SERIOUS
CONTRADICTIONS AND INCONSISTENCIES IN THEIR TESTIMONIES.

70
V

THE TRIAL COURT ERRED IN HOLDING AGAINST THE ACCUSED-APPELLANTS

THE FACT THAT ONLY TWO, APPELLANTS ALEXANDER MICU AND EMILIO
RAMIREZ, TESTIFIED IN COURT TO DENY AND CONTROVERT THE EVIDENCE
AGAINST THEM, WHILE THE OTHER THREE, WILFREDO LEAÑO, RUBEN AGUSTIN
AND FERDINAND MARZAN, OPTED TO REMAIN SILENT AND DID NOT TESTIFY IN
THE TRIAL OF THE CASE.

VI

THE TRIAL COURT ERRED IN NOT GIVING WEIGHT TO THE DEFENSE OF ALIBI
OF ACCUSED-APPELLANTS ALEXANDER MICU AND EMILIO RAMIREZ DESPITE
THE FACT THAT THE SAME ARE CREDIBLE AND WORTHY OF BELIEF
CONSIDERING THAT THEY WERE CORROBORATED BY OTHER WITNESSES AND
HAVE SATISFIED THE REQUIREMENTS OF TIME AND PLACE.

VII

THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANTS

ACTED IN CONSPIRACY WITH EACH OTHER IN PERPETRATING THE KILLINGS
OF THE TWO VICTIMS.

VIII

THE TRIAL COURT ERRED IN NOT HOLDING THAT ACCUSED-APPELLANTS

COULD NOT HAVE BEEN THE PERPETRATORS OF THE CRIME CHARGED, BUT
ANOTHER GROUP OF PERSONS, AS TESTIFIED TO BY OTHER DEFENSE
WITNESSES.

IX

THE TRIAL COURT ERRED IN HOLDING; THAT THE AGGRAVATING

CIRCUMSTANCE OF OUTRAGING OR SCOFFING AT THE CORPSES OF THE
VICTIMS ATTENDED THE COMMISSION OF THE CRIME.

71
THE TRIAL COURT ERRED IN AWARDING ACTUAL, MORAL AND EXEMPLARY
DAMAGES TO THE HEIRS OF EACH VICTIM DESPITE ABSENCE OF PROOF TO
SUBSTANTIATE SAID DAMAGES.

XI

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS AND IN

IMPOSING UPON THEM THE PENALTY OF TWO RECLUSION PERPETUA AND IN
NOT ACQUITTING THEM OF THE CRIME CHARGED, THEIR GUILT NOT HAVING
BEEN PROVED BEYOND A REASONABLE DOUBT.

In lieu of Appellee's Brief,32 the Solicitor General filed a Manifestation and Motion
recommending the acquittal of all the appellants, on the grounds that:

1. Appellants had no motive to commit the crime charged;

2 There is no adequate evidence to warrant the conviction of appellants Agustin,

Ramirez and Marzan;

3. There is also a lack of sufficient proof to find appellants Micu and Leaño guilty of the
crime charged; and

4. The qualifying circumstance of outraging and scoffing is not present.

We find the appeal to be meritorious and the Solicitor General's recommendation to be

well-taken. The most glaring fact in the prosecution's handling of this case in the court
below is the lack of any eyewitness to the actual killing of the victims. Nobody actually
saw the appellants allegedly killed the victims nor was any of the alleged murder
weapons found. The fundamental issue in the instant appeal is whether or not there was
sufficient circumstantial evidence to link the appellants to the killing of the victims to
sustain a judgment of conviction beyond reasonable doubt.

When there is no eyewitness to a crime, resort to circumstantial evidence is inevitable.

But in order to support a conviction, all the circumstances must be consistent with the
hypothesis that the accused is guilty and at the same time inconsistent with the
hypothesis that he is innocent. Thus, for circumstantial evidence to be sufficient for

72
conviction, the following requisites must concur: (a) there must be more than one
circumstance to convict; (b) facts on which the inference of guilt is based must be
proved; and (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.33 The circumstances established must constitute
an unbroken chain leading to one fair and reasonable conclusion pointing to the accused
as the guilty person, to the exclusion of all others.

After a careful scrutiny of the evidence in the case at bar and considering the standards
set forth above, we are of view and we hold that the circumstantial evidence adduced by
the prosecution do not prove beyond reasonable doubt that the appellants perpetrated
the crime charged. The supposed string of circumstances relied upon by the trial court
are of the following:

1. That all the accused-appellants were looking for the victim Elizer Tullao several days
prior to the recovery of his dead burned body, the last time being on March 5, 1996;

2. That at around 2:00 o'clock in the morning of March 8, 1996, Dionisio Secolles saw
the police service Anfra vehicle and the service motorcycle proceeding to Ramon,
Isabela, the place were the burned bodies were found. On board the Anfra jeep were
five policemen while Marzan drove the motorcycle with Maderal as his passenger;

3. That at about 4:00 o'clock to 5:00 o'clock a.m. of the same day, Homer De Imos saw
appellants Leaño and Micu burning two cadavers which were later on identified as those
of Elizer Tullao and Vicente Bauzon.

4. That appellants Wilfredo Leaño, Ferdinand Marzan, Ruben Agustin, Alexander Micu,
Emilio Ramirez and accused Rodel Maderal are members of Santiago City Police Force.

The trial court also discussed other circumstantial evidence, to wit:

xxx - xxx - xxx

The guilt of accused Emilio Ramirez is further shown by the fact that he was the team
leader of the north patrol team which has an assigned Anfra vehicle and a motorcycle
which were seen by witness Danilo34 Secolles going to Purok Nibulan and seen also by

73
witnesses Homer Deimos and Wilbert Zara near the place of the burning of the
cadavers.

xxx - xxx - xxx

The guilt of accused Ruben Agustin is further shown by the fact that he belongs to the
north patrol team with the assigned Anfra vehicle and the motor tricycle together with
accused Emilio Ramirez and Wilfredo Leaño.35

However, the above circumstances, as will be shown below, point to no inference

consistent with the alleged guilt of the appellants.

1. From the mere fact that the appellants who are policemen were looking for the victim,
Elizer Tullao, the last time being on the 5th day of March 1996 or three (3) days prior to
the recovery of two (2) burned cadavers cannot be inferred that they were the authors of
the crime. As held in the case of People v. Bravo,36 "The prosecution's theory that the
appellant is guilty of the crime charged because he was seen with the victim a few days
before she was found dead is not tenable. x x x The two-day interval between the
evening of January 12th when the victim was seen with the appellant and the day when
her dead body was found on January 15th presents a wide range of possibilities as to
the perpetrator of the crime." In the case at bar, it was not even established that the
appellants actually met or were with the victims at the time when the crime was
committed. All that the prosecution witness Elizabeth Feliciano declared was that the
appellants were looking for the victim, Elizer Tullao, several days before the latter and
Vicente Bauzon were found dead.

2. As to the second piece of circumstantial evidence allegedly linking appellants

Maderal, Marzan, Agustin and Ramirez to the killing, the Court notes that the testimony
of prosecution witness Dionisio Secolles pertains to the fact that he met along the
highway, on his way back to San Mateo, Isabela, the PNP service Anfra jeep and the
PNP motorcycle. The two (2) service vehicles were proceeding towards Ramon, Isabela,
the place where the cadavers were burned. On board the Anfra jeep at that time were
five (5) men wearing white T-shirts and fatigue pants while Marzan was driving the
motorcycle with Maderal as his passenger.

74
Regarding appellants Agustin and Ramirez who by chance were members of the north
patrol team, the trial court found them guilty as charged for having acted allegedly in
conspiracy with each other. As to how said appellants conspired with each other, no
proof, justification or reason therefor was advanced by the court a quo.

To effectively serve as a basis for conviction, conspiracy must be proved as convincingly

as the criminal act itself. Like any element of the offense charged, conspiracy must be
established by proof beyond reasonable doubt.37

In the case at bar, however, there is absence of evidence to show that appellants
allegedly agreed to kill the victim, or that they acted in a manner as to show commonality
of design and purpose with the actual perpetrator(s) of the crime. The testimonies given
by the prosecution witnesses indicated only that appellant Marzan and accused Maderal
were seen on board a motorcycle on their way to Ramon, Isabela, the place where the
burned bodies were later found, and that they were members of the Santiago Police
Force like appellants Ramirez and Agustin. As members of the police patrol team, they
were merely seen patrolling within their area of responsibility and jurisdiction. Thus,
without evidence as to how appellants allegedly participated in perpetrating the offense
charged, conspiracy cannot be appreciated against them. Evidence of intentional
participation is indispensable inasmuch as appellants' mere presence (assuming they
were present) at the crime scene cannot be considered as proof of conspiracy. Likewise,
mere companionship does not establish conspiracy.38

3. We find as unbelievable and too odd to accept the testimony of prosecution witness
De Imos that he allegedly witnessed the burning of the cadavers by two (2) persons
whom he later identified as appellants Leaño and Micu. De Imos declared that from a
distance of fifteen (15) meters, he allegedly saw two (2) cadavers being burned by two
(2) persons in military uniform, and that despite that he was alone, unarmed and mindful
of the possibility that he might be harmed or even killed for having witnessed the
incident, nevertheless, that he approached the site. The natural reaction of a person in
such a circumstance would be to conceal himself as there was always the danger that
he himself could be killed. Likewise, we find as unrealistic De Imos' testimony that when
he approached the scene and was about three (3) meters away from the two (2) persons
in military uniform, the latter merely stared at him for about one minute and without
saying anything, ran away. It is hardly believable and natural that two (2) persons in

75
military uniforms and possibly armed who were brave enough to burn two (2) cadavers,
would just scamper away upon seeing a lone stranger who was unarmed and frail
looking like De Imos. When asked why he ran away after the two (2) persons in military
uniform scampered away, De Imos declared that he got scared by the sight of the two
(2) cadavers. How come that it was only at that point in time when De Imos felt afraid
because of the two (2) cadavers. Thus, we find the conduct of prosecution witness De
Imos as well as that of the two (2) persons allegedly burning the cadavers to be
inconsistent with human experience and behavior.

The flip-flopping in the testimony of De Imos generated serious doubt as to its veracity.
During his cross-examination by Atty. Lopez, De Imos testified that:

Atty. Lopez

xxx - xxx - xxx

Q The field where your tent was put up or established is a clear field, there are no
trees, there are no talahib or structures there?

A None, sir.

Q And as far as you can see up to probably a hundred meters there are no trees,
no structures obstruct ones view?

A None, sir, "May mga maliliit na palay."

Q These "maliliit na palay" were already planted, is that what you want to say.

A Yes, sir.39 (Emphasis supplied)

However, on further cross-examination, De Imos declared that:

Atty. Jovelyn de Luna

You said you went closer to the site of the burning and you came as closed as three
meters to the site, is that not correct?

76
A Yes, ma'am.

Q How did you get that close, did you run, did you walk, how did you do it?

A I walked slowly.

Q So would it be safe to say that you surreptitiously walked towards that site of the
burning?

A Yes, ma'am.

Q How did you do that, where there trees where you can hide yourself, are there
bushes or did you just stand up and walk, how did you do it?

A "May mga kahoy na nakatakip."

Q So I would suppose that to get as close as three meters to the site you are from
time to time trying to hide yourself among the trees, right?

A Yes, ma'am.

Q But you said a while ago that there are no trees there just palay, a small palay
planted on that field, why are you now saying that there are trees where you hid yourself
from to get as closed as three meters to the site?

A "Sa may sinusunog may mga kahoy na malalaki pero sa amin, doon sa amin mga
palay lang na maliliit."40

Testimonial evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself in the sense that common experience and
observation of mankind can approve as probable under the circumstances. We have no
test of the truth of human testimony, except its conformity to our knowledge, observation
and experience. Whatever is repugnant to these belongs to the miraculous, and is
outside of judicial cognizance.41

Finally, while we are aware that the motive of the accused in a criminal case is generally
held to be immaterial, not being an element of the crime, motive becomes important

77
when, as in this case, the evidence of the commission of the crime is purely
circumstantial. What the prosecution was able to spell out was merely the alleged motive
of former Mayor Miranda who is not an accused in the case at bar. That alleged motive
was apparently to get back at Virgilio Tullao, father of the victim, Elizer Tullao, who
testified against former Mayor Miranda before the Senate Blue Ribbon Committee during
its investigation of jueteng operations in Santiago City. That alleged motive was personal
to former Mayor Miranda and cannot be attributed or imputed to the appellants who are
his alleged bodyguards.

The rules and jurisprudence demand no less than an unbroken chain of proven facts that
would unmistakably point to the accused-appellant as the guilty person to the exclusion
of all others. This, the evidence for the prosecution failed to do. Circumstantial evidence
is akin to a tapestry made up of strands which create a pattern when interwoven, and
cannot be plucked out and considered one strand at a time independently of the
others.42

Thus, the circumstances proffered by the prosecution and relied upon by the trial court,
only created a mere suspicion that appellants probably perpetrated the crime charged.
The reality and situation in the present case, however, call for the application of the
equipoise rule, that is, where the inculpatory circumstances are capable of two
inferences, one of which is consistent with the presumption of innocence and the other
compatible with a finding of guilt, the court must acquit the appellants because the
evidence does not fulfill the test of moral certainty and therefore is insufficient to support
a judgment of conviction.

The basis of acquittal in this case is reasonable doubt which simply means that the
evidence of the prosecution was not sufficient to sustain and prove the alleged guilt of
the appellants with moral certainty or beyond reasonable doubt. An acquittal based on
reasonable doubt will prosper even though the appellants' innocence may be doubted,
for a criminal conviction rests on the strength of the evidence of the prosecution and not
on the weakness of the evidence of the defense.

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE.
Appellants Wilfredo Leaño, Ferdinand Marzan, Ruben B. Agustin, Alexander S. Micu
and Emilio M. Ramirez are acquitted of the charge of two (2) counts of murder on the

78
ground of reasonable doubt. Their immediate release from custody is hereby ordered
unless they are being held for other awful causes.

SO ORDERED.

Bellosillo, Quisumbing, and Buena, JJ., concur.

Endnotes:

*
At Large.

1
Penned by Judge Rodolfo A. Ponferrada; Rollo, pp. 41-63.

2
Filed with the Regional Trial Court of Santiago City, but venue of the said case was
transferred to Manila after this Court granted a petition to transfer the venue of the trial of
the case, which was thereafter raffled to Branch 41.

3
Should be Elizer Tullao.

4
Original Records, Vol. 1, pp. 5-6.

5
Original Records, Vol. I, p. 92.

6
Initially accused-appellant Marzan filed an Omnibus Motion dated June 5, 1996 praying
for the reinvestigation of the case, the recall of the warrant of arrest issued against him,
and the quashing of the Information for lack of probable cause, but subsequently
withdrew his motion; Original Records, Vol. II, p. 320.

7
Original Records, Vol.11, pp. 425-426.

8
TSN, November 20, 1997.

9
TSN, November 21, 1997.

10
TSN, December 4, 1997; TSN, December 5, 1997.

79
11
TSN, December 5, 1997; TSN, December 11, 1997.

12
TSN, December 11, 1997; TSN, December 12, 1997.

13
TSN, December 12, 1997.

14
TSN, January 8, 1998; TSN, January 22, 1998.; TSN, January 23, 1998.

15
TSN, January 22, 1998.

16
TSN, January 22, 1998.

17
TSN, February 19, 1998.

18
TSN, February 20, 1998.

19
TSN, March 13, 1998; TSN, April 30, 1998.

20
TSN, April 30, 1998.

21
TSN, November 20, 1997, pp. 24-29.

22
TSN, December 4, 1997, pp. 7-10.

23
TSN, December 5, 1997, pp. 34-40.

24
TSN, January 22, 1998, pp. 50, 71-78.

25
TSN, January 8, 1998, pp. 4-6, 8.

26
TSN, January 22, 1998, pp. 4-13.

27
A card game.

28
TSN, July 10, 1998; TSN, July 30, 1998; TSN, July 31, 1998.

29
TSN, July 9, 1998.

30
TSN, August 6, 1998.

80
31
Rollo, pp. 97-99.

32
Rollo, pp. 228-253.

33
People v. Berroya, 283 SCRA 111, 123 [1997].

34
Should be Dionisio.

35
Decision, p. 18.

36
318 SCRA 812, 824-825, [1999].

37
De Carlos v. Court of Appeals, 312 SCRA 397, 407 [1999].

38
People v. Del Rosario, 305 SCRA 740, 756 [1999].

39
TSN, December 11, 1997, pp. 4-5.

40
TSN, December 11, 1997, pp. 11-12.

41
People v. Mahinay, 302 SCRA 455, 483, [1999].

42
People v. Ragon, 282 SCRA 103.

81
 G.R. Nos. 137834-40. December 3, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO DOGAOJO Y

MORANTE, Accused-Appellant.

DECISION

PER CURIAM:

Accused-appellant Domingo Dogaojo y Morante was charged before the Regional Trial
Court of Malolos, Bulacan with seven counts of rape allegedly committed against his
minor daughter, Melinda Dogaojo. The trial court found accused-appellant guilty of all
the charges and sentenced him to suffer seven death penalties. 1 The case was
elevated to this Court on automatic review.

The first six Informations which contained the same allegations except the date of the
commission of the offense alleged:jgc:chanrobles.com.ph

"That on or about the 21st day of March 1996, (22nd day of March, 1996 for Crim. Case
No. 1339-M-97; 26th day of March, 1996 for Crim. Case No. 1340-M-97; 13th day of
April, 1996 for Crim. Case No. 1341-M-97; 21st day of April, 1996 for Crim. Case No.
1342-M-97; 2nd day of May, 1996 for Crim. Case No. 1343-M-97) in the municipality of
San Jose Del Monte, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there wilfully, unlawfully and
feloniously with lewd design, by means of force and intimidation, have carnal knowledge
of his 11 year old daughter Melinda A. Dogaojo, against her will and consent.

Contrary to law." 2

The seventh Information alleged:jgc:chanrobles.com.ph

"That on or about the 17th day of December, 1996, in the municipality of San Jose del
Monte, province of Bulacan, Philippines and within the jurisdiction of this Honorable

82
Court, the above-named accused did then and there wilfully, unlawfully and feloniously
with lewd design, by means of force and intimidation, have carnal knowledge of his 12
year old daughter Melinda Dogaojo against her will and consent.

Contrary to law." 3

Accused-appellant pleaded not guilty to the charges. 4 Trial followed.

For the prosecution, Melinda Dogaojo testified that accused-appellant Domingo Dogaojo
is her father. She said that he violated her seven times an various dates in 1996. 5 She
was born on November 19, 1984. 6

The first incident happened on March 21, 1996 at 11:30 in the morning in their house at
Barangay Kaybanban, San Jose Del Monte, Bulacan. At that time, Melinda’s mother,
Mila, and her younger brothers, Arnold and Albert, were at the well washing clothes.
Melinda was alone in the room inside their house when her father, Domingo, entered
and pushed her to the wooden bed. She fell down. He began to remove her clothes.
Melinda tried to resist by pushing and kicking him. Domingo, however, succeeded in
removing her short pants and underwear. He also removed his short pants and
underwear. Thereafter, he pulled her feet and spread her legs while she continued to
push and kick him. Then he lay on top of her, fondled his organ and inserted it into her
vagina by making a push and pull movement for about one minute. She felt pain in her
private part. Domingo got up when he heard Melinda’s brothers coming. He put on his
short pants and told Melinda not to tell anybody about what happened. He threatened to
kill her if she does. Melinda fixed herself as Domingo went out of the house. When she
saw her mother, they talked about various things but she did not tell her about the sexual
assault because she was afraid of her father who looked panicky and red-faced at that
time. 7

The second incident occurred on March 22, 1996 in the same house. Domingo, Mila,
Arnold, Albert and Melinda were lying on the wooden bed in the order mentioned.
Around 1:00 in the morning, Melinda was roused from her sleep when Domingo got up
and went to her side. He pushed her two brothers toward her mother. Then he
undressed her. She wept while resisting his advances. She pushed him and swayed her

83
body. After her clothes had been removed, Domingo laid on top of Melinda and held her
hands to keep her from moving. He inserted his penis into her vagina and made a push
and pull movement for about one minute. Melinda again felt pain in her genitalia. After
satisfying his lust, Domingo stood up. The movement awoke Mila who asked Domingo
what he was doing. He told her that he was just looking for something. Mila turned to
Melinda and asked her why she was not sleeping. She answered that she was
awakened by a mosquito. Melinda went back to sleep and kept silent about the incident.
Domingo also went back to bed beside Mila. 8

The deed was repeated three times more — at 12:00 midnight on April 13, 1996, at
11:00 in the evening on April 21, 1996, and at 10:30 in the evening on May 21, 1996. On
all occasions, Domingo succeeded in having sexual intercourse with Melinda against her
will. 9

Prior to these dates, however, on March 26, 1996 at 2:00 in the afternoon, Domingo
once again abused Melinda. Melinda was standing outside the house beside the
"kakawate" tree when her father summoned her to come inside. At that time, Melinda’s
mother was at her sister’s house and her brothers were also out playing. When Melinda
entered the room, Domingo pushed her to the wooden bed and removed her short pants
and underwear. Domingo also removed his clothes. Melinda continued to cry as she
resisted Domingo’s advances. She swayed her body and pushed him. But he mounted
her and made a push and pull movement for about three minutes, causing pain in her
organ. Thereafter, he stood up. Melinda saw a white substance come out of Domingo’s
organ. Domingo put on his short pants. Looking mad, he told Melinda not to report the
incident. Melinda cried as she wore her short pants. 10

The last episode occurred at 8:00 in the morning of December 17, 1996 in the family’s
new house. Melinda woke to find her naked father lying on top of her. He removed her
short pants and underwear and inserted his penis into her vagina. As before, Melinda
swayed her body and pushed him. She tried to get up but Domingo prevented her.
Domingo made a push and pull movement while lying on top of Melinda. After two
minutes, he stood up because a white substance came out of his organ. He wiped the
white substance and told Melinda not to tell anybody about what happened. Domingo
went out of the room. Melinda again kept silent about the sexual abuse. 11

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A week after the last incident, Melinda moved to the house of her sister, Vangie. She
related to Vangie what her father had done to her. Vangie, in turn, informed their mother
about the story, but the latter refused to believe and left them on their own to seek
redress. Vangie accompanied Melinda to the police authorities to report the rape and to
give her sworn statement. Thereafter, they went to the National Bureau of Investigation
(NBI) for physical examination. 12

Dr. Antonio Vertido, Medico-Legal Officer of the NBI, testified on the result of the
physical examination. It yielded the following findings: 13

"GENERAL PHYSICAL EXAMINATION:chanrob1es virtual 1aw library

Height: 145.0 cms. Weight: 85 lbs.

Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory

subject.

Breasts developed, hemispherical, doughy, Areolae, 2.0 cms. in diameter, brown.

Nipples, 0.7 cm. in diameter, brown, protruding.chanrob1es virtua1 1aw 1ibrary

GENITAL EXAMINATION:chanrob1es virtual 1aw library

Pubic hair, fine, short, scanty. Labia and labia majora, gaping. Fourchette, tense.
Vestibular mucosa, pinkish. Hymen, moderately tall, moderately thick, intact. Hymenal
orifice, measures 2.0 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:chanrob1es virtual 1aw library

1. Physical virginity preserved."cralaw virtua1aw library

Domingo Dogaojo and Mila Dogaojo testified for the defense.

Domingo testified that he and his wife have eight living children. Three are staying with

85
them, namely, Jay-Ar, Arnold and Ambet. Their daughter, Melinda, has been living with
their other child since 1995. She seldom goes to their home. 14

Domingo denied raping Melinda on the dates alleged by the prosecution. He posed an
alibi. He stated that he worked as mason-carpenter in various construction projects and
he usually stayed at the work site from Monday to Saturday. He would go home only at
6:00 or 7:00 in the evening of Saturday. In 1996, he worked at Palmera Construction in
San Jose Del Monte and he slept at the construction site during weekdays. 15

Domingo further testified on the possible motive of Melinda in filing the complaint against
him. He said that he had an argument with Melinda regarding her having a boyfriend. He
confronted her twice about the matter. During the first confrontation, Melinda got mad
and walked out. On the second instance, Melinda answered back, prompting him to hit
her with a belt. Melinda left the house and stayed with her siblings. 16 After three weeks,
he learned that a complaint has been filed against him. 17 He also said that Melinda
might have filed the complaint because of the prodding of his mother-in-law, Melinda’s
grandmother who spoils her and provides for all her needs. He said that his mother-in-
law detested him because she did not want her daughter, Mila, to marry him. She
allegedly wanted a wealthy husband for Mila. He also stated that he had a previous
altercation with his mother-in-law regarding the latter’s alleged extramarital affair. As a
result, his mother-in-law filed a complaint against him before the Barangay Captain. The
Barangay Captain, however, ruled in his favor. 18

Domingo’s testimony was corroborated by his wife, Mila. 19

The trial court found Domingo guilty of all the charges and sentenced him to seven death
penalties and ordered him to pay private complainant the amount of P50,000.00 as
moral damages. The dispositive portion of the Decision stated:jgc:chanrobles.com.ph

"WHEREFORE, the foregoing considered, this Court hereby finds accused DOMINGO
DOGAOJO y MORANTE GUILTY beyond reasonable doubt of seven (7) counts of Rape
defined and penalized under Article 335 of the Revised Penal Code as amended by
Republic Act No. 7659, and hereby sentences him to suffer seven (7) DEATH penalties
(one for each count) and to pay private complainant Melinda Dogaojo the amount of Fifty

86
Thousand Pesos (P50,000.00) as moral damages. With costs." 20

In this appeal, Accused-appellant raises the lone assignment of

error:jgc:chanrobles.com.ph

"The trial court gravely erred in finding the accused guilty of seven (7) counts of rape
despite the fact that the physical evidence failed to corroborate the charges." 21

Accused-appellant contends that Melinda’s testimony should not be given credence as it

is not corroborated by physical evidence. He harps on the medico-legal report indicating
that the hymen of the alleged victim is still intact.

The Office of the Solicitor General, instead of filing an appellee’s brief, filed a
manifestation and motion in lieu thereof. It is the position of the Solicitor General that the
crime committed was merely attempted rape. It argues that although it was shown that
accused-appellant has done several acts leading to the consummation of the crime, the
prosecution failed to prove the element of carnal knowledge. It asserts that the evidence
of the prosecution regarding carnal knowledge are conflicting. On one hand, Melinda
testified that Domingo made a push and pull movement and she felt pain in her private
part. On the other hand, the medico-legal report showed that there was no sexual
contact as evidenced by the fact that the victim’s hymen was found to be intact. These
conflicting evidence, it is argued, put to doubt proof of carnal knowledge.

We sustain the factual findings of the trial court.chanrob1es virtua1 1aw 1ibrary

Accused-appellant was charged with qualified rape of an under-aged relative which is

classified as heinous crime by Section 11 of RA 7659. 22 To convict the accused of the
offense, the prosecution must allege and prove the ordinary elements of (1) sexual
congress, (2) with a woman, (3) by force and without consent, and in order to warrant
the imposition of death penalty, the additional elements that (4) the victim is under
eighteen years of age at the time of the rape, and (5) the offender is a parent (whether
legitimate, illegitimate or adopted) of the victim. 23 In the case at bar, the prosecution
was able to prove the existence of all these elements beyond a shadow of doubt.

87
The defense did not dispute the fact that Melinda is the daughter of accused-appellant
and that she was only eleven years old at the time of the alleged commission of the
offense. They did not present evidence refuting the testimony of Melinda that accused-
appellant is her father 24 and that she was born on November 19, 1984. 25 In fact, in
their testimonies, both Domingo and Mila Dogaojo referred to Melinda as their daughter.
26 Moreover, when asked in court about Melinda’s age, Domingo said that she was
already fourteen (14) years old. 27

Melinda also recounted clearly and candidly how her father ravished her on seven
occasions. We do not see any reason to doubt the veracity of her testimony which
remained consistent and unwavering even on cross-examination. The Court has
consistently adhered to the principle that the testimonies of child victims of rape are
generally accorded full weight and credit, especially when no ill motive is shown to move
her to testify falsely against the accused. 28 We are not convinced that Melinda, as the
defense would like us to believe, filed the complaint against her father because of a
previous altercation and because of the prodding of her grandmother. It would take the
most senseless kind of depravity for a young daughter to fabricate a story which would
send her father to death only because he scolded her or because they do not see eye to
eye. A child, innocent and naive to the ways of the world, is not likely to accuse her own
father of a very serious crime such as incestuous rape if it was not the plain truth, or if
her motive was not purely to bring the offender to justice. 29

We disagree with the assertion of accused-appellant and the Solicitor General that the
testimonial and the documentary evidence of the prosecution are conflicting. On the
contrary, we find that the testimony of Melinda jibes with the medico-legal report
submitted by Dr. Antonio Vertido of the NBI. The physical examination of Melinda
revealed that her hymen is still intact. This is consistent with her testimony that her father
lay on top of her for only a few minutes and that he was able to insert only a small
portion of his organ into her genitalia. She also testified during cross-examination that
she did not notice any bleeding in her private part after the various rape incidents,
except after the fourth incident, which bleeding could have been caused by her monthly
period which lasted for ten days.

She testified thus:chanrob1es virtual 1aw library

88
x x x

Q: And you are claiming that this penis of your father was inserted in your vagina?

A: Yes, sir.

Q: What did you feel?

A: Painful, sir.

Q: Did you feel that the full penis of your father was inserted in your vagina?

A: No, sir.

Q: How deep did the penis of your father reach in your vagina?

A: I do not know.

Q: But that was very painful as you mentioned?

A: Yes, sir. He had just inserted "konti lang po" .

Q: But do (sic) you really feel pain?

A: Yes, sir.

Q: But did you observe if there was blood on the first alleged rape?

A: None.

Q: How about on the second time?

A: None, sir.

89
Q: On the third?

A: On the 4th, I noticed blood. 30

x x x

Q: You mentioned also that you felt pain in this alleged rape? (referring to the third
incident)

A: Yes, sir.

Q: But you did not see blood?

A: None, sir. 31

x x x

Q: So in this 4th incident, you mentioned you noticed blood also?

A: The following morning.

Q: Not on the very moment?

A: No, sir.

Q: And where did that blood come from?

A: I do not know.

Q: Where did you notice that blood?

A: The following morning. I noticed that on my panty when I moved my (b)owel. 32

90
x x x

Q: By the way, when you noticed blood in your panty, what did you do?

A: I mentioned that to my mother.

Q: What did your mother ask you

A: She told me that maybe that is menstruation.

Q: Did you not tell your mother about the alleged rape by your father?

A: No, sir.

Q: So how long does (sic) that blood last?

A: 10 days. 33

x x x

Q: So in this time, you did not notice any blood, did you notice any blood? (referring to
the seventh incident)

A: None, sir." 34

The absence of bleeding affirms the fact that the hymen has not been torn, thus the
medical finding that Melinda’s physical virginity has been preserved. The lack of
laceration in the hymen, however, is not incompatible with the fact of rape. Hymenal
laceration is not an element of rape for even the slightest penetration of the labia by the
male organ is equivalent to consummated rape. 35 Dr. Antonio Vertido admitted upon
inquiry by the trial court that it is possible that the male organ touches the opening of the
vagina and not cause laceration. He testified:chanrob1es virtua1 1aw 1ibrary

91
x x x

Q: In this particular case based on your finding it is possible that there was penetration?

A: It is difficult to prove that there was a penetration because the hymen was intact. The
or(i)fice is small and it (is) impossible (for) the average erect penis to penetrate.

Q: What about the slightest penetration?

A: What do you mean slightest penetration, your Honor?

Q: Slightest penetration; what you are telling the Court is the full penetration of the penis.

A: Well, the male penis touches the opening, your Honor, then sometimes it does not
lacerate.

Q: So it is possible the penis touches the vagina?

A: It is possible, your Honor.

x x x" 36

We reject the theory of the Solicitor General that the crime committed was merely
attempted and not consummated rape. Melinda categorically stated that her father
inserted his organ into her vagina on all seven occasions of rape. She was certain that
her father was able to penetrate her because she felt pain in her genitalia. This refutes
the theory of the Solicitor General that there was no penetration of the male organ into
the labia of the female organ, but merely a touching of its outer surface. The pain in
Melinda’s private part could only be caused by the penetration, albeit slight, of the male
organ into its opening. Our ruling in People v. Palicte 37 finds application in the case at
bar. We held in that case:jgc:chanrobles.com.ph

"The fact that there was no deep penetration of the victim’s vagina and that her hymen

92
was still intact does not negate the commission of rape. According to Dr. Jose Ladrido,
Jr., who has been in medico-legal cases since 1963 and has examined many rape
victims, if the victim is a child, as in the case of Edievien, rape can be done without
penetration. Without penetration the male organ is only within the lips of the female
organ, and there is interlabia or sexual intercourse with little, none, or full penetration,
although he admitted that it was also possible that there was no rape since the hymen
was intact.

In the case before us, Edievien repeatedly testified that the accused inserted his penis
into her vagina for half an hour, as a consequence of which she suffered pain. This, at
least, could be nothing but the result of penile penetration sufficient to constitute rape.
Being a virgin, as found by the examining physician, her hymenal resistance could be
strong as to prevent full penetration. But just the same, penetration there was, which
caused the pain. For, rape is committed even with the slightest penetration of the
woman’s sex organ. Mere entry of the labia or lips of the vagina, as in this case of
Edievien, is sufficient to warrant conviction for consummated rape."cralaw virtua1aw
library

In an attempted crime, the offender commences the commission of a felony directly by

overt acts, but does not perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance. 38 A felony is consummated when
all the elements necessary for its execution and accomplishment are present. 39 Rape
under the first paragraph of Article 335 of the Revised Penal Code, as amended by RA
7659 is consummated when there is penetration, no matter how slight, of the victim’s
genitalia under any of the, circumstances enumerated therein. 40 The prosecution in this
case has proven the consummation of the offense through the testimony of the victim
which we find credible.chanrob1es virtua1 1aw 1ibrary

Hence, we find that the trial court did not err in convicting accused-appellant of all the
charges. We note, however, that the trial court awarded only P50,000.00 as moral
damages to the victim, but failed to award civil indemnity. In line with prevailing
jurisprudence, the civil indemnity ex delicto for the victim is P75,000.00 for each count of
rape, aside from the moral damages in the amount of P50,000.00, likewise for each
count of rape. 41 Furthermore, since the offender is the victim’s own father, we find an

93
award of exemplary damages in the amount of P25,000.00 to be in order. 42

Six members of the Court are of the view that the act committed by accused-appellant
was attempted rape, not consummated rape. They hold that there was no evidence of
sexual congress however slight. The victim, Melinda, testified that her father inserted his
penis into her vagina "a little" causing pain. He made a push and pull movement while
mounted on top of her for a few minutes (2-3 minutes) until a white substance came out
of his organ. This fact shows that there was no penetration of penis into the female sex
organ even slightly. Dr. Antonio S. Vertido, Medico-Legal Officer, NBI, declared when
asked if it was possible that there was penetration of the victim’s vagina that "it is difficult
to prove that there was penetration because the hymen was intact." He admitted,
though, that it was possible the penis touched the vagina. Touching by the penis of the
opening of the vagina is not consummated rape, only attempted rape. 43 There is no
physical evidence showing that the accused’s penis touched the pudendum. 44 True,
entry of the penis into the lips of the said organ even without rupture or laceration of the
hymen is enough. 45 In this case, however, the doctor testified that "penetration" was
impossible because the orifice is small. In People v. Bation, 46 the court held that it is
essential that there be penetration of the female organ no matter how slight. There must
be entry of the penis into the labia majora of the female victim, however slightly 47 or
there is entrance of the male organ within the labia or pudendum of the female organ. 48
Although the rule is that when the victim cries rape, she says all constituting the
commission of the offense. However, case law requires that the victim’s testimony must
find support in the physical evidence. In this case, six members of the Court find that the
physical evidence does not support the victim’s testimony.

Four members of the Court maintain their position that Republic Act No. 7659, insofar as
it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the
ruling of the Court, by a majority vote, that the law is constitutional and that the death
penalty should be accordingly imposed.

IN VIEW WHEREOF, the Decision appealed from is AFFIRMED with the

MODIFICATION that accused-appellant is ordered to indemnify the victim, Melinda
Dogaojo, in the amount of P75,000.00 as civil indemnity and P50,000.00 as moral
damages for each count of the offense charged and proved, and to pay her the amount

94
of P25,000.00 as exemplary damages.

In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the
Revised Penal Code, upon finality of this Decision, let the records of this case be
forthwith forwarded to the Office of the President for possible exercise of her pardoning
power.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

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

Endnotes:

1. Decision penned by Judge Gregorio S. Sampaga, Rollo, pp.20-30.

2. Rollo, pp. 7-12.

3. Id., p. 13.

4. Original Records, p.25.

5. TSN, November 24, 1997, pp. 34.

6. Id., p. 27.

7. Id., pp. 4-9.

8. Id., pp. 9-13.

9. Id., pp. 16-21.

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10. Id., pp. 13-16.

11. Id., pp. 21-24.

12. Id., pp. 24-27.

13. Exhibit "B", Original Records, p. 14.

14. TSN, April 27, 1998, pp. 2-3.

15. Id., pp. 3-4.

16. Id., pp. 5-6.

17. Id., p. 8.

18. Id., pp. 6-8.

19. Id., pp. 2-7.

20. Rollo, pp. 29-30.

21. Appellant’s Brief, Rollo, p. 51.

22. An Act to Impose the Death Penalty on Certain Heinous Crimes Amending for that
Purpose the Revised Penal Code, As Amended, Other Special Penal Laws, and for
other Purpose (Took effect December 31, 1993)

23. People v. Lasola, 318 SCRA 241 (1999): People v. Silvano, 309 SCRA 362 (1999).

24. TSN, November 24, 1997, p. 3.

25. Id., p. 27.

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26. TSN, April 27, 1998, pp. 3-9; TSN, May 20, 1998, pp. 2-7.

27. TSN, April 27, 1998, p. 5.

28. People v. Fraga, 330 SCRA 669 (2000).

29. People v. Guiwan, 331 SCRA 70 (2000); People v. Razonable, 330 SCRA 562
(2000).

30. TSN, November 28, 1997, pp.8-9.

31. Id., pp. 13-14.

32. Id., p. 15.

33. Id., pp. 15-16

34. Id.,p. 16.

35. People v. Balora, 332 SCRA 403 (2000); People v. Tano, 331 SCRA 449 (2000);
People v. Barredo, 329 SCRA 120(2000).

36. TSN, February 20, 1998, p.4.

37. 229 SCRA 543 (1994).

38. Article 6, Revised Penal Code; People v. Tayaba, 62 Phil 559 (1935); People v.
Guevarra, 155 SCRA 327 (1987); People v. Torio, 318 SCRA 345 (1999); People v.
Tabarangao, 303 SCRA 623 (1999).

39. Article 6, Revised Penal Code.

40. People v. Licanda, 331 SCRA 357 (2000).

97
41. People v. Alicante, 332 SCRA 440 (2000).

42. People v. Traya, 332 SCRA 499 (2000); People v. Lao, 249 SCRA 137 (1995).

43. People v. Campuhan, 329 SCRA 270 (2000).

44. People v. Gastador, 365 Phil. 209, 223 (1999).

45. People v. Marcelo, 364 Phil. 576, 588 (1999).

46. 364 Phil. 731, 748 (1999); see also People v. Gecomo, 254 SCRA 82, 91 (1996).

47. People v. Oliver, 362 Phil. 414 (1999).

48. People v. Alojado, 364 Phil. 713, 724 (1999).

98
 G.R. No. 144656 - May 9, 2002

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GERRICO VALLEJO Y

SAMARTINO @ PUKE, Accused-Appellant.

PER CURIAM:

This is an appeal from the decision1 of the Regional Trial Court, Branch 88, Cavite City,
sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs
of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral
damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario, Cavite on
July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with
Homicide alleged:

"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of
Rosario, Province of Cavite, Philippines and within the jurisdiction of this Honorable Trial
Court, the above-named accused, with lewd design, by means of force and intimidation,
did then and there, willfully, unlawfully and feloniously have sexual intercourse with
DAISY DIOLOLA Y DITALO, a nine-year old child against the latter's will and while
raping the said victim, said accused strangled her to death."

"CONTRARY TO LAW."2

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel,
pleaded not guilty to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim's
mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor
Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorney's Office;
Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist;
SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin Mataverde and
Charito Paras-Yepes, both neighbors of the victim.

99
The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the
afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their
neighbor's house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of
accused-appellant, could help Daisy with her lessons. Aimee's house, where accused-
appellant was also staying, is about four to five meters away from Daisy's house. Ma.
Nida saw her daughter go to the house of her tutor. She was wearing pink short pants
and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant.
They were looking for a book which accused-appellant could copy to make a drawing or
a poster that Daisy would submit to her teacher. After finding the book, Daisy and
accused-appellant went back to the latter's house. When Ma. Nida woke up at about
5:30 o'clock after an afternoon nap, she noticed that Daisy was not yet home. She
started looking for her daughter and proceeded to the house of Aimee, Daisy's tutor.
Aimee's mother told Ma. Nida that Daisy was not there and that Aimee was not able to
help Daisy with her lessons because Aimee was not feeling well as she had her
menstrual period. Ma. Nida looked for Daisy in her brother's and sister's houses, but she
was not there, either. At about 7:00 o'clock that evening, Ma. Nida went back to her
neighbor's house, and there saw accused-appellant, who told her that Daisy had gone to
her classmate's house to borrow a book. But, when Ma. Nida went there, she was told
that Daisy had not been there. Ma. Nida went to the dike and was told that they saw
Daisy playing at about 3:30 o'clock in the afternoon. Jessiemin Mataverde also told Ma.
Nida that Daisy was playing in front of her house that afternoon and even watched
television in her house, but that Daisy later left with accused-appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10,
1999, a Saturday, until the early morning of the following day, June 11, 1999, a Sunday,
but their search proved fruitless. Then, at about 10:00 o'clock in the morning of June 11,
1999, she was informed that the dead body of her daughter was found tied to the root of
an aroma tree by the river after the "compuerta" by a certain Freddie Quinto. The body
was already in the barangay hall when Ma. Nida saw her daughter. Daisy was wearing
her pink short pants with her sleeveless shirt tied around her neck. Barangay
Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police.
The other barangay officers fetched accused-appellant from his house and took him to
the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico

100
Vallejo as the probable suspect since he was with the victim when she was last seen
alive.3

Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the
afternoon of that day, she saw Daisy playing with other children outside her house. She
asked Daisy and her playmates to stop playing as their noise was keeping Jessiemin's
one-year old baby awake. Daisy relented and watched television instead from the door
of Jessiemin's house. About five minutes later, accused-appellant came to the house
and told Daisy something, as a result of which she went with him and the two proceeded
towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her daughter
were in front of a store across the street from her house, accused-appellant arrived to
buy a stick of Marlboro cigarette. Accused-appellant had only his basketball shorts on
and was just holding his shirt. They noticed both his shorts and his shirt were wet. After
lighting his cigarette, accused-appellant left.4

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30
o'clock in the afternoon of July 10, 1999, while she and her husband and children were
walking towards the "compuerta" near the seashore of Ligtong, Rosario, Cavite, they
met a fisherman named Herminio who said that it was a good day for catching milkfish
(bangus). For this reason, according to this witness, they decided to get some fishing
implements. She said they met accused-appellant Gerrico Vallejo near the seashore and
noticed that he was uneasy and looked troubled. Charito said that accused-appellant did
not even greet them, which was unusual. She also testified that accused-appellant's
shorts and shirt (sando) were wet, but his face and hair were not.5

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief
Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia,
SPO1 Araracap and PO2 Lariza. When they arrived, Daisy's body was already in the
barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was
wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt
wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor
in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie

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Quinto was fishing near the compuerta when he accidentally hit the body of Daisy, which
was in the mud and tied to the root of an aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others, a certain
Raymond and Esting, were also taken into custody because they were seen with
accused-appellant in front of the store in the late afternoon of July 10 1999. Later,
however, the two were released. Based on the statements of Jessiemin Mataverde and
Charito Paras-Yepes, the policemen went to the house of accused-appellant at about
4:00 o'clock in the afternoon of July 11, 1999 and recovered the white basketball shirt,
with the name Samartino and No. 13 printed at the back, and the violet basketball
shorts, with the number 9 printed on it, worn by accused-appellant the day before. The
shirt and shorts, which were bloodstained, were turned over to the NBI for laboratory
examination.6

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock in
the evening of July 11, 1999, he conducted a physical examination of accused-appellant.
His findings7 showed the following:

"PHYSICAL FINDINGS:

"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x
6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms.,
feet, plantar aspects; right, 9.0 x 3.0 cms. and left, 13.0 x 5.0 cms.
"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
"Lacerations, left ring finger, posterior aspect, 0.3 cm.
"(Living Case No. BMP-9902, p. 101, records)"

At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in
Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy
revealed the following postmortem findings:8

"Body in early stage of postmortem decomposition characterized by foul odor, eyes and
tongue protruding, bloating of the face and blister formation.

"Washerwoman's hands and feet.

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"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused
abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms.,
neck (nailmarks) anterior aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect,
middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3rd, 1.5 x 1.0 cms., left posterior
aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb,
anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0
cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect,
upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect.

"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

"Fracture, tracheal rings.

"Hemorrhages, interstitial, neck, underneath, nailmarks. "Petechial hemorrhages,

subendocardial, subpleural.

"Brain and other visceral organs are congested.

"Stomach, contains rice and other food particles.

"CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

"GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping
and congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00,
6:00 and 9:00 o'clock positions, edges with blood clots." [Autopsy Report No. BTNO-99-
152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the
rape and murder at past 10:00 o'clock in the evening of June 11, 1999. The mayor said
he immediately proceeded to the municipal jail, where accused-appellant was detained,
and talked to the latter. Accused-appellant at first denied having anything to do with the
killing and rape of the child. The mayor said he told accused-appellant that he could not
help him if he did not tell the truth. At that point, accused-appellant started crying and
told the mayor that he killed the victim by strangling her. Accused-appellant claimed that
he was under the influence of drugs. The mayor asked accused-appellant if he wanted
to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When

103
accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and
took him to the police station about 11:00 o'clock that evening.9

Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving at
the police station, he asked accused-appellant if he wanted his services as counsel in
the investigation. After accused-appellant assented, Atty. Leyva testified that he "sort of
discouraged" the former from making statements as anything he said could be used
against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said
he advised him to tell the truth. PO2 Garcia, the investigator, informed accused-
appellant of his constitutional rights to remain silent and to be assisted by counsel and
warned him that any answer he gave could and might be used against him in a court of
law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the
presence of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-
appellant read it and afterwards signed it. Atty. Leyva testified that he did not see or
notice any indication that accused-appellant had been maltreated by the police. In his
sworn statement (Exh. M), accused-appellant confessed to killing the victim by strangling
her to death, but denied having molested her.10

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took
blood samples from accused-appellant in his office for laboratory examination to
determine his blood type. Likewise, the basketball shorts and shirt worn by accused-
appellant on the day the victim was missing and the victim's clothing were turned over to
the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite
police for the purpose of determining the presence of human blood and its groups.11

The results of the examinations conducted by Pet Byron T. Buan showed accused-
appellant to belong to Group "O". The following specimens: (1) one (1) white no. 13
athletic basketball shirt, with patches "Grizzlies" in front and "SAMARTINO" at the back;
(2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small "Hello Kitty"
T-shirt with reddish brown stains; (4) one (1) "cut" pink short pants with reddish brown
stains; (5) one (1) "cut" dirty white small panty with reddish brown stains, were all
positive for the presence of human blood showing the reactions of Group "A".12

Pet Byron Buan also testified that before he took the blood samples, he had a
conversation with accused-appellant during which the latter admitted that he had raped

104
and later killed the victim by strangulation and stated that he was willing to accept the
punishment that would be meted out on him because of the grievous offense he had
committed. Mr. Buan observed that accused-appellant was remorseful and was crying
when he made the confession in the presence of SPO1 Amoranto at the NBI
laboratory.13

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around
noon of July 13, 1999 in Cavite City, accused-appellant had with him a handwritten
confession which he had executed inside his cell at the Municipal Jail of Rosario. In his
confession, accused-appellant admitted not only that he killed the victim but that he had
before that raped her. Accused-appellant said he laid down the victim on a grassy area
near the dike. He claimed that she did not resist when he removed her undergarments
but that when he tried to insert his penis into the victim's vagina, she struggled and
resisted. Accused-appellant said he panicked and killed the child. He then dumped her
body in the shallow river near the "compuerta" and went home.14

Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon of
July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came together
with accused-appellant and some policemen. Prosecutor Itoc asked Atty. Agbunag to
assist accused-appellant about his confession. Atty. Agbunag read the document,
informed accused-appellant of his constitutional rights, and warned him that the
document could be used against him and that he could be convicted of the case against
him, but, according to her, accused-appellant said that he had freely and voluntarily
executed the document because he was bothered by his conscience. Accused-
appellant, assisted by Atty. Agbunag, then affixed his signature to the document and
swore to it before Prosecutor Itoc.15

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist
Pet Byron Buan took buccal swabs and hair samples from accused-appellant, as well as
buccal swabs and hair samples from the parents of the victim, namely, Ma. Nida Diolola
and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of the NBI for
examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the
specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim

105
taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-appellant
and the victim.16

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his
sister Aimee Vallejo. Their testimonies show that at about 1:00 o'clock in the afternoon of
July 10, 1999, accused-appellant, Aimee, and their sister Abigail were in their house in
Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to ask accused-
appellant to draw her school project. After making the request, Daisy left.17 Accused-
appellant did not immediately make the drawing because he was watching television.
Accused-appellant said that he finished the drawing at about 3:00 o'clock in the
afternoon and gave it to the victim's aunt, Glory. He then returned home to watch
television again. He claimed he did not go out of the house until 7:00 o'clock in the
evening when he saw Ma. Nida, who was looking for her daughter. Accused-appellant
said he told her that he had not seen Daisy. After that, accused-appellant said he went
to the "pilapil" and talked with some friends, and, at about 8:00 o'clock that evening, he
went home.

At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-
appellant from his house and took him to the barangay hall, where he was asked about
the disappearance of Daisy. He claimed that he did not know anything about it. Accused-
appellant was allowed to go home, but, at 11:00 o'clock that morning, policemen came
and invited him to the police headquarters for questioning. His mother went with him to
the police station. There, accused-appellant was asked whether he had something to do
with the rape and killing of Daisy. He denied knowledge of the crime.

At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his house to
get the basketball shorts and shirt he was wearing the day before, which were placed
together with other dirty clothes at the back of their house. According to accused-
appellant, the police forced him to admit that he had raped and killed Daisy and that he
admitted having committed the crime to stop them from beating him up. Accused-
appellant claimed the police even burned his penis with a lighted cigarette and pricked it
with a needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to
see him in the investigation room of the police station and told him that they would help

106
him if he told the truth. Atty. Leyva asked him whether he wanted him to be his counsel,
and accused-appellant said he answered in the affirmative. He said Atty. Leyva informed
him of his constitutional rights. Accused-appellant claimed that, although he admitted to
Mayor Abutan and Atty. Leyva the commission of the crime, this was because the police
had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that
he had been tortured because the policemen were around and he was afraid of them. It
appears that the family of accused-appellant transferred their residence to Laguna on
July 12, 1999 because of fear of reprisal by residents of their barangay.18 According to
accused-appellant, Mayor Abutan and Atty. Leyva were not present when he gave his
confession to the police and signed the same. Accused-appellant claims that although
Exhibit "N" was in his own handwriting, he merely copied the contents thereof from a
pattern given to him by the police.19

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of
the offense charged. The dispositive portion of its decision reads:

"WHEREFORE, in view of all the foregoing considerations, the Court finds the accused
Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with
Homicide, as charged in the Information, accordingly hereby sentences him to the
supreme penalty of DEATH. The accused is directed to indemnify the heirs of the victim
in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages.

"SO ORDERED."20

Hence this appeal. Accused-appellant contends that:

"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND
WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO

THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS
BEING HEARSAY IN NATURE.

"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE

VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-

107
APPELLANT DESPITE THE FACT THAT THE SAME WAS OBTAINED THROUGH
FORCE AND INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM
DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBLY
GIVE HIM EFFECTIVE LEGAL ASSISTANCE."

We find accused-appellant's contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided

sufficient circumstantial evidence is presented by the prosecution to prove beyond
reasonable doubt that the accused committed the crime.21 In rape with homicide, the
evidence against an accused is more often than not circumstantial. This is because the
nature of the crime, where only the victim and the rapist would have been present at the
time of its commission, makes the prosecution of the offense particularly difficult since
the victim could no longer testify against the perpetrator. Resort to circumstantial
evidence is inevitable and to demand direct evidence proving the modality of the offense
and the identity of the perpetrator is unreasonable.22

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is
sufficient to sustain a conviction if:

"(a) there is more than one circumstance;

"(b) the facts from which the inferences are derived are proven; and

"(c) the combination of all circumstances is such as to produce conviction beyond

reasonable doubt."23

In the case at bar, the following circumstantial evidence establish beyond reasonable
doubt the guilt of accused-appellant:

1. The victim went to Aimee Vallejo's house, where accused-appellant was residing, at
1:00 o'clock in the afternoon of July 10, 1999, for tutoring.

2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went together to
the latter's house to get a book from which the former could copy Daisy's school project.
After getting the book, they proceeded to accused-appellant's residence.

108
3. From accused-appellant's house, Daisy then went to the house of Jessiemin
Mataverde where she watched television. Accused-appellant thereafter arrived and
whispered something to Daisy, and the latter went with him towards the "compuerta."

4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito Yepes saw
accused-appellant coming out of the "compuerta," with his clothes, basketball shorts,
and t-shirt wet, although his face and hair were not. According to these witnesses, he
looked pale, uneasy, and troubled (balisa). He kept looking around and did not even
greet them as was his custom to do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish
with dynamite) was docked by the seashore.

6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw accused-
appellant buying a Marlboro cigarette from a store. Jessiemen also noticed that
accused-appellant's clothes were wet but not his face nor his hair.

7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was
told by accused-appellant that Daisy had gone to her classmate Rosario's house. The
information proved to be false.

8. Daisy's body was found tied to an aroma tree at the part of the river near the
"compuerta."

9. During the initial investigation, accused-appellant had scratches on his feet similar to
those caused by the thorns of an aroma tree.

10. The clothes which accused-appellant wore the day before were bloodstained. The
bloodstains on accused-appellant's clothes and on Daisy's clothes were found positive of
human blood type "A."

11. Accused-appellant has blood type "O."

12. The vaginal swabs from Daisy's body contained her DNA profile as well as that of
accused-appellant.

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Accused-appellant contends that the bloodstains found on his garments were not proven
to have been that of the victim as the victim's blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet
Byron Buan of both accused-appellant's and the victim's clothing yielded bloodstains of
the same blood type "A".24 Even if there was no direct determination as to what blood
type the victim had, it can reasonably be inferred that the victim was blood type "A" since
she sustained contused abrasions all over her body which would necessarily produce
the bloodstains on her clothing.25 That it was the victim's blood which predominantly
registered in the examination was explained by Mr. Buan, thus:26

"ATTY. ESPIRITU

Q: But you will agree with me that more probably than not, if a crime is being
committed, and it results in a bloody death, it is very possible that the blood of the victim
and the blood of the assailant might mix in that particular item like the t-shirt, shorts or
pants?

A: It is possible when there is a huge amount of blood coming from the victim and
the suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be
the one which will register. For example, if there is more blood coming from the victim,
that blood will be the one to register, on occasions when the two blood mix.

Q: But in these specimens number 1 to 5, it is very clear now that only type A and
no type O blood was found?

A: Yes, sir."

Accused-appellant also questions the validity of the method by which his bloodstained
clothes were recovered. According to accused-appellant, the policemen questioned him
as to the clothes he wore the day before. Thereafter, they took him to his house and
accused-appellant accompanied them to the back of the house where dirty clothes were
kept.27 There is no showing, however, that accused-appellant was coerced or forced into
producing the garments. Indeed, that the accused-appellant voluntarily brought out the
clothes sought by the police becomes more convincing when considered together with
his confessions. A consented warrantless search is an exception to the proscription in

110
Section 2 of Article III of the Constitution. As we have held, the consent of the owner of
the house to the search effectively removes any badge of illegality.28

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also
questioned by accused-appellant. He argues that the prosecution failed to show that all
the samples submitted for DNA testing were not contaminated, considering that these
specimens were already soaked in smirchy waters before they were submitted to the
laboratory.

DNA is an organic substance found in a person's cells which contains his or her genetic
code. Except for identical twins, each person's DNA profile is distinct and unique.29

When a crime is committed, material is collected from the scene of the crime or from the
victim's body for the suspect's DNA. This is the evidence sample. The evidence sample
is then matched with the reference sample taken from the suspect and the victim. 30

The purpose of DNA testing is to ascertain whether an association exists between the
evidence sample and the reference sample.31 The samples collected are subjected to
various chemical processes to establish their profile.32 The test may yield three possible
results:

1) The samples are different and therefore must have originated from different sources
(exclusion). This conclusion is absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples
have similar DNA types (inconclusive). This might occur for a variety of reasons
including degradation, contamination, or failure of some aspect of the protocol. Various
parts of the analysis might then be repeated with the same or a different sample, to
obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source
(inclusion).33 In such a case, the samples are found to be similar, the analyst proceeds
to determine the statistical significance of the Similarity.34

In assessing the probative value of DNA evidence, therefore, courts should consider,
among others things, the following data: how the samples were collected, how they were

111
handled, the possibility of contamination of the samples, the procedure followed in
analyzing the samples, whether the proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-
appellant, the smears taken from the victim as well as the strands of hair and nails taken
from her tested negative for the presence of human DNA, 35 because, as Ms. Viloria-
Magsipoc explained:

"PROSECUTOR LU:

Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing

of the victim and of the accused gave negative results for the presence of human DNA.
Why is it so? What is the reason for this when there are still bloodstains on the clothing?

A: After this Honorable Court issued an Order for DNA analysis, serological
methods were already conducted on the said specimens. And upon inquiry from Mr.
Buan and as far as he also knew of this case, and we also interviewed the mother who
came over to the laboratory one time on how was the state of the specimens when they
were found out. We found that these specimens were soaked in smirchy water before
they were submitted to the laboratory. The state of the specimens prior to the DNA
analysis could have hampered the preservation of any DNA that could have been there
before. So when serological methods were done on these specimens, Mr. Byron could
have taken such portion or stains that were only amenable for serological method and
were not enough for DNA analysis already. So negative results were found on the
clothings that were submitted which were specimens no. 1 to 5 in my report, Sir.

Q: I also noticed that specimen no. 6-B consisting of the smears taken from the
victim also proved negative for human DNA, why is it so?

A: Because when we received the vaginal smears submitted by Dr. Vertido, the
smear on the slide was very, very dry and could have chipped off. I already informed Dr.
Vertido about it and he confirmed the state of the specimen. And I told him that maybe it
would be the swab that could help us in this case, Sir. And so upon examination, the
smears geared negative results and the swabs gave positive results, Sir.

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Q: How about specimen no. 7, the hair and nails taken from the victim, why did they
show negative results for DNA?

A: The hair samples were cut hair. This means that the hair did not contain any
root. So any hair that is above the skin or the epidermis of one's skin would give
negative results as the hair shaft is negative for DNA. And then the nails did not contain
any subcutaneous cells that would be amenable for DNA analysis also, Sir.

Q: So it's the inadequacy of the specimens that were the reason for this negative
result, not the inadequacy of the examination or the instruments used?

A: Yes, Sir."

Thus, it is the inadequacy of the specimens submitted for examination, and not the
possibility that the samples had been contaminated, which accounted for the negative
results of their examination. But the vaginal swabs taken from the victim yielded positive
for the presence of human DNA. Upon analysis by the experts, they showed the DNA
profile of accused-appellant:36

"PROSECUTOR LU:

Q: So based on your findings, can we say conclusively that the DNA profile of the
accused in this case was found in the vaginal swabs taken from the victim?

A: Yes, Sir.

Q: That is very definite and conclusive?

A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion than
that accused-appellant is guilty of the crime charged. Evidence is weighed not counted.
When facts or circumstances which are proved are not only consistent with the guilt of
the accused but also inconsistent with his innocence, such evidence, in its weight and
probative force, may surpass direct evidence in its effect upon the court. 37 This is how it
is in this case.

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Second. Accused-appellant challenges the validity of the oral and written confessions
presented as evidence against him. He alleges that the oral confessions were
inadmissible in evidence for being hearsay, while the extrajudicial confessions were
obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent
parts:

"(1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent
counsel, preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.

"(2) No torture, force, violence, threat, intimidation or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.

"(3) Any confession or admission obtained in violation of this or Section 17 shall be

inadmissible in evidence against him."

There are two kinds of involuntary or coerced confessions treated in this constitutional
provision: (1) coerced confessions, the product of third degree methods such as torture,
force, violence, threat, and intimidation, which are dealt with in paragraph 2 of Section
12, and (2) uncounselled statements, given without the benefit of Miranda warnings,
which are the subject of paragraph 1 of the same section.38

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario,
Cavite and to NBI Forensic Biologist should be deemed inadmissible for being violative
of his constitutional rights as these were made by one already under custodial
investigation to persons in authority without the presence of counsel. With respect to the
oral confessions, Atty. Leyva testified:39

"PROSECUTOR LU:

114
Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer
with him?

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as a
lawyer during that investigation?

A: I did, as a matter of fact, I asked him whether he would like me to represent him
in that investigation, Sir.

Q: And what was his answer?

A: He said "yes".

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against
him, so it's a sort of discouraging him from making any statement to the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows:40

Q: You stated that you personally read this recital of the constitutional rights of the
accused?

A: Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not inform the
accused that the statement that he will be giving might be used against him in a court of
justice?

A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

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ATTY ESPIRITU

The only thing that is stated here is that "Maaaring gamitin pabor o laban sa iyo."

COURT

Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing
but the truth."

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato
Abutan,41it is also confirmed by accused-appellant who testified as follows:42

"ATTY. ESPIRITU:

Q: Did Atty. Leyva explain to you the meaning and significance of that document
which you are supposed to have executed and signed?

A: Yes, Sir.

Q: What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or narrate

all what I know about this case, Sir.

Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that
statement?

A: Yes, Sir.

Q: And did he tell you that what you would be giving is an extra-judicial confession?

A: Yes, Sir."

Clearly, accused-appellant cannot now claim that he was not apprised of the
consequences of the statements he was to make as well as the written confessions he
was to execute. Neither can he question the qualifications of Atty. Lupo Leyva who acted

116
as his counsel during the investigation. To be an effective counsel, a lawyer need not
challenge all the questions being propounded to his client. The presence of a lawyer is
not intended to stop an accused from saying anything which might incriminate him but,
rather, it was adopted in our Constitution to preclude the slightest coercion as would lead
the accused to admit something false. Indeed, counsel should not prevent an accused
from freely and voluntarily telling the truth.43

Indeed, accused-appellant admitted that he was first asked whether he wanted the
services of Atty. Leyva before the latter acted as his defense counsel.44 And counsel
who is provided by the investigators is deemed engaged by the accused where the latter
never raised any objection against the former's appointment during the course of the
investigation but, on the contrary, thereafter subscribed to the veracity of his statement
before the swearing officer.45 Contrary to the assertions of accused-appellant, Atty.
Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of
Mayor Renato Abutan.46

Accused-appellant contends that the rulings in People vs. Andan47 and People vs.
Mantung48 do not apply to this case. We disagree. The facts of these cases and that of
the case at bar are similar. In all these cases, the accused made extrajudicial
confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial
confessions were held admissible in evidence, being the spontaneous, free, and
voluntary admissions of the guilt of the accused. We note further that the testimony of
Mayor Abutan was never objected to by the defense.

Indeed, the mayor's questions to accused-appellant were not in the nature of an

interrogation, but rather an act of benevolence by a leader seeking to help one of his
constituents. Thus, Mayor Abutan testified:49

"PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly
did he tell you?

A: At first he said that he did not do that. That was the first thing he told me. Then I
told him that I will not be able to help him if he will not tell me the truth.

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Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what exactly did he tell you about the incident?

A: I asked him, "Were you under the influence of drugs at that time"?

Q: What else did he tell you?

A: I told him, "What reason pushed you to do that thing?" x x x

Q: Please tell us in tagalog, the exact words that the accused used in telling you
what happened.

A: He told me that he saw the child as if she was headless at that time. That is why
he strangled the child, Sir. ("Ang sabi niya po sa 'kin, nakita niya raw 'yung bata na
parang walang ulo na naglalakad. Kaya po sinakal niya.")

xxx-xxx-xxx

COURT:

Q: When you told the accused that you will help him, what kind of help were you
thinking at that time?

A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor."

In People vs. Mantung,50 this Court said:

"Never was it raised during the trial that Mantung's admission during the press
conference was coerced or made under duress. As the records show, accused-appellant
voluntarily made the statements in response to Mayor Marquez' question as to whether
he killed the pawnshop employees. Mantung answered in the affirmative and even

118
proceeded to explain that he killed the victims because they made him eat pork. These
circumstances hardly indicate that Mantung felt compelled to own up to the crime.
Besides, he could have chosen to remain silent or to do deny altogether any
participation in the robbery and killings but he did not; thus accused-appellant sealed his
own fate. As held in People v. Montiero, a confession constitutes evidence of high order
since it is supported by the strong presumption that no person of normal mind would
deliberately and knowingly confess to a crime unless prompted by truth and his
conscience."

And in People vs. Andan, it was explained:

"Thus, it has been held that the constitutional procedures on custodial investigation do
not apply to a spontaneous statement, not elicited through questioning by the authorities,
but given in an ordinary manner whereby appellant orally admitted having committed the
crime. What the Constitution bars is the compulsory disclosure of incriminating facts or
confessions. The rights under Section 12 are guaranteed to preclude the slightest use of
coercion by the state as would lead the accused to admit something false, not prevent
him from freely and voluntarily telling the truth."51

For the same reason, the oral confession made by accused-appellant to NBI Forensic
Biologist Pet Byron Buan is admissible. Accused-appellant would have this Court
exclude this confession on the ground that it was uncounselled and that Mr. Buan, who
initiated the conversation with accused-appellant, was part of the NBI. The issue
concerning the sufficiency of the assistance given by Atty. Leyva has already been
discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were
asked out of mere personal curiosity and clearly not as part of his tasks. As Buan
testified:52

"PROSECUTOR LU:

Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination, we talk

to them for me to add knowledge on the case, Sir.

Q: What did you talk about during your conversation?

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A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.

Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?

A: I remember that while asking him, he was crying as if feeling remorse on the
killing, Sir.

....

Q: And it was you who initiated the conversation?

A: Yes, Sir.

Q: Do you usually do that?

A: Yes, Sir. We usually do that.

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And
any information either on the victim or from the suspect will help me personally. It's not
an SOP, Sir."

The confession, thus, can be likened to one freely and voluntarily given to an ordinary
individual and is, therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also

attacked on the ground that these were extracted from him by means of torture,
beatings, and threats to his life. The bare assertions of maltreatment by the police
authorities in extracting confessions from the accused are not sufficient. The standing
rule is that "where the defendants did not present evidence of compulsion, or duress nor
violence on their person; where they failed to complain to the officer who administered
their oaths; where they did not institute any criminal or administrative action against their

120
alleged intimidators for maltreatment; where there appeared to be no marks of violence
on their bodies; and where they did not have themselves examined by a reputable
physician to buttress their claim," all these will be considered as indicating
voluntariness.53 Indeed, extrajudicial confessions are presumed to be voluntary, and, in
the absence of conclusive evidence showing that the declarant's consent in executing
the same has been vitiated, the confession will be sustained.54

Accused-appellant's claim that he was tortured and subjected to beatings by policemen

in order to extract the said confession from him is unsupported by any proof:55

"ATTY. ESPIRITU:

Q: Did they further interrogate you?

A: Yes, sir.

Q: What else did they ask you?

A: They were asking me the project, Sir.

Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?

A: The investigator, Sir.

Q: How many were they inside that room?

A: Five, Sir.

Q: They are all policemen?

A: Yes, Sir.

xxx-xxx-xxx

121
Q: Until what time did they keep you inside that room?

A: Up to 11:00 in the evening, Sir.

Q: Between 10:30 in the morning up to 11:00 o'clock in the evening, what did you
do there?

A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.

Q: The 5 of them?

A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning?

A: Yes, Sir.

Q: In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me with a
needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.

Q: Who is this Mercado?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.

Q: Were you asked to undress or you were forced to do that?

122
A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time, Sir.

Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.

Q: What?

A: They boxed me, Sir.

Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette butt?

A: It was painful, Sir.

Q: In what part of your body were you pricked by a needle?

A: At my private part, Sir."

These bare assertions cannot be given weight. Accused-appellant testified that he was
made to stay in the municipal hall from 10:00 o'clock in the morning until 11:00 o'clock
that night of July 10, 1999, during which time he was boxed, tortured, and hit with a
piece of wood by policemen to make him admit to the crime. However, accused-
appellant was physically examined by Dr. Antonio Vertido at about 9:00 o'clock in the
evening of the same day. While the results show that accused-appellant did sustain
injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified: 56

"PROSECUTOR LU:

Q: What were your findings when you conducted the physical examination of the
suspect?

123
A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of
the suspect, and I also found hematoma on the left ring finger, posterior aspect and at
the same time, a laceration on the left ring finger.

xxx-xxx-xxx

Q: In your findings, it appears that the accused in this case suffered certain physical
injuries on his person like this abrasion on the thigh, right anterior lateral aspect lower
third of the knee, what could have caused this injury?

A: Abrasions are usually caused when the skin comes in contact with a rough
surface, Sir. Hematoma are usually caused by a blunt instrument or object and
laceration is the forcible contact of the skin from that blunt object.

Q: I am particularly interested in your findings hematoma on the left ring finger,

posterior aspect and laceration left ring finger posterior aspect, what could have caused
those injuries on the accused?

A: My opinion to these hematoma and laceration found on the said left ring finger
was that it was caused by a bite, Sir."

If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido
would have found more than mere abrasions and hematoma on his left finger. Dr.
Vertido's findings are more consistent with the theory that accused-appellant sustained
physical injuries as a result of the struggle made by the victim during the commission of
the rape in the "compuerta."

At all events, even if accused-appellant was truthful and his assailed confessions are
inadmissible, the circumstantial evidence, as already shown, is sufficient to establish his
guilt beyond all reasonable doubt. The prosecution witnesses presented a mosaic of
circumstances showing accused-appellant's guilt. Their testimonies rule out the
possibility that the crime was the handiwork of some other evil mind. These witnesses
have not been shown to have been motivated by ill will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to
corroborate his claim. The defense presented only accused-appellant's sister, Aimee

124
Vallejo, to corroborate his story. We have held time and again that alibi cannot prosper if
it is established mainly by the accused and his relatives, and not by credible persons. 57 It
is well settled that alibi is the weakest of all defenses as it is easy to contrive and difficult
to disprove. For this reason, this Court looks with caution upon the defense of alibi,
especially when, as in this case, it is corroborated only by relatives or friends of the
accused.58

Article 266-B of the Revised Penal Code provides that "When by reason or on the
occasion of the rape, homicide is committed, the penalty shall be death." 59 Therefore, no
other penalty can be imposed on accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the Regional
Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y
Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide and
sentencing him to the supreme penalty of DEATH and directing him to indemnify the
heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages, is hereby AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal
Code, upon the finality of this decision, let the records of this case be forthwith forwarded
to the President of the Philippines for the possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and
Corona, JJ., concur.
De Leon, Jr., J., abroad, on official business.

Endnotes:

1
Per Judge Christopher O. Lock.

2
Rollo, p. 22.

125
3
TSN (Ma. Nida Diolola), August 27, 1999, pp. 60-65, 69-74.

4
TSN (Jessiemin Mataverde), August 13, 1999, pp. 7-12., 14-15.

5
TSN (Charito Yepes), August 13, 1999, pp. 79-86.

6
TSN (SPO1 Arnel Cuevas), December 7, 1999, pp. 7-13, 17-23, 25-26.

7
Exh. "J"; Records, p. 101.

8
Exh. "H", Id., p. 99.

9
TSN (Mayor Renato Abutan), August 13, 1999, pp. 55-61.

10
TSN (Atty. Lupo Leyva), September 10, 1999, pp. 7-15.

11
TSN (Pet Byron Buan), November 15, 1999, pp. 12-15.

12
Exh. "R"; Records, p. 70.

13
TSN (Pet Byron Buan), November 15, 1999, pp. 16-20.

14
Exh. "N"; Records, p. 106.

15
TSN (Atty. Sikat Agbunag), September 20, 1999, pp. 6-14.

16
TSN (Aida Viloria-Magsipoc), January 18, 2000, p. 25; Exh. "Z"; Records, p. 108.

17
TSN (Aimee Vallejo-Gontinos), February 15, 2000, pp. 6-7.

18
TSN (Aimee Vallejo-Gontiños), February 15, 2000, p. 30.

19
TSN (Gerrico Vallejo), February 28, 2000, pp. 4-47.

20
RTC Decision, p. 22; Rollo, p. 42.

21
People vs. Cabug, G. R. No. 123149, March 27, 2001.

22
People vs. Rayos, G. R. No. 133823, Feb. 7, 2001.

126
23
People vs. Hermoso, 343 SCRA 567 (2000).

24
TSN, (Pet Byron Buan), November 15, 1999, pp. 41, 54.

25
Exh "H"; Record, p. 99.

26
TSN (Pet Byron Buan), November 15, 1999, p. 66 (emphasis supplied).

27
TSN (Gerrico Vallejo), February 28, 2000, pp. 46-47.

28
People vs. Deang, 338 SCRA 657 (2000).

29
William C. Thompson, Guide to Forensic DNA Evidence, in Expert Evidence: A
Practitioner's Guide to Law Science and the FJC Manual (1997).

30
Charles R. Swanson, Criminal Investigation (6th ed., 1996).

31
Keith Inman & Norah Rudin, An Introduction to Forensic DNA Analysis (1997).

32
Id.

33
Id.

34
Id.

35
TSN (Aida Viloria-Magsipoc), January 18, 2000, pp. 9, 25-29 (emphasis supplied).

36
Id., (emphasis supplied).

37
People vs. Gallarde, 325 SCRA 835 (2000).

38
People vs. Obrero, 332 SCRA 190 (2000).

39
TSN (Atty. Lupo Leyva), September 10, 1999, pp. 8-9.

40
Id., pp. 16-17.

41
TSN (Mayor Renato Abutan), August 13, 1999, p. 63.

127
42
TSN (Gerrico Vallejo), February 28, 2000, pp. 30-31.

43
People vs. Gallardo, 323 SCRA 218 (2000)

44
TSN (Gerrico Vallejo), February 28, 2000, p. 59.

45
People vs. Base, G.R. No. 109773, March 30, 2000.

46
TSN (Atty. Lupo Leyva), September 10, 1999, p. 6.

47
269 SCRA 95 (1997).

48
310 SCRA 819 (1999).

49
TSN (Mayor Renato Abutan), August 13, 1999, pp. 58-59, 75.

50
People vs. Mantung, supra, pp. 832-833.

51
People vs. Andan, supra, p. 110.

52
TSN (Pet Byron Buan), November 15, 1999, p. 67 (emphasis supplied).

53
People vs. Del Rosario, G.R. No. 131036, June 20, 2001.

54
People vs. Maneng, 343 SCRA 88 (2000); People vs. Obrero, 332 SCRA 190 (2000).

55
TSN (Gerrico Vallejo), February 28, 2000, pp. 22-24 (emphasis supplied).

56
TSN (Dr. Antonio Vertido), August 27, 1999, pp. 43, 47-48 (emphasis supplied).

57
People vs. Rivera, G.R. No.139180, July 31, 2001.

58
People vs. Libo-on, G.R. No. 136737, May 23, 2001.

59
Three (3) Members of the Court. although maintaining their adherence to the separate
opinion expressed in People vs. Echegaray (267 SCRA 682 (1997)) that R.A. 7659
insofar as it prescribes the penalty of death is unconstitutional, nevertheless submit to

128
the ruling of the majority that the law is constitutional and that the death penalty should
accordingly be imposed.

129
 G.R. No. 146308. July 18, 2002.]

PEOPLE OF THE PHILIPPINES, Appellee, v. SIXTO PARAGAS y DELA CRUZ and

AMADO PARAGAS y ABALOS, Appellants.

DECISION

PANGANIBAN, J.:

Under the present Rules on Criminal Procedure, qualifying and aggravating

circumstances must be alleged or specified in the Information. Otherwise, even if they
are proven, they cannot be appreciated in determining the nature of the crime and
imposing the penalty.chanrob1es virtua1 1aw 1ibrary

Statement of the Case

For automatic review by this Court is the September 14, 2000 Decision 1 of the Regional
Trial Court (RTC) of Pasig City, Branch 263, in Criminal Case No. 105201, finding Sixto
Paragas y dela Cruz and Amado Paragas y Abalos guilty of murder beyond reasonable
doubt and sentencing them to death. The dispositive portion of the Decision reads as
follows:chanrob1es virtua1 1aw 1ibrary

"WHEREFORE, the Court finds both the accused Sixto Paragas and Amado Paragas
GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized in
Art. 248 of the Revised Penal Code, as amended. Accordingly Sixto Paragas and
Amado Paragas are hereby sentenced to suffer the penalty of Death.

"Moreover, they are ordered to indemnify, jointly and severally, the heirs of the victim the
following:chanrob1es virtual 1aw library

1. The sum of P50,000.00 for the death of the victim;

2. The sum of P100,000.00 as moral damages.

130
"Costs against the accused." 2

Appellants were charged in the Information 3 dated March 15, 1994, in these
words:jgc:chanrobles.com.ph

"That on or about the 4th day of March 1994 in the Municipality of Tag[u]ig, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping and aiding one
another, armed with a bladed weapon, with intent to kill and evident premeditation, did
then and there wilfully, unlawfully and feloniously attack, assault and stab with said
bladed weapon one Ferdinand Gutierrez on the left side of his chest, thereby inflicting
upon the latter [a] mortal wound which caused his death." 4

Duly assisted by their counsel, 5 appellants pleaded not guilty to the charge during their
arraignment on April 26, 1994. 6 After due trial, the court a quo rendered the assailed
Decision.

The Facts

Version of the Prosecution

In its Brief, 7 the Office of the Solicitor General (OSG) presents the prosecution’s version
of the facts as follows:jgc:chanrobles.com.ph

"Ferdinand Gutierrez, single and residing at PNR Site, Bicutan, Metro Manila, operates a
watch repair stall at LMR Tenement Market, Taguig, Metro Manila. Appellant Amado
Paragas is a market stall owner at the LMR Tenement Market and serves as board
director of the Western Vendor Multi-Purpose Cooperative. His co-appellant, Sixto
Paragas, is his cousin/caretaker/salesman. Both appellants reside at the LMR Tenement
Market, Taguig, Metro Manila which is five (5) minutes away by car from the place where
the criminal incident happened.

131
"Prior to the subject incident, co-appellant Sixto filed against witness Lilia Serrano’s son,
Allan, a complaint for Highway Robbery allegedly committed on January 23, 1994. In
relation to this complaint, Ferdinand Gutierrez became a witness for Allan and executed
on February 22, 1994 a sworn statement before the Asst. Provincial Prosecutor of Pasig
where he attested that Allan was not among those whom Sixto had a fistfight with on
January 23, 1994.

"On March 4, 1994, at around 7:30 in the evening, Ferdinand Gutierrez and prosecution
witnesses, namely: Robert Venturado, Alejandro Malila, Virgilio Mabbun and Eduardo
Peralta, were at the Caltex gasoline station located near the Bliss, FTI Compound,
Taguig, Metro Manila. They were waiting for a public transportation. Except for Malila
and Mabbun who were co-workers, the rest were strangers to one another. Momentarily,
a well-lighted passenger jeepney bound for Tanyag, Taguig, Metro Manila stopped at the
gasoline station to pick up passengers. The aforenamed witnesses all boarded the
vehicle. Ferdinand Gutierrez and appellants were among the first to board the jeepney.
Ferdinand seated himself in the front seat of the vehicle, between the jeepney driver and
a lady passenger. On the other hand, co-appellant Sixto, who was wearing short pants,
sleeveless shirt and with a towel tied on his forehead sat behind the driver and
Ferdinand. Appellant Amado, who was wearing long sleeves sat on the opposite bench,
near the rear door of the vehicle.

"The jeepney cruised inside the FTI Compound in Taguig for about ten (10) minutes. As
they were passing under a bridge, co-appellant Sixto was seen glancing at Amado as if
waiting for a response. When appellant Amado nodded his head, his co-appellant Sixto
rose from his seat and grabbed Ferdinand by the neck. With his left arm, co-appellant
Sixto stabbed Ferdinand on the left chest with a bladed weapon. Thereafter, co-
appellant Sixto immediately alighted from the jeepney and fled towards the direction of
the LMR Tenement Market. The other passengers namely: Mabbun, Peralta and
Venturado, immediately rose from their seats to chase the assailant but they were
prevailed upon by appellant Amado to stay put in their places as he told them that he will
be the one to chase co-appellant Sixto. Appellant Amado directed them to assist and
bring the victim to the hospital. However, it was observed that appellant Amado simply
walked away and did not run after Sixto.

132
"The jeepney driver, together with Mabbun, Peralta, Malila and Venturado, brought
Ferdinand to the Parañaque Medical Center Hospital where he died upon arrival. In his
autopsy report, Dr. Antonio Vertido, NBI Medico-Legal Officer stated that the victim died
of cardiac tamponade secondary to stab wound in the chest. That same night of March
4, 1994, Malila executed a sworn statement about the incident." 8 (Citations omitted)

Version of the Defense

Resorting to the defense of denial, appellants narrate in their Brief 9 their version of the
facts as follows:jgc:chanrobles.com.ph

"Accused AMADO PARAGAS expressed absolute disavowal of the crime charged. On

May 11, 1994, at around 6:00 o’clock in the morning, he started his routinary chore of
vending fruits and vegetables in his stall at the LMR Market, Taguig, Metro Manila,
together with his cousin and helper, Sixto Paragas. At around 12:00 noon of the same
date, some policemen, led by a certain Graciano Cangco, invited them for a ‘salu-salu’ at
Block 1. After eating their lunch, the policemen suddenly put handcuffs on their wrists
and hit his stomach. Sixto Paragas was likewise hit and kicked by the policeman. The
two of them were then brought by the policemen at a police mini-station in Taguig and
locked them inside a cell, without showing them any warrant for their arrest nor informing
them of its cause. It was only during the night of March 11, 1994 when the jail warden
informed them that they were suspects in a stabbing incident that occurred on March 4,
1994. He flatly denied this accusation.

"On March 4, 1994, he started his day by vending fruits and vegetables at his stall. At
around 4:00 o’clock in the afternoon, he proceeded to a meeting called by his
cooperative, the Western Bicutan Multi-Purpose Cooperative, held at the East Service
Road, Western Bicutan. The meeting lasted between 4:00 o’clock in the afternoon until
7:30 in the evening and was attended by at least twenty (20) members of the
organization, though only about eighteen (18), including himself, had signed the
attendance sheet and the minutes of the meeting. Accused Amado Paragas surmised
that they were being implicated in the stabbing incident for the reason that the victim,
Ferdinand Gutierrez, was a witness for the accused in a criminal case instituted by his
cousin and co-accused, Sixto Paragas, against a certain Alan Serrano.

133
"The testimony of accused Amado Paragas as to his whereabouts relative to the time
between 4:00 o’clock P.M. to 7:45 in the evening of March 4, 1994 was corroborated by
witness NENITA TUMOL. The said witness is the secretary of the Western Bicutan
Vendors Multi Purpose Cooperative where the accused, Amado Paragas, is a Board of
Director. On March 4, 1994, Amado Paragas arrived for the meeting of the cooperative
at around 4:35 P.M. As secretary, she required those present at the said meeting,
including Amado Paragas, to sign the attendance sheet. The witness likewise reiterated
that Amado Paragas actively participated on the issues being deliberated during the
meeting.

"The testimonies of the first two witnesses for the defense, relative to the presence of
accused Amado Paragas at the meeting of the cooperative, between 4:00 P.M. to 7:45
P.M. of March 4, 1994, was further corroborated by FELINO ILAGAN, the chairman of
the Western Vendor Multi Purpose Cooperative. The witness further testified that after
the adjournment of the meeting at around 7:45 P.M. of March 4, 1994, he, together with
the accused Amado Paragas proceeded to the stall of the latter at the LMR Market to
further discuss their agenda. There, he saw Sixto Paragas taking care of the stall of
Amado Paragas.

"Accused SIXTO PARAGAS, testifying on his behalf, corroborated the testimony of co-
accused Amado Paragas. Accordingly, on March 11, 1994, at around 10:30 in the
morning, a certain Lilia Serrano, together with some companions, approached him while
he was peddling fruits at a stall inside the Tenement Market, Taguig, Metro Manila. Mrs.
Serrano pleaded [with] him to withdraw a case which he had filed against some of her
children. When he replied that the case was already filed in court, Mrs. Serrano and her
companions threatened that they would implicate him in a case, even if he is innocent.
The woman’s companions, who turned out to be policemen, then invited him to the
police precinct near the Tenement Market in the guise of celebrating their Lieutenant’s
birthday. The policemen, however, prevented him from getting out of the precinct even
after he had partook of the food served by the birthday celebrant. A policeman in uniform
named Tangco, then came, and frisked and handcuffed him. Queried whether they had
a warrant for his arrest, the policemen retorted that he would just be asked questions at
the Taguig Municipal Hall, where he was sent inside a cell. At around midnight, he was

134
blindfolded and brought out of the cell. He felt that many people were in the vicinity and
that somebody was pointing at him. He then heard somebody says: `iyan si Sixto
Paragas’. He surmised that the voice sounded like that of Lilia Serrano’s. The people
around him then asked him to admit a murder charge against him and he was beaten for
about three (3) hours.

"NATIVIDAD LAUREANO, another vendor of the LMR Market, Taguig, Metro Manila,
testified that accused Amado Paragas and Sixto Paragas were at their stall from 7:00
A.M. to 8:00 P.M. of March 4, 1994." 10 (Citations omitted)

Ruling of the Trial Court

The trial court gave full faith and credence to the testimonies of the four (4) prosecution
witnesses, who had been aboard the jeepney where the stabbing incident occurred. It
ruled that their testimonies had corroborated each other on every material point and
clearly established the identities of appellants as the culprits. 11

The RTC rejected appellants’ alibi, which had failed to show that it was physically
impossible for the two to be at the scene of the crime at the time of the stabbing incident.
It also concluded that conspiracy could be inferred from their acts. Finally, it held that the
prosecution was able to establish the elements of evident premeditation as a qualifying,
and treachery as an aggravating circumstance.

Hence, this automatic review. 12

Issues

Appellants assign three alleged errors for our consideration:chanrob1es virtual 1aw
library

"I

The Court a quo gravely erred in giving undue credence to the alleged positive

135
identification of the accused by the prosecution witnesses as the perpetrators of the
crime charged;

"II

The Court a quo gravely erred in finding both the accused guilty of the crime of murder
despite the insufficiency of evidence adduced to prove the qualifying circumstances
thereto;

"III

The Court a quo committed a reversible error in not imposing the proper penalty for the
crime allegedly proven." 13

In sum, the issues boil down to two: (1) sufficiency of the prosecution evidence and (2)
proper penalty for the crime proven.

The Court’s Ruling

The appeal is partly meritorious; appellants are guilty of homicide only, not murder.

First Issue:chanrob1es virtual 1aw library

Sufficiency of Prosecution Evidence

Appellants contend that the RTC erred in giving credence to the identification made by
the prosecution witnesses. They argue that since the witnesses had only a fleeting
observation of the stabbing incident, the latter could not have positively identified the
perpetrators. 14 We are not convinced.

Well-settled is the rule that the assessment by the trial court of the credibility of
witnesses is accorded great respect. 15 This is because of its unique opportunity to

136
observe them firsthand and to note their demeanor, conduct and attitude. 16 It is aided
by various indicia that are not readily apparent from the records: "the candid answer, the
hesitant pause, the nervous voice, the undertone, the befuddled look, the honest gaze,
the modest blush, or the guilty blanch" reveal if they are telling the gospel truth or just
spinning a web of lies. 17 Hence, its findings on such matters are binding and conclusive
on appellate courts, unless some facts or circumstances of weight and substance have
been overlooked, misapprehended or misinterpreted. 18

In the present case, the RTC found the testimonies of the four passenger-witnesses to
be credible, coherent and straightforward accounts of what had transpired inside the
passenger jeepney on the night of March 4, 1994. 19 Prosecution Witness Roberto
Venturado narrated the circumstances surrounding the stabbing incident as
follows:chanrob1es virtual 1aw library

Q Mr. Venturado, do you remember where you were at around 7:30 in the evening of
March 4, 1994?

A I was at the Caltex on my way home to Bicutan, sir.

x x x

Q You said you were on your way to your home, why were you there?

A I was on my way home and the jeepney passed by.

Q When the jeepney passed, what did you do?

A We rode the jeepney, sir.

Q So that was the jeep that you took on your way home to Bicutan?

A Yes, sir.

137
Q While you were on the jeep, do you remember of anything unusual that happened
inside?

A Yes, sir, there is.

Q What was it?

A When the jeepney went around the FTI and when it passed under the bridge, when I
was getting my fare from my pocket.

Q While you were getting that fare, what happened?

A When I was getting my fare from my pocket, this suspect looked at the back at the
side and he nodded his head, ‘tumango.’

Q After this man who nodded his head or ‘tumango’ what happened[?]

Atty. Ilagan

That’s leading, your Honor.

COURT

Witness may answer.

A When the other suspect was `tumango’ to the other suspect, the other suspect
suddenly put his arm around the victim’s neck.

x x x

Q After putting his arm or placed his arm around the neck of the victim, what else
happened, if any?

138
A After putting his arms on the victim, he drew out a bladed weapon and then stabbed
the victim.

Q Where was the victim seated inside that jeepney?

A Beside the driver, sir.

Q How far was Sixto Paragas from the victim?

A Sixto was sitting at the back of the driver.

Q How many times if you know did Sixto Paragas stab the victim?

A That is the one I do not know, sir.

Q After he stabbed the victim, what happened?

A After stabbing the victim, we were about to run after the suspect and we were about to
go down and run after the suspect but Amado Paragas stopped us and told us that he
will be the one to run after the suspect.

Q So, you mean to say that after stabbing, Sixto Paragas hurried out of the passenger
jeep that’s why you had to chase him?

Atty. Ilagan

It’s leading your Honor.

Q Okay, you said you were to chase Sixto Paragas, where was he when you started to
go down and chase and attempted to chase him?

A He was a little bit far from the jeepney already when we were about to run after him,
sir, when we were stopped by Amado Paragas and said that "wag na raw kaming
humabol at siya na lang ang bahala."cralaw virtua1aw library

139
Q When Amado Paragas stopped you telling you that he will be the one to chase Sixto
Paragas, what did you do?

A What we did was we just help the victim to the hospital, sir.

x x x

Q Did you see what Amado Paragas did after he told you that he will be the one to run
after Sixto Paragas?

A He ran after Sixto Paragas but his running was slower than the running of a dog, sir."
20

Further, Prosecution Witness Alejandro Malila was certain as to the identities of

appellants, as shown during his cross-examination which proceeded in this
manner:jgc:chanrobles.com.ph

"Q Would you inform the Honorable Court aside from Mabun, if you come to know the
name of the passengers at the back?

A No, sir.

Q As a matter of fact, you do not/or you did not recognize anyone of them?

A By name, sir, no, sir.

Q But you saw their faces, is that what you want us to understand?

A Yes, sir.

Q Because you were looking at them sternly?

140
A Yes, sir.

Q Why, do you do that everytime you are riding a jeepney?

A Nakasanayan ko na pon iyon, sir. Kada pagsakay ko ng jeep, tumitingin po ako sa

mga pumapasok, at least kung may vacant pa, puwede mong ituro sa kanila po." 21

The testimonies of the prosecution witnesses more than sufficiently established the fact
of the killing and the identities of the persons responsible therefor. 22

First, the witnesses had a clear view of the stabbing incident, because they were seated
next to one another while on board a passenger jeepney. Besides, the jeepney was lit,
and the light from a Meralco post further illumined the scene. 23 As witnesses of
violence, their most natural reaction was to strive to look at the appearance of the
perpetrators of the crime and observe the manner in which it was committed. 24 Most
often the faces and the body movements of the assailants create lasting impressions
that cannot be easily erased from memory.25cralaw:red

Second, the witnesses’ recollections of the specific details of the crime 26 — the fact
that the victim was stabbed on the chest, the use of a knife in stabbing him, and the
position of the assailant — were corroborated by the medico-legal’s testimony 27 and
the Autopsy Report. 28 A detailed testimony acquires greater weight and credibility when
confirmed by autopsy findings. 29 In addition, the usually stressful condition of the
witnesses can serve as a catalyst for their recollections. 30

Third, there is no evidence to indicate that the witnesses for the prosecution were moved
by improper motive and, thus, their testimonies are entitled to full faith and credit. 31

It is a well-settled rule that the positive identification of the accused — where categorical,
consistent and without any showing of ill motive on the part of the eyewitness testifying
on the matter — prevails over alibi and denial. These lines of defense, if not
substantiated by clear and convincing evidence, are deemed to be negative and self-
serving. 32

141
Appellants’ Alibi

Appellant Sixto Paragas insists that he was at the LMR Market, tending the stall of
Amado Paragas from 5:00 a.m. to 7:30 p.m. on the day of the stabbing incident. 33 The
latter claims to have attended a meeting of the Western Bicutan Vendors Multipurpose
Cooperative from 4:35 p.m. to 7:45 p.m. 34

Basic is the rule that alibi is always viewed with suspicion, because it is inherently weak
and unreliable. 35 Like denial, it amounts to nothing more than negative and self-serving
evidence undeserving of any weight in law. 36 Alibi assumes significance or strength
only when it is amply corroborated by a credible witness. 37 For it to prosper, the
accused must be able to prove (a) that they were in another place at the time of the
perpetration of the offense, and (b) that it was physically impossible for them to be at the
scene of the crime at the time it happened. 38

In the case at bar, the alibis of appellants fail to meet the requisites for a valid defense.
39 While their presence at another place at the time of the perpetration of the offense
was tried to be established by the defense witnesses, the latter failed to raise any
scintilla of doubt about the physical impossibility of the former’s presence at the locus
criminis or its immediate vicinity at the time of the incident. 40

In fact, Sixto Paragas admitted that the flea market, where he allegedly was at the time
of the incident, was near the Food Terminal Incorporated (FTI) compound — the crime
scene. 41 Thus, there still existed the possibility of his leaving the LMR stall and being
physically present at the crime scene or its immediate vicinity. 42 Amado Paragas,
during his cross-examination, likewise admitted that the distance of the FTI complex
from the place where the meeting was held was "more or less one kilometer." 43 It was
therefore not physically impossible for him to be at the locus criminis and then go back to
the meeting place. 44

Thus, appellants’ alibis, being inherently weak, must fail vis-a-vis the witnesses’
confirmation of their presence at the crime scene. 45 Between appellants’ negative
defenses and the witnesses’ positive testimonies, there is no doubt that the latter are
entitled to credence. 46

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Second Issue:chanrob1es virtual 1aw library

Crime and Punishment

Evident Premeditation

Not Proven

Appellants argue further that the RTC erred in appreciating the qualifying circumstance
of evident premeditation, which the prosecution had failed to establish. 47 We agree. To
show the elements of evident premeditation, the trial court held as
follows:jgc:chanrobles.com.ph

"A perusal of the statement given by Ferdinand Gutierrez shows that it exculpates the
sons of Lilia Serrano from the charge imputed to them by the accused Sixto Paragas.
This statement may have impelled the accused to kill the victim so that he may no longer
testify in court. The victim gave the statement on February 22, 1994 which the Court
infers to be the time when the accused had determined to eliminate his victim. The fact
that he was later positively identified as the killer of Mr. Gutierrez indicates that he had
clung to his determination to kill him. Considering further that it took the accused thirteen
days within which to kill his victim shows that he had sufficient time to reflect on his
course of action." 48

Like any other circumstance that qualifies a killing as murder, evident premeditation
must be established by clear and positive evidence; 49 that is, by proof beyond
reasonable doubt. 50 Essentially, premeditation is present if, during a space of time
sufficient to arrive at a calm judgment, cool thought or reflection upon the resolution to
carry out the criminal intent precedes the execution of the act. 51 Indispensable to
proving premeditation is showing how and when the plan to kill was hatched or how
much time had elapsed before it was carried out. 52

The following are the elements of this qualifying circumstance: (1) the time when the
accused decided to commit the crime; (b) the overt act manifestly indicating that they

143
clung to their determination; and (c) a sufficient lapse of time between the decision and
the execution, allowing the accused to reflect upon the consequences of their act. 53

In the case at bar, it cannot be presumed that Sixto Paragas decided to kill the victim
when the latter, in his court testimony, exculpated the sons of Lilia Serrano.
Premeditation must be based on external acts that are not merely suspicious but also
notorious, manifest, evident and indicative of deliberate planning. 54 Even assuming that
Sixto had intended to commit the crime, no convincing evidence was presented by the
prosecution to prove when and how he and Amado had concocted the plan to kill, or
clung to their determination to kill, the victim. 55 Neither does it appear that their
decision to kill prior to the moment of its execution was the result of meditation,
calculation, reflection, or persistent attempts. 56 Without such evidence, mere
presumptions and inferences will not suffice. 57

Hence, because the prosecution failed to establish the presence of all the elements of
evident premeditation, it cannot be appreciated to qualify the killing as murder. 58 Thus,
appellants can be convicted of homicide only, 59 for which the imposable penalty under
the Revised Penal Code is reclusion temporal. 60

Conspiracy Proven

Conspiracy exists when two or more persons come to an agreement and decide on the
commission of a felony. 61 Well-settled is the rule that the existence of conspiracy
cannot be presumed. 62 Thus, like any other element of the crime, it must be
established and proven beyond reasonable doubt. 63 There is no necessity for direct
proof that the co-conspirators had a prior agreement to commit the crime; proof that they
acted in concert to pursue the same objective is sufficient. 64 Thus, criminal conspiracy
must be founded on facts, not on mere surmises or conjectures. 65

In the instant case, as correctly found by the RTC, the prosecution was able to show that
appellants had conspired to kill the victim, 66 as shown by the following
facts:jgc:chanrobles.com.ph

"First, Sixto glanced at Amado and the two nodded at each other before Sixto stabbed

144
the victim. Second, Amado immediately and successfully prevented the other
passengers from pursuing Sixto by volunteering to go after Sixto instead. Third, Mr.
Venturado characterized the pursuit made by Amado to be half-hearted while Mr. Peralta
testified that both accused were simply walking and not running. Fourth, by their actions,
the accused were able to successfully consummate the crime with the least resistance
from the other passengers. From these facts, the Court can conclusively infer the
presence of a concerted action and a community of interest." 67

The foregoing acts of appellants before, during and after the crime clearly indicated joint
purpose, concerted action and concurrence of sentiments. 68 Since their collective and
individual acts demonstrated the existence of a common design for the accomplishment
of the same unlawful purpose, conspiracy was evident; thus, all the perpetrators should
be held liable as principals. 69 All in all, the prosecution satisfied the quantum of
evidence required in a criminal prosecution, and the trial court’s finding that appellants
committed the crime beyond reasonable doubt was indubitable and logical under the
circumstances. 70

Treachery Improperly

Appreciated by the Lower Court

Appellants aver that the RTC erred in appreciating the aggravating circumstance of
treachery, as it was not alleged in the Information — either as a qualifying or as an
aggravating circumstance. We agree.

Under the old Rules on Criminal Procedure, only qualifying circumstances were required
to be alleged in the Information. On the other hand, aggravating circumstances, even if
not alleged, could still be appreciated except in cases wherein they would result in the
imposition of the death penalty. 71 However, the 2000 Rules on Criminal Procedure
require that both qualifying and aggravating circumstances must be specifically alleged
in the Information. 72 Sections 8 and 9 of Rule 110 now provide as
follows:jgc:chanrobles.com.ph

"SEC 8. Designation of the offense. — The complaint or information shall state the

145
designation of the offense given by statute, aver the acts or omission constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

"SEC. 9. Cause of the accusation. — The acts or omissions complained of as

constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstances and for
the court to pronounce judgment."cralaw virtua1aw library

Even if treachery were duly established by the prosecution, it cannot be held to qualify or
aggravate the offense charged because it was not alleged in the Information. 73 This
principle is now applicable to all criminal cases, not only to those in which aggravating
circumstances would increase the penalty to death. 74

The Information in the present case did not allege the presence of treachery. Hence, this
circumstance cannot be appreciated in determining the crime committed and the penalty
to be imposed.

Article 249 of the Revised Penal Code prescribes reclusion temporal as the penalty for
homicide. There being no aggravating or mitigating circumstance, the imposable penalty
on appellants is the medium period, pursuant to Article 64(1) of the same Code; or 14
years, six (6) months and one (1) day to 17 years and four (4) months. Applying the
Indeterminate Sentence Law, the penalty imposable is six (6) years and one (1) day of
prision mayor medium, as the minimum penalty; to 14 years, eight (8) months and one
(1) day of reclusion temporal medium, as maximum penalty.

WHEREFORE, the Decision of the RTC of Pasig City (Branch 263) is MODIFIED.
Appellants are CONVICTED of homicide and SENTENCED to suffer the indeterminate
sentence of six (6) years and one (1) day of prision mayor medium, as minimum; to 14
years, eight (8) months and one (1) day of reclusion temporal medium, as maximum.
They are also ORDERED TO PAY the heirs of the victim the amount of P50,000 as

146
indemnity ex delicto and another P50,000 as moral damages pursuant to current
jurisprudence. 75 No pronouncement as to costs.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.chanrob1es virtua1 1aw 1ibrary

Bellosillo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Ynares-Santiago, Sandoval-

Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

Davide Jr., C.J., on leave.

Endnotes:

1. Penned by Judge Danilo B. Pine; rollo, pp. 23-43.

2. RTC Decision, p. 21; rollo, p. 43.

3. Signed by 4th Asst. Provincial Prosecutor Rizalina T. Capco-Umali.

4. Rollo, p. 4.

5. Atty. Felicisimo Ilagan.

6. Certificate of Arraignment; records, p. 26.

7. Appellee’s Brief was signed by Solicitor General Simeon V. Marcelo and Solicitor
Derek R. Puertollano.

8. Appellee’s Brief, pp. 5-9; rollo, pp. 118-122.

9. Appellant’s Brief was signed by Attys. Amelia C. Garchitorena, Marvin R. Osias and
Nestor P. Delos Reyes — all of the Public Attorney’s Office.

10. Appellant’s Brief, pp. 6-8; rollo, pp. 66-68.

147
11. Assailed Decision, p. 6; rollo, p. 28.

12. This case was deemed submitted for resolution on May 31, 2002, upon receipt by
this Court of appellant’s Manifestation (in lieu of Reply).

13. Appellant’s brief, pp. 1-2; rollo, pp. 61-62. Original in upper case.

14. Ibid., pp. 10 and 70.

15. People v. Garces Jr., 322 SCRA 834, 846, January 20, 2000.

16. People v. Basquez, G.R. No. 144035, September 27, 2001; People v. Jaberto, 307
SCRA 93, May 12, 1999; People v. Deleverio, 289 SCRA 547, April 24, 1998.

17. People v. Bonito, 342 SCRA 405, October 10, 2000, per Puno, J.

18. People v. Basquez, supra; People v. Jaberto, supra; People v. Deleverio, supra.

19. Assailed Decision, p. 6; rollo, p. 28.

20. TSN, June 6, 1994, pp. 4-9.

21. Ibid., pp. 31-32.

22. People v. Aytalin, G.R. No. 134138, June 21, 2001.

23. TSN, August 12, 1995, p. 12.

24. People v. Ayupan, G.R. No. 140550, February 13, 2002; People v. Pulusan, 290
SCRA 353, May 21, 1998.

25. People v. Punsalan, G.R. No. 145475, November 22, 2001.

148
26. People v. Ayupan, supra.

27. TSN, July 21, 1994, pp. 12-22.

28. Exhibit "D" ; records, p. 192.

29. People v. Leal, G.R. No. 139313, June 19, 2001; People v. Molina, 312 SCRA 130,
August 10, 1999; People v. De Guia, 280 SCRA 141, October 2, 1997.

30. People v. Bragat, G.R. No. 134490, September 4, 2001.

31. People v. Cabuang, 217 SCRA 675, January 27, 1993.

32. People v. Lovedorial, G.R. No. 139340, January 17, 2001, citing People v. Enriquez,
292 SCRA 656, July 20, 1998.

33. TSN, September 16, 1997, pp. 6-7.

34. TSN, October 22, 1996, p. 12.

35. People v. Navales, 337 SCRA 436, August 8, 2000.

36. People v. Moreno, G.R. No. 140033, January 25, 2002.

37. People v. Amestuzo, G.R. No. 104383, July 12, 2001, citing People v. Alib, 322
SCRA 93, January 18, 2000.

38. People v. Napud Jr., G.R. No. 123058, September 26, 2001, citing People v.
Villanos, 337 SCRA 78, August 1, 2000; People v. Aranjuez; 285 SCRA 466, January
29, 1998.

39. People v. Cristobal, 306 SCRA 358 April 29, 1999.

40. People v. Arellano, G.R. No. 125442 September 28, 2001; People v. Andres, 296

149
SCRA 318, September 25, 1998; People v. Tulop, 289 SCRA 316, April 21, 1998;
People v. Palarco, 288 SCRA 151, March 26, 1998.

41. TSN, p. 6, September 30, 1997.

42. People v. Cristobal, 252 SCRA 507, January 29, 1996.

43. TSN, March 18, 1997, p. 12.

44. People v. Dee, 342 SCRA 115, October 5, 2000.

45. People v. Sesbreño, 314 SCRA 87, September 9, 1999.

46. People v. Arrojado, 350 SCRA 679, January 31, 2001.

47. Appellants’ Brief, p. 15; rollo, p. 75.

48. RTC’s Decision, p. 17; rollo, p. 39.

49. People v. Manes, 303 SCRA 231, February 17, 1999.

50. People v. Derilo, 338 Phil. 350, April 18, 1997; People v. De Guia, 177 SCRA 112,
August 31, 1989.

51. People v. Tan, G.R. Nos. 116200-02, June 21, 2001; People v. Ariola, 100 SCRA
523, October 29, 1980.

52. Ibid.; People v. Sambulan, 289 SCRA 500, April 24, 1998.

53. People v. Herida, 353 SCRA 650, March 5, 2001; People v. Jose, 324 SCRA 196,
January 31, 2000; People v. Naguita, 313 SCRA 292, August 30, 1999.

54. People v. Narit, 197 SCRA 334, May 23, 1991.

150
55. People v. Enriquez, G.R. No. 138264, April 20, 2001.

56. People v. Eribal, 305 SCRA 341, March 25, 1999.

57. People v. Mahinay, 304 SCRA 767, March 17, 1999.

58. People v. Macuha, 310 SCRA 14, July 6, 1999.

59. People v. Hilot, 342 SCRA 128, October 5, 2000.

60. People v. Ayupan, supra.

61. People v. Tan, supra.

62. People v. Samudio, G.R. No. 126168, March 7, 2001.

63. Ibid.

64. Id.

65. People v. De Vera, 312 SCRA 640, August 18, 1999.

66. People v. Cuenca, G.R. No. 143819, January 29, 2002.

67. Assailed Decision, p. 18; rollo, p. 40.

68. People v. Suela, G.R. Nos. 133570-71, January 15, 2002.

69. Ibid.

70. People v. Aytalin, supra.

71. People v. Lab-eo, G.R. No. 133438, January 16, 2002; People v. Legaspi, G.R. Nos.
136164-65, April 20, 2001; People v. Mauricio, G.R. No. 133695, February 28, 2001.

151
72. Ibid.

73. People v. Bragat, supra.

74. People v. Legaspi, G.R. Nos. 136164-65, April 20, 2001.

75. People v. Ubaldo, G.R. No. 129389, October 17, 2001; People v. Zate, G.R. No.
129926, October 5, 2001; People v. Reapor, G.R. No. 130962, October 5, 2001.

152
 G.R. No. 137759. September 3, 2002

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARCHIBALD PATOSA Y

LASTIMADO, Accused-Appellant.

DECISION

PUNO, J.:

The accused’s home was for a long time a haven to the victim, Chanil, as she was
treated there like family and given the opportunity to study. But in a single night that the
accused was subdued by his lustful desires and he unleashed his bestiality, Chanil lost
not only home and family, but also her innocence and self-respect.

On February 18, 1997, an information was filed against the accused Patosa,
viz:jgc:chanrobles.com.ph

"That on or about the 28th day of April 1996, in the Municipality of Bacoor, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd design and by means of force, threat and intimidation, did then and
there, willfully, unlawfully and feloniously have sexual intercourse of (sic) one CHANIL
ESCOSAIS y BAYANG, a sixteen (16) year old minor, against the latter’s will and
consent, to the damage and prejudice of the said offended party." 1

The accused pleaded not guilty. Trial ensued.

The prosecution evidence shows that Chanil Escosais is a relative of the accused,
Archibald Patosa. The latter’s wife, Leticia, is a cousin of Chanil’s mother. She called the
accused "Uncle." Chanil lived with the accused’s family in Bayanan, Bacoor, Cavite for
several years. The couple treated her as their eldest daughter. Their six children called
her "Ate" and whatever the couple gave their other children, they also gave her. The
accused and his wife sent her to school as they pitied her. With their help, she finished
elementary school. She, in turn, took care of the couple’s children, especially their five-
year old child, Aldridge. The accused never scolded Chanil.

153
April 28, 1996 in the house of the accused will be forever etched in Chanil’s memory. At
around 2:30 a.m. that day, only the accused, his three children — Archilous, Archille and
Aldwin — and Chanil were home. Leticia and the three other children, Altiffany, Altea
and Aldridge were on a vacation in Surigao. Chanil and Archille were in the girls’ room.
Chanil was in bed while Archille slept on the floor. All of a sudden, Chanil noticed that
the accused was behind her. She moved and the accused noticed it and went out. The
accused came back. To let him know that she was awake, she cleared her throat and
said "ahem." The accused seemed to be looking for something. When the accused left,
Chanil switched on the light and locked the door. Then came a knock on the door and
when she opened it, the accused asked her how they were and she answered that they
were fine. He woke Archille up and asked her to transfer to the master’s bedroom. She
complied. He asked Chanil for the keys to the bathroom because according to him, it
was locked. The keys to the bathroom and Chanil’s bedroom were in one bunch. After
getting the keys from Chanil, Archibald left. Chanil locked the door and went back to
bed. When she was half asleep, she noticed the accused enter the room, switch off the
light, and lie down beside her. At this juncture of the victim’s testimony, she started
crying.

Sensing the harm that was about to befall her, Chanil pleaded with the accused, "Tiong,
huwag po." The accused told her to keep quiet. She moved to the far side of the bed and
was able to stand up and run to the side of the room near the door. She opened the
door, but the accused grabbed her left hand. Chanil shouted, "Archille, tulungan mo
ako!" but the accused pulled and punched her twice in the stomach. She crumpled on
the floor. The accused took off her pajamas and kissed her on her breast with her shirt
still on. Afterwards, he took off her shirt, bra and panty. He kissed her all over her neck,
on her breast and even sucked her breast and remarked, "wala ka pa palang gatas." He
kissed her all over including her private part and bit her pubic area, causing her pain. All
this time, Chanil was crying and pleading with the accused "parang awa niyo na Tiong,
huwag po" and struggling by moving both arms. The accused paid no attention to her
pleas and cursed her, "putang ina mo, papatayin kita." Chanil also repeatedly shouted
for Archille to help her, but the accused scolded her, "putang ina mo, huwag kang
maingay." The accused then picked her up from the floor and laid her body on the bed
while her feet were on the floor. He continued to kiss her on the neck and fingered her.

154
She pleaded with him to have pity on her and stop what he was doing, but he replied
that they still had plenty of time and said, "hindi ko titigilan ito hangga’t hindi ko ito
naipasok." By this time the accused had already removed his short pants. He inserted
his organ into her private part, did the push and pull movement, and penetrated her. It
was painful. Chanil kept on pleading with him to stop, but her pleas fell on deaf ears.
Finally, after some time, he stopped and stood up, put on his clothes and told her to
dress up. He warned her not to tell anyone about what happened or else he would kill
her. But he promised that he would continue to take care of her studies. Chanil did not
answer and kept on crying. She cowered in fear as she was afraid that he would kill her.
The accused left the room with Chanil still crying until morning.

In the morning, Chanil went out of her room and saw Archille drinking milk. She asked
her if she heard her shouting the previous night, but she replied that she did not. Chanil
stayed outside the house as she was afraid to go inside. After some time though, she
went inside her room. At around 11:00 a.m., she heard the voice of her cousin, Carlos
Telin. She came out of her bedroom crying but did not tell Carlos anything as the
accused was still around. Carlos asked her why she was crying and by this time, the
accused’s back was already turned to the two. Chanil pleaded with Carlos not to go,
saying, "Kuya, parang awa niyo na huwag muna kayong aalis." When the accused was
already sleeping and the cousins were watching television, Chanil turned up the volume
of the television so the accused would not hear them. She then narrated to Carlos the
horrendous events the previous night. Carlos advised her to leave the accused’s abode.
She heeded his advice and left the day after she was raped. She stayed in her Auntie
Jeany’s house. She related to the latter and to Carlos her ordeal with the accused. They
cried and advised her to wait for her Aunt Leticia, the wife of the accused, before
deciding on what to do.

When Chanil’s Aunt Leticia arrived from Surigao, Chanil told her that the accused
ravished her. Her Aunt Leticia reacted, "hindi ko akalain na may demonyo sa bahay" and
accompanied Chanil to the Bacoor police station. Carlos Telin went with them. At the
police station, a policeman interviewed her. Chanil executed a sworn statement. 2 Upon
the policeman’s advice, Chanil and her Aunt Leticia went to the National Bureau of
Investigation.

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The traumatic experience left Chanil ashamed of herself. She was "nanliit sa sarili"
because she was not able to fight and prevent the accused from raping her. She thought
that by living with the accused’s family, she could pursue her studies and have a better
life, but it turned out that the accused destroyed her life. She is very angry at the
accused and wants him to be put behind bars, but does not ask for monetary
compensation. 3

SPO1 Felix Malinis corroborated Chanil’s testimony. On May 3, 1996, at around 11:00
p.m., Malinis was on duty at the Bacoor police station. Chanil came and reported that the
accused raped her. She was crying. Malinis took her statement and made a request for
medico-legal examination. 4 After the examination, Malinis filed the instant case against
the accused and arrested him. 5

Dr. Antonio Vertido, senior medico-legal officer examined Chanil on May 4, 1996. His
findings showed healing superficial hymenal lacerations and no evident sign of
extragenital physical injuries on her body. According to him, the age of the lacerations
which was about four to six days, matched the alleged date of the rape on April 28,
1996. The hymenal orifice admits with moderate resistance a tube 2.5 centimeters in
diameter, about the size of an erect male organ. 6

On the witness stand, the accused claimed that he had amorous relations with Chanil
when she was already 16 years old and he was 38 years old. At that time, Chanil had
been staying in the accused’s house for three years. He spent for her studies. They got
along very well and the accused gave her whatever she needed for her studies. Chanil
also had good relations with the accused’s wife who was her aunt. She respected the
accused’s family.

He claims that his sexual congress with Chanil on April 28, 1996 was consensual. That
day, the accused, his daughter Archille, his two sons, and Chanil were home. His wife
was in Surigao. At about 2:30 a.m., he arrived home from work. He knocked and Chanil
opened the door. She greeted him "Good morning, Uncle" and the accused, in return,
asked her how she was. She replied that she was fine and asked the accused if he
wanted to eat. The accused answered in the affirmative and so Chanil went to the
kitchen and prepared his meal. The accused went to his bedroom, changed his clothes,

156
and then went to the kitchen where Chanil was waiting for him. The meal was already
prepared. He put his hand on her shoulder, but she said, "Tiong huwag po at baka
magising si Archille." He ate his meal and she went to her room. When he finished his
meal, Chanil came out of her room and fixed the accused’s things in the sala where the
accused smoked. After smoking, he went up to Chanil’s room where Chanil sat on the
bed and his daughter Archille slept. He woke the latter up and told her to transfer to
another room. As he was saying this, Chanil lay down on the bed. The accused followed
Archille to the other room to check if she was already sleeping. When Archille was
already asleep, he went back to Chanil’s room and sat down on the bed beside her. He
touched and kissed her. Afterwards, she removed her shirt. She did not have a bra on.
He kissed her breast and removed her jogging pants. He continued kissing her down to
her legs and then removed her panty. He kissed and licked her private part for a long
time, then had intercourse with her. Before the intercourse, Chanil told him "huwag
tiyong," but when they were doing it already, she moaned and put her arms around his
head. According to the accused, she enjoyed it. When they were through, the accused
went outside the room and fell asleep on the sofa. In the morning, the accused asked
Chanil and Archille to go to the market. He then prepared his breakfast. The next day,
when the accused came home from work, Chanil had left their house. He did not have
any fight with Chanil before she left. At the end of May, the accused’s wife found out
what happened between her husband and Chanil. She was mad at the accused because
Chanil is her niece.

According to the accused, prior to the April 28 incident, he had made passes at Chanil.
Sometime in February 1996, when Chanil was doing the laundry, he made advances,
i.e., "paakbay-akbay, pahalik-halik." It was her first time to be treated that way and so
she at first avoided, but did not refuse, the accused’s advances. In other instances,
when Chanil would clean his room and his wife had left the house, he would put his arms
around her and kiss her. Chanil did not put up any resistance. She would also enter the
accused’s room even when he was wearing only his brief. He would flirt with Chanil and
wink at her and she was amused. Chanil never told him that she loved him and did not
really formalize their relationship, but she was malambing towards him. The accused
took interest in Chanil even if he was already married because Chanil would show
"motives" like she would not wear bra and wear loose clothes when doing the laundry,
thus exposing her breast to him. At first he avoided her, but the temptation was too

157
strong as there were only the two of them at home. Eventually, he gave in. 7

The trial court upheld the version of the prosecution and convicted the accused,
viz:jgc:chanrobles.com.ph

"ACCORDINGLY, finding accused Archibald Patosa y Lastimado GUILTY beyond

reasonable doubt for the crime of Rape, defined and penalized under Article 335 of the
Revised Penal Code as amended by Republic Act No. 7659, he is hereby sentenced to
reclusion perpetua and to indemnify the victim, Chanil Escosais y Bayang the amount of
P100,000.00 and to pay the costs." 8

Hence, this appeal with the lone assignment of error, viz:jgc:chanrobles.com.ph

"THE LOWER COURT ERRED IN FINDING THAT RAPE WAS COMMITTED BY THE
ACCUSED." 9

The appeal fails to impress the Court.

The law applicable to the case at bar is Art. 335 of the Revised Penal Code, as
amended by R.A. 7659. It provides in relevant part, viz:jgc:chanrobles.com.ph

"Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:chanrob1es virtual 1aw
library

a) By using force or intimidation;

b) When the woman is deprived of reason or otherwise unconscious; and

c) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua."cralaw virtua1aw library

The instant case falls under paragraph a, supra. But the accused claims that while it is

158
true that he had sexual congress with Chanil on that fateful night of April 28, 1996, he
did not employ force and intimidation as it was consensual. He contends that even prior
to that incident, there had been several instances when he and Chanil hugged and
kissed each other.

We are not persuaded. Chanil’s testimony shows that the accused used force and
threatened Chanil into submission, viz:jgc:chanrobles.com.ph

"Q: And what happened after you run (sic) towards the door?

A: I was able to open the door and then he grabbed at (sic) my left hand and I was
shouting for Archille, saying, ‘Archille, tulungan mo ako,’ and he was able to pull me, sir.

Q: And after he pulled you, what happened?

A: And then, he punched me twice in my stomach, sir.

Q: And what did you feel after he punched you?

A: I felt weak, sir. 10

x x x

Q: After he kissed your breast, what happened next?

A: He took off my shirt and all the while he was doing the same to me, I kept on pleading
(sic) him to stop, saying ‘parang awa niyo na Tiong, huwag po,’ and he replied by
saying, ‘putang-ina mo, papatayin kita.’ 11

x x x

Q: After he was able to remove your underwear, what happened next?

159
A: He removed my shirt and then he kissed me all over in (sic) my neck, in (sic) my
breast, and then, all the while I kept pleading (sic) him to stop and I said, ‘tiong, huwag
po,’ then he even sucked my breast, sir. 12

x x x

Q: While all this was happening what were you doing?

A: I was crying, I was struggling by moving my both arms, saying, ‘Tiong, parang awa
niyo na po.’ 13

x x x

Q: And then after he was able to dress up, what happened next?

A: He told me not to tell on (sic) anyone or else he would kill me, sir. 14

x x x

Q: But at the time Archibald Patosa laid you on the bed and he laid on top of you, you
were not screaming, is that correct?

A: I was no longer shouting. I was so weak at that time and I just kept on pleading (sic)
him ‘Tiong, parang awa nyo na po." ‘ 15

Her sworn statement also shows that she tried to resist the accused with whatever
strength she could muster, but to no avail, viz:jgc:chanrobles.com.ph

"10. T: Ano ang ginawa niya ng sumigaw ka?

S: Sinuntok po niya ako sa sikmura at ako ay nawalan ng lakas.

160
11. T: Ng mawalan ka ng lakas ano ang ginawa niya?

S: Kanya na po akong hinubaran ng panjama (sic) at panty.

12. T: Ikaw ano ang ginawa mo ng hubarin niya ang panjama (sic) at panty mo?

S: Wala po akong magawa dahil nawalan ako ng lakas ng ako ay kaniyang suntukin sa
sikmura.

x x x

17. T: Hindi ka ba lumaban sa kaniya?

S: Lumaban po ako pero wala po akong magawa.

x x x

25. T: Wala ba siyang patalim ng ikaw ay kaniyang hinahalay?

S: Wala po, pero noon una po akong sumigaw ay pinagbantaan niya akong ‘PUTANG
INA MO, HUWAG KANG MAINGAY PAPATAYIN KITA’ kaya po ako ay natakot at hindi
na halos makatutol sa ginagawa niya, at matapos nga po na ako ay kaniyang halayin ay
muli niya akong pinagbantaan ng ‘PAG NAGSUMBONG KA AY PAPATAYIN KITA. . . ."
‘ 16

There is no doubt that the accused employed force. He punched Chanil twice in the
stomach, causing her to feel weak and unable to repel his advances. He also employed
intimidation by repeatedly threatening to kill her if she made any noise and if she told on
him.

Chanil’s testimony, corroborated by the results of the medical examination conducted

upon her, is clear and credible. We find no sufficient reason to disturb the findings of the
lower court. Well-settled is the rule that findings of the trial court are generally

161
considered final and accorded great weight, given their advantage of observing the
manner and demeanor of the witnesses as they testified in court. 17 The trial court
observed that Chanil testified" (i)n a spontaneous and straightforward manner,
interspersed with profuse tears and subdued sobs." 18 When a rape victim’s testimony is
straightforward and candid, unshaken by rigid cross-examination and unflawed by
inconsistencies or contradictions in its material points, it deserves full faith and credit. 19

With the generosity of the accused towards Chanil whom he treated as his eldest
daughter, we cannot see any plausible reason why she would fabricate a baseless
charge of rape against the accused. The accused avers that Chanil’s motivation for filing
the charge against him was to save face and avoid the anger of her Aunt Leticia once
the latter confirms her suspicion about the relationship between Chanil and the accused.
The averment deserves scant consideration. We have many times held that it is
unbelievable that a young barrio lass would concoct a tale of defloration and publicly
admit having been ravished and her honor tainted, allow the examination of her private
parts and undergo all the trouble and inconvenience, not to mention the trauma and
scandal of a public trial, had she not in fact been raped and truly moved to protect and
preserve her honor, and obtain justice for the dastardly acts committed against her. 20

Accused’s alternative prayer that should he be found guilty, he should be convicted of

the lesser crime of qualified seduction and not rape, lacks merit. The Court has held that
where an accused is definitely and squarely charged with rape, he cannot be convicted
of qualified seduction. The charge of rape does not include qualified seduction. 21 There
is no question that the information in the case at bar charged rape and not qualified
seduction as the elements of rape, namely carnal knowledge of a woman and use of
force or intimidation to accomplish it, are both alleged in the information. On the other
hand, not all the elements of qualified seduction, namely virginity of the offended parry
and abuse of authority, confidence, or relationship were alleged. The information reads,
viz:jgc:chanrobles.com.ph

"That on or about the 28th day of April 1996, in the Municipality of Bacoor, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd design and by means of force, threat and intimidation, did then and
there, willfully, unlawfully and feloniously have sexual intercourse of (sic) one CHANIL

162
ESCOSAIS y BAYANG, a sixteen (16) year old minor, against the latter’s will and
consent, to the damage and prejudice of the said offended party." 22

The trial court ordered the accused to indemnify the victim P100,000.00 and to pay the
costs. We affirm the amount awarded, but specify that P50,000.00 of the said amount is
awarded as civil indemnity and the other P50,000.00 as moral damages.

IN VIEW OF THE FOREGOING, we AFFIRM the Decision of the trial court finding
accused-appellant Archibald Patosa guilty of rape and impose upon him the penalty of
reclusion perpetua. The accused-appellant is ordered to pay the victim P50,000.00 as
civil indemnity and P50,000.00 as moral damages. Costs against Accused-Appellant.

SO ORDERED.

Panganiban and Corona, JJ., concur.

Sandoval-Gutierrez, J., on leave.

Endnotes:

1. Original Records, p. 84.

2. Exhibit E; Original Records, p. 2.

3. TSN, Chanil Escosais, September 29, 1997, pp. 4-55; February 9, 1998, pp. 24-25.

4. Exhibit B; Original Records, p. 4.

5. TSN, SPO1 Felix Malinis, October 27, 1997, pp. 4-18.

6. Living Case No. MG 96-650 Report, Exhibit C, Original Records, p. 31; TSN, Dr.
Antonio Vertido, August 18, 1989, pp. 16-29.

163
7. TSN, Archibald Patosa, May 18, 1998, pp. 3-27.

8. Original Records, p. 227; Decision, p. 11.

9. Rollo, p. 93; Appellant’s Brief, p. 11.

10. TSN, Chanil Escosais, September 29, 1997, pp. 24-25.

11. Id., pp. 27-28.

12. Id., p. 29.

13. Id., p. 32.

14. Id., p. 37.

15. TSN, Chanil Escosais, February 9, 1998, p. 25.

16. Exhibit E; Original Records, p. 2.

17. People v. Gonzaga, Et Al., G.R. Nos. 135402-03, September 7, 2001.

18. Original Records, p. 218; Decision, p. 101.

19. People v. Tagun, G.R. No. 137745, February 15, 2002.

20. People v. Quinanola, 306 SCRA 710 (1999).

21. See People v. Ramirez, 69 SCRA 144 (1976); People v. Manansala, 273 SCRA 502
(1997).

22. Original Records, p. 84.

164
 G.R. No. 133237. July 11, 2003

PEOPLE OF THE PHILIPPINES, Appellee, vs. ERNESTO DIZON Y ILARDE, Appellant.

DECISION

CALLEJO, SR., J.:

Before this Court on appeal is the Decision1 dated March 16, 1998 of the Regional Trial
Court of Pasay City, Branch 110, in Criminal Case No. 96-8676 finding appellant Ernesto
Dizon y Ilarde guilty beyond reasonable doubt of the crime of rape and meting on him
the penalty of reclusion perpetua and directing him to indemnify the victim, Jennie
Galoza, the amount of P50,000.

Ernesto Dizon was charged with rape upon the sworn complaint of the victim that reads:

That on or about the 12th day of May, 1996, in Pasay City, Metro Manila, Philippines, and
with[in] the jurisdiction of this Honorable Court, the above-named accused, Ernesto
Dizon y Ilarde, by means of force and intimidation employed upon the person of Jennie
Galoza y Salilican, 14 years of age, did then and there wilfully, unlawfully and feloniously
have carnal knowledge of the said complainant Jennie Galoza y Salilican against her will
and consent.

Contrary to law.2cräläwvirtualibräry

At his arraignment, the accused, assisted by counsel, pleaded not guilty to the charge.
Trial ensued.

The Case for the Prosecution[3]

In the evening of May 11, 1996, the victim, Jennie, then 14 years old, joined the other
youngsters of Barangay Malibay, Pasay City, in making banners (banderitas) for their
barangays forthcoming fiesta. They dispersed at around 2:00 a.m. the next day. On the
way home, Jennie noticed that the accused was following her. He was about one meter
behind her. She did not mind his presence as she thought that he was likewise on his
way home. After all, they both lived in the same vicinity and even had the same address,
507 B. Vizcarra Street, Malibay, Pasay City, with only one house separating their

165
respective homes. Further, Jennie knew the accused as he was the former live-in
partner of her sister Aileen.

As Jennie passed the comfort room of the house of the accused which was just a door
away from her house, the accused suddenly embraced her, covered her mouth with his
left palm and shoved her inside the comfort room. Jennie struggled but she was no
match to Dizons strength. He forced her to lie down on the wet floor of the comfort room.
He placed himself on top of her and simultaneously pulled down her pants and panty.
The accused also removed his short pants. He initially inserted the middle finger of his
right hand into her vagina. He then inserted his penis into Jennies sexual organ and
made pumping movements. Jennie tried to push him away but to no avail. To Jennie, the
pumping motions seemed to last for ten minutes. After he had satisfied his bestial
desires, Dizon stood up, pulled up his short pants and warned Jennie against reporting
the incident to anyone. He then left her.

As soon as the accused was gone, Jennie pulled up her pants and panty and hurriedly
went home. She loudly knocked at their door, which was opened by her mother,
Alejandra Galoza. Alejandra noticed that Jennie was crying and that her hair and clothes
were wet. Alejandra asked her what happened but Jennie just ignored her and went
directly upstairs. Alejandra followed her and asked her again what happened. Jennie
continued crying and told her mother that the accused had raped her. Alejandra became
hysterical causing the entire family to wake up. When Jennies father learned about what
happened, he was furious. He immediately got a knife and wanted to go directly to
Dizons house but Alejandra prevailed upon him. Alejandra instructed her husband to go
instead to the police and report the matter. Jennies father went to Barangay Chairman
Angelito Cruz and together they went to the police station and reported the incident.

Two policemen went to the house of the accused and brought him to the police station
for investigation. On the other hand, Jennie, together with her parents and godfather,
went to the Pasay police headquarters where she was investigated by SP03 Milagros
Carrasco. On SPO3 Carrascos instruction, Jennie submitted the clothes that she wore at
the time of rape to the policewoman. There were bloodstains on her panty. Jennie was
then brought to Camp Crame where she underwent physical examination conducted by
Dr. Jesusa Nieves Vergara.

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The medico-legal report of Dr. Vergara contained, in part, the following findings:

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with
the pinkish brown labia minora presenting in between. On separating the same disclosed
a congested and abraded vestibule and posterior fourchette and an elastic, fleshy-type
and congested hymen with deep healed laceration at 3 oclock, shallow healed laceration
at 5 oclock and shallow fresh laceration at 9 oclock positions. External vaginal orifice
offers moderate resistance to the introduction of the examining index finger and the
virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix
is firm and closed.4cräläwvirtualibräry

When she took the witness stand, Dr. Vergara explained that the congestion and
abrasion found on the vestibule of Jennies vagina indicated that there was forcible entry
of a hard blunt object therein. The fresh laceration at 9 oclock position also signified that
the laceration was inflicted several hours prior to the examination. Further, the
bloodstains found on Jennies panty could have been from the fresh laceration caused by
the insertion of a penis or other hard blunt object into her vagina. According to Dr.
Vergara, the absence of spermatozoa did not negate sexual intercourse because there
would usually be no smear taken from the vagina when the male did not ejaculate inside
the female sexual organ.

The Case for the Accused[5]

The accused vigorously denied raping Jennie. He claimed that he and Jennie were
lovers and that they agreed to a rendezvous at 2:00 in the morning of May 12, 1996. He
testified that in the evening of May 11, 1996, after having supper at his sisters house, he
stayed there and watched video until it was time for his tryst with Jennie. At 2:00 in the
morning the next day, Dizon stood in front of Jennies house and, as agreed upon by
them, he whistled twice to let her know that he was already outside. After several
minutes, Jennie came out of the house. They immediately embraced and kissed each
other. The accused told her that they should go to a secluded place so nobody would
see them. They went to the comfort room of his house. As soon as they were inside,
they kissed each other again. Jennie pulled down her pants and panty to her knees. The
accused inserted the middle finger of his right hand into her vagina. He made a push
and pull movement. Just then, Dizons wife came down and saw them. She instantly

167
slapped Jennie hitting her mouth. Jennie cried and hurriedly left. The accused and his
wife had a heated argument. After a while, a policeman arrived at their house and
arrested him. He was brought to the police sub-station in Malibay, Pasay City.

In support of the claim of the accused that Jennie was his girlfriend, Reynante Ramos,
a compadreof his brother, testified that on several occasions prior to May 12, 1996, he
had seen the accused and Jennie holding hands with each other. For her part, Lydia
averred that Aileen, the victims sister, wrote a letter to the accused once threatening to
take revenge on him for leaving her (Aileen) for Lydia. Lydia further narrated that in the
early morning of May 12, 1996, she was awakened by the crying of their baby. While
preparing the babys milk, she noticed that the accused was not in bed. She looked for
him and found him in their comfort room with Jennie in a compromising situation. Lydia
shouted invectives at them and slapped Jennie, who hurriedly left.

Commenting on the medico-legal report, Dr. Vertido gave the opinion that the fresh
laceration at 9 oclock position in Jennies hymen may not have been caused by a penis
but could have been caused by a fingernail.

After the prosecution and defense presented their respective evidence, the trial court
rendered judgment finding the accused guilty beyond reasonable doubt of raping Jennie.
The decretal portion of the trial courts decision reads:

WHEREFORE, the Court finds the herein accused, ERNESTO DIZON Y ILARDE
GUILTY beyond reasonable doubt of the crime of Rape as defined and penalized under
Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 and is
hereby sentenced to suffer the penalty of RECLUSION PERPETUA.

ACCUSED is further ordered to indemnify the private complainant, JENNIE GALOZA,

the amount of FIFTY THOUSAND PESOS (P50,000.00) and to pay the costs.

SO ORDERED.6cräläwvirtualibräry

The accused forthwith filed his notice of appeal with the trial court.7 In his appeal brief,
the accused, now the appellant, alleges that the trial court erred:

168
IN MERELY RELYING ON THE TESTIMONY OF THE WITNESSES FOR THE
PROSECUTION INSTEAD OF WEIGHING AND RATIONALIZING THE PIECES OF
EVIDENCE ADDUCED DURING THE TRIAL IN FAVOR OF ACCUSED-APPELLANT
THAT THE CRIME CHARGED OF [sic] WAS NOT COMMITTED;

II

IN CONVICTING ACCUSED-APPELLANT WITHOUT THE REQUIRED PROOF

BEYOND REASONABLE DOUBT.8cräläwvirtualibräry

Essentially, the appellant assails the credibility of the victim as he asserts that his guilt
for the crime of rape was not proven beyond reasonable doubt.

The appellant harps on the seeming inconsistent statements made by Jennie in

her sinumpaang salaysay and during her testimony in court. In her sinumpaang
salaysay, Jennie stated that the appellant removed her pants and t-shirt then forced her
to lie down on the floor of the comfort room. On the other hand, during her testimony,
Jennie averred that the appellant shoved her inside the comfort room, forcibly made her
lie down on the floor, lay on top of her, pulled down her pants and panty, inserted his
finger then his penis into her vagina. The discrepancy in Jennies narration of the
sequence of events, he avers, taints her credibility as a witness.

Moreover, according to the appellant, Jennies narration of how he raped her, i.e., he
embraced her from behind, shoved her inside the comfort room, forced her to lie down
on the floor, lay on top of her, pulled down her pants and panty, removed his short pants,
inserted his finger then his penis into her vagina, and during the entire time his left hand
covered her mouth, is incredulous. The appellant insists that it was physically impossible
for him to have raped Jennie in the said manner. The appellant likewise points out that
the medico-legal report stated that there are no external signs of application of any form
of violence.9cräläwvirtualibräry

The appellant further contends that the fact that Jennie had swollen mouth after the
incident corroborates his claim that his wife slapped Jennie when she caught them (the
appellant and Jennie) in an intimate position inside the comfort room. The appellant
maintains that he did not have sexual intercourse with Jennie and that his acts of

169
embracing and kissing her and inserting his middle finger into her vagina arose out of
mutual passion and consent.

The appellants contentions fail to persuade.

In reviewing rape cases, the Court has always been guided by three well-entrenched
principles: (a) that an accusation of rape can be made with facility; it is difficult to prove
but more difficult for the person accused, though innocent, to disprove; (b) that in view of
the intrinsic nature of the crime which usually involves two persons, the complainants
testimony must be scrutinized with extreme caution; and (c) that the evidence for the
prosecution must stand or fall on its own merits and cannot be allowed to draw strength
from the weakness of evidence of the defense.10Accordingly, the primordial
consideration in a determination concerning the crime of rape is the credibility of the
complainants testimony.11cräläwvirtualibräry

When she took the witness stand, Jennie testified how the appellant succeeded in raping
her as follows:

FISCAL VIBANDOR:

q Now Miss [W]itness, do you recall the date May 11, 1996 at around may be prior to
midnight of May 12, where were you?

COURT

About what time?

FISCAL VIBANDOR

Prior to midnight Your Honor.

WITNESS

a I was in the place where small banners (banderitas) were being prepared sir.

COURT

170
q You are making or you manufacture is that an industry or what?

WITNESS

a We were making banderitas for our forthcoming fiesta Your Honor.

COURT

q You are referring we (kami) who is this kami you are referring?

WITNESS

a The youth in our place, Your Honor.

COURT

q Where were you making this banderitas?

WITNESS

a In the middle of the road, Your Honor.

COURT

q How far in relation to your house?

WITNESS

a Around 50 meters Your Honor.

COURT

q So you were making this banderitas in open space or in a house?

WITNESS

a We were on the road Your Honor.

COURT

171
Proceed, fiscal.

FISCAL VIBANDOR

q Now you said that you are at that time and date you were making banderitas, will you
tell the exact addres[s] where you are making this banderitas?

WITNESS

a 96 B Vizcarra St., Malibay, Pasay City, sir.

FISCAL VIBANDOR

q Now tell us Miss [W]itness what time did you start making this banderitas you are
referring to?

WITNESS

a Around 8:30 in the evening sir.

COURT

q How many teenagers were there making banderitas?

WITNESS

a There were many of us (marami po).

COURT

q When you say marami how many, 100, 200, 300...?

WITNESS

a About 50 Your Honor.

FISCAL VIBANDOR

q Will you tell us what time did you finish and did you end making this banderitas?

172
WITNESS

a Around 2:00 in the morning sir.

...

FISCAL VIBANDOR

q You said that you finish[ed] making banderitas at around 2:00 in the morning of May
12, 1996, now after you finish[ed] making banderitas will you tell us where did you go?

WITNESS

a We already packed up and we were on our way home to our respective house [sic] sir.

FISCAL VIBANDOR

q While you are [sic] on your home is [sic] there anything unusual which transpired?

WITNESS

a Yes, sir.

FISCAL VIBANDOR

q Tell the Court, Miss [W]itness.

WITNESS

a While I was on my way home, I suddenly notice[d] Ernesto Dizon at my back.

FISCAL VIBANDOR

q What was Ernesto Dizon the accused doing when you noticed him at your back?

WITNESS

a He was following me and I though[t] he was on his way home sir.

173
FISCAL VIBANDOR

q When you noticed the accused how far was he from you?

WITNESS

a About one meter sir.

FISCAL VIBANDOR

q At that moment Miss [W]itness do [sic] have any conversation with the accused?

WITNESS

a None sir.

FISCAL VIBANDOR

q Will you please describe the lighting condition of the place when you first noticed the
accused?

ATTY. CABAERO

Objection Your Honor ...

COURT

She is still confronted with a fact.

WITNESS

a It is somewhat dark sir.

FISCAL VIBANDOR

q Now when you said somewhat dark, will you tell us what do you mean by that?

WITNESS

174
a I was referring to the dark road, it was just illuminated by the light sir.

COURT

q Why do you say that the person immediately following you was the accused when
according to you the lighting condition was somewhat dark?

WITNESS

a Well, I know that it was him because when we were still in a well-lighted place he was
already there. I saw him there Your Honor.

FISCAL VIBANDOR

q When you first saw the accused what was he wearing if you can remember?

WITNESS

a He was wearing T-shirt and basketball shorts sir.

COURT

q What was the color of the T-shirt?

WITNESS

a I did not notice Your Honor.

COURT

q Alright, he was wearing T-shirt and basketball shorts. Proceed, fiscal.

FISCAL VIBANDOR

q Now when you noticed the accused following you were you walking in a road or in an
alley?

WITNESS

175
a In an alley, sir.

COURT

q According to you the place where you are making banderitas is 50 meters in [sic] your
house, how far were you able to travel? [sic] when you first notice[d] the accused?

WITNESS

a About 15 meters Your Honor.

COURT

q This 15 meters you said the distance in relation to you[r] house when you first saw the
accused taking this measurement from this end to the other end

COURT INTERPRETER

That is about 10 meters Your Honor.

COURT

q So the first time you noticed the accused is you were about 10 meters from your house
is that what you want to tell the Court?

WITNESS

a Yes, Your Honor.

COURT

q Prior to that distance you did not see the accused following you?

WITNESS

a Not yet, Your Honor.

COURT

176
q It is very clear the first time you notice[d] the accused is you were about 10 meters
away from your house?

WITNESS

a Yes, Your Honor.

COURT

Proceed fiscal.

FISCAL VIBANDOR

q Now after you noticed the accused following you what happened next?

WITNESS

a We continued walking and we reached their CR and he suddenly embraced me

covered my mouth with his palm.

COURT

q How far is this place in relation to your house?

WITNESS

a Isang pinto lang po ang pagitan.

COURT

Estimate in meters.

WITNESS

a It is about 4 to 5 meters Your Honor.

FISCAL VIBANDOR

q Now you mentioned about CR when you said CR are you referring to a comfort room?

177
WITNESS

a Yes, sir.

FISCAL VIBANDOR

q Now how big is the CR you are referring to?

WITNESS

a It is quite big, a person can lie down.

FISCAL VIBANDOR

q Now what was it made of?

WITNESS

a Concrete sir, (semento at kahoy) The other side is concrete and the other side is made
of wood.

FISCAL VIBANDOR

q When you said that it is made of concrete was it of [sic] was the concrete up to the
roof?

WITNESS

a Yes, sir.

FISCAL VIBANDOR

q Does it have a door?

WITNESS

a Yes, sir.

FISCAL VIBANDOR

178
q Describe the appearance of the door?

WITNESS

a It is like the door of this courtroom sir.

FISCAL VIBANDOR

q Does it have a lock?

WITNESS

a None sir.

FISCAL VIBANDOR

q Now this CR that you are referring to who is the owner of this CR?

WITNESS

a Ernesto Dizon sir.

FISCAL VIBANDOR

q Now this CR you are referring to, will you tell us the use of this CR?

WITNESS

a Use[d] for taking a bath and as a toilet sir.

FISCAL VIBANDOR

q Now what about the flooring of the CR?

WITNESS

a Made of concret[e] sir.

FISCAL VIBANDOR

179
q Alright, you testified a while ago that [the] accused embraced you and covered your
mouth with his palm after that what happened?

WITNESS

a He pulled me inside the CR.

FISCAL VIBANDOR

q How did he forced you inside the CR?

ATTY. CABAERO

There was no force stated by the witness.

COURT

She was pulled, if you are pulled, there is force.

ATTY. CABAERO

We submit Your Honor.

WITNESS

a He shove me inside the CR sir.

FISCAL VIBANDOR

q What did you do when [the] accused shove you inside the CR?

WITNESS

a I struggled sir.

FISCAL VIBANDOR

q When [the] accused shove you inside the CR were there people around?

180
WITNESS

a None sir.

FISCAL VIBANDOR

q After [the] accused shove you inside the CR what happened next?

WITNESS

a He forced me to lie down on the CR.

FISCAL VIBANDOR

q Where on the floor or on the toilet?

WITNESS

a On the floor sir.

FISCAL VIBANDOR

q At that time when the accused forced you to lie down on the floor of the CR was it wet?

WITNESS

a Yes, sir.

FISCAL VIBANDOR

q Now what were you wearing at that time?

WITNESS

a I was wearing pants and T-shirt sir.

FISCAL VIBANDOR

q What kind of pats [sic] were you wearing that time?

181
WITNESS

a Faded pants sir.

FISCAL VIBANDOR

q What kind of material?

WITNESS

a Maong sir.

FISCAL VIBANDOR

q Do you have a belt on your jeans?

WITNESS

a None sir.

COURT

q There were buttons?

WITNESS

a None, Your Honor.

COURT

q Why, you were wearing buttonless jeans?

WITNESS

a It is quite tight, it no longer fits me.

COURT

182
q What are you trying to tell the Court your jeans has buttons and it does not fit you
anymore but it has buttons?

WITNESS

a I can only close it with a zipper.

FISCAL VIBANDOR

q You mean to say you were walking with your pants unbuttoned?

COURT

What the Court understands, it has buttons but it does not fit her anymore.

FISCAL VIBANDOR

q You are [sic] walking with your pants unzippered?

WITNESS

a It was zippered but unbuttoned. I just covered it with my T-shirt.

ATTY. CABAERO

There was a statement there was buttons [sic] ...

FISCAL VIBANDOR

q Now the pants that you were wearing does it have button on the waistline?

WITNESS

a None sir.

FISCAL VIBANDOR

q Now Miss [W]itness, you said that [the] accused forced you to lie down on the floor of
the CR what happened next?

183
WITNESS

a I was struggling and he laid on top of me sir.

COURT

Lets have this clear, you want to impress this Court at the time when he laid you down
you were still wearing your pants?

WITNESS

a Yes, Your Honor.

FISCAL VIBANDOR

q When the accused was on top of you what was he doing if anything?

WITNESS

a He was trying to remove his pants sir.

COURT

How do you describe dinaganan?

FISCAL VIBANDOR

Laid on top Your Honor.

FISCAL VIBANDOR

q Will you please show the Court how [the] accused was pulling (sic) down your pants?

WITNESS

a One of his hand [was] covering my mouth while the other hand pulled down my pants
sir.

FISCAL VIBANDOR

184
q What hand was used in covering your mouth?

WITNESS

a Left hand sir.

FISCAL VIBANDOR

q And what hand was used in removing your pants?

WITNESS

a Right hand sir.

FISCAL VIBANDOR

q Now were you wearing underwear at that time?

WITNESS

a Yes sir.

FISCAL VIBANDOR

q Was the accused successful in removing your pants?

WITNESS

a Yes, sir.

FISCAL VIBANDOR

q How about your panty?

WITNESS

a Yes, sir.

FISCAL VIBANDOR

185
q And how did he remove your panty?

WITNESS

a Simultaneous with the pulling down of my pants sir.

FISCAL VIBANDOR

q And you said that [the] accused was successful in pulling down you[r] pants how far
[did the] accused pulled your pants and panty?

WITNESS

a Up to the knee sir.

FISCAL VIBANDOR

q And when he pulled doen [sic] your pants and your underwear what happened next?

WITNESS

a He pulled down his shorts sir.

FISCAL VIBANDOR

q How did he pulled [sic] down his shorts?

WITNESS

a He used his right hand sir.

FISCAL VIBANDOR

q When he pulled down his shorts was he standing or lying on top of you?

WITNESS

a He was still lying on top of me sir.

186
FISCAL VIBANDOR

q And after he pulled down his shorts what happened next?

WITNESS

a Thats it, he inserted his penis [in]to my vagina sir.

FISCAL VIBANDOR

q When [the] accused inserted his penis [in]to your vagina how do [sic] you feel about it?

WITNESS

a I felt that he was pumping on top of me sir.

FISCAL VIBANDOR

q And while [the] accused was pumping on top of you what were you doing?

WITNESS

a I tried to fight sir.

FISCAL VIBANDOR

q How did you fight [the] accused?

WITNESS

a I tried to push him.

FISCAL VIBANDOR

q When you were pushing [the] accused what were you using?

WITNESS

a My right hand sir.

187
FISCAL VIBANDOR

q And how long was the accused pumping on top of you?

WITNESS

a Ten (10) minutes sir.

FISCAL VIBANDOR

q And when [the] accused was pumping on you are [sic] enjoying it Miss [W]itness?

WITNESS

a No sir.

FISCAL VIBANDOR

q And how do [sic] you feel about it?

WITNESS

a I felt pain sir.

FISCAL VIBANDOR

q And you said that [the] accused stayed on top of you pumping for about ten (10)
minutes, now what do you think is the reason it only lasted for ten (10) minutes?

WITNESS

a Because I was struggling and I was crying very hard while he was covering my mouth
sir.

FISCAL VIBANDOR

q And you think that was the reason he stopped pumping on you?

WITNESS

188
a Yes, sir.

FISCAL VIBANDOR

q And after that what happened next?

WITNESS

a He pulled up his shorts and left sir.

FISCAL VIBANDOR

q And when [the] accused left what were you doing then?

No answer interrupted by question from the Court.

COURT

q When he pulled his shorts was he standing up or still on top of you?

WITNESS

a Already standing up Your Honor.

FISCAL VIBANDOR

q When [the] accused le[f]t you what were you doing then?

WITNESS

a I pulled up my pants and went home.

FISCAL VIBANDOR

q You said that the flooring of the CR is wet what happened to your T-shirt and your
pants?

WITNESS

189
a I got wet and with my hair, I got all wet sir.

FISCAL VIBANDOR

q Was there at that time while you were inside the CR with the accused was there any
occasion you have conversation with him?

WITNESS

a None sir.

FISCAL VIBANDOR

q Did [the] accused tell you anything?

WITNESS

a There was sir.

FISCAL VIBANDOR

a Not to tell anybody.12cräläwvirtualibräry

The trial court characterized Jennies testimony as straightforward and declared that the
details narrated by her could not have been merely concocted. The trial court found that
her detailed testimony bore the badge of sincerity and truthfulness.

The unbroken line of jurisprudence is that this Court will not disturb the findings of the
trial court as to the credibility of witnesses considering that it is in a better position to
observe their candor and behavior on the witness stand. Evaluation of the credibility of
witnesses and their testimonies is a matter best undertaken by the trial court, because of
its unique opportunity to observe the witnesses and their demeanor, conduct, and
attitude, especially under cross-examination. Its assessment is respected unless certain
facts of substance and value were overlooked which, if considered, might affect the
result of the case.13cräläwvirtualibräry

190
There is nothing in the records that would impel this Court to deviate from said findings
and conclusion of the trial court. Indeed, this Court finds that Jennie testified in a
categorical, straightforward and consistent manner. And contrary to the appellants
contention, the minor inconsistencies between Jennies testimony and sinumpaang
salaysay do not at all detract from her credibility as a witness. It is doctrinally settled that
discrepancies and/or inconsistencies between a witness affidavit and testimony in open
court do not impair credibility as affidavits are taken ex parte and are often incomplete or
inaccurate for lack of or absence of searching inquiries by the investigating
officer.14cräläwvirtualibräry

The discrepancy in the sequence of events as narrated by Jennie in her sinumpaang

salaysay and her testimony in court could be explained by the fact that when the former
was taken, Jennie had just been through the ordeal. She could not be expected to
immediately remember with accuracy every ugly detail of her harrowing experience
especially so when she might in fact have been trying not to remember the
same.15cräläwvirtualibräry

On the other hand, testimonies during trial are more detailed and elaborate than those
stated in sworn statements.16 The important thing is that Jennie was consistent in saying
that the appellant shoved her inside the comfort room, forcibly made her lie down on the
floor, lay on top of her and inserted his penis into her vagina. At what point he actually
removed her pants and panty is but a minor and inconsequential detail which does not
affect the crux of the case that the appellant had carnal knowledge of Jennie against her
will.

Contrary to the appellants contention, the absence of external signs of application of any
form of violence does not negate that he raped Jennie.17 Moreover, that there were
healed lacerations on Jennies hymen do not disprove that she was raped. A freshly
broken hymen is not an essential element of rape. Healed lacerations do not negate
rape.18 In any case, Dr. Vergara observed that there was fresh laceration at 9 oclock
position in Jennies hymen indicating that it was inflicted several hours prior to the
examination. This finding corroborates Jennies testimony that the rape occurred just
several hours prior to her physical examination. When the victims testimony of her
violation is corroborated by the physicians findings of penetration, then there is sufficient

191
foundation to conclude the existence of the essential requisite of carnal
knowledge.19cräläwvirtualibräry

The appellants defense that he and Jennie were lovers deserves scant consideration.
Ramos testimony that he saw the accused and Jennie holding hands with each other
does not help the appellants cause as Ramos had no personal knowledge of what
transpired between the appellant and Jennie on May 12, 1996. The testimony of Lydia,
the appellants wife, likewise is unavailing. The testimonies of close kin are suspect and
cannot prevail over that of the complaining witness.20cräläwvirtualibräry

Moreover, a sweetheart defense should be substantiated by some documentary or other

evidence of the relationship like mementos, love letters, notes, pictures and the
like.21 No such evidence was presented in this case.

In contrast, Jennies actuations immediately after the incident belie the appellants
sweetheart theory, to wit: (1) immediately disclosing the rape to her mother; (2) seeking
the help of the police authorities in apprehending the appellant; (3) subjecting herself to
physical examination; and (4) filing the criminal complaint against the
appellant.22cräläwvirtualibräry

The appellants claim that Jennies family was motivated by revenge because he left
Aileen, Jennies sister, for Lydia is a desperate clutch at straws. It is unthinkable that a
sister would expose her sibling to the ignominy of a rape trial merely to satisfy her
alleged motive.23 Moreover, no family member would expose a fellow family member to
the shame and scandal of having to undergo such a debasing ordeal if the charge were
not true.24cräläwvirtualibräry

Significantly, the appellant failed to ascribe any plausible motive which would have
impelled Jennie to perjure herself and knowingly hurl false accusations against an
innocent man.25 A girl as young as Jennie would not concoct a tale of defloration, allow
the examination of her private parts and undergo the expense, trouble and
inconvenience, not to mention the trauma, of a public trial, unless she was in fact
raped.26cräläwvirtualibräry

In fine, the trial court correctly convicted the appellant for the crime of rape and
sentenced him to suffer the penalty of reclusion perpetua consonant with Article 335 of

192
the Revised Penal Code, as amended by Republic Act No. 7659. The trial court,
following jurisprudence, likewise correctly ordered the appellant to indemnify Jennie in
the amount of P50,000 as civil indemnity ex delicto.27In addition, moral damages in the
amount of P50,000 should also be awarded in Jennies favor. In rape cases, moral
damages may be awarded without need of proof or pleading since it is assumed that the
victim suffered moral injuries, more so where the victim is between ages thirteen to
nineteen, as in Jennies case.28cräläwvirtualibräry

WHEREFORE, the Decision dated March 16, 1998 of the Regional Trial Court of Pasay
City, Branch 110, in Criminal Case No. 96-8676 finding appellant Ernesto Dizon y Ilarde
guilty beyond reasonable doubt of the crime of rape is AFFIRMED WITH
MODIFICATION. The appellant is directed to pay moral damages in the amount
of P50,000 in addition to the civil indemnity ex delicto of P50,000.

SO ORDERED.

Bellosillo, (Chairman), Austria-Martinez, and Tinga, JJ., concur.

Quisumbing, J., on leave.

Endnotes:

1
Penned by Judge Porfirio G. Macaraeg.

2
Records, p. 1.

3
The prosecution presented as its witnesses Jennie, her mother Alejandra Galoza,
Barangay Chairman Angelito Cruz, SPO2 Felicito Medina, SPO3 Milagros Carrasco and
Dr. Jesusa Nieves Vergara, a Medico- Legal Officer of the PNP Crime Laboratory.

4
Exhibit E, Records, p. 199.

5
The defense presented as its witnesses Dizon, his wife Lydia, Reynante Ramos and
Dr. Antonio S. Vertido, medico-legal officer of the National Bureau of Investigation (NBI).

193
6
Id. at 307.

7
Id. at 308.

8
Rollo, pp. 103-104.

9
Records, p. 199.

10
People v. Quianola, 306 SCRA 710 (1999).

11
People v. Turco, 337 SCRA 714 (2000).

12
TSN, 8 July 1996, pp. 10-33 (Jennie Galoza).

13
People v. Yaoto, 370 SCRA 284 (2001).

14
People v. Villadares, 354 SCRA 86 (2001).

15
People v. Cesista, G.R. No. 131589-90, August 6, 2002.

16
People v. Caniezo, 354 SCRA 298 (2001).

17
Ibid.

18
People v. Aguiluz, 354 SCRA 465 (2001).

19
People v. Galisim, 369 SCRA 727 (2001).

20
People v. Barbosa, 362 SCRA 260 (2001).

21
People v. Flores, 372 SCRA 421 (2001).

22
Ibid.

23
People v. Hamto, 362 SCRA 277 (2001).

24
Ibid.

25
People v. Colisao, 372 SCRA 20 (2001).

194
26
People v. Ramos, G.R. No. 142577, December 27, 2002.

27
People v. Manayan, 368 SCRA 300 (2001).

28
People v. Colisao, supra.

195
 SECOND DIVISION

G.R. Nos. 137587 & 138329. July 29, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. TEOFILO MADRONIO Y

ISIP, Appellant.

DECISION

CALLEJO, SR., J.:

Before us on appeal is the Decision1 of the Regional Trial Court of Quezon City, Branch
219, finding Teofilo Madronio y Isip guilty beyond reasonable doubt of rape, sentencing
him to suffer reclusion perpetua, and ordering him to pay the victim Desiree Morecho y
Ong the amount of P75,000 as civil indemnity.

The Charge

Appellant Teofilo Madronio was charged with rape under a Criminal Complaint which
reads:

The undersigned accuses TEOFILO MADRONIO Y ISIP of the crime of RAPE,

committed as follows:

That on or about the 1st day of February, 1997 in Quezon City, Philippines, the above-
named accused, with lewd designs and by means of force and intimidation, did, then and
there, wilfully, unlawfully and feloniously have carnal knowledge with the undersigned,
DESIREE MORECHO Y ONG, a minor 16 years of age, without her consent and against
her will.2cräläwvirtualibräry

Another Criminal Complaint was filed, charging Jun dela Cruz y Villanueva with forcible
abduction which reads:

That on or about the 1st day of February, 1997 in Quezon City, Philippines, the above-
named accused, did, then and there, wilfully, and unlawfully and feloniously, with lewd
designs and by means of force and intimidation abduct DESIREE MORECHO Y ONG, a
minor 16 years of age, at Litex Fairview, this City, and was forced to go with him and

196
brought her at Merville Subdivision, Pasay City, all against the will and without the
consent of the undersigned.3cräläwvirtualibräry

When arraigned, assisted by counsel, both the accused entered their respective pleas of
not guilty. On motion of the prosecution, the trial of the two cases was consolidated.

The Case of the Prosecution[4]

Desiree Morecho y Ong, Edna Morechos eldest daughter by her second husband, was
born on December 15, 1980. In 1997, Desiree was in Grade IV, Special Education
(SPED) of the Abad Santos Elementary School. Although she was more than sixteen
years old, her mental age was that of a seven-year-and-four-month-old child. Desiree
was forced to stop schooling since her half sister Janet Francisco, a resident of 79-A
Scout Tuazon, Timog Avenue, Quezon City, had just given birth. Janets housemaid had
left and she requested Desiree to wash clothes for her and help in the household chores.
Thenceforth, Desiree stayed with Janet. Janet introduced Desiree to accused Teofilo
Madronio, nicknamed Bogs, who worked as a car washer in the area. Since then, Teofilo
and Desiree had frequent talks.

At or about 2:00 p.m., on February 1, 1997, Desiree was in the terrace hanging clothes
she had just washed. Teofilo waved at her, as if motioning her to go down.
Remembering the bottle of softdrink she had to return to the store, she went downstairs
and approached Teofilo, who told her that he would bring her to SM Fairview Branch,
Quezon City. Desiree agreed. The two proceeded to the mall and walked around for a
while. Teofilo later brought her to his house at Mangga-manggahan Fairview, Quezon
City, which was vacant at the time. After closing the door, Teofilo stripped himself naked.
When Desiree asked Teofilo why he was taking off his clothes, he replied that he would
just do something with her.5 He then undressed Desiree. He poked a balisong (fan knife)
at her and told her not to shout, otherwise she would be stabbed. He then ordered
Desiree to lie down on the bed. Afraid for her life, Desiree did as she was told even as
Teofilo placed the balisong under the pillow. With the use of his hands, Teofilo forcibly
spread her legs and inserted his penis inside her vagina. She felt excruciating pain as
the appellant made pumping motions (yumuyugyog). She resisted but Teofilo was quick
to hold her hands.6 After Teofilo had satiated his lust, he dismounted from Desiree. He

197
cooked rice and ordered Desiree to buy viand from the nearby store. When Desiree
returned, they ate, and thereafter slept.

As it was getting dark and Teofilo was still asleep, Desiree went out of the house and
met Jun dela Cruz, a baker at Litex. He offered to take her to his sisters house. Desiree
refused, and told him that she would go home all by herself. Jun refused and insisted on
bringing her home, telling her Basta, basta, ihahatid kita! He pulled her and bit her on the
shoulder.7 Desiree had no other recourse but to go with Jun, who then brought her to his
sisters house in Merville Subdivision, Pasay City, where they slept. Desiree was
suddenly awakened when she felt someone kissing her lips. It was Jun, he was
removing her brassiere and kissing her breasts.

While Jun was asleep, Desiree told his sister what Jun had just done to her, to which the
latter replied that Jun wanted to get married. When asked if she wanted to marry Jun,
Desiree answered in the negative.8 Desiree thereafter sneaked out of the house to try to
find her way back home. Desiree met an old woman along the way, who brought her to
the Department of Social Welfare and Development (DSWD) in Pasay City, where
Desiree related that she was raped.

In the meantime, Janet had started looking for Desiree. Fearing that she was lost, Janet
phoned her mother, inquiring whether Desiree was there. Janet was alarmed when she
learned that Desiree was not with her mother. She then asked around. Edna was also
concerned about her missing daughter and went to Janets house, and she had the
incident reported and entered in the police blotter in Station 10 of the Kamuning Police
Station. Janet later learned that Desiree was last seen with Teofilo.

On February 3, 1997, Janet saw Teofilo and asked where her sister was. Teofilo told her
that she was gone. Janet then told him that they better talk and go to the barangay and
discuss the matter there. Before the barangay authorities, Janet accused Teofilo of
raping her sister. Teofilo denied the accusation. Teofilo was brought to Station 10 of the
Kamuning Police Station. While in the custody of the police Teofilo in the presence of
Edna, admitted that he used (ginalaw) Desiree.9 He accompanied Edna to his house
at Mangga-manggahan but Desiree was not there.

198
Edna went back to Mangga-manggahan and showed a photograph of her daughter
Desiree to the residents, inquiring if they had seen her. When Edna showed the picture
to the owner of the bakery where Jun worked, she was told that Desiree had left with the
latter. When she found Jun, Edna was told that Desiree was in the custody of the
DSWD, Pasay City. That same day, February 4, 1997, Desiree was reunited with her
mother, and thereafter revealed her ordeal: she was raped by Bogs, while Jun kissed
her on the lips and breasts.

On February 5, 1997, Desiree was examined by a doctor at the Medico-Legal Office of

the National Bureau of Investigation (NBI) who rendered a preliminary report which
reads:

1. No evident sign of extragenital physical injury noted on the body of the subject at the
time of examination.

2. Hymen, with old healed laceration at 7 oclock position corresponding to the face of the
watch, edges rounded, non-coaptable.10cräläwvirtualibräry

Dr. Antonio S. Vertido conducted physical and genital examinations of Desiree and filed
Living Case Report No. MG-97-206 which reads:

GENERAL PHYSICAL EXAMINATION:

Height 156.0 cms. Weight: 109 lbs.

Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory

subject.

Breasts, developed, hemispherical, doughy. Areolae, brown, 3.5 cms. in diameter.

Nipples, brown, protruding, 1.0 cm. in diameter.

No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, abundant. Labia majora, gaping. Labia minora, coaptated.
Fourchette, lax. Vestibular mucosa, pinkish. Hymen wall, thick, with a complete old

199
healed laceration at 7:00 oclock, edges rounded, non-coaptable. Hymenal orifice admits
a tube 2.5 cms. in diameter. Vaginak (sic) walls, lax. Rugosities, shallow.

CONCLUSIONS:

1. No evident signs of extragenital physical injuries were noted on the body of the
subject at the time of examination.

2. Complete, old healed hymenal laceration, present.11cräläwvirtualibräry

Dr. Vertido noticed that the victim showed signs of retardation. He requested the Neuro-
Psychiatric Services of the NBI to conduct a neuro-psychiatric examination of Desiree.

In the meantime, on February 6, 1997, Desiree and Edna executed their respective
sworn statements.12 On February 10, 1997, a criminal complaint for rape was filed
against Teofilo with the city prosecutor. On April 29, 1997, after the neuro-psychiatric
examination, Dr. Erlinda R. Marfil, NBI Neuro-Psychiatric Services Chief, submitted her
report where she stated that, although Desiree was already sixteen years of age, her
mental age was that of a mere seven-year-and-four-month-old child, and that she had an
intelligence quotient (IQ) of 47. Desirees mental status was summarized, thus:

Grasp of general information and judgment were poor.

Physical and Neurological Examination:

Physical and neurological examinations are within normal limits.

Psychological Examination:

Psychological Tests reveal Mental Retardation with a Mental Age of (7) seven years and
(4) four months and an IQ of 47.13

The Evidence of the Accused Teofilo Madronio

For his part, appellant Teofilo Madronio denied having raped Desiree. He testified that
on February 1, 1997, Desiree went down from their house and asked him to accompany
her to buy something at the 7-11 Grocery Store in Kamuning, Quezon City. He agreed.

200
They proceeded but Desiree was not able to buy anything. Desiree then asked him if
they could go to SM Mega Mall, to which Teofilo agreed. They rode a jeepney bound for
Edsa, took a bus headed for Fairview, Quezon City, and then boarded a tricycle
to Mangga-manggahan where his house was located. They stayed there and rested for
about ten minutes. Feeling hungry, Teofilo cooked rice and asked Desiree to buy viand
from the nearby store. Desiree agreed. When she came back with the viand, they ate.
Teofilo told Desiree that they should rest for a while. Desiree then asked if she could go
outside, to which Teofilo agreed. He fell asleep. Unknown to him, Desiree had left the
house. When he woke up, Desiree was nowhere to be found.14

The Evidence of the Accused Jun dela Cruz

For his part, accused Jun dela Cruz denied the charge against him. He testified that he
worked as a baker in Litex. In the morning of February 1, 1997, he was on his way home
to Pasay City when he saw Desiree who told him that she wanted to go with him. Jun
refused because he did not know Desiree. But Desiree was insistent so he brought her
along with him to Pasay City. He later brought her to the DSWD office where she was
found. Edna came looking for her daughter, and Jun accompanied her to the DSWD
office.

The Verdict of the Trial Court

On February 18, 1999, the trial court rendered a decision finding Teofilo Madronio guilty
beyond reasonable doubt in Criminal Case No. Q97-69739 and acquitting accused Jun
dela Cruz in Criminal Case No. Q97-69740, the decretal portion of which reads:

WHEREFORE, in Criminal Case No. Q97-69739, finding accused Teofilo Madronio

GUILTY of having committed RAPE (sic) reasonable doubt, the Court hereby sentences
him to suffer the penalty of Reclusion Perpetua; to indemnify the complainant in the
amount of P75,000.00; and to pay the costs.

In Criminal Case No. Q97-69740, finding that the prosecution was not able to establish
the guilt of the accused beyond reasonable doubt, the Court hereby ACQUITS accused
Jun dela Cruz of the crime charged.15

In his brief, the appellant alleges that the trial court committed the following errors:

201
I

THE LOWER COURT ERRED GRIEVOUSLY IN HOLDING THAT ACCUSED-

APPELLANT APPLIED FORCE AND INTIMIDATION AND THEREFORE HE COULD
BE CONVICTED OF THE CRIME OF RAPE.

II

THE TRIAL COURT COMMITTED GRIEVOUS ERROR IN HOLDING THAT ACCUSED-

APPELLANTS SIMPLE DENIAL THAT HE DID NOTHING TO DESIREE IS SELF-
SERVING AND INSUFFICIENT TO OVERCOME THE POSITIVE ASSERTION OF
DESIREE.

III

THE TRIAL COURT ERRED GRIEVOUSLY IN NOT ACQUITTING APPELLANT ON

THE GROUND OF REASONABLE DOUBT.16cräläwvirtualibräry

The appellant avers that the trial court erred in giving credence and full probative weight
to Desirees testimony considering her shaky account of the events as they transpired
and the circumstances surrounding the commission of the crime. The appellant contends
that since Desiree had an old hymenal laceration as evidenced by the medical
examination report of the NBI Medico-Legal Office, she was no longer a virgin. This
belies her claim that she felt pain when the appellant allegedly ravished her. The
prosecution failed to prove that he forced and intimidated the victim into having sexual
intercourse with him. For one thing, the appellant avers, Desiree could have shouted for
help since the house where she was brought was small and filled with people, but she
did not.

The Office of the Solicitor General, on the other hand, avers that it had established all
the elements of the crime of rape. It emphasizes that the testimony of the appellant
pales in comparison with Desirees positive identification of the appellant as the
perpetrator and the testimony of the other prosecution witnesses. The OSG contends
that Desiree was intimidated by the appellant when he poked his knife at her and
threatened to kill her if she shouted and when he forcibly spread her legs and inserted
his penis inside her vagina.

202
With respect to the old hymenal laceration found by Dr. Vertido, the OSG pointed out
that, as explained by the doctor himself, it could not be determined when Desiree
sustained the wound; neither could it be used to determine the number of times she had
had sexual intercourse.

The contention of the appellant is barren of merit.

In reviewing rape cases, we are always guided by the following principles: (a) an
accusation of rape can be made with facility if it is hard to prove, it is even more difficult
for the accused to disprove; (b) in view of the intrinsic nature of the crime in which only
two persons are usually involved, the testimony of the complainant must be scrutinized
with extreme caution; and (c) the evidence for the prosecution must stand or fall on its
own merits and not draw strength merely from the weakness of that for the
defense.17cräläwvirtualibräry

It has often been said, to the point of being repetitive, that when the credibility of the
witness is in issue, the trial courts assessment is accorded great weight unless it is
shown that it has overlooked a certain fact or circumstance of weight which the lower
court may have overlooked, misunderstood or misappreciated and which, if properly
considered, would alter the results of the case.18 The trial court has the unique
advantage of monitoring and observing at close range the demeanor, deportment and
conduct of the witness as they regale the trial court with their testimonies. 19 In this case,
the trial court ruled that Desiree is a credible witness and that her testimony is entitled to
full probative weight; we find no reason to deviate from its findings and conclusions.

Rape is committed by having carnal knowledge of a woman under any of the following
circumstances: (1) by using force or intimidation; (2) when the woman is deprived of
reason or otherwise unconscious; and (3) when the woman is under 12 years of age,
even though neither of the circumstances mentioned in the two next preceding
paragraphs shall be present, the gravamen of rape is carnal knowledge against a
woman against her will or without her consent.20cräläwvirtualibräry

In this case, the prosecution adduced proof beyond reasonable doubt that the appellant,
through force and intimidation, raped the victim. Intimidation is that which produces a
reasonable fear that it would be carried out if the victim resists the lust of the accused.

203
Rape is committed when the victim submits herself against her will out of fear for her life
or personal safety.21 Tenacious resistance against rape is not required; neither is a
determined or a persistent physical struggle on the part of the victim necessary. In fact,
the law does not even impose the burden of proving resistance on the part of the victim
of rape.22cräläwvirtualibräry

Although mentally challenged, Desiree was able to recount how the appellant ravished
her, through force and intimidation, in a direct, clear and unequivocal manner in both the
direct and cross-examinations:

Q: How did you come to know Bogs?

A: My sister told me that his name is Bogs and he introduced himself to me (witness
pointing to Teofilo Madronio).

Q: What did Bogs do to you, if any?

A: He brought me to their house.

Q: Do you know where is his house?

A: In Mangga-manggahan, maam.

Q: Do you know where is this Mangga-manggahan?

A: In Fairview, maam.

Q: When Bogs brought you to this house, what happened?

A: First, he made me eat and then he removed his clothes.

Q: And then what happened after he removed his clothes?

A: He inserted his penis into my vagina.

Q: What were you wearing then?

A: I was waring (sic) a stripe[d] shirt and shorts.

204
Q: When you said Bogs inserted his penis into your vagina, was your shorts removed?

A: Yes, maam.

Q: Who removed your shorts?

A: Bogs, maam (witness pointing to Teofilo Madronio).

Q: Now, when Bogs inserted his penis inside your vagina, did you shout?

A: No, maam.

Q: Why?

A: I did not shout because there was a balisong hidden under the pillow.

Q: Who placed that balisong under the pillow?

A: Siya po (witness pointed to Teofilo Madronio).

Q: Did you see Bogs placed (sic) the balisong under the pillow?

A: Yes, maam, I saw it, and he showed it to me.

Q: When Bogs showed the balisong to you, what did he say, if any?

A: At first, he told me that we would just go to SM and then he told me also that I should
not tell my sister about it.

Q: Where were you at that time when he told you that he will bring you to SM?

A: My sister asked me to wash their clothes and I was in the terrace and I was hanging
the clothes because my sister do[es] not have any housemaid.

Q: While you were hanging the clothes, Bogs arrived?

A: Yes, maam.

Q: That was the time when Bogs tell (sic) you he will bring you to SM?

205
A: Yes, maam.

Q: Did he bring you to SM?

A: Yes, maam.

Q: And then from SM where did you proceed?

A: We went to the house of Bogs.

Q: By the way, what did you do at SM?

A: We just went around the mall, maam.

Q: You said that from SM you proceeded to Bogs place?

A: Yes, maam.

Q: When you reached the house at Fairview, what did he do, if any?

A: Bogs was already lying down, he doesnt have any shirt anymore.

Q: Was he wearing shorts or pants at that time?

A: Yes, maam.

Q: You said from SM you proceeded to Fairview and upon arrival at Fairview he
removed his dress?

A: Yes, maam.

Q: And then he lie down?

A: Yes, maam.

Q: When he was lying down naked, what did he tell you, if any?

A: He told me not to tell my sister about it.

206
Q: Now, you said that Bogs showed you a balisong, when he showed you that balisong
what did he tell you?

A: Sabi po niya hoy huway (sic) kang maingay, itong balisong iaano ko to sayo.

Q: What do you mean by iaano?

A: Isasaksak, maam.

Q: Then, what did he do after telling you that, after whowing (sic) you the balisong and
tell you hoy, huway (sic) kang maingay isasaksak ko to sayo?23

COURT

Q: You said that iaano means isasaksak, why did you say that isasaksak?

A: Sabi po niya sa akin huwag daw po akong maingay kasi kung mag-iingay daw po ako
iaano daw po niya sa akin yong balisong.

COURT INTERPRETER

Witness motioning her hand towards her stomach while saying that iaano ko to sayong
balisong.

COURT

Q: Did he use the word isasaksak?

A: Yes, your honor.

Q: Now, what else did Bogs tell you, if any?

A: None, maam, thats it.

Q: Now, you earlier said that Bogs inserted his penis inside your vagina, what did you
feel when he inserted his penis inside your vagina?

A: It was painful, maam.

207
Q: When you felt pain did you resist?

A: No, maam.

Q: Why did you not resist?

PROS. CHUA CHENG

May we request Atty. Mallabo to stop making any side comment, we all know that the
witness is a retardate.

A: I was already resisting but then he held my two hands (witness demonstrating how
she resisted extending her both arms).

Q: You said that you were already resisting but Bogs held your hands, what happened?

A: Yon na nga po, yong ari po niya inano sa ari ko.

Q: What do you mean by inano?

A: Bale po yong ari po niya ipinasok sa ari ko.

Q: While his penis was inside your vagina, what was his movement, if any?

A: Yumuyugyog po.

Q: After that, what happened? After the pumping motion, what happened?

A: After that, he slept and then I went outside and I was seen by that person.24

Q: Will you please tell us why did you immediately go down when Madronio raised his
hand and signaled you to immediately go down?

A: No, sir, because I was to return a Coke 500 bottle.

Q: Did you not tell the police that when Madronio said, You came down because
Madronio made a sign like that to do (sic)? Kinawayan ka?

208
A: Yes, sir.

Q: As a matter of fact, you removed the lock of the gate?

A: Yes, sir, because my sister was giving her child a bath.

Q: And after that you went to Madronio and you asked him to accompany you?

FISCAL

No basis, your Honor.

COURT

Objection sustained.

ATTY. CALVARIO

Q: Did not ask Madronio you (sic) to accompany him to SM?

A: No, sir.

Q: Who asked you to accompany you to SM?

A: He did, sir.

Q: It was Madronio who accompanied you to SM?

A: Yes, sir.

Q: And what did you do at SM?

A: We just walked around, sir.

Q: How long did you stay at SM?

A: Just for a while, sir, and then we went to their place, his place.

Q: When you say to his place, you are referring to his house?

209
A: Yes, sir.

Q: Was there anybody inside the house at the time?

A: No, sir.

Q: You were alone?

A: Yes, sir.

Q: What happened after you went inside the house?

A: He removed my shorts, sir.

Q: How about his clothes? Madronios clothes?

A: --------

Q: Your answer was he removed my shorts. What else did he do?

A: He also removed my shirt and my bra.

Q: So you are already naked?

A: Yes, sir.

Q: How about him? Did he also remove his clothing?

A: Yes, sir.

Q: Did you not ask why he was removing his clothing?

A: I asked him bakit ka naghuhubad?

Q: And what was his answer?

A: Wala, may gagawin lang ako sa iyo.

Q: Did you not ask him what he was going to do?

210
A: No, sir.

Q: And then did he ask you to lie down?

A: Yes, sir.

Q: After you lay down, what did he do?

A: He was on top of me, sir.

Q: He immediately placed himself on top of you?

A: Yes, sir.

Q: What was your, he and you, position when he was on top of you?

A: I was lying down and he was on top of me, sir. Nakadagan.

Q: And you said he inserted his penis inside your vagina at that time?

A: Yes, sir.

Q: How did he insert his penis?

A: I was already lying down and he was holding his penis and inserting it in my vagina.

Q: He inserted it with the use of his hand?

A: Yes, sir.

Q: Did you open your legs?

A: No, sir.

Q: How was he able to insert his penis when you did not open your leg[s]?

A: He was the one who spread my legs, sir.

Q: And you acceded?

211
A: No, sir.

Q: Aside from opening, separating your legs, what else did he do?

A: That was all and afterwards he cooked, sir.

Q: So after that, he cooked, and then what was that he cooked?

A: Rice, sir.

Q: What else?

A: No more, sir.

Q: And did you eat what he cooked?

A: Yes, sir.

Q: And then after that what did you do?

A: Nothing else, sir, he slept.

Q: After that what did you do when he was sleeping?

A: I went out, sir.

Q: Did you ever return while Madronio Where was Madronio Did you ever return where
Madronio was sleeping?

A: No, sir.

Q: Why?

A: Because it was already dark there in their place, sir.25cräläwvirtualibräry

It bears stressing that Desiree, although already a teener at sixteen, had a mental age of
a mere seven-year-old. Technically then, she was only a child who could easily be
cowed with fear, particularly when threatened by a knife. In such a situation, Desiree, or

212
any child for that matter, could not be expected to act like an adult. Furthermore,
Desirees failure to shout for help does not negate the fact that she was raped. We held
in People v. Emilio26 that the failure of the victim to shout for help does not negate the
commission of rape. The workings of the human mind under emotional stress are
unpredictable, such that people react differently to startling situations.

In this case, the appellant threatened to stab Desiree if she shouted or made a sound.
Fearing for her life, she no longer resisted. The appellant forcibly separated her legs and
successfully consummated the bestial act.

The presence of an old healed laceration on Desirees hymen does not negate the
commission of rape. A freshly broken hymen is not an essential element of the
crime.27 Neither does this render Desirees testimony incredible. Even if the victim had an
old healed laceration in her hymen, she would still feel pain if the appellant forcibly
inserted his penis into her vagina. When a minor says she has been raped, she says in
effect all that is necessary to show that rape has been committed. 28 For no woman
would weave a tale of sexual assaults to her person, open herself to examination of her
private parts and later be subjected to public trial or ridicule if she was not, in truth, a
victim of rape and impelled to seek justice for the wrong done to her.29cräläwvirtualibräry

The appellants denials cannot prevail over Desirees positive testimony. Denials are self-
serving negative evidence which cannot prevail over the positive, straightforward and
unequivocal testimony of the victim.30cräläwvirtualibräry

The trial court, thus, correctly found the appellant guilty beyond reasonable doubt of rape
under Article 335 of the Revised Penal Code. In the absence of any mitigating or
aggravating circumstances, the penalty of reclusion perpetua was correctly imposed,
conformably to Article 63 of the Revised Penal Code. However, we agree with the OSG
that the award for civil indemnity should be reduced to P50,000.31 Similarly, we agree
that in line with recent jurisprudence, the victim is entitled to moral damages in the
amount of P50,000 without need of proof other than the fact of rape itself. It is assumed
that the victim of rape has suffered moral injuries entitling her to an award
therefor.32cräläwvirtualibräry

213
WHEREFORE, the February 18, 1999 Decision of the Regional Trial Court, Branch 219,
of Quezon City is hereby AFFIRMED WITH MODIFICATION. The award for civil
indemnity is reduced to P50,000. In addition, the victim Desiree Morecho y Ong is
entitled to P50,000 as moral damages.

Costs against the appellant.

SO ORDERED.

Bellosillo, (Chairman), Austria-Martinez, and Tinga, JJ., concur.

Quisumbing, J., on official leave.

Endnotes:

1
Penned by Judge Jose C. Mendoza.

2
Exhibit H, Records, p. 2.

3
Exhibit I, id. at 4.

[4 The prosecution presented Dr. Erlinda Marfil, Dr. Antonio Vertido, Desiree Morecho,
Edna Morecho, and SPO1 Eduardo Frias.

5
TSN, 14 October 1997, p. 22.

6
TSN, 20 August 1997, pp. 22-23.

7
TSN, 21 October 1997, p. 3.

8
TSN, 20 August 1997, p. 29.

9
TSN, 1 December 1997, p. 11.

10
Records, p. 10.

214
11
Exhibit E, Records, p. 45.

12
Records, pp. 8-9.

13
Id. at 48.

14
TSN, 8 June 1998, pp. 3-5.

15
Records, p. 126.

16
Rollo, p. 47.

17
People v. Delos Santos, G.R. No. 134525, February 28, 2003; People v. Corral, G.R.
Nos. 145172-74, February 28, 2003; People v. Bagaua, G.R. No. 147943, December 12,
2002; People v. Ochea, G.R. Nos. 146452-53, December 10, 2002; People v. Bitancor,
G.R. No. 147968, December 4, 2002.

18
People v. Layaso, G.R. Nos. 141773-76, January 22, 2003.

19
People v. Ramos, G.R. No. 142577, December 27, 2002.

20
People v. Esperida, G.R. Nos. 139637-38, January 22, 2003.

21
People v. Manalo, G.R. Nos. 144989-90, January 31, 2003.

22
People v. Gabawa, G.R. No. 139833, February 28, 2003.

23
TSN, 20 August 1997, pp. 8-18.

24
Id. at 19-23.

25
TSN, 14 October 1997, pp. 17-26.

26
G.R. Nos. 144305-07, February 6, 2003.

27
People v. Maceda, 353 SCRA 228 (2001).

28
People v. Ochea, G.R. Nos. 146452-53, December 10, 2002.

215
29
People v. Sarazan, G.R. Nos. 123269-72 & 131243, January 22, 2003.

30
People v. Gallo, 318 SCRA 157 (1999).

31
People v. Apilo, 263 SCRA 582 (1996).

32
People v. Marahay, G.R. Nos. 120625-29, January 28, 2003.

216
 G. R. No. 139697 - June 15, 2004

PEOPLE OF THE PHILIPPINES, Appellee, vs. LITO HERNANDEZ, Appellant.

DECISION

CALLEJO, SR., J.:

Before us on automatic appeal is the Decision1 of the Regional Trial Court of Lemery,
Batangas, Branch 5, in Criminal Case No. 13-95, convicting the appellant of the special
complex crime of robbery with homicide, and sentencing him to suffer the penalty of
"reclusion perpetua to death."

The Information charging the appellant with the aforesaid offense alleges as follows:

That on or about the 19th day of December, 1994, at about 12:00 noon, at Brgy.
Mahabang Parang, Municipality of San Luis, Province of Batangas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, armed with a
bolo (gulukan) and a knife (balisong), conspiring and confederating together acting in
common accord and mutually helping each other, with intent to gain and by means of
violence and intimidation against person, did then and there wilfully, unlawfully and
feloniously take, rob and carry away from one Natividad Yuzon Mendoza pieces of
jewelry and cash money in the total amount of Thirty Thousand Pesos (P30,000.00),
Philippine Currency, to the damage and prejudice of the said owner in the
aforementioned amount; and that on the occasion of and by reason of the said robbery,
the said accused did then and there wilfully, unlawfully and feloniously attack, assault
and strangle to death said Natividad Yuzon Mendoza.

Contrary to law.2

The accused Nestor Catapang and the appellant, assisted by counsel, were arraigned
for the crime charged and pleaded not guilty. Thereafter, trial on the merits ensued.
During the trial, accused Catapang was shot dead while attempting to escape from the
Batangas Provincial Jail. Trial continued as against the appellant Lito Hernandez.

The Case for the Prosecution

217
At about 7:00 a.m. on December 19, 1994, Cesar Yuzon, a forty-four-year-old
sweepstakes ticket vendor, went to the Rural Health Center of Banoyo, San Luis,
Batangas, to seek medical treatment for his ailment. After receiving his daily medication
from the nurse, he left the health center and went to a nearby store to wait for a ride
back to his house in Barangay Mahabang Parang, San Luis, Batangas. When no public
utility jeepney passed by, he started walking towards the direction of Barangay
Mahabang Parang. It was about 11:00 a.m.3 Upon reaching the boundary of Banoyo and
Mahabang Parang at around 12:00 noon, he saw his cousin-in-law, the appellant,4 and
Catapang dragging his seventy-two-year-old auntie, Natividad Yuzon Mendoza,5 in the
direction of a forested area where there were also mango and coconut trees.6

Cesar shouted, "Hoy, bakit ninyo kinakaladkad ang aking tiya?" Catapang and the
appellant approached and told him not to interfere. Then Catapang pointed a knife at
Cesar and, with the appellant, warned him not to reveal what he saw to anyone;
otherwise, they would kill him and his family, including his children.7

The appellant and Catapang then returned to the place where Natividad was. Cesar
followed them and concealed himself behind a mango tree about ten arms length away,
and saw them forcibly taking money, a pair of earrings and a necklace from the bag of
his aunt, who was lying prostrate on the ground. Catapang and the appellant positioned
themselves at Natividads right and left side, and strangled her with the use of a white
rope made of buri or vine string.8 She pleaded, "Huwag po, huwag po," to no avail.9

Cesar hurriedly left the place on foot and went home. He kept the gory incident to
himself for fear of retaliation from the accused and the appellant.

That afternoon, Natividads son, Nemensio Mendoza, had already started looking for his
mother. Cesar joined the search at 5:00 p.m. together with the barangay captain and
some of the barangay folks. The cadaver of Natividad was found at about 11:00 p.m. 10

SPO3 Ronald C. Macatangay and other police officers of the San Luis Police Station
arrived at the scene of the crime and found the cadaver of Natividad wrapped in a piece
of cloth. After taking pictures of the cadaver at different angles, it was brought to the De
Guia Funeral Parlor.11

218
Dr. Antonio S. Vertido, the NBI Medico-Legal Officer, performed an autopsy on the
cadaver of the victim and found injuries on the face, neck, and index finger. He also
found a hematoma on the victims chin, possibly caused by a bladed instrument,12 and a
ligature mark on her neck. He concluded that the victim died because of asphyxia by
ligature strangulation.13

Cesars fear was heightened when Catapang and the appellant warned him anew on
Christmas Eve that if he divulged to anyone what he had witnessed on December 19,
1994, they would kill him and his children.14 However, on February 7, 1995, Cesar finally
decided to tell his cousin, Nemensio, how Natividad died and who the perpetrators were.
He narrated how he saw Catapang and the appellant rob Natividad of her money and
jewelry, and then strangled her to death. He and Nemensio forthwith went to the police
station where they gave their respective sworn statements to SPO3
15
Macatangay. Cesar and Nemensio also informed the barangay captain that Catapang
and the appellant were the culprits in the killing of Natividad.

The Defense of the Appellant

The appellant denied killing Natividad and divesting her of her money and jewelry. He
testified that he eked out a living as a sweepstakes ticket vendor, while his wife,
Natividads niece, earned a living as a sewer of baby dresses. He also revealed that his
wifes father was the brother of Natividad.

December 19, 1994, a Sunday, was his birthday. At 12:00 noon, he had lunch at the
Fresh Food restaurant in Parañaque. The following day, December 20, 1994, Juanito
Yuzon informed him of Natividads death. He then attended Natividads wake, for two
nights and two days. He only learned that Cesar had implicated him in the crime charged
when he was arrested by policemen on April 18, 1995.16

On February 8, 1999, the trial court rendered its decision, the dispositive portion of which
reads:

WHEREFORE, judgment is hereby rendered:

1. Finding the accused LITO HERNANDEZ GUILTY beyond reasonable doubt of the
complex crime of Robbery With Homicide and he is hereby sentenced to suffer the

219
penalty of RECLUSION PERPETUA to DEATH, considering the presence of aggravating
circumstances of abuse of superior strength, disregard of age, sex of the victim and the
absence of any mitigating circumstance.

2. Ordering Lito Hernandez to indemnify the heirs of the deceased:

P50,000.00 Death of Natividad Yuzon

61,000.00 Actual damages, jewelries (sic) and money

75,000.00 Attorneys fees

50,000.00 Moral damages

3. Cost of suit.

SO ORDERED.17

On automatic appeal before this Court, the appellant contends as follows:

I THE LOWER COURT GRAVELY ERRED IN HOLDING ACCUSED-APPELLANT

GUILTY BEYOND REASONABLE DOUBT OF THE SPECIAL COMPLEX CRIME OF
RAPE (SIC) WITH HOMICIDE DESPITE THE UNCORROBORATED, INCONSISTENT
AND CONTRADICTORY TESTIMONY OF THE ALLEGED EYEWITNESS CESAR
YUZON.

II

ASSUMING SANS ADMITTING THAT ACCUSED-APPELLANT PERPETRATED THE

SUBJECT OFFENSE, THE LOWER COURT GRAVELY ERRED IN APPRECIATING
AGAINTS HIM THE GENERIC AGGRAVATING CIRCUMSTANCES OF ABUSE OF
SUPERIOR STRENGTH, DISREGARD OF AGE AND SEX OF THE VICTIM.

III

220
THE LOWER COURT GRAVELY ERRED IN FAILING TO APPRECIATE IN ACCUSED-
APPELLANTS FAVOR THE MITIGATING CIRCUMSTANCE OF VOLUNTARY
SURRENDER.18

The appellant avers that the trial courts reliance on the testimony of Cesar Yuzon in
convicting him of the crime charged is erroneous, because the latter failed to
immediately report the incident to the barangay and police authorities and to his cousin,
Nemensio, without any valid justification therefore. Cesar even joined Nemensio and
the barangay officers in searching for Natividad in the afternoon of December 19, 1994;
yet, he failed to reveal to them that he saw Catapang and the appellant strangle the
victim and rob her of her jewelry and money. According to the appellant, Cesars conduct
after witnessing the crime is contrary to human experience; hence, his testimony is
barren of probative weight. The appellant furthers that Cesar could not have seen the
killing from a distance of thirteen or fourteen meters, as his view was blocked by tall
grasses, as well as the leaves of a mango tree. Furthermore, the appellant points out
that the testimony of Cesar is inconsistent on material points. Thus, the appellant
concludes, the prosecution failed to prove that he and Catapang brought the victims
money and jewelry with them when they left the crime scene.

We agree with the appellant that the natural reaction of one who witnessed the
commission of a crime, especially if the victim is his kin, is to immediately and
spontaneously report the case to the police authorities so that the perpetrators are
charged, prosecuted and punished if found guilty.19The principle, however, is not iron-
clad.

Fear of reprisal and the natural reluctance of a witness to get involved in a criminal case
are sufficient explanations for a witness delay in reporting the crime to the
authorities.20 Such failure in making a prompt report to the proper authorities does not
destroy the truth per se of the complaint.21 Likewise, the natural hesitance of the
witnesses in this country to volunteer information about a criminal case, and their
unwillingness to be involved or dragged into a criminal investigation is common, and has
been judicially declared not to affect their credibility.22

In this case, Cesar testified that when he shouted at the appellant and Catapang to stop
dragging his aunt Natividad, the two confronted him and ordered him not to interfere.

221
Then, Catapang pulled out his balisong and pointed it at Cesar. He was then warned not
to reveal what he had just seen; otherwise, he and his family would be killed. Afraid for
his life and those of his family, he kept the horrid crime to himself:

Q- Did you not inform them of what you saw?

A- I did not mention to anybody what I have seen or witnessed.

Q- Why?

A- For fear that if they will know about it, my family would be killed.

Q- What do you mean when you say that?

A- Because I was threatened that if I will tell that to anybody, I and my family would be
killed.

Prosecutor:

Q- Who actually threatened you to kill you and your family?

A- The two (2) of them.

Court:

Q- Are you afraid of those words uttered to you?

A- Why should I not be afraid of the two (2) when my family, including me, threatened us
(sic) to be killed.

Q- For how long have you known these two (2)?

A- I have known these two (2) for a long time.

Q- What is your relation to the two?

A- Lito Hernandez is married to a first cousin of mine.

222
Q- So what?

A- "Tinakot akong papatayin ang aking pamilya."

Q- Until now you are afraid?

A- No more, Sir, because they are handcuffed, even [if] they are handcuffed, I can fight
them now.23

Q- So, you will confirm that you allegedly witnessed the incident which took place on
December 19, 1994?

A- Yes, Sir.

Q- After having allegedly witnessed that incident, you reported the matter to the police
because you are a nephew of Natividad Yuzon?

A- Ay, hindi po.

Q- Why?

A- Because, Sir, they threatened to kill my family.

Q- Who threatened to kill your family?

A- These two, Sir.

Q- When did they threaten your family?

A- That very exact time, Sir.

Q- On December 19, they already threatened you?

A- Yes, Sir.

Q- You were there on December 19 at the scene of the incident?

A- Yes, Sir.

223
Q- They merely threatened you?

A- Yes, Sir.

Q- How did they threaten you?

A- They poked at me a bladed weapon, saying, they would kill me, including my children.

Q- They did not kill you inspite of poking you that bladed weapon?

A- No, Sir.

Q- Did you make any reply to the threat made upon (sic) you by the two accused?

A- I did not make any reply, I just raised my two hands, saying, wala, wala.24

As to why it took him until February 17, 1995 to report the incident to the police officers,
Cesar explained, thus:

Q Mr. Witness, this incident happened on December 19, 1994 and you made your
statement on February 7, 1995 why (sic) it took you two months to give your statement
in relation to this incident?

A I was afraid for my life, my school children were being threatened by them of the death
if I report the matter to the authorities.

Q Who actually threatened your school children?

Atty. Lacap:

Witness will be incompetent.

Prosecutor Cuevas:

Q How did you come to know that your children were being threatened?

A The two themselves told me that if I make any report of the incident they would kill my
children.25

224
Cesar, a forty-five-year-old farmer, cannot be blamed for not immediately revealing to his
relatives, and the barangay and police authorities that he witnessed the killing of
Natividad, especially since the appellant and Catapang repeated their threats barely a
week later, or on Christmas Eve:

Q This incident that you have witnessed and you are testifying now happened on
December 19, 1994 and you made your statement to the San Luis Police Station on
February 7, 1995, why did it take you so long for almost two (2) months to report the
incident?

A I was threatened of death.

Q Will you tell this Honorable Court when were you threatened of death?

Atty. Reyes:

That is very improper for re-direct.

Atty. Tenorio:

Why?

Atty. Reyes:

That was already mentioned in the direct examination. To alter that would be improper
already, answered by the witness.

Atty. Tenorio:

The purpose of re-direct examination is to clarify things.

Atty. Reyes:

Answered by the witness.

Court:

The facts are mentioned.

225
Atty. Reyes:

We leave it to the court.

Prosecutor Cuevas:

If Your Honor, please, the question of the private prosecutor is within the ambit of

Atty. Reyes:

We have stated that in the direct examination, Your Honor.

Atty. Tenorio:

It was touched during the cross.

Prosecutor Cuevas:

It was mentioned in the direct.

Court:

Objection overruled.

Atty. Reyes:

The record is very clear, my last question is will you not change your answer anymore,
meaning to say that he testified, he said no, Sir, and now he will change.

Court:

Witness may answer.

Atty. Reyes:

May we manifest vehemently of this representation that the question was already
propounded to this witness.

Court:

226
Witness may answer.

Witness:

A On December 19, 1994.

Atty. Tenorio:

Q Only on December 19, 1994?

A Then the second, it was on the 24th of the month of the same year, 1994.26

The appellants contention that Cesar could not have seen him and Catapang strangle
Natividad because the tall grasses and the leaves of a mango tree blocked his view is
belied by Cesars testimony:

Prosecutor:

Q- How did the two (2) strangle your auntie?

A- "Tinalian ang leeg."

Q- After the two (2) accused tied the neck, what happened next?

A- "Binigti nila."

Q- While this incident was taking place, the act of taking the money and pieces of
jewelry after which your auntie was tied and was strangled, what were you doing at that
time?

A- I peeped at them.

Q- At that place where you were peeping to the place where the taking of money and
jewelry and strangulation of your auntie, how far were you from the place where you
were peeping?

Atty. Lacap:

227
The question is vague.

Prosecutor:

From the place where you were peeping?

Court:

Q- What do you mean by "sumilip?"

A- "Noong sinisilip ko sila, pinanonood ko sila."

Prosecutor:

Q- From the place where you peeped to the place where your aunt was being
strangulated by these two, how far were you from that place?

A- More or less ten (10) arm[s] lengths (sic) also.

Court:

Q- Mr. Witness, when you say that you were peeping to the three (3), what do you
mean?

A- Because I was hiding from something which is (sic) leaves of mango tree.

Q- Do you want to convey to the Court that from the place where you were peeping and
the place where the three (3) were, is there something that obstruct (sic) your view?

A- Not so much of an obstruction but then you have to separate the leaves in order to
peep, "hinahawi."27

It bears stressing that the crime was committed in broad daylight, about 12:00 noon. We
have ruled that where the conditions of visibility are favorable and the witness does not
appear to harbor any ill motive against the malefactors, his testimony as to how the
crime was committed and on the identities of perpetrators must be accepted. 28 There is
no evidence on record of any ill motive on the part of Cesar to falsely implicate Catapang

228
and the appellant in the heinous crime for which the latter could be sentenced to the
capital penalty.

The well-entrenched rule in this jurisdiction is that the matter of ascribing substance to
the testimonies of witnesses is best discharged by the trial court, and the appellate
courts will not generally disturb the findings of the trial court in this respect. The
rationalism is quite simple: the trial judge is in a better position to ascertain the
conflicting testimonies of witnesses after having heard them and observed their
deportment and mode of testifying.29

Cesars positive identification of the appellant as the perpetrator of the crime, absent any
showing of ill motive, must prevail over the appellants lame and obviously fabricated
defenses of denial and alibi. Denials, as negative and self-serving evidence, do not
deserve as much weight in law as positive and affirmative testimonies. Prevalently
repeated is the rule that for alibi to countervail the evidence of the prosecution
confirming the appellants guilt, he must prove that he was not at the locus delicti when
the crime was committed and that it was also physically impossible for him to have been
at the scene of the crime at the time it was perpetrated.30 In the case at bar, the defense
utterly failed to satisfy these requirements.

Remarkable is the fact that the defense had no corroborating witness to strengthen the
testimony of the appellant that he was at the Fresh Food restaurant in Parañaque at the
time of the commission of the crime. Strangely, the appellant even testified that he was
certain that December 19, 1994 was a Sunday, because it also happened to be his
birthday. The trial court, however, took judicial notice of the fact that December 19, 1994
was a Monday, thereby further debilitating the appellants defense.

The appellants claim that he cannot be convicted of robbery because the prosecution
failed to prove that, after divesting Natividad of her money and jewelry, he and Catapang
carried the same with them when they left the situs criminus is barren of merit.

In robbery, there must be an unlawful taking or apoderamiento which is defined as the

taking of items without the consent of the owner, or by means of violence against or
intimidation of persons, or by using force upon things. Taking is considered complete
from the moment the offender gains possession of the thing, even if he has no

229
opportunity to dispose of the same.31There is, likewise, no need to prove the exact
amount of money taken, as long as there is proof of the unlawful taking. 32 Intent to gain,
or animus lucrandi, as an element of the crime of robbery, is an internal act; hence,
presumed from the unlawful taking of things.33

Cesar testified that the appellant and Catapang took the money and jewelry of Natividad
and then strangled her to death:

Prosecutor Cuevas:

Q After you were approached by the two, Lito Hernandez and Nestor Catapang, what
happened if anything happened?

A Tinutukan nila ako, saying for (sic) me not to report the matter.

Q When you said tinutukan nila, what do you mean?

A The balisong or boloet (sic) was poked at me telling me not to make any report.

Q Who actually poked the balisong?

A Nestor Catapang, Sir.

Q After that, what happened next if anything happened?

A Thereafter, they returned to the place where my aunt was.

Q After that, when they returned to the place where your aunt was, what happened if
anything happened?

A After they had strangled her, they took the money.

Q Which took first, the strangulation or the taking of the money and others?

A The taking of the money took first.

Q While the two were taking the money and after they strangled

230
Atty. Lacap:

Objection, Your Honor, what did you do if you did anything.

Court:

Reform.

Prosecutor Cuevas:

Q You said, how far were you from the two when Lito Hernandez and Nestor Catapang
strangled your aunt?

Atty. Lacap:

Objection, Your Honor, there was no statement from the witness

Prosecutor Cuevas:

Q According to the witness a while ago after the two returned to the place where his aunt
was and my question

Court:

Witness may answer.

Witness:

A Less than ten armlengths (sic).

Q Aside from that money, do you know of what (sic) other items were taken from the
body of your aunt, if any?

Atty. Lacap:

No basis, Your Honor.

Court:

231
Witness may answer.

A Jewelries (sic).

Prosecutor Cuevas:

Q What kind of jewelries (sic)?

A Necklace and earrings.

Q After your aunt was strangled, what did you do?

A After the strangulation (sic) of my aunt, I left the place.

Q A while ago, how did these two strangled (sic) your aunt?

A They used a white object in the strangulation of my aunt.

Q That white material, it is made of what?

A Somewhat buri or vine but whitish.

Q The position of your aunt, can you please demonstrate to us how these two
strangled (sic) your aunt using that white material either buri or vine.

(At this juncture, witness playing the role of the accused and the court interpreter playing
the role of the victim place[d] his right hand, made two rounds around the neck of the
Court Interpreter.)34

We agree with the trial court that the appellant is guilty of robbery with homicide under
Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act No.
7659.

In robbery with homicide, the original criminal design of the malefactor is to commit
robbery, with homicide perpetrated on the occasion or by reason of the robbery. 35 The
intent to commit robbery must precede the taking of human life.36 The homicide may
take place before, during or after the robbery. It is only the result obtained, without
reference or distinction as to the circumstances, causes, modes or persons intervening

232
in the commission of the crime that has to be taken into consideration. 37 There is no
such felony of robbery with homicide through reckless imprudence or simple negligence.
The constitutive elements of the crime, namely, robbery and homicide, must be
consummated.

When homicide is committed by reason or on the occasion of robbery, all those who took
part as principals in the robbery would also be held liable as principals of the single and
indivisible felony of robbery with homicide although they did not actually take part in the
killing, unless it clearly appears that they endeavored to prevent the same.38

All those who conspire to commit robbery with homicide are guilty as principals of such
crime, although not all profited and gained from the robbery. One who joins a criminal
conspiracy adopts the criminal designs of his co-conspirators and can no longer
repudiate the conspiracy once it has materialized.39

Homicide is said to have been committed by reason or on the occasion of robbery if, for
instance, it was committed to (a) facilitate the robbery or the escape of the culprit; (b) to
preserve the possession by the culprit of the loot; (c) to prevent discovery of the
commission of the robbery; or, (d) to eliminate witnesses in the commission of the crime.
As long as there is a nexus between the robbery and the homicide, the latter crime may
be committed in a place other than the situs of the robbery.40

In this case, the appellant conspired with Catapang in committing the crime charged in
the light of the evidence on record. The original design of the appellant and his cohort
was to rob the victim. They did rob the victim, and then strangled her to death.

We disagree with the trial courts finding that abuse of superior strength, disregard of sex
and age, were attendant in the commission of the crime. Section 8, Rule 110 of the 2000
Revised Rules on Criminal Procedure now explicitly requires the complaint or
information to "state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify the qualifying and aggravating
circumstances." Under the old rule, only the qualifying circumstances were needed to be
alleged in order to be considered by the court. The present rules, however, require even
the aggravating circumstances to be alleged in the complaint or information. The
information in the present case failed to precisely aver that abuse of superior strength

233
and disregard of age and sex attended the commission of the crime. 41 Although the rule
took effect only on December 1, 2000 and it was the old law that was in effect at the time
of the commission of the crime, the same may be applied retroactively insofar as it
benefits the accused.42

Moreover, the aggravating circumstances of abuse of superior strength and disregard of

age and sex cannot be appreciated as no evidence was presented to prove the same.
To establish the aggravating circumstance of abuse of superior strength, there must be a
deliberate intent on the part of the malefactors to take advantage of their greater
number. They must have nefariously selected and made use of superior strength in the
commission of the crime.43 As an aggravating circumstance, what should be considered
is not that there are two or more assailants as against one victim, but whether the
aggressors took advantage of their combined strength in order to consummate the
offense.44

With respect to disregard of age and sex, the Court has pronounced in the case
of People v. Collado45 that the same may be appreciated only in crimes against persons
or honor. It is not correct to consider this aggravating circumstance in crimes against
property. Besides, robbery with homicide is principally a crime against property and not
against persons. Homicide is a mere incident of the robbery, the latter being the main
purpose and object of the criminal. Moreover, it has not been proven that in committing
the crime, the appellant determinedly intended to offend or insult the age and sex of the
victim.46

The mitigating circumstance of voluntary surrender is not present in the case at bar. To
benefit an accused, the following requisites of this circumstance must be proven,
namely: (1) the offender has not actually been arrested; (2) the offender surrendered
himself to a person in authority; and (3) the surrender was voluntary.47 A surrender is
said to be voluntary when it is done by the accused spontaneously and made in such
manner that it shows the intent of the accused to surrender unconditionally to authorities,
either because he acknowledges his guilt or he wishes to save them the trouble and
expense necessarily incurred in his search and capture.48 In this case, there is no
indication in the record that the appellant, of his own accord, came forward and
presented himself before the authorities, manifesting his desire to spare the Government
the time, effort and expense of pursuing him.49 The appellant surrendered only after the

234
warrant of arrest was served upon him. The fact that the appellant did not defy but went
peacefully with the arresting officer does not mean that he voluntarily surrendered.
Hence, this mitigating circumstance can not be appreciated in favor of the appellant.

There being neither aggravating nor modifying circumstances that attended the
commission of robbery with homicide, the appellant should be meted the penalty
of reclusion perpetua, conformably to Article 63 of the Revised Penal Code.50

The award of P50,000 as civil indemnity for the death of Natividad Yuzon Mendoza
should be upheld without need of proof for being in accordance with prevailing
jurisprudence. Similarly, the appellant is liable to pay P50,000 as moral damages to the
heirs of the victim for the pain and sorrow they suffered.51 The prosecution in this case
adduced evidence to prove the factual basis for an award therefor.

However, we find that the grant of P61,000 as actual damages is not properly supported
by the evidence on record. The trial court relied exclusively on the testimony of
Nemensio Mendoza, the victims son, with respect to the amount of burial expenses.
Further, there was insufficient basis for the award as only the receipt of Funeraria De
Guia (Contract Invoice No. 333) amounting to P11,000 as proof of funeral expenses,
was presented in evidence. Thus, this award should be reduced accordingly.
Nevertheless, the heirs are entitled to temperate damages in the amount of P25,000.52

Likewise, nothing on the record manifests the actual expenses incurred by the heirs of
Natividad for attorneys fees. Attorneys fees are in the concept of actual or compensatory
damages allowed under the circumstances provided for in Article 2208 of the Civil Code,
one of which is when the court deems it just and equitable that attorneys fees should be
recovered.53 In this case, we find the award of P75,000 as attorneys fees unsupported
by evidence and, therefore, should be deleted for lack of basis.

WHEREFORE, the assailed Decision dated February 8, 1999 of the Regional Trial Court
of Lemery, Batangas, Branch 5, in Criminal Case No. 13-95 is hereby AFFIRMED WITH
MODIFICATIONS. Appellant Lito Hernandez is found GUILTY beyond reasonable doubt
of robbery with homicide under Article 294, paragraph 1 of the Revised Penal Code, as
amended, and is sentenced to an indivisible penalty of reclusion perpetua. The said
appellant is ORDERED to pay the heirs of Natividad Yuzon Mendoza the following

235
amounts: (a) Fifty Thousand Pesos (P50,000) as civil indemnity; (b) Fifty Thousand
Pesos (P50,000) as moral damages; and, (c) Twenty-Five Thousand Pesos (P25,000)
as temperate damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago**, Sandoval-

Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ.,
concur.

Endnotes:

*
On official leave.

**
On leave.

1
Penned by Executive Judge Amando V. Hernandez.

2
Rollo, pp. 6-7.

3
TSN, 28 August 1996, pp. 6-10.

4
Remedios Yuzon, the wife of the accused Lito Hernandez, is the first cousin of Cesar
Yuzon.

5
The father of Cesar Yuzon is the brother of Natividad Yuzon Mendoza.

6
TSN, 25 October 1995, pp. 2-4; TSN, 6 February 1997, pp. 3-4; TSN, 13 February
1997, p. 2.

7
TSN, 20 September 1995, pp. 4-5; TSN, 25 October 1995, pp. 3-4.

8
Id. at 5-7; Id. at 5-10.

236
9
TSN, 18 March 18, 1997, p. 7.

10
TSN, 29 January 1997, pp. 10-12, 21-22.

11
TSN, 16 July 1997, pp. 4-6, 11.

12
TSN, 7 March 1996, p. 6.

13
Exhibit "E."

14
TSN, 20 September 1995, pp. 7-8; TSN, 25 October 1995, pp. 11-13.

15
TSN, 28 November 1995, pp. 2-3.

16
TSN, 19 August 1998, pp. 3, 5-7, 9-10.

17
Rollo, pp. 33-34.

18
Id. at 83-84.

19
People v. Baquiran, 20 SCRA 451 (1967).

20
People v. Galido, 326 SCRA 187 (2000).

21
People v. Sagun, 303 SCRA 382 (1999).

22
People v. Estocada, 75 SCRA 295 (1977).

23
TSN, 25 October 1995, pp. 12-13.

24
TSN, 26 March 1996, pp. 2-3.

25
TSN, 20 September 1995, p. 8.

26
TSN, 2 April 1997, pp. 2-3.

27
TSN, 25 October 1995, pp. 9-10.

28
People of the Philippines v. Jose dela Cruz, G.R. No. 148730, June 26, 2003.

237
29
Ibid.

30
People of the Philippines v. Dindo Vallejo, et al., G.R. No. 125784, November 19,
2003.

31
People v. Ellasos, 358 SCRA 516 (2001).

32
People v. Arellano, 366 SCRA 204 (2001).

33
People v. Ellasos, supra.

34
TSN, 20 September 1995, pp. 5-7.

35
People v. Salazar, 277 SCRA 67 (1997); People v. Abuyen, 213 SCRA 569 (1992).

36
People v. Ponciano, 204 SCRA 627 (1991).

37
People v. Mangulabnan, 99 Phil. 992 (1956).

38
People v. Carrozo, 342 SCRA 600 (2000); People v. Verzosa, 294 SCRA 466 (1998).

39
People v. Palijon, 343 SCRA 486 (2000).

40
People v. Daniela, 401 SCRA 519 (2003).

41
People of the Philippines v. Erwin T. Otayde, et al., G.R. No. 140227, November 28,
2003.

42
People v. Buayaban, 400 SCRA 48 (2003).

43
People v. Lobrigas, 394 SCRA 170 (2002).

44
People v. Platilla, 304 SCRA 339 (1999).

45
196 SCRA 519 (1991).

46
People v. Bayocot, 174 SCRA 285 (1989).

47
People of the Philippines v. Sergio A. Caratao, 403 SCRA 482 (2003).

238
48
People of the Philippines v. Ferdinand Fallorina, G.R. No. 137347, March 4, 2004.

49
People v. Ramos, 296 SCRA 559 (1998).

50
ART. 63. Rules for the application of indivisible penalties. In all cases in which the law
prescribes a single indivisible penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have attended the commission of the
deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties,
the following rules shall be observed in the application thereof:

2. When there are neither mitigating nor aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied.

51
People of the Philippines v. George Bolinget, et al., G.R. Nos. 137949-52, December
11, 2003.

52
People v. Delos Santos, 403 SCRA 153 (2003)

53
People of the Philippines v. Eric Guillermo, G.R. No. 147786, January 20, 2004.

239
 G.R. NO. 176633 : September 5, 2007]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARMANDO SAN ANTONIO,

JR., Accused-Appellant.

DECISION

CHICO-NAZARIO, J.:

For review is the Decision1 dated 31 October 2006 of the Court of Appeals in CA-G.R.
CR-H.C. No. 01212, which affirmed the Decision2 dated 19 January 1999 of the
Regional Trial Court (RTC) of Makati City, Branch 138, in Criminal Case No. 98-024,
finding herein appellant Armando San Antonio, Jr., guilty beyond reasonable doubt of
the crime of rape committed against AAA.3

Appellant Armando San Antonio, Jr. was charged with raping AAA in an
Information4 which reads:

The undersigned Prosecutor, based on the sworn statement/complaint of AAA, a 14-

year old5 minor, duly assisted by her mother BBB, x x x, accuses ARMANDO SAN
ANTONIO, JR. y DELA CRUZ of the crime of RAPE, committed as follows:

That on or about the 12th day of December 1997, in the City of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force and intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge with complainant AAA, against her will and consent.
[Emphasis supplied].

Upon arraignment, the appellant, assisted by counsel de parte, pleaded NOT GUILTY to
the crime charged. Thereafter, trial ensued.

The prosecution presented the following witnesses: AAA, the victim; Anabel Lopez-
Medrano (Ana), the victim's cousin; BBB, the victim's mother; and Dr. Antonio S. Vertido
(Dr. Vertido), Medico-Legal Officer of the National Bureau of Investigation. As rebuttal
witness, the prosecution offered the testimony of Lydia Sarte (Lydia), AAA's class
adviser at Makati High School.

240
AAA testified that at around 11:00 o'clock in the morning of 12 December 1997, she was
in her friend's house located at XXX Street, XXX City6 as they were discussing the things
to be done in school the following day. She stayed there for less than three minutes.
Thereafter, she went to the house of her friend's auntie, which was only beside the
house of her friend, and stayed there for about three minutes. She then returned to her
friend's house where she stayed for only two minutes because she heard a sudden call
(a sutsot) coming from the house of her cousin, Ana. She peeped inside and tried to find
out who made the said call. But since the lights were off, she went inside the house
without knowing that the appellant was there. The appellant was at Ana's house because
he was a friend of Ana's husband and he constantly slept there. At such instance, she
saw the appellant lying on the wooden bed (papag) remorselessly staring at her. When
she was about to leave the said house, appellant pulled her right hand. She tried to
remove appellant's grip on her using her left hand,7 but she failed. Subsequently,
appellant dragged her and pushed her to the wooden bed where she fell on her back.
Appellant also threatened to punch her if she will not accede to his desire. Then, while
on a kneeling position, appellant pinned her right arm at the back of her head and
squeezed her legs with his thighs. He pulled down his "maong" shorts, released her legs
and pulled down her cycling shorts and underwear. She banged the wall of the house
using her left elbow to get some help, but nobody came.8 Appellant then placed himself
on top of her and succeeded in inserting his penis into her vagina, causing her so much
pain. Afterward, she felt something wet came out from appellant's penis. And while the
appellant was still on top of her, Ana arrived and saw them in that position. The
appellant stood up and left. She likewise stood up and went home.

Ana corroborated AAA's testimony that when she went home, coming from the house of
her mother, on 12 December 1997, about 10 minutes after 11:00 o'clock in the
morning, she saw the appellant lying on top of AAA in the wooden bed. When the
appellant saw her, he stood up, wore his shorts and left. AAA also stood up and went
out. Ana noticed that AAA was so afraid and teary eyed. She then went out of the house
to report the incident to the mother of AAA.

BBB, the mother of AAA, confirmed the testimony of Ana that at about 11:00 o'clock in
the morning of 12 December 1997, Ana came to her house and told her that she saw the
appellant on top of her daughter, AAA. She immediately asked AAA about it who told her
about her horrible experience in the hands of the appellant. AAA was so afraid and in

241
tears when she told her that she was raped by the appellant. She likewise told her
mother that she wanted to report the same to the police authorities. Thus, BBB, as well
as Ana, accompanied AAA to Precinct 1 of the Makati City Police Station9 to report the
incident.

Dr. Vertido testified that he was the one who conducted the medical examination on AAA
with the conclusions, contained in AAA's Living Case No. MG-97-1691,10 as follows:

CONCLUSIONS:

1. No evident sign of extragenital physical injuries noted on the body of the subject at the
time of examination.

2. Hymen, intact, distensible and its orifice wide (2.5 cms. in diameter) as to allow
complete penetration by an average-sized, adult, Filipino male organ in full
erection without producing any hymenal injury.11[Emphasis supplied].

Dr. Vertido explained that AAA has a distensible hymen, which means that AAA's
hymen is incapable of being ruptured even if penetrated by the male organ.

On the other hand, the defense presented the testimonies of the following witnesses: the
appellant, Francisco Portugal (Francisco), Wendy Cilomen (Wendy), Jacqueline dela
Cruz (Jacqueline) and BBB, the victim's mother, as hostile witness, to testify on the
condition of AAA seven or nine months after the rape incident.12

Appellant invoked the "sweetheart defense." He admitted having sexual intercourse

with AAA on 12 December 1997, but claimed that the same was consensual as they
were sweethearts. He stated that he had known AAA for 10 years because they were
neighbors. He started courting her in January 1997, and AAA accepted his offer of love
in August 1997. He likewise asserted that AAA gave him a love letter; however, it was
lost when his wallet was stolen. He further averred that the sexual intercourse between
him and AAA on 12 December 1997 was actually their third time to engage in the sexual
act. He professed that the first sexual encounter between him and AAA happened on 27
August 1997, between 8:00-8:30 in the evening in a jeepney parked at the garage of
Danarra Condominium, while the second time was on his birthday, 4 September 1997, at
around 9:00 p.m., as the same was AAA's gift to him.13He then alleged that on 12

242
December 1997, at noontime, while he was sleeping at the house of Ana, AAA went
inside the house, but, he asked her to leave as he was tired and was about to sleep.
AAA left, but she came back. Again, he ordered her to leave. AAA came back for the
third time at about 2:00 p.m., and upon her initiative, they engaged in sexual
intercourse, with AAA on top of him. He claimed that AAA was wearing jogging pants
at that time.14 Suddenly, Ana barged in and saw them. He stood up and left.

Wendy Cilomen was presented by the defense to corroborate the testimony of the
appellant. She stated that at around 11:00 o' clock in the morning, on 12 December
1997, she saw neither the appellant nor AAA. It was at around 2:00 o'clock in the
afternoon, while she was washing clothes in front of the house of her mother, that she
saw AAA go inside the house of Ana. When she peeped inside the house, she saw
the appellant on top of AAA15 "as if they were making a baby." However, when she
was asked if she knew whether the appellant and AAA were in a relationship, she
answered in the negative. The same answer was given by Francisco, one of the
witnesses for the defense, when asked if he knew whether AAA was appellant's
girlfriend. However, Jacqueline, the other defense witness, testified that the relationship
of the appellant and AAA as lovers was a matter of general knowledge in their
neighborhood.

To refute the testimony given by the appellant that prior to 12 December 1997, he and
AAA had already engaged in sexual intercourse on two occasions, i.e., 27 August 1997
and 4 September 1997, the prosecution presented Lydia, the class adviser of AAA. She
testified that on those dates, AAA was still in school because her class schedule16 was
until 8:20 p.m. as shown by the class register.17 Hence, it was impossible that the
appellant had sexual intercourse with AAA on the aforesaid dates. This testimony of
Lydia was strengthened by the testimony of AAA when she was called again to the
witness stand and declared that she was never courted by the appellant. She further
confirmed that she never had sexual intercourse with the appellant on 27 August 1997
and 4 September 1997 for she was in school on those dates. And from her school, it
usually took her an hour before she can reach their house.18

As a result of the sexual assault, AAA got pregnant and on 1 August 199819 or after
seven months, she gave birth to a baby boy. According to AAA, the father of her baby
was the appellant because of what the appellant did to her.

243
After trial, the RTC rendered a Decision dated 19 January 1999, finding the appellant
guilty beyond reasonable doubt of the crime of rape. The trial court giving credence to
the testimonies of the prosecution witnesses, ratiocinated as follows:

The issue in this case is credibility.

xxx

The testimony of [AAA] is clear and categorical. x x x.

[AAA] was [14] years old when she testified in Court. Her testimony was given in a
credible manner, sometimes haltingly but consistent and without gross
inaccuracies. It has not been shown that she was motivated by ill-will or bad
intention in charging the [appellant]. Her deportment during the time her testimony
was being taken still shows traces of youthful innocence but with obvious sadness about
her predicament. The Court has observed that during the direct and cross-examination
when scandalous matters (sic) or matters which induce pain if remembered were asked,
there was marked expression of embarrassment and noticeable anguish on the face of
[AAA], which deportment, the Court considered as indication that she was telling the
truth. The spontanety (sic) with which she proceeded to lodge her complaint against the
[appellant] with the police barely hours after the commission was also considered by the
Court and taken as another indication of truthful narration. On the other hand no fact or
circumstance in the narration of [AAA] or in her conduct was observed or made of record
which could lead the Court to doubt her testimony.

Given the foregoing findings, the burden to prove his innocence was shifted to the
[appellant]. Unfortunately[,] his evidence failed to overturn the facts established by the
evidence for the prosecution.

On the claim that he and [AAA] are sweethearts and that they have an
understanding (nagkakaunawaan), the only evidence to support this claim is his
word which is self-serving and has little or of no value at all. No letter, picture or
other article which indicate amorous relationship was presented in Court. x x x.

xxx

244
WHEREFORE, the Court finds the [appellant] Armando San Antonio, Jr. y dela Cruz
guilty beyond reasonable doubt of the crime of rape. Applying the scale of penalties
provided in Republic Act No. 8353,20 in relation to Article 63(2) of the Revised Penal
Code, there being no mitigating or aggravating circumstance attending the commission
of the offense charged, the Court hereby impose upon the [appellant] the penalty
of reclusion perpetua. Further following the provisions of Article 345 of the Revised
Penal Code, [appellant] is ordered to indemnify [AAA] of the amount of P50,000.00 as
and for moral damages. [Appellant] is unmarried, hence he should be further directed to
acknowledge the minor child [CCC], and to provide him support which the Court initially
set at P1,000.00 per month. Cost de oficio.21 [Emphases supplied].

The records of this case were originally transmitted to this Court on appeal.

In his brief, appellant's lone assignment of error was: the trial court erred in convicting
the accused-appellant of rape.22

Pursuant to People v. Mateo,23 the records of the present case were transferred to the
Court of Appeals for appropriate action and disposition.

The Court of Appeals rendered its Decision on 31 October 2006 affirming the Decision of
the RTC.

Feeling aggrieved, appellant filed a Notice of Appeal24 before this Court.

This Court required the parties to simultaneously submit their respective supplemental
briefs. Both the Office of the Solicitor General and the appellant manifested that they
were adopting their respective briefs filed before the Court of Appeals as their
supplemental briefs.

After a careful review of the records of this case, this Court affirms appellant's conviction.

A rape charge is a serious matter with pernicious consequences both for the appellant
and the complainant; hence, utmost care must be taken in the review of a decision
involving conviction of rape.25Thus, in the disposition and review of rape cases, the
Court is guided by these principles: First, the prosecution has to show the guilt of the
accused by proof beyond reasonable doubt or that degree of proof that, to an

245
unprejudiced mind, produces conviction. Second, the evidence for the prosecution must
stand or fall on its own merits and cannot draw strength from the weakness of the
evidence of the defense. Third, unless there are special reasons, the findings of trial
courts, especially regarding the credibility of witnesses, are entitled to great respect and
will not be disturbed on appeal. Fourth, an accusation for rape can be made with facility;
it is difficult to prove but more difficult for the person accused, though innocent, to
disprove; and Fifth, in view of the intrinsic nature of the crime of rape where only two
persons are usually involved, the testimony of the complainant must be scrutinized with
extreme caution.26

Right off, it is clear that appellant does not deny the sexual intercourse between him and
AAA. By way of exculpation, appellant argues that the trial court erred in convicting him
of the crime of rape because the complainant has not been raped as the sexual
intercourse between him and the complainant was consensual as they were
sweethearts. This is specious.

The "sweetheart defense" is a much-abused defense that rashly derides the intelligence
of the Court and sorely tests its patience.27 Being an affirmative defense, it must be
established with convincing evidence - by some documentary and/or other evidence like
mementos, love letters, notes, pictures and the like.28Likewise, the "sweetheart theory"
appellant proffers is effectively an admission of carnal knowledge of the victim and
consequently places on him the burden of proving the supposed relationship by
substantial evidence. To be worthy of judicial acceptance, such a defense should be
supported by documentary, testimonial or other evidence.29 In this case, however, the
appellant failed to discharge this burden. Other than his self-serving assertions, there
was no support to his claim that he and AAA were lovers. His "sweetheart defense"
cannot be given credence in the absence of corroborative proof like love notes,
mementos, pictures or tokens, that such romantic relationship really existed. Moreover,
even the testimonies of the witnesses for the defense, i.e., Francisco and Wendy,
proved that, indeed, the appellant and AAA were not lovers. Although the other defense
witness, Jacqueline, claimed that the relationship of the appellant and AAA was of
general knowledge to the community, she cannot name even a single person who knew
of such relationship. We quote the testimonies of Francisco, Wendy and Jacqueline:

Witness: FRANCISCO PORTUGAL, 30 years old, married, jobless, x x x.

246
Atty. Bargas: We are offering the testimony of this witness your Honor to prove and
establish the fact that it was almost of general knowledge within the barangay about the
relationship of the complaining witness and the [appellant] as lovers.

xxx

Q: Do you know the [appellant] in this case Armando SanAntonio, [Jr.]?cra lawlibrary

A: Yes sir.

Q: Do you also know [AAA]?cra lawlibrary

A: Yes sir.

xxx

Q: Do you know of any relationship between Armando and [AAA]?cra lawlibrary

A: None sir.30 [Emphasis supplied].

xxx

Q: Please state your name, age and other personal circumstances?cra lawlibrary

A: WENDY CILOMEN, 15 years old, single, jobless, x x x.

xxx

Q: How did you come to know [AAA]?cra lawlibrary

A: We were schoolmates.

xxx

Q: How did you come to know [appellant]?cra lawlibrary

A: When we were in Cavite, we already know each other.

xxx

247
Q: Do you know if there is any relation between [AAA] and [appellant] if you
know?

A: No, sir.

Cross Examination

Q: She never mentioned to you that [appellant] was courting her?cra lawlibrary

A: No, sir.

Q: She never mentioned to you that [appellant] was her boyfriend?cra lawlibrary

A: No, sir.

Q: Did you know if [AAA] had a boyfriend?cra lawlibrary

A: No, sir.31 [Emphasis supplied].

xxx

Witness: JACQUELINE DELA CRUZ, 23 years old, married, housewife, x x x.

xxx

Q: Did you know at all before [appellant was encarcerated (sic) now detained and facing
this trial if he was courting [AAA], is that a public knowledge in the place?cra lawlibrary

A: Yes, sir.

Q: Do you know that as a matter of fact known in the neighborhood, in the vicinity, in the
barangay?cra lawlibrary

A: Yes, sir.

Cross Examination

248
Q: Aside from [appellant], can you tell the Honorable Court at least another name, the
person who told you that [appellant] is courting [AAA]?cra lawlibrary

A: Yes, sir.

Q: Who told you?cra lawlibrary

A: Barkada nila [appellant], sir.

Q: What is the name of the barkada?cra lawlibrary

A: Hindi ko masabi ang pangalan, sir.32

Appellant also avers that the failure of the complainant to shout or make an outcry,
despite the fact the he was unarmed, belies the claim of rape.

Case law has it that the failure of the victim to shout or offer tenacious resistance
does not make voluntary the victim's submission to the criminal acts of the
accused.33 Not all rape victims can be expected to act conformably to the usual
expectations of everyone. Different and varying degrees of behavioral responses are
expected in the proximity of, or in confronting, an aberrant episode. It is well-settled that
different people react differently to a given situation or type of situation. 34 There is no
standard form of reaction for a woman, much more a minor, when facing a
shocking and horrifying experience such as a sexual assault. The workings of the
human mind placed under emotional stress are unpredictable, and people react
differently - some may shout, some may faint, and some may be shocked into
insensibility while others may openly welcome the intrusion.35 In the present case, it is
noteworthy that at the time the complainant was raped, she was only 14 years
old,36 while the appellant was already 23 years old, thus, her failure to shout could be
attributed to the shock and horror which she felt as a result of appellant's sexual assault.

Also, at the time that she was raped, appellant threatened to punch her if she will not
accede to his desire. It is settled that force or intimidation is not limited to physical force.
As long as it is present and brings the desired result, all consideration of whether it was
more or less irresistible is beside the point. The force or violence that is required in rape
cases is relative; when applied, it need not be overpowering or irresistible. That it

249
enables the offender to consummate his purpose is enough. The parties' relative age,
size and strength should be taken into account in evaluating the existence of the
element of force in the crime of rape. The degree of force which may not suffice when
the victim is an adult, may be more than enough if employed against a person of tender
age.37 Considering the age of the complainant in this case, i.e., 14 years old, she was
not in the possession and exercise of sufficient mental capacity to make an intelligent
decision of whether to submit herself to sexual intercourse that will bring dishonor to
herself and her family. At that age, the offended party was not in the right mind to
balance, with deliberation, the good or evil effect of submitting to such sexual
act.38 Hence, the appellant's simple threat of punching her if she will not give in to his
bestial desire was enough intimidation to make the complainant succumb to the will of
the appellant.

Likewise, appellant's assertion that the complainant has not been raped because the
medical examination conducted on the complainant the day after she was allegedly
raped showed no sign of any physical injury, deserves scant consideration.

It is well-settled that proof of physical injuries sustained by reason of resistance to the

sexual attacker is not an essential element of the crime of rape. It is enough to show that
the appellant did succeed in having sexual intercourse with the complainant against her
will.39 Hence, even if a man lays no hand on a woman, if by an array of physical forces
he so overpowers her mind that she fails to resist or ceases resistance because of fear
or greater harm, the consummation of the sexual act between them is rape.40Also, a
freshly broken hymen is not an essential element of rape. Even if the hymen of the victim
was still intact, the possibility of rape cannot be ruled out. The rupture of the hymen or
laceration of any part of the woman's genitalia is not indispensable to a conviction for
rape.41 In the instant case, the medical findings revealed that the hymen of the
complainant was still intact despite the sexual intercourse between the appellant and the
complainant. Nevertheless, the same does not negate the fact of rape committed by the
appellant against the complainant as Dr. Vertido clearly explained that AAA's hymen was
characterized as distensible, meaning, AAA's hymen is incapable of being ruptured even
if penetrated by the male organ.

Finally, appellant's contention that the testimony of the complainant is not credible, is
untenable.

250
Time and again, we have held that when the decision hinges on the credibility of
witnesses and their respective testimonies, the trial court's observations and conclusions
deserve great respect and are often accorded finality, unless there appears in the record
some fact or circumstance of weight which the lower court may have overlooked,
misunderstood or misappreciated and which, if properly considered, would alter the
result of the case. The trial judge enjoys the advantage of observing the witness'
deportment and manner of testifying, her "furtive glance, blush of conscious shame,
hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an
oath" - all of which are useful aids for an accurate determination of a witness' honesty
and sincerity. The trial judge, therefore, can better determine if such witnesses were
telling the truth, being in the ideal position to weigh conflicting testimonies. Unless
certain facts of substance and value were overlooked which, if considered, might affect
the result of the case, its assessment must be respected for it had the opportunity to
observe the conduct and demeanor of the witnesses while testifying and detect if they
are lying.42 The rule finds an even more stringent application where the said findings are
sustained by the Court of Appeals.43

This Court, upon examining the records of the present case, fully agrees in the findings
of both the trial court and the Court of Appeals that the testimony of the complainant is
credible. Her testimony on how she was raped by the appellant was characterized by the
trial court and affirmed by the appellate court as candid, clear and categorical. The trial
court even went on to say that during the direct and cross examination of the
complainant, there were marked expressions of embarrassment and noticeable anguish
on her face especially when she was asked to recall her painful experience in the hands
of the appellant. Likewise the act of the complainant in filing a complaint against the
appellant, few hours after the rape incident happened, can be regarded as an indication
of a truthful narration that indeed, she was raped by the appellant. It is settled that no
woman, least of all a child, would concoct a story of defloration, allow an examination of
her private parts and subject herself to public trial or ridicule if she has not, in truth, been
a victim of rape and impelled to seek justice for the wrong done to her. Testimonies of
child-victims are given full faith and credit, since when a girl says she has been raped,
she says in effect all that is necessary to show that rape was indeed committed. Youth
and immaturity are generally badges of truth and sincerity.44 It is also an accepted
doctrine that in the absence of evidence of improper motive on the part of the victim to

251
falsely testify against the accused, her testimony deserves credence.45 And in this case,
it was never shown that the complainant had an ill motive in filing a case against the
appellant other than seeking justice to what had happened to her.

Moreover, the appellant failed to overturn the credibility of the complainant's

testimony. First, the complainant testified that the appellant inserted his penis into her
vagina, meaning there was indeed a penetration.46 The appellant even admitted in his
direct examination that his organ penetrated the vagina of the complainant;47 however,
during his cross-examination he claimed that he was not able to insert his penis into the
vagina of the complainant because Ana barged in.48 Second, the complainant had
proven during trial that at the time that she was raped by the appellant she was wearing
cycling shorts49 and the same was presented in court as part of the prosecution's
evidence.50 Also, during Ana's testimony, she affirmed that on the day the complainant
was raped, the complainant was wearing shorts and not jogging pants.51 The appellant,
on the other hand, insisted that the complainant was wearing jogging pants at the time
the rape incident happened.52 Lastly, the testimony of the complainant that the appellant
was the one on top of her was corroborated by the testimony of Ana that when she
barged in she saw the appellant on top of the complainant.53 However, the appellant
averred that the complainant was the one on top of him when Ana saw them because it
was the complainant who initiated the sexual intercourse.54 But the said contention of the
appellant was belied by the defense's very own witness, Wendy. During Wendy's
testimony, she stated that when she peeped inside the house of Ana she saw the
appellant on top of the complainant.55

Given the foregoing, this Court finds no reason to deviate from the general rule that
factual findings of the trial court, more so if affirmed by the Court of Appeals, should not
be disturbed on appeal, as they are not clearly arbitrary or unfounded.

Appellant is guilty of simple rape56 which is punishable by reclusion perpetua.57

As regards the award of damages, the appellate court merely affirmed the award of the
trial court without any modification. In simple rape, the Court awards P50,000.0058 as
civil indemnity and P50,000.0059 as moral damages to the rape victim. As the award of
moral damages is separate and distinct from the civil indemnity awarded to rape victims,
the moral damages cannot take the place of the civil indemnity, which is actually in the

252
nature of actual or compensatory damages, and is mandatory upon the finding of the
fact of rape.60 Hence, this Court also awards an additional amount of P50,000.00, as civil
indemnity, to the complainant, apart from the P50,000.00 moral damages already
awarded by the lower courts.

It is also proper for the appellate court to require the appellant to support 61 the child,
CCC, born from the appellant's act committed against the complainant.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R.

CR-H.C. No. 01212 finding herein appellant Armando San Antonio, Jr., GUILTY beyond
reasonable doubt of the crime of rape committed against AAA is hereby AFFIRMED with
the MODIFICATION that the complainant is also granted civil indemnity in the amount
of P50,000.00, in addition to P50,000.00 granted by the lower courts as moral damages.
Costs against appellant.

SO ORDERED.

Ynares-Santiago, J., Chairperson, Austria-Martinez, Nachura, Reyes, JJ., concur.

Endnotes:

1
Penned by Associate Justice Andres B. Reyes, Jr. with Associate Justices Hakim S.
Abdulwahid and Mariflor P. Punzalan-Castillo, concurring; rollo, pp. 3-14.

2
Penned by Judge Sixto Marella, Jr., CA rollo, pp. 30-48.

3
This is pursuant to the ruling of this Court in the case of People of the Philippines v.
Cabalquinto, G.R. No. 167693, 12 September 2006, wherein this Court has resolved to
withhold the real name of the victim-survivor and to use fictitious initials instead to
represent her in its decisions. Likewise, the personal circumstances of the victims-
survivors or any other information tending to establish or compromise their identities, as
well as those of their immediate family or household members, shall not be disclosed.
The names of such victims, and of their immediate family members other than the

253
accused, shall appear as "AAA," "BBB," "CCC," and so on. Addresses shall appear as
"xxx" as in "No. xxx Street, xxx District, City of xxx."

The Supreme Court took note of the legal mandate on the utmost confidentiality of
proceedings involving violence against women and children set forth in Sec. 29 of
Republic Act No. 7610, otherwise known as, Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act; Sec. 44 of Republic Act No. 9262, otherwise
known as, Anti-Violence Against Women and Their Children Act of 2004; and Sec. 40 of
A.M. No. 04-10-11-SC, known as, Rule on Violence Against Women and Their
Children effective November 15, 2004.

4
CA rollo, p. 9.

5
Records, p. 5.

6
This is also the address of the victim, AAA.

7
TSN, 24 February 1998, p. 7.

8
Id. at 8.

9
TSN, 2 April 1998, p. 2.

10
Records, p. 6.

11
Id.

12
TSN, 17 August 1998, p. 35-38.

13
TSN, 10 August 1998, pp. 8-13, 26.

14
Id. at 30.

15
TSN, 28 September 1998, p. 13.

16
Records, pp. 114-116.

17
Id. at 112.

254
18
TSN, 24 August 1998, pp. 6-8.

19
Records, p. 113.

20
Otherwise known as, "The Anti-Rape Law of 1997."

21
CA rollo, pp. 40-41, 48.

22
Id. at 107.

23
G.R. NOS. 147678-87, 7 July 2004, 433 SCRA 640.

24
CA rollo, pp. 196-197.

25
People v. Malones, G.R. NOS. 124388-90, 11 March 2004, 425 SCRA 318, 329.

26
People v. Lou, 464 Phil. 413, 421 (2004).

27
People v. Rapisora, G.R. No. 147855, 28 May 2004, 430 SCRA 237, 259.

28
People v. Bautista, G.R. No. 140278, 3 June 2004, 430 SCRA 469, 490.

29
People v. Antonio, G.R. No. 157269, 3 June 2004, 430 SCRA 619, 626.

30
TSN, 10 August 1998, pp. 2-3.

31
TSN, 28 September 1998, pp. 2, 4-5, 44.

32
TSN, 17 August 1998, pp. 17, 27, 34.

33
People v. Capareda, G.R. No. 128363, 27 May 2004, 429 SCRA 301, 311.

34
People v. Gonzales, G.R. No. 141599, 29 June 2004, 433 SCRA 102, 115.

35
People v. Antonio, G.R. No. 157269, 3 June 2004, 430 SCRA 619, 626.

36
As proven by her Certificate of Live Birth, records p. 5.

37
People v. Antonio, supra note 35 at 624-625.

255
38
Id. at 625.

39
People v. Lucban, 379 Phil. 325, 333 (2000).

40
People v. Cabuntog, 420 Phil. 137, 151-152 (2001).

41
People v. Dimacuha, 467 Phil. 342, 350 (2004).

42
People v. Belga, 402 Phil. 734, 742-743 (2001).

43
People v. Cabugatan, G.R. No. 172019, 12 February 2007, 515 SCRA 537, 547.

44
People v. Dimacuha, supra note 41 at 349.

45
People v. Managbanag, 423 Phil. 97, 110 (2001).

46
TSN, 12 February 1998, pp. 7-8.

47
TSN, 10 August 1998, pp. 13-14.

48
Id. at 30.

49
TSN, 12 February 1998, p. 6.

50
Records, p. 67; TSN, 2 April 1998, p. 6.

51
TSN, 4 May 1998, p. 21.

52
TSN, 10 August 1998, pp. 13-14.

53
TSN, 4 May 1998, pp. 6-7.

54
TSN, 10 August 1998, p. 13.

55
TSN, 28 September 1998, pp. 10-13.

56
ART. 266-A. Rape: When and How Committed.-Rape is committed:

256
1) By a man who have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

x x x. (Revised Penal Code).

57
ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceeding article shall
be punished by reclusion perpetua. (Revised Penal Code).

58
People v. Biong, 450 Phil. 432, 448 (2003); People v. Invencion, 446 Phil. 775, 792
(2003).

59
People v. Pagsanjan, 442 Phil. 667, 687 (2002).

60
People v. Tuada, 419 Phil. 835, 844 (2001).

61
ART. 345. Civil liability of persons guilty of crimes against chastity.-Persons guilty of
rape, seduction or abduction, shall also be sentenced:

1. To indemnify the offended woman.

2. To acknowledge the offspring, unless the law should prevent him from so doing.

3. In every case to support the offspring.

x x x. (Revised Penal Code).

257
 G.R. NO. 173551 : October 4, 2007]

ARNALDO MENDOZA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CHICO-NAZARIO, J.:

For review is the Decision1 and Resolution2 dated 30 November 2005 and 5 July 2006,
respectively, of the Court of Appeals in CA-G.R. CR-H.C. No. 00446, affirming with
modification the Decision3 and Order4of the Lipa City Regional Trial Court (RTC), Branch
12, dated 20 October 2004 and 24 November 2004, respectively, in Criminal Case No.
0582-98 convicting petitioner Arnaldo Mendoza of the crime of murder, and imposing
upon him the supreme penalty of death plus civil indemnity, actual, moral and exemplary
damages.

On 6 October 1998, petitioner and his relatives by affinity, namely, Manolito Gonzales
(Manolito), Glenn Gonzales (Glenn) and Ruperto de Villa (Ruperto), were indicted in an
Information5 for murder, allegedly committed as follows:

That on or about the 1st day of September, 1998, at about 1:30 o'clock in the afternoon,
at Barangay Lumanglipa, Municipality of Mataasnakahoy, Province of Batangas,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, armed with unlicensed short firearms and M-16 rifle, conspiring and
confederating together, acting in common accord and mutually helping one another, with
intent to kill, with treachery, evident premeditation and grave abuse of superior strength
and without any justifiable cause, did then and there willfully, unlawfully and feloniously
attack, assault and shoot with the said firearms suddenly and without warning one
Ernesto Velasquez y Ciruelas, thereby inflicting upon the latter gunshot wounds on the
different parts of his body, which directly caused his death.

After evading arrest for around four years, petitioner surrendered to the authorities, while
his co-accused Manolito, Glenn and Ruperto remained at large. When arraigned on 14
August 2002, petitioner, with the assistance of counsel de parte, pleaded "Not Guilty" to
the charge.6 Thereafter, trial on the merits ensued.

258
Gathered from the records are the following facts:

Petitioner is Manolito's brother-in-law, while the latter is Glenn's father. Ruperto is

Manolito's cousin.7

On 31 August 1998, at about 5:00 in the afternoon, the victim, Ernesto C. Velasquez
(Ernesto), and his friends were drinking and singing outside the house of Ernesto's
parents at Barangay Lumanglipa, Mataasnakahoy, Batangas when a gunshot rang out.
Ernesto ran towards the road in front of his parent's house and saw Glenn driving a
jeepney loaded with several passengers and heading towards the southern direction.
Minutes later, Glenn, who was driving alone this time and heading towards the northern
direction, passed again in front of the house of Ernesto's parents. Ernesto flagged down
and asked Glenn who had fired a gunshot earlier in front of his parent's house. Glenn
responded, "Wala ka nang pakialam kung sino ang nagpaputok!" Irked, Ernesto pushed
Glenn's left chin with his palm and told the latter "Umalis ka na, bastos ka!" When Glenn
was about to leave, he threatened Ernesto, "Humanda ka, babalikan ka namin,
papatayin ka namin!"8

On 1 September 1998, at around 8:00 in the morning, petitioner, Glenn, Manolito and
Ruperto boarded a red Nissan Sentra Super Saloon car with plate number UBU-674 and
traversed the southern road of Barangay Lumanglipa, Mataasnakahoy, Batangas.
Petitioner drove the car.9

At about 9:30 in the morning of 1 September 1998, petitioner, Glenn, Manolito and
Ruperto, on board the same car, arrived at the house of Ernesto's parents at Barangay
Lumanglipa, Mataasnakahoy, Batangas. Petitioner and Ruperto went out of the car and
inquired from Ernesto's wife, Vida Velasquez (Mrs. Velasquez), the whereabouts of
Ernesto. Mrs. Velasquez replied that Ernesto was in Mataasnakahoy. Thereafter,
petitioner, Glenn, Manolito and Ruperto left and proceeded to the direction of
Mataasnakahoy.10

At 1:30 in the afternoon of 1 September 1998, petitioner, Glenn, Manolito and Ruperto
reached Mataasnakahoy and parked the car near a chapel. Petitioner went out of the car
while Glenn, Manolito and Ruperto remained inside. Petitioner then walked towards a
group of persons, among them Ernesto, who were playing a card game called tong-its

259
near the chapel. Petitioner approached Ernesto and asked, "Ikaw ba si Ernesto
Velasquez?" Ernesto answered, "Ako nga po." Petitioner asked him again, "Ay bakit
ganoon, bakit mo sinampal agad si Glenn Gonzales?" Ernesto retorted, "Hindi ko
sinampal, nilamas ko lamang ang bibig dahil masama ang nalabas sa bibig niya."
Subsequently, petitioner called Glenn, who was inside the car. When Glenn alighted,
petitioner told Glenn, "Yon pala namay nilamas lamang ang bibig mo ay anong desisyon
mo?" Without saying a word, Glenn drew a short firearm, approached Ernesto frontally
and shot the latter who was sitting at that moment. Ernesto stood up and tried to run, but
he fell towards the ground. Glenn fired more shots at Ernesto, who was lying on the
ground. Petitioner also drew a short firearm and shot Ernesto once. When petitioner and
Glenn were about to board the car, petitioner noticed that Ernesto was still alive. Thus,
petitioner told Manolito and Ruperto who were at the backseat of the car, "Pare, buhay
pa ito, gamitin mo yung mahaba." Ruperto then handed an M-16 armalite to Manolito.
The latter took the armalite and moved to the driver's seat. Thereupon, Manolito shot
Ernesto with the armalite. Ruperto also shot Ernesto with a short firearm. When
petitioner was about to board the car, he brandished his short firearm and shouted, "Sino
pa sa inyo?" Thereafter, petitioner, Glenn, Manolito and Ruperto left the crime scene on
board the car. Subsequently, several persons brought Ernesto to the hospital where he
was pronounced dead on arrival.11

Petitioner denied any involvement in the killing of Ernesto. He alleged that on 1

September 1998, at about 9:30 in the morning, Manolito and Glenn arrived at his house
at Barangay II, Mataasnakahoy, Batangas. Manolito and Glenn told him that they will
hitch a ride with him in going to Barangay Lumanglipa since petitioner will also go to the
said place with his car to buy tilapia from his mother-in-law for the birthday of his son on
the next day, September 2.12 While on their way to Barangay Lumanglipa, Manolito and
Glenn asked him if they can pass by the house of Ernesto's parents. He agreed.
However, upon reaching Barangay Lumanglipa, Manolito and Glenn changed their
minds and instead requested him to proceed to the barangay hall of Lumanglipa. While
traversing the road leading to the barangay hall, they saw Ruperto in a nearby chapel.
Manolito and Glenn told him to stop the car and wait for them. Manolito and Glenn
alighted from the car and talked with Ruperto. Petitioner drove the car a little farther and
parked it beside the road.13

260
Later, he went out of the car and decided to go to the house of "Pareng Digo." But
before he could go farther, he heard gunshots and saw some persons scampering. He
went back inside the car and started the engine. When he maneuvered the car towards
the road back to Barangay II, Mataasnakahoy, Manolito, Glenn and Ruperto suddenly
appeared and boarded the car. The three, who were nervous and jittery, told him to
speed up the car. He then asked them, "Bakit, bakit ano bang nangyari?" One of the
three whom he could no longer recall told him, "Basta idiretso mo at saka na kami
magpapaliwanag sayo" After traveling for a few minutes, one of the three whom he could
not also remember directed him to pull over on the side of the road because they will just
talk to somebody. He told the three that he will go ahead and that he was leaving the car
to them. He immediately went out of the car and boarded a jeepney bound for Lipa City.
Upon seeing a telephone booth along the way, he alighted from the jeepney, entered the
telephone booth and called his house at Barangay II, Mataasnakahoy. A person, whom
he again failed to recall, answered his call and instructed him to proceed to his
house/residence at Sta. Cruz, Manila.14

Subsequently, he boarded a bus bound for Manila. Upon reaching his house/residence
at Sta. Cruz, Manila, he slept. When he woke up the next morning, his wife told him that
he was implicated in the murder of Ernesto.15

After trial, the RTC rendered a Decision dated 13 October 2004 finding petitioner guilty
beyond reasonable doubt of the crime of murder. Thus:

WHEREFORE, the Court finds the accused, ARNALDO MENDOZA, guilty beyond
reasonable doubt, as co-principal by direct participation, of the crime of murder, as
defined and penalized under Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659, with one (1) aggravating circumstance, and sentences him to
suffer the penalty of DEATH.

Arnaldo Mendoza is also ordered to pay the heirs of Ernesto Velasquez the sums
of P50,000.00, as indemnification for his death, P35,000.00, as actual
damages, P100,000.00 as moral damages and P50,000.00 as exemplary damages and
to pay his proportionate share of the costs. For insufficiency and unreliability of the
evidence of loss of earning capacity, no award for the same is made.16

261
Petitioner filed a Motion for Reconsideration dated 25 October 2004,17 and a
Supplemental Motion for Reconsideration18 dated 8 November 2004 which were denied
by the RTC in its Order dated 24 November 2004.

Undaunted, petitioner appealed to the Court of Appeals. On 30 November 2005, the

appellate court promulgated its Decision affirming with modification the RTC decision.
The modification pertains only to the amount of moral and exemplary damages. The
appellate court decreed:

WHEREFORE, the decision of the Regional Trial Court of Lipa City, finding accused-
appellant ARNALDO MENDOZA GUILTY beyond reasonable doubt of murder and
sentencing him to suffer the supreme penalty of death is hereby AFFIRMED. With
regard to the civil aspect of the case, except with respect to the civil indemnity and
actual damages, same is MODIFIED to read as follows: Appellant is hereby ordered to
pay the heirs of the victim the amount of P50,000.00 as moral damages and P25,000.00
as exemplary damages.

However, pursuant to Section 13, Rule 124 of the Amended Rules to Govern Review of
Death Penalty Cases, We refrain from entering judgment and, instead, forthwith certify
the case and elevate its entire record to the Supreme Court for further review. 19

Petitioner filed a Motion for Reconsideration dated 3 January 200620 but was denied by
the appellate court in its Resolution dated 5 July 2006.

Before us, petitioner assigns in his Petition,21 Supplemental Petition for Review22 and
Supplemental Brief 23 the following errors:

I.

THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN

HOLDING THAT THE TESTIMONIES OF THE PROSECUTION WITNESSES ARE
CREDIBLE.

II.

262
THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
HOLDING THAT CONSPIRACY EXISTS AND THAT AGGRAVATING
CIRCUMSTANCES OF EVIDENT PREMEDITATION AND ABUSE OF SUPERIOR
STRENGTH ATTENDED THE KILLING OF THE VICTIM.

III.

THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN

HOLDING THAT ACCUSED IS NOT ENTITLED TO THE MITIGATING
CIRCUMSTANCE OF VOLUNTARY SURRENDER.

IV.

THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN

DISREGARDING THE FACT THAT THE TRIAL JUDGE TOTALLY DENIED ACCUSED-
APPELLANT OF HIS DAY IN COURT.

Anent the first issue, petitioner maintains that the prosecution failed to establish the true
identity of the person who shot to death Ernesto; that the prosecution's alleged
eyewitness Dante Ciruelas (Ciruelas) did not mention in his affidavit that he saw
petitioner shoot Ernesto after the latter was shot by Glenn, whereas during the trial,
Ciruelas testified that he saw petitioner shoot Ernesto right after Glenn shot Ernesto; that
such is a material and substantial inconsistency which adversely affects the credibility of
Ciruelas as an eyewitness; and that Ciruelas's testimony was not corroborated by other
prosecution witnesses.24

Petitioner also asserts that there is a material discrepancy between the testimonies of
Ciruelas and the doctor who autopsied the body of Ernesto, namely, Dr. Antonio S.
Vertido (Dr. Vertido). According to petitioner, Ciruelas testified that during the incident,
Glenn positioned himself at a distance of one meter in front of Ernesto, who was then
seated on a chair and playing tongits, and shot the latter for the first time. Thus, if
Ernesto was sitting and facing Glenn at the time he was allegedly shot by the latter, the
bullet that hit Ernesto should have been located somewhere in his chest or in any upper
portion of his body and that the gunshot wound should have a point of entry somewhere
in the anterior or front portion of Ernesto's body and not at his back or in the posterior
portion of his body. On the contrary, Dr. Vertido testified that, except for the gunshot

263
wound in the right thigh of Ernesto, the entry points of the three other gunshot wounds
were located at Ernesto's back or in the posterior part thereby indicating that the
assailant was at Ernesto's back at the time the latter was shot.25

Petitioner further avers that Dr. Vertido's testimony that the three gunshot wounds
sustained by Ernesto were caused by an armalite bullet and that the fourth gunshot
wound was caused by a .22 caliber bullet is very inconsistent with his other statement
that all of the four gunshot wounds sustained by Ernesto have the same diameter; that
no bullets and empty shells from the armalite allegedly used by Manolito were found in
the body of Ernesto and in the crime scene; and that the deformed slug and empty shells
presented by the prosecution were not subjected to ballistic examination.26

As testimonial evidence, the prosecution presented the following witnesses, namely:

Reynaldo Velasquez (Reynaldo), Ciruelas, Maximino Guiterrez (Gutierrez), SPO1
Dominador Castillo (SPO1 Castillo), Dr. Vertido, Police Chief Inspector Ruben S. Castillo
(Police Chief Castillo) and Mrs. Marquez.

Reynaldo, brother of Ernesto and a resident of Barangay Lumanglipa, Mataasnakahoy,

Batangas, testified that he knows petitioner because petitioner and the latter's wife are
natives of Barangay Lumanglipa, Mataasnakahoy, Batangas. He also knows Glenn,
Manolito and Ruperto because they are all residents also of Barangay Lumanglipa,
Mataasnakahoy, Batangas. He narrated that on 31 August 1998, at about 5:00 in the
afternoon, he was with Ernesto and the latter's friends outside their parent's house
located at Barangay Lumanglipa, Mataasnakahoy, Batangas. Ernesto and the latter's
friends were then drinking and singing when a gunshot rang out. He immediately looked
on the road opposite his parent's house and saw Glenn driving a jeepney filled with
passengers and was traveling on the southern direction leading to the Poblacion of
Mataasnakahoy, Batangas. At about 7:00 in the evening, he was buying cigarettes in a
nearby store when he saw Glenn, who was driving alone on the northern direction, pass
by in front of his parent's house. At a distance of two meters, he saw Ernesto flag down
Glenn. When Glenn pulled over on the side of the road, Ernesto approached the former
and inquired as to who fired a gunshot when he and his visitors passed in front of his
parent's house in going to the Poblacion. Glenn replied "Wala ka nang pakialam kung
sino ang nagpaputok!" Irked, Ernesto pushed Glenn's left chin with his palm and told the
latter, "Umalis ka na, bastos ka!" When Glenn was about to leave, he threatened

264
Ernesto, "Humanda ka, babalikan ka namin, papatayin ka namin!" Thereafter, Glenn
sped away while he led Ernesto to his own house, which is adjacent to the house of their
parents.

The next day, 1 September 1998, at around 8:00 in the morning, he drove his own
jeepney and went to the Poblacion. On the way, he saw, on the southern part of
Barangay Lumanglipa, petitioner, Glenn, Manolito and Ruperto on board a maroon
Nissan Sentra Super Saloon with plate number UBU-674. Petitioner was the one driving.
He nodded at petitioner, but the latter just looked at him and ignored him. Since then, he
did not see petitioner, Glenn, Manolito and Ruperto again.27

Ciruelas, uncle of Ernesto and a resident of Barangay Lumanglipa, Mataasnakahoy,

Batangas, testified that he knows petitioner because the latter's wife was his former
classmate and that he also knows Glenn, Manolito and Ruperto for they are all residents
of Barangay Lumanglipa, Mataasnakahoy, Batangas. He declared that on 1 September
1998, at about 1:00 in the afternoon, he was with a group of persons playing tongits in a
table near a road which was four meters away from a chapel at Barangay Lumanglipa,
Mataasnakahoy, Batangas. Among the persons present were Ernesto, and certain
individuals, namely, Menandro Ariola (Ariola), German Ciruelas (German), Ruel Umali
(Ruel) and Petillano Umali (Petillano). Only German, Ruel and Ariola were
playing tongits then, while he, Ernesto, Petillano and some unidentified persons were
merely kibitzers or onlookers. At about 1:15 in the afternoon, Ernesto substituted Ariola
as one of the tongits players. At around 1:30 in the afternoon, while watching Ernesto
and his companions play tongits, he noticed a maroon Nissan Sentra Super Saloon with
plate number UBU-674 approach their place/position. He saw petitioner driving the said
car with Manolito, Glenn and Ruperto on board as passengers. Petitioner parked the car
at a distance of three meters from the table where Ernesto, German and Ruel were
playing tongits. Petitioner went out of the car and approached Ernesto who was then
seated and playing tongits. He was then one meter away from the position of Ernesto.
Petitioner asked Ernesto, "Ikaw ba si Ernesto Velasquez?" Ernesto answered, "Ako nga
po." Petitioner asked again, "Ay bakit ganon, bakit mo sinampal agad si Glenn?" Ernesto
replied "Hindi ko po sinampal." Petitioner once more asked, "Bakit mo sinampal agad si
Glenn Gonzales?" Ernesto responded, "Hindi ko sinampal, nilamas ko lamang ang bibig
dahil masama ang nalabas sa bibig niya." Petitioner went back to the car and called
Glenn who was inside the car. When Glenn alighted from the car, petitioner told the

265
former, "Yon pala namay nilamas lamang ang bibig mo ay anong desisyon mo?" Without
saying a word, Glenn drew a short firearm and upon cocking it, a bullet ejected
therefrom. Glenn went in front of Ernesto who was then seated and playing tongits, and
shot the latter once. Stunned, he took cover nearby but did not entirely leave the scene,
while the rest of the players and onlookers scampered to different directions and hid. He
saw Ernesto stand up and try to run but the latter fell with his right face hitting the
ground.

Glenn fired more shots at Ernesto, while the latter was lying on the ground. Thereafter,
at a distance of more or less two meters from petitioner, Glenn saw petitioner shoot
Ernesto once with a short firearm. When petitioner was about to board the car, he
noticed that Ernesto was still breathing. Petitioner then informed Glenn, Manolito and
Ruperto that Ernesto was still alive. Within a distance of more or less four meters, Glenn
saw Ruperto, who was then at the backseat of the car, take an armalite and give it to
Manolito who was then seated beside the driver's seat. Manolito took the armalite, sat in
the driver's seat, and shot Ernesto several times with the armalite. Ruperto, who was in
the backseat of the car, also drew a short firearm and shot Ernesto. Petitioner then
looked around and shouted, "Sino pa sa inyo?" Subsequently, petitioner boarded the car
while Manolito sat beside him and Glenn moved to the backseat. Petitioner drove the car
and proceeded to the direction of the town proper. Afterwards, he and several others
immediately approached Ernesto and loaded the latter into a jeepney. They brought
Ernesto to Dr. Faller Hospital where he was pronounced dead.28

Gutierrez, Barangay Captain of Barangay Lumanglipa, Mataasnakahoy, Batangas from

1998 up to 2002, testified that he knows petitioner, Glenn, Manolito, Ruperto and their
respective families because they are all natives/residents of Barangay Lumanglipa,
Mataasnakahoy, Batangas. He told the court that on 1 September 1998, at around 1:30
in the afternoon, while fixing the engine of his motor banca at the lakeshore of Barangay
Lumanglipa, Mataasnakahoy, Batangas, which is about thirty meters away from his
house, he heard gunshots coming from the place near his house. He went to his house
to verify the gunshots. When he was about twelve meters away from reaching his house,
he took cover beside a sari-sari store owned by a certain Armenio Ciruelas. He saw
petitioner, Glenn and Ruperto holding pistols while Manolito was holding an armalite.
They were four meters away in front of his house. Petitioner and Glenn were standing
beside a maroon Nissan Sentra Super Saloon with plate number UBU-674, while

266
Manolito and Glenn were seated at the backseat of the car. Thereafter, he heard
petitioner say, "Pare, buhay pa ito, gamitin mo yung mahaba." Manolito then opened the
window of the car, placed the barrel of an armalite outside the window, and fired the
armalite several times. He did not see the person to whom the shots were directed
because his view was blocked by the car. He saw Ciruelas hiding beside the post of a
nearby chapel while also watching the incident.

Later, he heard petitioner utter, "Sino pa sa inyo?" Petitioner, Glenn, Manolito and
Ruperto thereafter left the scene. He then approached the bloodied Ernesto who was
sprawled on the ground in front of his house. He and several persons brought Ernesto to
Dr. Faller Hospital. Since Ernesto was already pronounced dead, he and some
companions brought Ernesto's body to the Mataasnakahoy Police Station to report the
incident. Upon the advice of Police Chief Castillo, he instructed Ciruelas to bring
Ernesto's body to San Jose, Batangas for autopsy.29

SPO1 Castillo, a member of the Philippine National Police since 1985, testified that in
September 1998, he was assigned at the Police Station of Mataasnakahoy, Batangas.
On 1 September 1998, he reported for work as duty investigator from 8:00 in the
morning of that day up to 8:00 in the morning of the following day. On the said date, at
about 2:30 in the afternoon, he, Police Chief Castillo and other colleagues were in the
Police Station of Mataasnakahoy, Batangas, when German reported a shooting incident
at Barangay Lumanglipa, Mataasnakahoy, Batangas. German told him that the
perpetrators were on board a maroon Nissan Sentra Super Saloon with plate number
UBU-674. He and some colleagues alerted and requested the nearby police stations of
Lipa City, Malvar, Balete, Tanauan City, Cuenca and San Jose to block the route of the
said vehicle and apprehend its occupants. After being informed that the victim was in the
hospital and was already dead, he, Police Chief Castillo and some colleagues went to
the crime scene and conducted an investigation. Upon arriving at the crime scene, they
saw a plastic table and three chairs in disarray, and some blood stains near the table.
They also found four empty shells of Super Caliber .38, one live ammunition of Super
Caliber .38 and one deformed slug of Super Caliber .38. These were recovered two
meters away from the table. He interviewed Gutierrez and other persons who witnessed
the incident. Subsequently, he prepared a sketch of the crime scene and placed, as
markings, three parallel lines on the said empty shells and three parallel curving on the
live ammunition. He assured the court that the empty shells and live ammunition

267
recovered from the crime scene came from a Super Caliber .38 because it was indicated
on the shells themselves.

SPO1 Castillo personally prepared the criminal complaint and listed as one of the
exhibits attached thereto one empty shell of an M-16 armalite rifle since this was
recovered by Police Chief Ruben Castillo from a maroon Nissan Sentra Super Saloon
with plate number UBU-674. On 2 September 1998, he was then off-duty when Police
Chief Castillo called and told him that the car which fits the description of the car
allegedly used by the assailants during the incident was found abandoned in Barangay
Magape, Balete, Batangas. Police Chief Castillo proceeded to the said place, towed the
car and brought it to the police station of Barangay Lumanglipa, Mataasnakahoy,
Batangas. When he reported for duty on 3 September 1998, he saw the car in front of
the police station, and Police Chief Castillo handed him an empty shell of an M-16
armalite rifle recovered from the same car. He then placed his marking "DCC" on the
surface of the empty shell and searched the car. He did not find anything else so he just
took a picture of it. Thereafter, he took the statements of Gutierrez, Ariola and Ciruelas. 30

Dr. Vertido, Medico-Legal Officer of the National Bureau of Investigation, Batangas

Regional Office, testified that he conducted an autopsy on the body of Ernesto on the
evening of 1 September 1998. His findings are as follows:

POST MORTEM FINDINGS

Pallor, lips and nailbeds.

Abrasions, anterior chest wall, midline, 6.5 x 2.5 cm., hand, left, dorso-lateral aspect, 0.5
x 0.5 cm.

Grazing wounds, anterior chest wall, left, 12.0 x 6.0 cm., mammary area, left, 5.0 x 1.0
cm.

GUNSHOT WOUNDS:

I ENTRANCE, 0.5 x 0.6 cm., ovaloid, edges inverted, located at the back, left side, 8.5
cm. form the posterior median line, 110.0 cm. above the left heel, directed forward,
upward and laterally, involving the skin and underlying soft tissues, blasting lower lobe of

268
the left lung and making an EXIT wound, 1.0 x 1.5 cm., ovaloid, edges everted, located
at the left anterior chest wall, 17.0 cm. from the posterior median line, 116.5 cm. above
the left heel.

II ENTRANCE, 0.5 x 0.6 cm., ovaloid, edges inverted, located at the left lumbar area,
4.5. cm. from the posterior median line, 104.0 cm. above the left heel, directed forward,
upward and from left to right, involving the skin and soft tissues, perforating omentum,
intestine, blasting liver, diaphragm and lower lobe of the left lung, then finally making an
EXIT wound, 1.0 x 1.2 cm., ovaloid, edges everted, located at the right antero-lateral
chest wall, 20.0 cm. from the anterior median line, 116.0 cm. above the left heel.

III ENTRANCE, 0.5 x 0.7 cm., ovaloid, edges inverted, located at the left arm, posterior
aspect, middle third, 10.0 cm. above the left elbow, directed forward, and downwards,
involving the skin and soft tissues, fracturing the left humerus, middle third, severing the
corresponding blood vessels then making an EXIT, 17.0 x 14.0 cm. irregular, located at
the middle and lower third of the left arm, 5.0 cm. above the left elbow.

IV. ENTRANCE, 0.5 x 0.6 cm., ovaloid, edges inverted, located at the right thigh,
anterior aspect, upper third, 33.0 cm. above the right knee, directed backwards, upwards
and medially, involving the skin and underlying soft tissues, grazing the right femur,
cutting the right femoral artery and making an EXIT at the anal opening.

CAUSE OF DEATH: Hemorrgage, severe, secondary to Gunshot wounds.31

He also found during the autopsy that Ernesto's brain was pale implying severe blood
loss. He concluded then that Ernesto's death was caused by hemorrhage secondary to
gunshot wounds. He reduced his findings in writing and issued the corresponding Death
Certificate32 of Ernesto.

The prosecution dispensed with the testimony of Police Chief Castillo when petitioner,
through counsel, admitted that he was the one who recovered one empty shell of an M-
16 armalite rifle under the seat of the maroon Nissan Sentra Super Saloon with plate
number UBU-674 which was found abandoned in Barangay Magape, Balete,
Batangas.33

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Mrs. Velasquez, wife of Ernesto, testified that on 1 September 1998, at about 9:30 in
the morning, she was at the main door of her parents-in-law's house at Barangay
Lumanglipa, Mataasnakahoy, Batangas, when Ruperto and petitioner approached her.
Ruperto was wearing a camouflage jacket while petitioner was clad in a black jacket.
Both had something bulging at their backs. Petitioner and Ruperto had two companions,
whom she recognized as Glenn and Manolito, seated inside a maroon Nissan Sentra
Super Saloon with plate number UBU-674. Petitioner asked her about Ernesto's father,
"Nasaan si Ka Piko?" She replied that her father-in-law was in Manila. Petitioner then
inquired, "Nasan yung anak ni Ka Piko, si Ernesto?" She said that Ernesto was in
Mataasnakahoy, Batangas. Ruperto asked when will Ernesto come home. She said she
does not know. Afterwards, petitioner and Ruperto went back inside the car and
proceeded to the direction of Mataasnakahoy, Batangas. Later that afternoon, she
learned that Ernesto was shot near the barangay chapel and was already dead.

The prosecution also presented documentary and object evidence to buttress the
foregoing testimonies of the prosecution witnesses, to wit: (1) sworn statement of
Ciruelas;34 (2) sworn statement of Ariola;35(3) pictures of the maroon Nissan Sentra
Super Saloon with plate number UBU-674;36 (4) sworn statement of Gutierrez;37 (5)
sworn statement of Mrs. Velasquez;38 (6) one live ammunition of Super Caliber .38;39 (7)
four empty shells of Super Caliber .38;40 (8) one deformed slug of Super Caliber
.38;41 (9) one empty shell of an M-16 armalite rifle;42 (10) sketch of the crime scene
drawn and prepared by SPO1 Castillo;43 (11) certification issued by the Chief of the
Firearms and Explosives Division of the Philippine National Police, Camp Crame
verifying, among other things, that petitioner was a licensed/registered holder of a Pistol
Colt Caliber .38, and that the license was issued on 15 June 1995 and expired on
November 1997 and has not been renewed since then;44 (12) letter-request for autopsy
dated 2 September 1998;45 (13) certification identifying the body of Ernesto signed by
the sister of Ernesto and Dr. Vertido;46 (14) findings/autopsy report on the body of
Ernesto signed by Dr. Vertido;47(15) anatomical sketch indicating the wounds mentioned
in the autopsy report of Dr. Vertido;48 (16) death certificate of Ernesto issued and signed
by Dr. Vertido;49 (17) lists of expenses and receipts for the funeral, coffin, autopsy and
food during the burial of Ernesto;50 and (18) overseas employment certificate of
Ernesto.51

For its part, the defense presented Ariola and petitioner as its witnesses.

270
Ariola was introduced by the defense as an adverse witness to repudiate prosecution's
theory that petitioner was allegedly outside the car when the latter shot Ernesto. He
testified that he executed a sworn statement dated 3 September 1998 regarding the
incident. Paragraph 12 of the said statement reads:

T - Ang sabi mo ay malapit ka lamang ng maganap ang pagbaril kay Ernesto, saan
naman siya tinamaan, maari mo bang isalaysay?cra lawlibrary

S - Ang una pong bumaril ay si Glenn Gonzales at tinamaan sa katawan itong si Ernesto
kaya ako po ay tumakbong palayo pero kita ko pa po ng barilin ulit siya nitong si Glenn
hanggang sa tumumba itong si Ernesto at nang nakatumba na siya ay doon siya
pinagbabaril ng mga nasa kotse na sina Manolito Gonzales, Ruperto de Villa at si "Boy"
Arnaldo Mendoza.52

He confirmed before the court such statement and maintained that petitioner was inside
the car with Manolito and Ruperto when petitioner shot Ernesto during the incident.53

Petitioner, a businessman residing at Cavite Street, Santa Cruz, Manila, testified that on
1 September 1998, at about 9:30 in the morning, Manolito and Glenn arrived in his
house at Barangay II, Mataasnakahoy, Batangas. Manolito and Glenn told him that they
will hitch a ride with him in going to Barangay Lumanglipa since he will also go to the
said place with his car to buy tilapia from his mother-in-law for the birthday of his son on
the following day. While on their way to Barangay Lumanglipa, Manolito and Glenn
asked him if they can pass by the house of Ernesto's parents. He agreed. However,
upon reaching Barangay Lumanglipa, Manolito and Glenn changed their minds and
instead requested him to proceed to the barangay hall of Lumanglipa. While traveling the
road leading to the barangay hall, they saw Ruperto in a nearby chapel. Manolito and
Glenn told him to stop the car and wait for them. Manolito and Glenn alighted from the
car and talked with Ruperto. He drove the car a little farther and parked it beside the
road. Later, he went out of the car and decided to go to the house of "Pareng Digo." But
before he could go farther, he heard gunshots and saw some persons scampering. He
went back inside the car and started the engine. When he maneuvered the car towards
the road leading to Barangay II, Matasnakahoy, Manolito, Glenn and Ruperto suddenly
appeared and boarded the car. The three, who appeared nervous and jittery, told him to
speed up the car. He then asked them, "Bakit, bakit ano bang nangyari?" One of the

271
three whom he could no longer recall told him, "Basta idiretso mo at saka na kami
magpapaliwanag sayo" After traveling for a few minutes, one of the three whom he could
not also remember, directed him to pull over on the side of the road because they will
just talk to somebody. He told the three that he will go ahead and that he was leaving the
car to them. He immediately got out of the car and boarded a jeepney bound for Lipa
City. Upon seeing a telephone booth along the way, he alighted from the jeepney,
entered the telephone booth and called his house at Barangay II, Mataasnakahoy. A
person, whom he again failed to recall, answered his call and instructed him to proceed
to his house/residence at Sta. Cruz, Manila.

Subsequently, he boarded a bus bound for Manila. Upon reaching his house/residence
at Sta. Cruz, Manila, he slept. When he woke up the next morning, his wife told him that
he was implicated in the murder of Ernesto.54

In support of the foregoing testimonies, the defense presented the respective sworn
statements of Ariola and petitioner55 as its documentary evidence.

Prosecution witness Ciruelas clearly stated in paragraph 8 of his Affidavit dated 2

September 1998 that Ernesto was shot first by Glenn followed by petitioner:

08 - T : Sino naman ang unang bumaril dito kay Ernesto Velasquez kung iyong
nakita?cra lawlibrary

S : Ang una pong bumaril ay si Glenn Gonzales na may armas na maigsing pistola
at sumunod na bumaril ay si Arnaldo Boy Mendoza na may armas na maigsing
pistola, na sumunod naman ay si Manoling Gonzales na may hawak na armalite at ito
namang si Ruperto de Villa ay may armas din na maigsing pistola na bumaril din kay
Ernesto Velasquez.

Ciruelas reiterated and confirmed his foregoing statement in his testimony during the
trial. Hence, contrary to petitioner's assertion, there is no omission or inconsistency in
the sworn statement and court testimony of Ciruelas as regards the said fact.

The fact that none of the other prosecution witnesses corroborated Ciruelas's testimony
that petitioner shot Ernesto is inconsequential. It should be emphasized that the

272
testimony of a single witness, if positive and credible, as in the case of Ciruelas, is
sufficient to support a conviction even in the charge of murder.56

The testimonies of Ciruelas and Dr. Vertido are substantially consistent with each other
on material points. Ciruelas testified that Glenn went in front of Ernesto, who was then
seated and playing tongits, and shot the latter once. This is compatible with Dr. Vertido's
testimony and findings that Ernesto sustained a gunshot wound in the right thigh, the
entry point of which was on the front portion of Ernesto's right thigh. Ciruelas also
testified that when Ernesto fell and lay down with his face on the ground, Glenn fired
more shots at the former, and that thereafter petitioner, Manolito and Ruperto also shot
Ernesto while the victim was lying on the ground. Again, this is in harmony with Dr.
Vertido's testimony that Ernesto also sustained gunshot wounds, the entry points of
which were on the back portion of Ernesto's body.

Although Dr. Vertido's testimony, that the three gunshot wounds sustained by Ernesto
were caused by an M-16 armalite bullets and that the other gunshot wound was
probably caused by a .22 caliber bullet, appears to be inconsistent with his other
statement that all of these four gunshot wounds have the same diameter, such is only a
minor discrepancy and cannot be automatically considered as a ground for acquittal.

It may be true that no bullets from the M-16 armalite rifle used by Manolito were found
inside Ernesto's body. It should be stressed, however, that one empty shell of an M-16
armalite rifle was recovered inside the maroon Nissa Sentra Super Saloon with plate
number UBU-674 used by petitioner, Glenn, Manolito and Ruperto before, during and
after the incident. This is once more consistent with Dr. Vertido's testimony that some of
the gunshot wounds sustained by Ernesto were caused by M-16 armalite rifle bullets. To
our mind, the conduct of ballistic examination on the deformed slug and empty shells
presented as evidence by the prosecution is not indispensable in proving the crime
charged in the face of other overwhelming evidence presented.

The foregoing testimonies are in harmony with the documentary and object evidence
submitted by the prosecution. The RTC and the Court of Appeals found the testimonies
of Ciruelas and Dr. Vertido to be candid and credible. Both courts also found no
improper motives on the part of the prosecution witnesses to testify against petitioner.

273
Likewise vital are the documentary evidence consisting of the (1) sworn statement of
Ciruelas attesting that during the incident, he saw petitioner shoot Ernesto; (2) sworn
statement of Ariola stating that during the incident, he saw petitioner shoot Ernesto; (3)
sworn statement of Gutierrez declaring that during the incident, he saw petitioner, Glenn,
Manolito and Ruperto holding firearms while Ernesto was bloodied and lying; (4) sworn
statement of Mrs. Velasquez narrating that on the day of the incident, petitioner and
Ruperto went to her house and sought Ernesto; (5) certification issued by the Chief of
the Firearms and Explosives Division of the Philippine National Police, Camp Crame
verifying, among others, that petitioner was a licensed/registered holder of a Pistol Colt
Caliber .38, and that the license was issued on 15 June 1995 and expired on November
1997 and has not been renewed since such expiration; (6) findings/autopsy report on the
body of Ernesto signed by Dr. Vertido stating that the latter died of severe hemorrhage
secondary to gunshot wounds and had also sustained grazing wounds, which, according
to the court testimony of Dr. Vertido, may have been caused by a bullet from any type of
gun or caliber; (7) anatomical sketch signed by Dr. Vertido indicating that Ernesto
sustained grazing wounds on the chest, gunshot wound in the front portion of the right
thigh, and three gunshot wounds at the upper back portion of the body; (8) death
certificate of Ernesto issued and signed by Dr. Vertido; and (9) sketch of the crime scene
drawn and prepared by SPO1 Castillo.

It is also equally important to note the object evidence comprising (1) one live
ammunition of Super Caliber .38; (2) four empty shells of Super Caliber .38; (3) one
deformed slug of Super Caliber .38; (4) one empty shell of an M-16 armalite recovered
from a maroon Nissan Sentra Super Saloon with plate number UBU-674 used by
petitioner, Glenn, Manolito and Ruperto before, during and after the incident; and (5)
pictures of the maroon Nissan Sentra Super Saloon with plate number UBU-674 which
was recovered after the incident.

The rule is that the findings of the trial court, its calibration of the testimonies of the
witnesses and its assessment of the probative weight thereof, as well as its conclusions
anchored on said findings are accorded high respect if not conclusive effect.57 This is
more true if such findings were affirmed by the appellate court. When the trial court's
findings have been affirmed by the appellate court, said findings are generally binding
upon this Court.58

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In utter contrast, the evidence for the defense comprises mainly denials and alibi.
Petitioner denied having shot Ernesto. He insisted that on the day of the incident, he
merely brought Glenn, Manolito and Ruperto near the chapel of Barangay Lumanglipa,
Mataasnakahoy, Batangas where the three alighted; that upon hearing a gunshot, he
went inside his car and started the engine; that Glenn, Manolito and Ruperto suddenly
boarded again his car; that when he asked them what happened, the three told him to
just drive away and they will explain later; and that out of fear, he left his car with the
three and went to his house in Sta. Cruz, Manila. Petitioner also posited that the
prosecution's evidence is unreliable because Ariola, the adverse witness, stated in his
sworn statement that petitioner was inside the car when the latter shot Ernesto, thereby
contradicting Ciruelas's testimony that petitioner was outside the car and standing when
the latter shot Ernesto. Aside from these negative and self-serving claims, petitioner did
not adduce any convincing proof to substantiate and corroborate his defense of denial
and alibi.

Denial is inherently a weak defense as it is negative and self-serving. Corollarily, alibi is

the weakest of all defenses for it is easy to contrive and difficult to prove. For alibi to
prosper, it is not enough for the accused to prove that he was somewhere else when the
crime was committed. He must likewise prove that it was physically impossible for him to
be present at the crime scene or its immediate vicinity at the time of its commission. 59

Petitioner claims he was inside his car which was parked in front of the chapel at the
time of the incident. The chapel was merely four meters away from the crime
scene.60 Being very near the crime scene, it was not physically impossible for him to be
there during the incident.

Petitioner's asseveration that the prosecution's evidence is fabricated, by reason of

Ariola's testimony being inconsistent with Ciruelas's testimony, will not help his cause
because Ariola also mentioned in his sworn statement and during the trial that petitioner
was among those who shot Ernesto with a short firearm during the incident. What is
certain is the fact that petitioner shot Ernesto.

It is a well-entrenched doctrine in criminal law that, as between denials or alibi and

positive testimony on affirmative matters, the latter is accorded greater evidentiary
weight.61

275
Apropos the second issue, petitioner argued that he never conspired with Glenn,
Manolito and Ruperto in killing Ernesto; that his being with Glenn, Manolito and Ruperto
inside a car and fleeing after the incident does not imply conspiracy; that there was no
evident premeditation in the killing of Ernesto because he had no ill feelings or prior
animosity towards Ernesto or any of the latter's relatives and as such, he had no reason
to plan on how to kill Ernesto; and that no abuse of superior strength can be appreciated
in the killing of Ernesto.62

Under Article 8 of the Revised Penal Code, there is conspiracy when two or more
persons agree to commit a felony and decide to commit it. The presence of conspiracy
among the accused can be proven by their conduct before, during or after the
commission of the crime showing that they acted in unison with each other, evincing a
common purpose or design.63

As can be gleaned from the testimonies and sworn statements of the prosecution
witnesses, petitioner was seen together with Glenn, Manolito and Ruperto on board a
car and was inquiring on Ernesto's whereabouts before the incident. Petitioner was also
seen shooting Ernesto right after Glenn shot the latter, and subsequently fled with
Glenn, Manolito and Ruperto on board a car. Clearly, the foregoing acts of petitioner
before, during and after the incident demonstrate that he was a co-conspirator of Glenn,
Manolito and Ruperto.

Evident premeditation qualifies the killing of a person to murder if the following elements
are present: (1) the time when the offender was determined to commit the crime; (2) an
act manifestly indicating that the culprit has clung to his resolve; and (3) a sufficient
interval of time between the determination or conception and the execution of the crime
to allow him to reflect upon the consequence of his act and to allow his conscience to
overcome the resolution of his will if he desired to hearken to its warning.64

All of the foregoing elements and requisites of evident premeditation were satisfactorily
established by the prosecution.

First, at about 5:00 in the afternoon of 31 August 1998, Ernesto confronted Glenn and
thereafter pushed the latter's left chin after hearing insulting answers from Glenn.
Thereafter, Glenn threatened Ernesto, "Humanda ka, babalikan ka namin, papatayin ka

276
namin!" On the following day, 1 September 1998, at around 9:00 in the morning,
petitioner together with Glenn, Manolito and Ruperto went to the house of Ernesto's
parents and sought Ernesto. This was the time that petitioner and his three cohorts were
determined to kill Ernesto.

Second, after being told by Mrs. Velasquez on that same day that Ernesto was in the
Mataasnakahoy, petitioner together with Glenn, Manolito and Ruperto proceeded to said
place. Upon arriving at 1:30 in the afternoon, petitioner immediately approached
Ernesto. Thereafter, petitioner shot Ernesto right after the latter was shot by Glenn. The
act of the petitioner and of his three cohorts in locating and shooting Ernesto indicates
that they had clung to their determination to kill the victim.

Finally, petitioner and his cohorts manifested their determination to kill Ernesto at the
time they went to the house of Ernesto's parents and asked about his whereabouts
at 9:00 in the morning of 1 September 1998. On the other hand, petitioner and his
cohorts shot Ernesto at about 1:30 in the afternoon of 1 September 1998. Indeed, a
gap of four hours between the determination and the execution to kill Ernesto was
sufficient for the petitioner and his cohorts to reflect on the consequences of the acts
they were about to commit.

Taking advantage of superior strength also qualifies the killing to murder if the offender
purposely used excessive force out of proportion to the means of defense available to
the person attacked.65 The evidence for the prosecution had sufficiently proven the
existence of this qualifying circumstance. Petitioner, Glenn, Manolito and Ruperto were
all armed with pistols and armalite and used the same in shooting Ernesto, whereas the
latter was unarmed and in a sitting position playing tongits at the time of the shooting.
Verily, petitioner and his cohorts took advantage of their number and weapons against
Ernesto.

We observed that the aggravating circumstances of treachery and use of an unlicensed

firearm were also alleged in the information. We agree with the RTC and the Court of
Appeals that treachery cannot be appreciated in the instant case since treachery
presupposes a sudden and unexpected attack on the unsuspecting victim.66 In the case
at bar, the attack on Ernesto was not sudden and expected. Prior to the shooting,
petitioner repeatedly asked Ernesto why he slapped Glenn. Ernesto even managed to

277
answer back and replied that he did not slap Glenn. At this stage, Ernesto was already
forewarned of the dangers that such questioning brought as well as the presence of
petitioner and his cohorts considering that he had a previous quarrel with Glenn.
However, we take exception to the ruling of the RTC and the Court of Appeals that the
aggravating circumstance of use of unlicensed firearm cannot be appreciated. The
prosecution presented a certification issued by the Chief of the Firearms and Explosives
Division of the Philippine National Police, Camp Crame, verifying, among others, that
petitioner was a licensed/registered holder of a Pistol Colt Caliber .38, and that the
license was issued on 15 June 1995 and expired in November 1997 and has not been
renewed since then.67 The incident occurred on 1 September 1998. It also presented
one live ammunition of Super Caliber .38, four empty shells of Super Caliber .38, and
one deformed slug of Super Caliber .38, all of which matched petitioner's Super Caliber
.38.68

Regarding the third issue, petitioner elucidated that it took him a while to surrender
because of fear; that he was never arrested and had instead surrendered to the
authorities; and that the mitigating circumstance of voluntary surrender should be
appreciated in his favor.69

For voluntary surrender to be appreciated as a mitigating circumstance, the following

requisites must concur: (1) that the offender had not been actually arrested; (2) that the
offender surrendered himself to a person in authority; and (3) that the surrender was
voluntary.70

In order for a surrender to be considered as voluntary, the same must be spontaneous in

such a manner that it shows the interest of the accused to surrender unconditionally to
the authorities, either because he acknowledges his guilt or because he wishes to save
them the trouble and expenses necessarily incurred in his search and capture.71

In the case at bar, petitioner went into hiding for almost four years before he submitted
himself to the authorities.72 Upon his surrender, he did not acknowledge liability for the
killing of Ernesto. As such, his surrender cannot be considered
spontaneous.73 Moreover, his flight after the incident is a circumstance from which an
inference of guilt may be drawn.74

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As regards the fourth issue, petitioner alleged that his former counsel, Atty. Reynaldo Q.
Marquez (Atty. Marquez), did not defend him to the fullest and was negligent in handling
his case because Atty. Marquez presented as witness Ariola, who, prior to the trial, had
executed an affidavit stating that petitioner was one of those who shot Ernesto during
the incident. Atty. Marquez also admitted the fact that an empty shell of an armalite
bullet was found inside the maroon Nissan Sentra Super Saloon with plate number UBU-
674. For these reasons, petitioner claims that he was not able to completely present his
defenses and thus he was denied due process.

Petitioner further claimed that the Presiding Judge of the RTC which rendered the
assailed decision, Judge Vicente Landicho (Judge Landicho), was partial and biased;
that after the assailed RTC Decision was promulgated, he found out that Judge
Landicho's cousin, a certain Mayor Celso Landicho (Mayor Landicho), is a relative of
Ernesto; that Mayor Landicho's wife introduced his wife to Judge Landicho; that Judge
Landicho advised his wife to tell him not to surrender and to mellow first ("magpalamig
muna"); that after three years, Judge Landicho recommended Atty. Marquez to him; and
that these circumstances show that Atty. Marquez was loyal to Judge Landicho and not
to him.75

The essence of due process is a hearing before conviction and before an impartial and
disinterested tribunal. Due process is satisfied as long as a party is given the reasonable
opportunity to be heard and submit any evidence in support of his defense.76

The instant case underwent a full-blown trial before the RTC. Petitioner was adequately
heard and given opportunity to adduce evidence in support of his defense and to refute
the evidence for the prosecution. Relevant and material issues were ventilated before
the RTC and the Court of Appeals rendered their respective decisions. Petitioner filed all
the necessary pleadings in support of his cause before the said courts.

Atty. Marquez had sufficiently performed his duties in defending petitioner. A perusal of
the thick records shows that Atty. Marquez conducted a lengthy direct examination on
petitioner and exhaustively cross-examined the witnesses for the prosecution. He also
objected to the admissibility of some evidence for the prosecution. He even filed a
motion for reconsideration of the RTC Decision convicting petitioner.77

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It also appears from the records that Atty. Marquez presented the testimony of adverse
witness Ariola for the purpose of proving that there was inconsistency in the testimony of
the prosecution witnesses and thus the prosecution's evidence was fabricated, to wit:

Atty. Marquez: We are offering the testimony of this witness, first: as an adverse party
witness; second: to prove that the evidence of the prosecution as against the
accused Arnaldo Mendoza is totally fabricated; third: we will prove that by the
testimony of this witness, the prosecution deliberately suppressed a piece of vital
document because had this document been presented it would not have been adverse
to the cause of the prosecution. Finally, we are offering the testimony of this witness to
prove that the evidence for the prosecution insofar as the alleged participation of
Arnaldo Mendoza is diametrically inconsistent with each other in the sense that
the testimony of this witness is inconsistent with the testimony of the other
eyewitnesses, Your Honor.78 (Emphases supplied.)

If indeed, as petitioner alleged, Atty. Marquez was still to be considered as negligent or

has committed mistakes in presenting the testimony of Ariola and in admitting that one
empty shell of an M-16 armalite rifle was found in the car used by petitioner and his
cohorts despite the foregoing consideration, such cannot be considered as serious
negligence because, as we earlier found, there was no total abandonment of petitioner's
cause.

Mere imputation of bias and partiality against a judge is not enough since bias and
partiality can never be presumed.79 There was no evidence showing that the
family/relatives of Ernesto had unduly influenced Judge Landicho in convicting petitioner.
There was also no proof that Judge Landicho told petitioner not to surrender or
"magpalamig muna" and that Judge Landicho recommended Atty. Marquez to petitioner.
In the absence of such proofs, petitioner's bare assertion cannot overturn the
presumption of regularity in the performance by Judge Landicho of his official duty.80

The penalty for murder under Article 248 of the Revised Penal Code is reclusion
perpetua to death. As we earlier found, there were evident premeditation, taking
advantage of superior strength and use of unlicensed firearm in the killing of Ernesto.
Considering that only one between evident premeditation and taking advantage of
superior strength is necessary to qualify the killing to murder, the other one becomes a

280
generic aggravating circumstance.81 There being one generic aggravating circumstance
plus the special aggravating circumstance of use of unlicensed firearm, and there being
no mitigating circumstance, the penalty, following Article 63(1) of the Revised Penal
Code, is death. However, with the effectivity of Republic Act No. 9346 entitled, "An Act
Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the
capital punishment of death has been prohibited. Pursuant to Section 2 thereof, the
penalty to be meted to petitioner shall be reclusion perpetua. Said section reads:

SECTION 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the
nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the
nomenclature of the penalties of the Revised Penal Code.

Notwithstanding the reduction of the penalty imposed on petitioner, he is not eligible for
parole following Section 3 of said law which provides:

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose

sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence
Law, as amended.

As regards the civil liability of petitioner, we find the damages awarded and their
corresponding amounts to be correct. However, we deem it proper to increase the civil
indemnity from P50,000.00 to P75, 000.00 based on prevailing jurisprudence.82 In
addition to the damages awarded, we also imposed on all the amounts of damages an
interest at the legal rate of 6% from this date until fully paid.83

WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30
November 2005 in CA-H.C. No. 0046 is hereby AFFIRMED with the
following MODIFICATIONS: (1) the special aggravating circumstance of use of
unlicensed firearm is hereby considered in the killing of Ernesto; (2) the death penalty
imposed on petitioner is hereby reduced to reclusion perpetua without eligibility for
parole pursuant to Republic Act No. 9346; (3) the civil indemnity of petitioner is

281
increased from P50,000.00 to P75,000.00; and (4) an interest on all the damages
awarded at the legal rate of 6% from this date until fully paid is imposed. Costs against
petitioner.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-

Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia,
Reyes, JJ., concur.
Velasco, Jr., J., on leave.
Nachura, JJ., no part.

Endnotes:

1
Penned by Associate Justice Mariano C. del Castillo with Associate Justices Portia
Aliño-Hormachuelos and Magdangal M. de Leon, concurring; rollo, pp. 52-70.

2
Id. at 72-73.

3
CA rollo, pp. 8-29.

4
Records, p. 389.

5
Id. at 1-2.

6
Id. at 107.

7
TSN, 14 January 2003, pp. 6-8.

8
TSN, 23 September 2002, pp. 6-12.

9
Id. at 12-14.

10
TSN, 12 May 2003, pp. 4-10.

11
TSN, 8 October 2002, pp. 8-32.

282
12
TSN, 17 November 2003, pp. 10-13.

13
TSN, 21 April 2004, pp. 2-8.

14
Id. at 14-30.

15
Id. at 33-35.

16
Records, p. 29.

17
Records, pp. 340-356 and 363-367.

18
Id. at 377-388.

19
Rollo, pp. 18-19.

20
CA rollo, pp. 237-247.

21
Rollo, pp. 10-49.

22
Id. at 135-155.

23
Id. at 189-208.

24
Id. at 19-24.

25
Id. at 24-28.

26
Id. at 28-31.

27
TSN, 23 September 2002, pp. 2-14.

28
TSN, 8 October 2002, pp. 2-34.

29
TSN, 14 January 2003, pp. 2-27.

30
TSN, 22 January 2003, pp. 2-48; TSN, 3 February 2003, 2-15.

31
Folder of Exhibits, Exh. "M."

283
32
Id. at 25.

33
Id. at 39-41.

34
Id. at 4-5.

35
Id. at 6-7.

36
Id. at 11.

37
Id. at 3.

38
Id. at 8.

39
Id., Exhibit E.

40
Id., Exhibit F.

41
Id., Exhibit G.

42
Id., Exhibit H.

43
Id., Exhibit I.

44
Id., Exhibit J.

45
Id., Exhibit K.

46
Id., Exhibit L.

47
Id., Exhibit M.

48
Id., Exhibit N.

49
Id., Exhibit O.

50
Id., Exhibit P.

51
Id., Exhibit Q.

284
52
Id. at 6.

53
TSN, 30 July 2003, pp. 6.

54
TSN, 8 October 2003, pp. 8-20.

55
Folder of Exhibits, pp. 41-42.

56
People v. Sampaga, G.R. No. 139823, 12 March 2004, 425 SCRA 426, 434.

57
People v. Aguila, G.R. No. 171017, 6 December 2006, 510 SCRA 642, 661.

58
Id.

59
Id. at 661-662.

60
CA rollo, pp. 319, 321 and 322.

61
People v. Comiling, G.R. No. 140405, 4 March 2004, 424 SCRA 698, 718-719.

62
Rollo, pp. 23-34.

63
People v. Ramos, G.R. No. 135204, 14 April 2004, 427 SCRA 299, 308.

64
People v. Factao, 464 Phil. 47, 64 (2004).

65
People v. Cabiling, G.R. No. L-38091, 17 December 1976, 74 SCRA 285, 303-304.

66
People v. PO3 Fallorina, 468 Phil. 817, 840 (2004).

67
Folder of Exhibits, Exh. "J".

68
Id., Exhs. "E," "F," "G."

69
Rollo, pp. 43-45.

70
Estacio v. Sandiganbayan, G.R. No. 75362, 6 March 1990, 183 SCRA 12, 24.

71
People v. Gervacio, 133 Phil. 805, 824 (1968).

285
72
CA rollo, p. 317.

73
People v. dela Cruz, 146 Phil. 937, 939-940 (1970).

74
People v. PO3 Fallorina, supra note 66 at 840-841.

75
Rollo, pp. 148-153, 204-208.

76
Mutuc v. Court of Appeals, G.R. No. 48108, 26 September 1990, 190 SCRA 43, 49.

77
Records, pp. 363-368.

78
TSN, 30 July 2003, p. 3.

79
Causin v. Demecillo, A.M. No. RTJ-04-1860, 8 September 2004, 437 SCRA 594, 606.

80
Dr. Grieve v. Jaca, 465 Phil. 825, 831-832 (2004).

81
People v. Fabros, G.R. No. 90603, 19 October 1992, 214 SCRA 694, 700.

82
People v. dela Cruz, G.R. No. 171272, 7 June 2007.

83
Id.

286
287
 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LEODEGARIO BASCUGIN1 y
AGQUIZ Accused-Appellant.

DECISION

VELASCO, JR., J.:

This is an appeal from the January 16, 2008 Decision2 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 01855 which affirmed the August 15, 2005 Decision3 in Criminal
Case No. 4371 of the Regional Trial Court (RTC), Branch 10 in Balayan, Batangas. The
RTC found accused-appellant Leodegario Bascugin guilty of rape with homicide.

The Facts

In an information dated June 21, 1999, Bascugin was charged with rape with homicide
committed as follows:

That on or about the 4th day of June, 1999 at about 7:45 o'clock in the evening, at
Barangay [XXX], Municipality of Balayan, Province of Batangas, Philippines and within
the Jurisdiction of this Honorable Court, the above-named accused, armed with a bladed
instrument and a hard object, by means of force and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge of [AAA], 4 against her will and
consent and by reason or on the occasion of the said rape, accused with intent to kill,
willfully, unlawfully and feloniously stabbed and hit the said AAA, thereby inflicting upon
the latter multiple stab wounds and other injuries on the different parts of her body,
which caused her instantaneous death.

CONTRARY TO LAW.5

With the assistance of his counsel de oficio, Bascugin pleaded guilty upon arraignment
on August 5, 1999. Since he was facing a charge for a capital offense, the trial court
asked him if his plea was voluntarily given and whether he understood the
consequences of his plea. The case then proceeded to trial. The prosecution presented
testimonial, object, and documentary evidence, while the defense offered no contest. On
June 15, 2000, the trial court adjudged him guilty of the charge beyond reasonable doubt
and sentenced him to death.

288
In the automatic review by the Supreme Court, the Office of the Solicitor General (OSG)
and Bascugin challenged the proceedings in the trial court, specifically the invalid
arraignment of Bascugin. They contended that the consultation made by the counsel de
oficio was hasty; and Bascugin was not sufficiently apprised of the nature of his case
and the consequences of his plea. We found merit in appeal; hence, we annulled the
trial court's judgment and remanded the case to the court a quo for appropriate
proceedings.6

On May 6, 2002, Bascugin was once again arraigned. With assistance from his
counsel de oficio, he pleaded not guilty. The prosecution asked the court to adopt the
testimonies previously given in the first trial by some witnesses, namely: PO3 Menandro
de Castro, Pet Byron T. Buan, Dr. Antonio Vertido, Rolando de Mesa, Domingo
Liwanag, and BBB, AAA's father. The defense did not object to said motion; thus, it was
granted by the trial court. The prosecution additionally presented the testimonies of
CCC, mother of AAA; Aida R. Villoria-Magsipok, NBI forensic chemist; and further direct
examination of Dr. Vertido.7

According to the prosecution, AAA was last seen on June 4, 1999 around 7:00 p.m. by
de Mesa, a tricycle driver. AAA was on board the tricycle driven by Bascugin. De Mesa
saw Bascugin again at around 8:30 p.m. going towards Balayan town proper, but de
Mesa did not notice if Bascugin had a passenger on board. On the same night, Liwanag,
an employee of Steel Corporation located in Balayan, was on his way home from work
via his motorcycle when he passed by Bascugin's tricycle parked near a waiting shed in
Brgy. XXX, Balayan. Liwanag testified that he heard a girl shout but he ignored the same
because the area was allegedly haunted.8

Around 11:50 p.m., AAA was reported missing. The police officers in Balayan conducted
an investigation. PO3 de Castro received information that a patient was being treated at
the Don Manuel Lopez Memorial District Hospital for tongue injury. Police officers rushed
to the hospital and found the patient to be Bascugin. Bascugin told the police that AAA
was his passenger that night but as he was about to leave the tricycle terminal, a man
and a woman boarded. The man sat behind him while the woman sad beside AAA.
While Bascugin was driving, he was hit by a hard object on his nape causing him to lose
consciousness. When he woke up, his tongue was already injured and his three

289
passengers were gone. Bascugin was then invited to the police station for further
investigation.9

Around 1:30 a.m. of June 5, 1999, based on the information from Liwanag, police
officers and AAA's relatives went to the waiting shed where Bascugin's tricycle was
parked. They found a muddled portion of the sugarcane plantation with visible tricycle
marks, and a hairclip belonging to AAA. Police officers returned to the site at around 6
a.m. to further investigate. On the way back to the police station, they discovered AAA's
body in the canal along the national road, naked from the waist down and with 13 stab
wounds.10 They also recovered a pair of maong pants and two panties both belonging to
the victim.11

On September 8, 2003, before the prosecution could rest its case, the defense
manifested that Bascugin wishes to change his plea of "not guilty" to "guilty." The trial
court set his re-arraignment to September 29, 2003 to allow him more time to consider
his plea. He was then arraigned on September 29, 2003, and he pleaded guilty to the
charge. Upon motion of the prosecution, Bascugin was placed on the witness stand. He
affirmed that he understood the consequences of his voluntary plea, and admitted that
AAA rode his tricycle on June 4, 1999 and that he brought AAA to Brgy. XXX where he
raped and killed her.12

On November 12, 2003, Bascugin moved to withdraw his plea of guilty. This was
granted by the trial court in an order dated November 17, 2003. He was re-arraigned on
December 1, 2003 and he pleaded "not guilty."13

Bascugin testified that on June 4, 1999, around 5:00 p.m., he and AAA's cousin, DDD,
had three bottles of gin to celebrate the latter's birthday. Around 7:00 p.m., Bascugin's
cousin, Christopher de Mesa, requested Bascugin to wait for AAA and bring her home
because Christopher had to be with his wife who was about to give birth. AAA arrived
around 7:30 p.m.; Bascugin told her that Christopher asked him to bring her home. AAA
then rode Bascugin's tricycle. Due to the heavy rain, they stopped at a waiting shed in a
barangay for a long time. Bascugin stated that something happened which he could not
tell but after that incident, he started the engine of his tricycle to bring AAA home but
AAA ran away. He said that he pursued her but he could only remember that he drove
the lifeless body of AAA to Bagong Daan. Assuming responsibility for his passenger, he

290
went to the house of AAA's parents. Thereafter, he went home; his father saw his
bloodied shirt so he was brought to Don Manuel Lopez Memorial District Hospital. Police
officers arrived at the hospital and invited him to the police station. He voluntarily went
with the investigators. On cross-examination, Bascugin admitted that he raped and killed
AAA.14

The trial court appreciated the following circumstantial evidence as incriminatory:

1. the victim boarded the tricycle being driven by the accused at around 7:00 o'clock in
the evening of June 4, 1999;

2. at about 8:30 o'clock of the same night, the accused was seen driving his tricycle
without any person on board going towards the direction of Balayan town proper from
Brgy. [XXX];

3. the tricycle then being driven by the accused was seen parked near the waiting shed
at Brgy. [XXX] which was the place discovered by the police officers where the incident
took place and the hairclip belonging to the victim was found;

4. the abaca rope found by the police inside the tricycle of the accused, the pair of
maong pants belonging to the victim was found near the body of the latter, a white panty
and yellow panty also belonging to the victim, a Hanford brief, a sleeveless undershirt, a
blue T-shirt and a pair of corduroy pants, all belonging to the accused were all found to
be positive for human blood reactions of Group 'A' which was the same grouping as that
of fresh blood taken from the victim;

5. the yellow panty belonging to the victim was found to be positive to seminal stains;

6. the findings of the medico-legal officer who examined the body of the victim which
shows that the latter bore multiple stab wounds and complete fresh hymenal lacerations;

7. the complete matching of the bucal swab taken from the accused with the vaginal
smear sample taken from the victim which sufficiently established that the accused had
sexual intercourse with the victim before killing her; andcralawlibrary

291
8. the admission of the accused that he raped and killed AAA when asked by the Court
and the prosecutor.15

On August 15, 2005, the trial court found Bascugin guilty. The fallo of its decision reads:

WHEREFORE, premises considered, the Court finds accused Leodagario Bascugin y

[Agquiz] GUILTY beyond reasonable doubt of the crime of rape with homicide, defined
and penalized under Art. 266-A and 266-B of the Revised Penal Code, as amended by
Republic Act No. 8353, in relation to Republic Act No. 7659 and without considering any
mitigating and/or aggravating circumstances, hereby imposes upon him the supreme
penalty of DEATH. He is further ordered to indemnify the heirs of [AAA] the sum of
P100,000.00, to pay the same heirs the amount of P50,000.00 by way of moral damages
and to pay the costs.

In view of the imposition of the death penalty, the case was forwarded to the CA for
review.

The Ruling of the CA

On appeal, Bascugin argued that there was no evidence of force, threat, or intimidation
during sexual intercourse; thus, there was no rape. The human blood from his clothes
which matched the blood type of AAA does not prove that he killed the latter. Also, he
asserted that his confession when he pleaded guilty should have been expunged from
the records since he withdrew said plea and substituted it with a plea of "not guilty."

The CA upheld Bascugin's conviction. The appellate court concurred with the trial court's
finding that there was sufficient circumstantial evidence pointing to him as the culprit.
Moreover, he admitted in open court that he raped and killed AAA. This judicial
admission constitutes evidence of high order, not only because it is presumed that a
deliberate confession to a crime is prompted by truth, but also because such admission
was supported by medical findings of sexual intercourse between the accused and the
victim, and resistance by the victim.16

The appellate court, however, modified the ruling by ordering imprisonment and adding
temperate damages and increasing the amount of moral damages, as follows:

292
It having been established beyond any shadow of a doubt that appellant raped [AAA]
and killed her on the occasion thereof, the mandatory penalty of death is inescapable.
However, with the effectivity of Republic Act No. 9346 which prohibits the imposition of
the death penalty, the penalty of reclusion perpetua, without eligibility for parole, should
instead be imposed on accused-appellant.

The trial court correctly awarded P100,000.00 as civil indemnity to the heirs of [AAA]
commensurate with the seriousness of the said complex crime. Likewise, the heirs of
[AAA] are entitled to temperate damages in the amount of P25,000.00, despite the
paucity of evidence as to actual damages, inasmuch as it is reasonable to expect that
they incurred expenses for the coffin, burial and food during the wake. Moreover, in line
with prevailing jurisprudence, the award of moral damages in the amount of P50,000.00
should be increased to P75,000.00.

WHEREFORE, the Decision appealed from is AFFIRMEDwith MODIFICATION by

imposing on accused-appellant Leodegario Bascuguin y Agquiz the penalty of reclusion
perpetua, without eligibility for parole, and ORDERING him to further indemnify the heirs
of [AAA] in the increased amount of P75,000.00 as moral damages, and P25,000.00 as
temperate damages.

Assignment of Error

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

GUILTY OF THE CRIME OF RAPE WITH HOMICIDE DESPITE THE PROSECUTION'S
FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

The Court's Ruling

The appeal lacks merit.

The decisive factor in Bascugin's conviction was his admission to the crime when he was
examined by his lawyer in court. He testified as follows:

Q: At that point, did you come to know the cause of your physical injury?cralawred

A: Yes, sir.

293
Q: What may be the reason?cralawred

A: According to the doctor, the injury I sustained was a result of a person's bite, sir.

Q: For how long did you stay at that hospital?cralawred

A: Less than an hour, sir.

Q: After one (1) hour of staying in that hospital, what happened next?cralawred

A: While on our way out at the hospital, I was invited by police investigators to go with
them to the police station and I voluntarily went with them to face the consequences of
what I did, sir.

Q: Could you tell to this Honorable Court what do you mean by the consequences of
what you did?cralawred

A: That if I did something wrong on that time, I should pay for it, sir.

Q: So you mean to say that you have this thinking that you have committed something
wrong?cralawred

A: Yes, sir.

Q: And you are willing to confront the same, freely, voluntarily and without offering any
resistance?cralawred

A: Yes, sir.

COURT:

Q: Are you thinking of this case against you?cralawred

A: Yes, Your Honor.

Q: Meaning to say you might have committed the same?cralawred

A: Yes, Your Honor.

294
ATTY. CHAVEZ:

Q: You said that you were being brought to the police station. What happened there, Mr.
Witness?cralawred

A: The investigator incarcerated me, sir.

Q: And at that time, do you know the reason why you were incarcerated by the
police?cralawred

A: No, sir.

Q: What was the date when you were being detained at the police station?cralawred

A: June 4 already, sir.

Q: Are you sure of that, Mr. Witness?cralawred

A: Yes, sir, because it was already early morning.

Q: At the police station, Mr. Witness, what happened?cralawred

A: At around 7:00 o'clock in the morning, [AAA] arrived, sir.

Q: Who were with [AAA]?cralawred

A: [Her] parents and the police officers, sir.

Q: Was she still alive during that time?cralawred

A: No longer, sir.

Q: What was your reaction upon seeing [AAA]?cralawred

A: During that moment I was so sorry and I cannot explain and I cannot understand what
happened, sir.

295
Q: Do you mean to tell us that you have this feeling at that time that you were
responsible for the killing and raping of this [AAA]?cralawred

A: Yes, sir.

Q: Did you feel any remorse or resentment to what happened with you and
[AAA]?cralawred

A: Yes, sir.

Q: I noticed also, Mr. Witness, that at the course of the proceedings of this case you are
always changing your plea of not guilty/to guilty. Why is it so, Mr. Witness?cralawred

A: Because I am bothered by my conscience and I was always changing my plea but I

feel responsible for what I did, sir.

Q: Do you know fully the consequences of your testimony, Mr. Witness?cralawred

A: Yes, sir.

ATTY. CHAVEZ: I have no more questions, Your Honor.

COURT: Cross?cralawred

PROS. ALIX: Yes, Your Honor.

Q: By your own testimony you are not admitting that you are responsible for the death of
[AAA] and that you did have carnal knowledge of that? Before you do that, may the
Court remind this witness that he has the right to answer or not the question.

COURT: The Court would like to remind you that you have the right to choose whether
to answer or not to answer the question. You can remain silent so before you answer the
question, think of the question carefully.

WITNESS:

A: Yes, sir.

296
COURT:

Q: Meaning to say that you not only admit that you killed her but you also raped
her?cralawred

A: Yes, Your Honor.17

Bascugin's confession was freely, intelligently, and deliberately given. Judicial

confession constitutes evidence of a high order. The presumption is that no sane person
would deliberately confess to the commission of a crime unless prompted to do so by
truth and conscience.18 Admission of guilt constitutes evidence against the accused
pursuant to the following provisions of the Rules of Court:

SEC. 4. Judicial admissions. An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not require proof. The admission may
be contradicted only by showing that it was made through palpable mistake or that no
such admission was made. [Rule 129]

SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a

relevant fact may be given in evidence against him. [Rule 130]

SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein, may be given in
evidence against him. [Rule 130]

Furthermore, Bascugin's confession is consistent with the evidence.ςrαlαω We agree

with the trial and appellate courts' finding that the chain of events constitutes
circumstantial evidence that is sufficient to support a conviction. From the testimonies of
witnesses and the physical evidence gathered, it was established that the victim was last
seen with Bascugin in his tricycle; his tricycle was seen parked near a waiting shed in
the premises of which the victim's personal belongings were later found; his pieces of
clothing were found positive for human blood that matches the victim's; and the medico-
legal report states that Bascugin had sexual intercourse with the victim.

Circumstantial evidence is that evidence which proves a fact or series of facts from
which the facts in issue may be established by inference.19 According to Rule 133,

297
Section 4 of the Rules, circumstantial evidence is sufficient for conviction if: (1) there is
more than one circumstance; (2) the inference is based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond reasonable doubt of the
guilt of the accused. In the case at bar, the circumstantial pieces of evidence
enumerated by the trial court all point to Bascugin as the perpetrator beyond reasonable
doubt.

As regards damages, we agree with the appellate court's award of PhP 100,000 as civil
indemnity; PhP 75,000 as moral damages; and temperate damages amounting to PhP
25,000 in lieu of actual damages, all consistent with prevailing jurisprudence for rape
with homicide.20 The Court also awards exemplary damages in the amount of PhP
50,000. Article 2229 of the Civil Code grants the award of exemplary or correction
damages in order to deter the commission of similar acts in the future and to allow the
courts to mould behaviour that can have grave and deleterious consequences to
society.21

WHEREFORE, the CA Decision dated January 16, 2008 in CA-G.R. CR-H.C. No. 01855
is AFFIRMED with MODIFICATION that accused-appellant is ordered to pay additional
exemplary damages of PhP 50,000 to the heirs of the victim. No costs.

SO ORDERED.

Endnotes:

1
Bascuguin in some parts of the records.

2
Rollo, pp. 1-19. Penned by Associate Justice Marina L. Buzon and concurred in by
Associate Justices Rosmari D. Carandang and Mariflor P. Punzalan Castillo.

3
CA rollo, pp. 13-20. Penned by Judge Cristino E. Judit.

4
The real name of the victim and her immediate family members are withheld to protect
her privacy, in accordance with Republic Act No. 9262, otherwise known as the "Anti-

298
Violence Against Women and Their Children Act of 2004" and its implementing rules;
and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

5
CA rollo, p. 13.

6
People v. Bascuguin, G.R. 144404, September 24, 2001, 365 SCRA 729.

7
CA rollo, p. 14.

8
Bascuguin, supra note 6, at 731.

9
Id. at 732.

10
Id.

11
Rollo, p. 5.

12
Id. at 6.

13
Id.

14
Id. at 7.

15
CA rollo, pp. 19-20.

16
Rollo, pp. 15-17.

17
TSN, November 8, 2004, pp. 3-6.

18
People v. Samolde, G.R. No. 128551, July 31, 2000, 336 SCRA 632, 651.

19
People v. Padua, G.R. No. 169075, February 23, 2007, 516 SCRA 590, 600-601.

20
People v. Notarion, G.R. No. 181493, August 28, 2008, 536 SCRA 618, 631.

21
People v. Rayos, G.R. No. 133823, February 7, 2001, 351 SCRA 336, 350.

299
 G.R. NO. 172869 : July 28, 2008

PEOPLE OF THE PHILIPPINES, Appellee, v. DONATO BULASAG y ARELLANO

alias "DONG", Appellant.

DECISION

QUISUMBING, J.:

This is an appeal from the Decision1 dated January 13, 2006 of the Court of Appeals in
CA-G.R. CR. H.C. No. 00183, which had affirmed the Decision2 dated May 10, 2004 of
the Regional Trial Court (RTC), Branch 9, Balayan, Batangas. The trial court had found
appellant Donato Bulasag y Arellano alias "Dong", guilty of the special complex crime of
robbery with homicide in Criminal Case No. 4850.

The Information dated December 22, 2000, charging appellant and his co-accused with
the special complex crime of robbery with homicide, defined and penalized under Article
294(1)3 of the Revised Penal Code, as amended by Republic Act No. 7659,4 reads as
follows:

x x x

That on or about the 27th day of July, 2000 at about 10:30 o'clock in the evening, at
Barangay Caloocan, Municipality of Balayan, Province of Batangas, Philippines and
within the jurisdiction of this Honorable Court, accused, Donato Bulasag armed with an
unlicensed firearm of unknown caliber together with one John Doe and one Peter Doe
whose identities and whereabouts are still unknown, armed with knives (kutsilyo),
conspiring and confederating together, acting in common accord and mutually helping
one another, with intent to gain and without the knowledge and consent of the owner
thereof did then and there willfully, unlawfully and feloniously enter the house owned by
Estelita Bascuguin y Besas and by means of violence or intimidation against person,
take, rob and carry away cash money amounting to more or less Twenty Thousand
Pesos (P20,000.00), Philippine Currency and assorted pieces of jewelry, to the damage
and prejudice of the said owner in the aforementioned amount of P20,000.00 and that on
the occasion and by reason of the said robbery, the said accused with intent to kill, did
then and there willfully, unlawfully and feloniously attack, assault[,] stab and shoot with

300
the said weapons one Estelita Bascuguin y Besas, thereby inflicting upon the latter
gunshot wounds and stab wounds on her chest, which directly caused her death.

Contrary to law.5

Only appellant was arrested by the police authorities while the others remained at large.
Upon arraignment, appellant pleaded not guilty.

The facts as found by the trial court and confirmed by the Court of Appeals, were
gleaned from the testimonies of (1) Lydia B. Siervo, the sister of the victim Estelita B.
Bascuguin; (2) Michael B. Bascuguin, the eight-year-old son of the victim; and (3) Dr.
Antonio S. Vertido, Regional Medico-Legal Officer of the National Bureau of
Investigation, Region 4, Batangas.

Lydia Siervo testified that one week before the incident, Estelita told her that she had an
altercation with the appellant. Appellant tried to borrow P3,000 but Estelita refused to
give him the money. As a result, appellant threatened Estelita that something bad will
happen to her if she will not leave her house. Lydia added that Estelita had no
misunderstanding with other people except the appellant.6

Michael Bascuguin testified that at around 10:30 p.m. of July 27, 2000, he was watching
television inside their house with his mother and cousin, Luisito Besas. When his mother
was about to close the door of their house, the lights suddenly went off and somebody
kicked the door open. Three men wearing bonnets over their faces entered their house.
One man, later identified as the appellant, had a gun while another carried a kitchen
knife. Together they held Estelita. Although Michael tried to get out of the house,
appellant chased and hogtied him. Appellant then demanded money from Estelita
threatening to kill Michael if she refused. Estelita gave appellant an undetermined
amount of money. Since appellant refused to release Michael, Estelita ran out of the
house and told Michael to run also. Appellant shot Estelita while one of his companions
stabbed her. Thereafter, appellant and his companions fled. Michael sought help from
their neighbor, Jenneath, the appellant's wife, but she initially refused since there was no
available vehicle. Later, they found a vehicle and went to the house of Tatay Pecto,
Estelita's common-law husband, and informed him of what happened to Estelita. They
then proceeded to the police station to report the incident.7

301
Dr. Antonio S. Vertido testified and confirmed his findings as stated in the Certificate of
Post-Mortem Examination8 that Estelita died of gunshot and stab wounds on the chest.9

Appellant Donato Bulasag denied the accusations against him. He testified that on the
date of the incident, he attended the birthday celebration of his nephew, Jorge Bautista.
They started drinking at 10:00 a.m. At 7:00 p.m., he and Hilario Arellano left his
nephew's house and proceeded to the house of his uncle, Rolando Holgado, to continue
drinking. They stayed there for 30 minutes until his wife, Jenneath, arrived to fetch him.
Instead of going home, they went to his parents' house. Between 8:00 p.m. to 9:00 p.m.,
his brother Filomeno and his wife Anita brought them home. Upon arriving home, he
slept.10

Jenneath Bulasag testified that at the time of the incident, appellant was at home
sleeping. She said that appellant was drunk at that time after attending his nephew's
birthday celebration. She claimed that she never lost sight of him that evening.11

On May 10, 2004, the trial court convicted appellant. The dispositive portion of the
Decision reads:

WHEREFORE, premises considered, the Court finds the accused Donato Bulasag y
Arellano alias "Dong" GUILTY beyond reasonable doubt of the special complex crime of
Robbery with Homicide as defined and penalized under Article 294(1) of the Revised
Penal Code, as amended by Republic Act [No.] 7659, and is hereby sentenced to suffer
the indeterminate penalty of reclusion perpetua, with the accessory penalties and to pay
the costs. He is also hereby ordered to pay the heirs of Estelita Bascuguin y Besas the
amount of Fifty Thousand Pesos (P50,000.00) as moral damages and Fifty Thousand
Pesos (P50,000.00) as indemnity in line with current jurisprudence.

IT IS SO ORDERED.12

Appellant filed a notice of appeal. On January 13, 2006, the Court of Appeals affirmed
the Decision of the trial court. It observed that all the elements of the crime of robbery
with homicide were present in the case. It noted that appellant's identity was duly
established by Michael's positive identification, hence it disregarded appellant's denial
and alibi.

302
Dissatisfied, appellant appealed to this Court. As appellant and the Office of the Solicitor
General opted not to submit supplemental briefs, we shall now review the decision of the
Court of Appeals, focusing on the following issues brought before it:

I.

THE TRIAL COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
ROBBERY WITH HOMICIDE.

II.

THE TRIAL COURT A QUO GRAVELY ERRED IN GIVING SCANT CONSIDERATION

TO THE ACCUSED-APPELLANT'S ALIBI.

III.

THE TRIAL COURT A QUO GRAVELY ERRED IN FINDING THAT THE

PROSECUTION HAD ESTABLISHED BEYOND REASONABLE DOUBT THE
IDENTITY OF THE ACCUSED-APPELLANT AS THE AUTHOR OF THE CRIME
CHARGED.13

Briefly stated, the principal issue is whether the guilt of appellant was proved by the
prosecution beyond reasonable doubt. Subsidiarily, for our resolution are: (1) Did the
prosecution sufficiently prove appellant's identity as the author of the crime? (2) Did the
trial court err in disregarding appellant's denial and alibi?cralawred

Appellant contends that his identity was proven only by circumstantial evidence. Michael
did not see the face of the man who chased him and shot his mother because the man
wore a bonnet over his face. Thus, there was doubt whether the man was really
appellant or somebody else. While Michael testified that he recognized appellant's voice,
physical features and gun, he also admitted that he did not talk often with him. There
was doubt therefore whether he was in a position to identify appellant's voice during the
incident. Appellant insists that he was so drunk at the time of the incident that it was
impossible for him to commit the crime. He contends that his wife corroborated his
testimony.

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Appellee counters that appellant's identity was sufficiently established. Although
appellant wore a bonnet over his face, Michael was able to identify his voice, physical
features and the gun used. Michael was familiar with appellant's voice and physical
features since they have been neighbors for quite some time before the incident. In fact,
their families were so close that appellant even allowed Estelita to tap electrical
connection from his house. Michael was also able to identify appellant by means of his
gun because he has previously seen appellant carry it three times before the incident.
The witness stated that he saw appellant fire it once in front of their house. Appellee
discredits appellant's alibi since it was not physically impossible for him to be at the
crime scene. Additionally, appellee contends that appellant's testimony was corroborated
insufficiently since only his wife, who was obviously a biased witness, did so.

After weighing the parties' conflicting testimonies and other evidence, we are in
agreement that there is no reason to reverse appellant's conviction.

First, we find Michael's testimony consistent to the minutest detail, and his categorical
identification of appellant as the assailant is unwavering. Also we see no reason to doubt
his credibility.

The evidence on record shows that appellant and Estelita have been neighbors for quite
some time.chanrobles virtual law library In fact, their families were so close that
appellant even allowed Estelita to tap electrical connection from his house.14 Thus,
although appellant wore a bonnet over his face to conceal his identity, Michael could still
recognize his voice since Michael already gained familiarity with his voice and physical
features. In fact, Michael described appellant's voice as "low tone."15

As this Court has ruled in earlier cases, identification by the sound of the voice16 as well
as familiarity with the physical features17 of a person are sufficient and acceptable
means of identification where it is established that the witness and the accused had
known each other personally and closely for a number of years.

Noteworthy, Michael was able to recognize the gun used by the malefactor. Michael
testified that he had previously seen appellant carry it three times before the incident. He
also saw appellant fire the gun once in front of their house.18 Worth stressing, appellant
never denied ownership or possession of such gun.

304
Taking into account all the circumstances of this case, this Court finds credible and
sufficient Michael's identification of appellant as the perpetrator of the crime. When there
is no evidence to indicate that the witness against the accused has been actuated by
any improper motive, and absent any compelling reason to conclude otherwise, the
testimony given by a witness is ordinarily accorded full faith and credit.19

Second, we find appellant's defenses founded on denial and alibi lacking in truth and
candor. Despite his stance that he went to his nephew's birthday celebration where he
met with several persons to drink gin on the day of the incident, appellant failed to
present any disinterested witness to support his claim. Thus, for corroboration we are left
to rely only on the testimony of his wife, which we find less than convincing.

Nothing is more settled in criminal law jurisprudence than that denial and alibi cannot
prevail over the positive and categorical testimony of the witness. Denial is an
intrinsically weak defense which must be buttressed with strong evidence of non-
culpability to merit credibility. Alibi is an inherently weak defense, which is viewed with
suspicion and received with caution because it can easily be fabricated.20 For alibi to
prosper, appellant must prove not only that he was at some other place when the crime
was committed but that it was physically impossible for him to be at the locus criminis at
the time of its commission.21 Appellant's own evidence shows that he was in the
immediate environs when the incident occurred. For he stated that he was just in his
own house, barely three meters away from the house of the victim, Estelita. 22

WHEREFORE, the appeal is DENIED. The Decision dated January 13, 2006 of the
Court of Appeals in CA-G.R. CR. H.C. No. 00183, which had sustained the Decision
dated May 10, 2004 of the Regional Trial Court, Branch 9, Balayan, Batangas, finding
appellant Donato Bulasag y Arellano alias "Dong" guilty of the special complex crime of
robbery with homicide in Criminal Case No. 4850, is AFFIRMED. Costs against
appellant.

SO ORDERED.

Endnotes:

305
1
Rollo, pp. 2-14. Penned by Associate Justice Portia Aliño-Hormachuelos, with
Associate Justices Amelita G. Tolentino and Vicente S.E. Veloso concurring.

2
Records, pp. 170-183. Penned by Executive Judge Elihu A. Ybañez.

3
Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any
person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed; or when the robbery shall
have been accompanied by rape or intentional mutilation or arson;

xxx

4
An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for That
Purpose the Revised Penal Laws, As Amended, Other Special Penal Laws, and For
Other Purposes, approved on December 13, 1993.

5
Records, pp. 1-2.

6
TSN, April 24, 2002, pp. 4-6; TSN, May 7, 2002, pp. 3, 5, 8-9.

7
TSN, July 24, 2002, pp. 4-7, 9-11.

8
Records, p. 9.

9
TSN, January 29, 2003, pp. 5, 7-10.

10
TSN, February 5, 2003, pp. 6-10, 13.

11
TSN, February 12, 2003, pp. 3-4, 8.

12
Records, p. 183.

13
Rollo, pp. 7-8.

306
14
TSN, February 5, 2003, p. 14.

15
TSN, July 24, 2002, p. 13.

16
People v. Prieto, G.R. No. 141259, July 18, 2003, 406 SCRA 620, 631.

17
People v. Arellano, G.R. No. 131518, October 17, 2000, 343 SCRA 276, 286.

18
TSN, July 24, 2002, p. 7.

19
People v. Avendaño, G.R. No. 137407, January 28, 2003, 396 SCRA 309, 324.

20
People v. Penaso, G.R. No. 121980, February 23, 2000, 326 SCRA 311, 320.

21
People v. Fernandez, G.R. No. 134762, July 23, 2002, 385 SCRA 38, 51.

22
TSN, February 5, 2003, p. 14.

307
 G.R. NO. 173791 : April 7, 2009]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PABLO AMODIA,Accused-

Appellant.

DECISION

BRION, J.:

We review in this appeal the decision of the Court of Appeals1 (CA) affirming with
modification the decision of the Regional Trial Court (RTC), Branch 38, Makati City in
Criminal Case No. 97-289. The RTC found the accused-appellant Pablo Amodia (Pablo)
guilty beyond reasonable doubt of the crime of murder and sentenced him to suffer the
penalty of reclusion perpetua and to pay the corresponding civil liabilities to the heirs of
the victim.

Pablo was indicted, together with three other accused, under the following Information:2

That on or about the 26th day of November 1996, in the City of Makati, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping and aiding one another,
while armed with a piece of wood and bladed weapon, taking advantage of their superior
strength [sic] and employing means to weaken the defense, did then and there, willfully,
unlawfully and feloniously attack, assault and employ personal violence upon one FELIX
OLANDRIA y BERGAÑO, by beating him on the head with a piece of wood and stabbing
him repeatedly on the different parts of his body, thereby inflicting upon him mortal/fatal
stab wounds which directly caused his death.

CONTRARY TO LAW.3

The Information, dated February 21, 1997, was filed with the court on February 28,
1997.

Pablo was arrested on June 5, 1998 and was thereafter prosecuted. The other accused
remained at large.4 Pablo moved to quash the Information on the ground of mistaken

308
identity and the staleness of the warrant of arrest issued on March 4, 1997. The RTC
denied his motion.5

Pablo entered a plea of "not guilty" to the charge when arraigned on August 3, 1998.6

The Prosecution's Version

The prosecution presented evidence, both documentary7 and testimonial,8 to establish

that Pablo was one of the four assailants who, by their concerted efforts, killed Felix
Olandria y Bergaño (victim).9 Acting together, they hit him on the head and stabbed him.

The records show that Romildo Ceno (Romildo) was a resident of Zone 17, Pembo,
Makati City and lived in the house of Freda Elnar (Freda).10 At around 12:05 a.m. of
November 26, 1996, he, Mario Bitco (Mario),11 and Freda were talking and watching
television at their house12 when he heard a noise coming somewhere below the C-5
bridge, located some forty (40) to fifty (50) meters away from their house; he also heard
somebody shout "may away doon."13 Curious, he and Mario went to the bridge14 and
saw five persons whom he identified as the victim, Pablo, Arnold Partosa (Arnold),
George Palacio (George),15 and Damaso Amodia (Damaso). He knew these men; the
victim was his neighbor, while Pablo, Arnold, George and Damaso were residents of
Scorpion Street, Zone 17 Pembo, Makati City.16

When Romildo was about three arms-length away from the place of the commotion, then
illuminated by light coming from a Meralco post located some five (5) to six (6) meters
from the scene, he saw the victim being held on his right hand by Pablo, while the other
hand was held by Arnold.17 George was positioned at the victim's back and clubbed the
victim on the head; Damaso was in front of the victim and stabbed him three times.18

Luther Caberte (Luther), who happened to be passing by the C-5 Bridge at the time, also
saw what happened. He testified that he saw men fighting under the C-5 Bridge which
was illuminated by a light coming from a lamppost located some ten (10) meters
away.19 From his vantage point (about 15 meters away from the fight), he saw Pablo,
Damaso, George and Arnold ganging up (pinagtulung-tulungan) on the victim.20 He saw
Pablo holding the victim's hand while Damaso was stabbing him. He also confirmed that
George was positioned behind the victim.21 He personally knew both Pablo and the
victim; they have been neighbors since 1986.22

309
Both eyewitnesses left the scene after the stabbing; Romildo was chased away by
George and Damaso, while Luther went home immediately. Both were shaken and
shocked with what they had seen.23

At 3:00 a.m. of the same day, the CID Homicide received a report of an unidentified
body found in a road along Comembo Bridge, BarangayPembo.24 SPO2 Romeo Ubana
(SPO2 Ubana), a police investigator assigned to the CID Homicide, and a police
photographer went to the place and saw the body of a dead male person with three stab
wounds whom they subsequently identified as the victim.25 He prepared a Final
Investigation Report of the incident.26

After the spot investigation, the victim's body was taken to the Veronica Memorial
Chapel where Dr. Antonio Bertido (Dr. Bertido), a National Bureau of Investigation (NBI)
Medico Legal Officer, subjected it to a post-mortem examination.27 The autopsy yielded
the following findings:

Pallor, intergument and nailbeds.

Stab wounds.

1. Elongated 4.5. cms. Edges are clean cut, medial border is sharp, lateral border is
blunt. Located at the chest, anterior, left side, 6.0 cms. From the anterior median line.
Directed backwards, upwards and medially involving the skin and underlying soft
tissues, into the thoracic cavity, perforating the pericardial sac, into the pericardial cavity,
penetrating the heart with an approximate depth of 10.0 cms.

2. Elongated, 3.5 cms edges are clean cut, medial border is blunt, lateral border is
sharp. Located at the anterior abdominal wall, left side, 6.5 cms. From the anterior
median line. Directed backwards, upwards and medially involving the skin and
underlying soft tissues, perforating the stomach with an approximate depth of 14.0 cms.

3. Elongated, 3.0 cms, edges are clean-cut, medial border is blunt, lateral border is
sharp. Located at the anterior abdominal wall, right side. 2.0 cms. From the anterior
median line. Directed backwards, upwards and laterally involving the skin and underlying
soft tissues, penetrating the head of the pancreas with an approximate depth of 12.0
cms.28

310
Dr. Bertido stated that the victim was stabbed three times on the body by a single-bladed
sharp-pointed instrument.29 Through the use of an anatomic diagram, Dr. Bertido
showed that the victim was stabbed on his left chest and over his right and left
abdominals.30 He also stated that of the three stab wounds, the wound on the victim's
chest was the most fatal because it was near his heart, while the other wounds involved
the victim's stomach and pancreas.31 Dr. Bertido declared that no other wound, aside
from the three stab wounds, was found on the victim's body.32 He later on executed a
Certificate of Post-Mortem Examination showing the cause of death as hemorrhage,
secondary to stab wounds.33

Dr. Bertido admitted that while he could not specifically determine the position of the
victim at the time he was stabbed, he was certain that the stab wounds were inflicted
when the victim and his assailant were facing each other.34 He also disclosed that the
sizes of the wounds were different from each other.35

The prosecution also presented Claudio Olandria,36 the victim's father, who took the
witness stand and testified on the expenses that he and his family incurred by reason of
his son's death.

The Defense's Version

The defense relied on the defense of alibi, submitting testimonial and documentary
evidence37 to support Pablo's claim that he was in another place at the time of the
stabbing.

Pablo averred that his name is Pablito Amodia and stated that at the time of the incident,
he lived in the house of Elma Amodia Romero (Elma), his sister, located at Zone 13,
Ilocos Street, Barangay Rizal, Makati City.38He has lived there since 1994. He claimed
that he was at home in the evening of November 25, 1996, until the early morning of the
next day.39At around 10:00 of that evening, his brother - Elias Amodia (Elias) - who lived
next door, awakened him40 and told him that his (Elias') wife, then pregnant, had started
having labor pains.41 He went back to sleep only to be awakened by Elias at past 12:00
midnight. Elias then requested him to take care of his house.42

Pablo related that it was at this time that Damaso (another brother), George, Arnold, and
another person he did not know, came to Elma's house.43 He noticed that Damaso was

311
in a hurry and was packing his clothes; the latter told him that they (Damaso and his
companions) encountered trouble.44 Damaso and his companions left past midnight; on
the other hand, he went to Elias' house to take care of the latter's children, while Elias
and his wife went to a lying-in clinic.45 While at Elias' house, Elma visited him to check
on him and the children.46 He stayed there until 9:00 a.m. of November 26, 1996 when
he went back to Elma's house; he went to school later in the day.47

Pablo also alleged that it was only after returning from school that he came to know of
the victim's death; he only knew the victim by name and even went to the victim's wake
the first night.48

He further alleged that he stopped schooling for lack of funds and went to Zamboanga
del Norte in January 1997.49 He went back to Manila on May 22, 1998 to continue his
education, but was arrested on June 5, 1998.50

Elma and Elias corroborated Pablo's story.51 Elma stated that Pablo lived with her in
their brother's house together with her husband, their children, and Damaso.52 She
added that Damaso told her that they were in trouble (atraso) because of a fight, and
that he and his companions were on their way to Cebu.53 Elma declared that Pablo was
with her when Damaso came to the house to pack his clothes.54 Pablo and Damaso left
at 12:30, but for different destinations.55 She knew that Pablo went to Elias' house
because she went to check on him and the children around 1 a.m. and then again at 2
a.m.56 Elias' wife gave birth to a baby girl at 2:50 p.m. of November 26, 1996. 57

After some prodding, Elma admitted that she knew that cases have been filed against
Pablo and Damaso as early as December 1996.58 The defense thereafter rested its
case.

Prosecution's Rebuttal Evidence

The prosecution presented Amelita Sagarino, a resident of Scorpion Street, Zone 17

since 1989, as a rebuttal witness.59 She testified that she knew the victim and the
accused who were all her neighbors.60 She stated that she served food at the victim's
wake from seven in the evening up to six in the morning and that she never saw Pablo
there.61She also heard from her neighbors that the people responsible for the victim's

312
death were George, Arnold, Damaso, Pabling and Pablito Amodia.62 She clarified that
Pabling and Pablito Amodia are one and the same person.63

Subsequently, she stated that Pablito Amodia also attended the wake of the victim.64

Ruling of the RTC

The RTC convicted Pablo of murder after finding sufficient evidence of his identity, role
in the crime as principal by direct participation, and conspiracy between him and the
other accused who used their superior strength to weaken the victim. The RTC relied on
the testimonies of eyewitnesses Romildo and Luther, the autopsy results conducted on
the body of the victim, and the lack of physical impossibility on the part of Pablo to be at
the crime scene. The dispositive portion of the RTC decision reads:

WHEREFORE, the Court finds accused Pablo guilty of having committed the crime of
murder as principal by conspiracy. Considering that there are no aggravating or
mitigating circumstances attendant to the commission of the crime, pursuant to Article 64
(1) of the Revised Penal Code, accused is sentenced to suffer imprisonment of reclusion
perpetua. He is further sentence to pay the heirs of the deceased Felix Olandria the
amount of P50,000.00 as moral damages and to reimburse said heirs of the amount
of P23,568.00 for expenses incurred for the funeral service, burial and incidental
expenses.

SO ORDERED.65

Ruling of the CA

On appeal, the CA agreed with the RTC's findings and affirmed Pablo's conviction.66 The
CA, however, corrected the RTC's ruling on the applicable provision of the Revised
Penal Code, as amended (Code), and modified the award of actual damages, as follows:

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed

Decision dated July 19, 1999 is hereby AFFIRMED with MODIFICATION. Appellant is
hereby sentenced to suffer the penalty of reclusion perpetua in accordance with Rule
63(2) of the Revised Penal Code. He is likewise ordered to pay the heirs of the

313
victim, P23,268.00, as actual damages, P50,000 as civil indemnity and P25,000.00, as
exemplary damages, in addition to the award of P50,000.00 as moral damages.

SO ORDERED.

The Issues

In his Brief before this Court,67 Pablo assigns the following errors committed by both the
RTC and CA:

(1) In finding that his guilt for the crime charged has been proven beyond reasonable
doubt.

(2) In finding the existence of conspiracy.

Pablo argues that the lower courts erred in failing to give evidentiary weight to his alibi,
thus disregarding the constitutional presumption of innocence in his favor. 68 He
emphasizes that his alibi was corroborated by defense witness Elma who confirmed that
he was at Elias's house at the time of the stabbing.69

He alternatively argues that granting that he was a part of Damaso's group and that this
group killed the victim, the prosecution failed to prove the conspiracy among them; there
was no evidence adduced to establish how the incident that led to the stabbing began.
Any doubt that he acted as a principal should have been resolved in his favor.70

In their Brief,71 the Office of the Solicitor General (OSG) representing the People,
maintain that no reversible error was committed by the lower courts. The OSG avers that
the prosecution's evidence has satisfactorily proven all the elements of the crime.
Similarly, the conspiracy between Pablo and the three accused was proven by the
autopsy report which corroborated the categorical testimonies of Romildo and Luther on
how the accused and the others acted, clearly showing a unity of purpose in the
accomplishment of their criminal objective.72 The testimonies of these two eyewitnesses
also reveal that the killing was attended by the aggravating circumstance of abuse of
superior strength, and the employment of means to weaken the defense of the victim.
These circumstances qualify the killing to murder.

314
The Court's Ruling

We affirm Pablo's conviction.

The appeal essentially attacks the soundness of the factual findings of the RTC and CA
that, according to Pablo, are not in accord with the totality of the evidence in the case.
He emphasizes that the RTC and CA disregarded his alibi and the lack of evidence
establishing a conspiracy to kill the victim.

A review of the records fails to persuade us to overturn Pablo's judgment of conviction.

We have emphasized often enough that the factual findings of the trial court, its
calibration of the testimonies of the witnesses, and its assessment of their probative
weight are given high respect, if not conclusive effect, unless cogent facts and
circumstances of substance were ignored, misconstrued or misinterpreted, which, if
considered, would alter the outcome of the case.73 Under the circumstances, we find no
exceptional reason to warrant a deviation from this rule.

The records show that both the RTC and CA convicted Pablo of murder based on the
positive identification by Romildo and Luther and their eyewitness accounts of the actual
killing, showing the existence of a conspiracy among Pablo's group to kill the victim. The
CA decision clearly reflects these findings and reasoning:

The evidence on record gives the picture of the incident at the time when Felix Olandria
was already being held on both hands by accused Pablo Amodia and Arnold Pantosa. It
was while in this position that accused Damaso Amodia delivered three (3) stab blows
which proved to be fatal . . .74

Both courts gathered, too, from these testimonies that the killing was qualified by the
aggravating circumstance of abuse of superior strength, demonstrated by the concerted
efforts of Pablo's group to overpower the victim's strength with their own in carrying out
their criminal plan:

'the nature of the evidence presented, there are sufficient reasons to conclude and
consider as having been established beyond reasonable doubt, the existence of
conspiracy and the qualifying aggravating circumstances of abuse of superior strength
and employment of means to weaken the defense. These are: first, the convergence of

315
four (4) accused; x x x second, the time when the four (4) accused were seen together
which is about 12:05 in the early morning of November 26, 1997; x x x third, the place
where they were seen together which is below the bridge of C-5; fourth, possession by
accused Damaso Amodia of a knife his occupation being that of a painter; fifth, absence
of any other injuries in other parts of the body of the victim Felix Olandria x x x; sixth, the
location of the three stab wounds all of which were directed against delicate parts of the
body indicating intent to kill' The foregoing circumstances clearly proven by the
prosecution evidence, when taken together with the fact that death ensued indicate that
there was conspiracy on the part of the accused that they abused their superior strength
and employed means to weaken the defense. The act of one is to be considered
therefore the act of the other.75

The Eyewitnesses Testimonies.

The RTC and CA found the identification made by Romildo and Luther to be clear,
categorical, and consistent.76 We observed that in accepting the truth of the identification
and the account of how the stabbing took place, the RTC and CA considered the
witnesses' proximity to the victim and his assailants at the time of the stabbing - they
were about three arms length away and 15 meters away, respectively; the well-lighted
condition of the crime scene; and the familiarity of these eyewitnesses with the victim
and his assailants - they were all residents of the same area. Similarly, we also note that
no evidence was presented to establish that these eyewitnesses harbored any ill-will
against Pablo and had no reason to fabricate their testimonies. The weight of
jurisprudence is to accept these kinds of testimonies as true for being consistent with the
natural order of events, human nature and the presumption of good faith.77

Aside from these, we additionally note that Romildo and Luther never wavered, despite
the contrary efforts of the defense, in their positive identification of Pablo as one of the
assailants of the victim. The records glaringly show the defense counsel's vain efforts to
prove that these eyewitnesses committed a mistake in identifying Pablo as one of the
assailants since his name was allegedly Pablito Amadio, and not Pablo.

We state in this regard that positive identification pertains essentially to proof of

identity and not necessarily to the name of the assailant. A mistake in the name of the
accused is not equivalent, and does not necessarily amount to, a mistake in the identity

316
of the accused especially when sufficient evidence is adduced to show that the accused
is pointed to as one of the perpetrators of the crime. In this case, the defense's line of
argument is negated by the undisputed fact that the accused's identity was known to
both the eyewitnesses. On the one hand, we have Romildo's testimony stating that
Pablo lived across Scorpion Street from where he lived.78 He also stated that he had
known Pablo for more than a year.79 On the other hand, Luther testified that he had
known Pablo since 1986 because they were neighbors and that he even played
basketball with him.80 We stress that Pablo never denied these allegations.

In People v. Ducabo, we took notice of the human trait that once a person knows
another through association, identification becomes an easy task even from a
considerable distance; most often, the face and body movements of the person identified
has created a lasting impression on the identifier's mind that cannot easily be erased.81

The association the eyewitnesses cited - specifically, being neighbors and even
basketball game mates - rendered them familiar with Pablo, making it highly unlikely that
they could have committed a mistake in identifying him as one of the assailants. Their
identification came at the first opportunity (i.e., when they revealed) what they knew of
the killing, and culminated with their courtroom identification of Pablo as among those
who assaulted the victim.82

Two reasons settle the argument about Pablo's name against his favor. It strikes us that
this argument is a line of defense that came only as the defense's turn to present
evidence neared. We have on record that prior to the defense's presentation of
evidence, Pablo referred to himself as Pablo Amodia when the court asked him his
name.83 We likewise find no competent evidence, other than his assertion and those of
his siblings, showing that his true name is really Pablito Amodia. We therefore conclude
that any uncertainty on the name by which the accused is or should be known is an
extraneous matter that in no way renders his identification as a participant in the
stabbing uncertain.

We find nothing irregular, unusual, or inherently unbelievable, in the eyewitnesses'

testimonies that would affect their credibility. Their narratives are remarkably compatible
with the physical evidence on hand; likewise, their accounts are also consistent with
each other. More importantly, the narration of these eyewitnesses are in full accord with

317
the human experience of individuals who are exposed to a startling event and their initial
reluctance to involve themselves in the criminal matters especially those involving violent
crimes committed by individuals known to them.

The Defense of Alibi

Pablo argues that his alibi should have been given greater evidentiary weight because it
was corroborated by his sister, Elma. As reproduced by Pablo in his Brief, the substance
of Elma's testimony is as follows:

Q: Mrs. Witness while you were sleeping which you said you start sleeping at 10:00
o'clock in the evening of November 25, 1996, while you were sleeping, what transpired,
if any, was there any unusual incident that transpired? [sic]

A: Pumunta po ang isang kapatid ko, si Elias Amodia dahil naglalabor daw and hipag ko
at manganganak at dadalhin niya sa lying-in, eh malayo po at siya ang pinagbabantay
sa mga pamangking kong maliliit, sir.

Q: Could you tell the Honorable Court what time did your brother Elias Amodia wake up
Pablo Amodia?cralawred

A: 12:00 midnight, sir.

xxx

Q: When Pablo woke up, what if any did Pablo Amodia do?cralawred

A: Pumunta po siya sa bahay ng kapatid ko, sir?

Q: And where was that house of your brother Elias located?cralawred

A: Malapit lang po sa amin.

Q: How far is your house to his house?cralawred

A: Tatlong (3) dipa po ang layo, sir.84

318
Alibi is a defense that comes with various jurisprudentially-established limitations. A first
limitation fully applicable to this case is that alibicannot overcome positive
identification.85 For the defense of alibi to prosper, evidence other than the testimony of
the accused must be adduced. Evidence referred to in this respect does not merely
relate to any piece of evidence that would support the alibi; rather, there must be
sufficient evidence to show the physical impossibility (as to time and place) that the
accused could have committed or participated in the commission of the crime. For alibi
to be given evidentiary value, there must be clear and convincing evidence showing that
at the time of the commission of the crime, it was physically impossible for the accused
to have been at the situs criminis.86

As we have discussed at length, Pablo was positively identified by Romildo and Luther
as one of the victim's assailants. We find no reason to doubt the accuracy of the
identification made.

Pablo's alibi does not also meet the requirements of physical impossibility of time and
place. A scrutiny of the entire testimony of Elma failed to show that it was physically
impossible for Pablo to be at the crime scene when the stabbing took place. We note
that although Elma testified that Pablo was at Elias' house at the time of the stabbing,
she nonetheless admitted that her house (which was located beside Elias' house) and
the bridge where the crime was committed is a 10-minute walking distance away from
each other.87 She further testified that after Pablo left for Elias' house, she only saw him
again at around 1:00 a.m. and at 2:00 a.m at their brother's house. 88 Hence, it was
possible that Pablo could have gone out of Elias' house to join Damaso, George, and
Arnold in assaulting the victim, and afterwards returned to his brother's house without
Elma knowing that he was ever gone.

We scrutinize Elma's version of the events with utmost care considering that she is
Pablo's sister. This is not the first time that this Court has encountered a case
where alibi is provided by a close kin; we have recognized that in these situations, it may
come naturally to some to give more weight to blood ties and close relationship than to
the objective truth;89 thus, our strict scrutiny.

We find that the time frame in Elma's version of events shows a pattern of inconsistency
that renders its truthfulness suspect. The testimony is inconsistent on the time Pablo

319
slept and was awakened by Elias - details that, to our mind, are material to show his
whereabouts on that fateful night.90

Elma initially stated that Pablo slept at 9:00 p.m. and was awakened by Elias at 12:00
midnight.91 Thereafter, she claimed that Pablo was also awakened by Elias at 9:00 p.m.
(the same time that Pablo slept) that evening, and that Pablo went to Elias's house
around 12:30 p.m.92Subsequently, she averred that Pablo was awakened at 10:00 p.m.
but went back to sleep then awakened again at 12:00 p.m.93

These conflicting statements are not rendered any more believable by their conflict with
the time frames claimed in Pablo's version of events.94Similarly, Elma's version
of what occurred when is likewise inconsistent with Elias' version of events.95

Finally, even granting that a semblance of truth exists in the defense's narration of
events, the inconsistencies and contradictions in its witnesses' testimonies render their
evidence uncertain. In the final analysis, even their version does not preclude Pablo from
being physically present at the crime scene when the killing took place. Thus, the
defense and prosecution's evidence taken together, render Pablo guilty of the crime
charged beyond reasonable doubt.

Conspiracy

As an alternative argument, Pablo puts into issue the failure of the prosecution's
evidence to establish the conspiracy between him and his other co-accused to make him
liable for murder. He emphasizes that the evidence, as testified to by the eyewitnesses,
only relate to events during, and not prior to, the assault and the stabbing of the victim.
He argues that no evidence was adduced to show that the accused all agreed to kill the
victim.

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.96 It arises on the very instant the plotters
agree, expressly or impliedly, to commit the felony and forthwith decide to pursue it. 97 It
may be proved by direct or circumstantial evidence.98

Direct proof of conspiracy is rarely found; circumstantial evidence is often resorted to in

order to prove its existence.99 Absent of any direct proof, as in the present case,

320
conspiracy may be deduced from the mode, method, and manner the offense was
perpetrated, or inferred from the acts of the accused themselves, when such acts point
to a joint purpose and design, concerted action, and community of interest. 100 An
accused participates as a conspirator if he or she has performed some overt act as a
direct or indirect contribution in the execution of the crime planned to be
committed.101 The overt act may consist of active participation in the actual commission
of the crime itself, or it may consist of moral assistance to his co-conspirators by being
present at the commission of the crime, or by exerting moral ascendancy over the other
co-conspirators.102 Stated otherwise, it is not essential that there be proof of the previous
agreement and decision to commit the crime; it is sufficient that the malefactors acted in
concert pursuant to the same objective.103

Although there was no evidence in the present case showing a prior agreement among
Pablo, Arnold, George, and Damaso, the following chain of events however show their
commonality of purpose in killing the victim: first, the accused surrounded the victim on
all sides: Damaso at the front, George at the victim's rear, while Pablo and Arnold
flanked the victim on each side; second, Pablo then wrested the right arm of the victim
and restrained his movement, while Arnold did the same to the left arm of the victim;
third, George then hit the victim's head with a piece of wood; and fourth, Damaso
stabbed the victim three times.

In People v. Elijorde,104 we said: Me-sm

The cooperation that the law punishes is the assistance knowingly or intentionally
rendered which cannot exist without previous cognizance of the criminal act intended to
be executed. It is therefore required in order to be liable either as a principal by
indispensable cooperation or as an accomplice that the accused must unite with the
criminal design of the principal by direct participation. S

In People v. Manalo,105 we declared that the act of the appellant in holding the victim's
right hand while the latter was being stabbed constituted sufficient proof of conspiracy:

Indeed, the act of the appellant of holding the victim's right hand while the victim was
being stabbed by Dennis shows that he concurred in the criminal design of the actual
killer. If such act were separate from the stabbing, appellant's natural reaction should

321
have been to immediately let go of the victim and flee as soon as the first stab was
inflicted. But appellant continued to restrain the deceased until Dennis completed his
attack.

Tested against these, the existence of conspiracy among the four accused is clear; their
acts were aimed at the accomplishment of the same unlawful object, each doing their
respective parts in the series of acts that, although appearing independent from one
another, indicated a concurrence of sentiment and intent to kill the victim. Following the
reasoning in Manalo, if there was in fact no unity of purpose among Pablo and the three
other accused, Pablo's reaction would have been to let go of the victim and flee after the
first stabbing by Damaso. The evidence reveals, however, that after the first stabbing,
Pablo still continued to hold the right arm of the victim, rendering him immobile and
exposed to further attack.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Where there is conspiracy, a person may be convicted for the criminal act of
another.106 Where there is conspiracy, the act of one is deemed the act of all.107

The Crime

Murder is committed by killing a person under any of the qualifying circumstances

enumerated by Article 248 of the Code not falling within the provisions of Article 246 (on
parricide), Article 249 (on homicide), and Article 255 (on infanticide) of the said Code.

With Pablo's participation in the killing duly established beyond reasonable doubt, what
is left to examine is whether or not the aggravating circumstance of abuse of superior
strength, which qualifies the crime to murder, is present under the circumstances.

To take advantage of superior strength means to purposely use excessive force out of
proportion to the means of defense available to the person attacked. 108 Taking
advantage of superior strength does not mean that the victim was completely
defenseless.109

In People v. Ventura, we opined that there are no fixed and invariable rules in
considering abuse of superior strength or employing means to weaken the defense of
the victim.110 Superiority does not always mean numerical superiority. Abuse of
superiority depends upon the relative strength of the aggressor vis - à-vis the

322
victim.111 Abuse of superiority is determined by the excess of the aggressor's natural
strength over that of the victim, considering the position of both, and the employment of
the means to weaken the defense, although not annulling it.112 The aggressor must have
advantage of his natural strength to ensure the commission of the crime.113

In the present case, we find that there was abuse of superior strength employed by
Pablo, Arnold, George and Damaso in committing the killing. The evidence shows that
the victim was unarmed when he was attacked. In the attack, two assailants held his
arms on either side, while the other two, on the victim's front and back, each armed with
a knife and a piece of wood that they later used on the victim. Against this onslaught, the
victim's reaction was graphically described by the prosecution eyewitness, Luther, when
he testified:

Q: Which came first, by the way, was the victim or what was the victim doing then when
the fight took place?cralawred

A: Wala siyang nagawa kase hinawakan siya, gusto niyang makawala pero wala siyang
magawa hinawakan siya sa leeg, sir.114 [Emphasis supplied]

Under these circumstances, no doubt exists that there was gross inequality of forces
between the victim and the four accused and that the victim was overwhelmed by forces
he could not match. The RTC and CA therefore correctly appreciated the aggravating
circumstance of abuse of superior strength which qualified the killing to the crime of
murder.

The Penalty

The penalty for murder under Article 248 of the Code is reclusion perpetua to death.
Article 63 (2)of the same Code states that when the law prescribes a penalty consisting
of two indivisible penalties and there are neither mitigating nor aggravating
circumstances in the commission of the crime, the lesser penalty shall be imposed.
Since the aggravating circumstance of abuse of superior strength already qualified the
killing to murder, it can no longer be used to increase the imposable penalty. We note
that while another aggravating circumstance, i.e., employing means to weaken the
defense of the victim, was alleged in the Information, the prosecution failed to adduce

323
evidence to support the presence of this circumstance. Hence, the RTC and CA
correctly imposed the penalty of reclusion perpetua.

Likewise, the CA correctly awarded P50,000.00 as moral damages and P25,000 as

exemplary to the heirs of the victim consistent with prevailing jurisprudence.115 However,
in line with recent jurisprudence, the award of civil indemnity shall be increased
from P50,000.00 to P75,000.00.116

Further, the CA erred in awarding actual damages in the amount of P23,268.00. In

People v. Villanueva, we held that when actual damages proven by receipts during the
trial amount to less than P25,000.00, the award of temperate damages for P25,000.00 is
justified in lieu of actual damages of a lesser amount. 117 We reiterated this ruling in the
recent cases of People v. Casta118 and People v. Ballesteros119 where we awarded
temperate damages, in lieu of actual damages, in the amount of P25,000.00.

WHEREFORE, premises considered, this Court AFFIRMS the Court of Appeals decision
dated May 4, 2006 in CA-G.R. CR.-H.C. No. 01764 finding accused-appellant Pablo
Amodia GUILTY beyond reasonable doubt of the crime of murder, with the
MODIFICATION that:

(1) The award of civil indemnity shall be increased from P50,000.00 to P75,000.00;

(2) The award of actual damages in the amount of P23,268.00 is hereby DELETED;
andcralawlibrary

(3) In lieu thereof, accused-appellant is ORDERED to pay P25,000.00 as temperate

damages.

The other portions of the appealed decision are hereby AFFIRMED.

SO ORDERED.

Endnotes:

324
1
Dated May 4, 2006; penned by Associate Justice Juan Q. Enriquez, Jr. with Associate
Justice Godardo A. Jacinto (retired) and Associate Justice Q. Roxas, concurring; rollo,
pp. 3-13.

2
They are: Damaso Amodia, George Palacio and Arnold Partosa.

3
Records, p. 1.

4
Id., pp. 16-17.

5
Id., p. 39.

6
Id., p. 42.

7
The prosecution offered the following documentary evidence: (1) Salaysay ni Romildo
Cero y Bitco dated December 24, 1996 (Exhibit A); (2) NBI Medico Legal Division
Anatomic Diagram (Exhibit B); (3) Autopsy Report No. N-96-2366(Exhibit C); (4)
Certificate of Post-Mortem Examination in Case No. N-96-2366 (Exhibit D); (5)
Certificate of Death (Exhibit E); (6) Embalming expenses(Exhibit F); (7) Funeral services
(Exhibit G); (8) Job estimate (Exhibit H); (8) Job estimate (Exhibit I); (9) List of expenses
(Exhibit J); (10) Salaysay ni Mario Bitco y Besagas dated December 24, 1996 (Exhibit
K); (11) Salaysay ni Florita Olandria y Vergano dated December 24, 1996 (Exhibit L);
and (12) Final Investigation Report dated January 6, 1997 by SPO2 Romeo O. Ubaña of
the PNP, Makati Police Station 2 (Exhibit M).

8
The prosecution's witnesses were: Romildo Cero (also referred to as Romido in the
records), Dr. Antonio Vertido, Claudio Olandria, SPO2 Romeo Ubaña, Luther Caberte,
and Amelita Sagarino who was presented as a rebuttal witness.

9
Also referred to as Olandia in the records.

10
TSN, August 25, 1998, p. 32, and TSN, August 31, 1998, p. 5.

11
Also referred to as Mario Meto or Mario Vitco in the records.

12
TSN, August 18, 1998, pp. 5-7 (Romildo).

325
13
Id., pp.7-8 (Romildo).

14
Id., p. 9 (Romildo).

15
Also referred to as Jorge in the records.

16
TSN, August 18, 1998, pp. 11-14 and 24 (Romildo).

17
Id., pp. 15 and 18-19 (Romildo).

18
Id., pp. 16-17 (Romildo).

19
TSN, November 16, 1998, p. 7-8.

20
Id., p. 8.

21
Id., p. 9.

22
Id., pp. 5-6.

23
TSN, August 31, 1998, p. 18; TSN, November 16, 1998, p. 28.

24
TSN, November 9, 1998, pp. 4-5.

25
Id. p. 6.

26
Dated January 6, 1997; records, p. 100.

27
TSN, August 25, 1998, p. 4.

28
Records, p. 90.

29
TSN, August 25, 1998, p. 12.

30
Id., p. 6.

31
Id., pp. 9-10.

32
Id., p. 11.

326
33
Records, p. 91.

34
TSN, May 25, 1998, p. 14.

35
Id., p. 15.

36
TSN, October 12, 1998, pp. 2-7

37
They are: the accused Amodia and Elma Amodia Romero. Meanwhile, the testimony
of defense witness Elias Amodia, the brother of Amodia, was dispensed with upon
stipulation by the prosecution and the defense as stated in the RTC Order dated May 17,
1999. The defense also offered in evidence: (1) the Certificate of Live Birth of Mercedes
Balmera Amodia (Exhibit 1); (2) the Certificate from Trace Computer College (Exhibit 2);
(3) Photocopy of official receipt issued by Trace College (Exhibit 3).

38
TSN, February 16, 1999, pp. 2-3.

39
Id., p. 6.

40
Id., pp. 7-8.

41
Id., p. 8.

42
Ibid.

43
TSN, February 16, 1999, p. 11.

44
Id., p. 13.

45
Id., pp. 15-17.

46
Id., p. 20.

47
Id., pp. 19 and 25-26.

48
Id., p. 44, and TSN, March 22, 1999, p. 15

49
TSN, February 16, 1999, pp.30 - 32.

327
50
Id., pp. 31 and 33; records, p. 18.

51
His testimony was dispensed with in view of the following stipulations made at the
hearing dated May 17, 1999, as reproduced: "(1) He woke up Pablo Amodia at 10
o'clock of November 25, 1999. He requested Pablo Amodia to stay with his wife; (2) The
witness Elias went back at around 12 o'clock to the house of his sister Elma Amodia to
go to the house of the witness; (3) At 1:00 in the morning, when the witness and his wife
went to the lying[-in] hospital at the maternity hospital at Fort Bonifacio; the accused
Pablo was already there in the house of the witness; (4) When the witness went back to
his house at past 4:00 early morning, the accused was there in his house at the house of
the witness; (5) When the witness went back at almost 9:00 in the morning of November
26, 1996, when he went back to his house, meaning the witness, the accused was in his
house [sic]; (6) At 9:00 in the morning of November 26, the accused leave (sic) the
residence of the witness to go to school at Trace Computer; (7) The witness will identify
the certificate of live birth; (8) That the witness is the full blood of the accused."[sic]

52
TSN, February 15, 1999, p. 5.

53
TSN, February 15, 1999, pp. 13 and 23.

54
Id., p. 39.

55
Id., pp. 33 and 37.

56
Id., p. 33.

57
Id., p. 20; records, p. 140.

58
TSN, February 15, 1999, p. 47.

59
TSN, May 25, 1999, p. 4.

60
Id., pp. 5-6.

61
Id., pp. 7-8.

62
Id., pp. 9-11, and TSN, June 15, 1999, p. 3.

328
63
TSN, June 15, 1999, p. 18.

64
Id., p. 13.

65
Decision, pp. 5-6; CA rollo, pp. 29-30.

66
Previously, we transferred the initial review of the case to the CA via Resolution dated
August 17, 2005, in view of the ruling in People v. Mateo, G.R. NOS. 147678-87, July 7,
2004, 433 SCRA 640.

67
CA rollo, pp. 92-102.

68
Id., p. 99.

69
Ibid.

70
Id., p. 101.

71
Id., p. 114-129.

72
CA rollo, p. 122.

73
Pelonia v. People, G.R. No. 168997, April 13, 2007, 521 SCRA 207.

74
Rollo, p.10; p. 8 of CA decision, citing p. 4 of RTC decision.

75
Id., p. 11; p. 9 of CA decision citing, p. 5 of the RTC decision.

76
CA decision, p. 7 and RTC decision, p. 4; CA rollo, pp.28 and 139.

77
Velasco v. People, G.R. No. 166479, February 28, 2006, 483 SCRA 649, 668.

78
TSN, September 21, 1998, p.10.

79
TSN, August 18, 1998, p. 10.

80
TSN, November 16, 1998, pp.5-6 and 33.

81
G.R. No. 175594, September 28, 2007, 534 SCRA 458, 471.

329
82
TSN, November 16, 1998, p. 6, and TSN, August 18, 1996, p. 11.

83
TSN, August 18, 1996, p. 11.

84
TSN, February 15, 1999, pp. 9-10; CA rollo, p. 100.

85
G.R. No. 133733, August 29, 2003, 410 SCRA 132,180.

86
G.R. No. 133733, August 29, 2003, 410 SCRA 132,180.

87
TSN, February 15, 1999, p. 25-26.

88
Id., p. 33.

89
People v. Larrañaga, G.R. NOS. 138874-75, February 3, 2004, 421 SCRA 530, 576,
citing People v. Ching, 240 SCRA 267 (1995).

90
TSN, February 15, 1999, pp. 9, 26-27 and 31.

91
Id., p. 9.

92
Id., pp. 28 and 30.

93
Id., pp. 27 and 31.

94
TSN, February 16, 1999, pp. 7 and 9.

95
TSN, May 17, 1999, pp. 3-4.

96
THE REVISED PENAL CODE, Article 8.

97
Dissenting Opinion of Associate Justice Ynares-Santiago in the case of People v.
Agsalog, G.R. No. 141087, March 31, 2004, 426 SCRA 624, 644.

98
People v. Pelopero, G.R. No. 126119, October 15, 2003, 413 SCRA 397, 410.

99
Dissenting Opinion, supra note 97, p. 645.

100
People v. Pelopero, supra note 98, p. 410.

330
102
Ibid.

103
People v. Dacillo, G.R. No. 149368, April 14, 2004, 427 SCRA 528, 535.

104
GR No. 126531, April 21, 1999, 306 SCRA 188, 197.

105
G.R. No. 144734, March 7, 2002, 378 SCRA 629, 639.

106
People v. Dacillo, supra note 103, p. 537.

107
People v. Caballero, G. R. Nos. 149028-30, April 2, 2003, 400 SCRA 424, 437.

108
People v. De Leon, G.R. No. 128436, December 10, 1999, 320 SCRA 495, 505.

109
People v. Ventura, G.R. NOS. 148145-46, July 5, 2004, 433 SCRA 389, 411.

110
People v. Ventura, G.R. NOS. 148145-46, July 5, 2004, 433 SCRA 412.

111
Ibid.

112
Ibid.

113
Ibid.

114
TSN, November 16, 1998, p. 23.

115
People v. Beltran, Jr., G.R. No. 168051, September 27, 2006, 503 SCRA 715, 740-
741; People v. Malinao, G.R. No. 128148, February 16, 2004, 423 SCRA 34, 55; People
v. Caloza, Jr., G.R. NOS. 138404-06, January 28, 2003, 396 SCRA 329, 346-
347; People v. Rafael, G.R. NOS. 146235-36, May 29, 2002, 382 SCRA 753, 770-771.

116
People v. de Guzman, G.R. No. 173477, February 4, 2009.

117
G.R. No. 139177, August 11, 2003, 408 SCRA 571, 581-582.

118
G.R. No.172871, September 16, 2008.

119
G.R. No. 172696, August 11, 2008.

331
 G.R. NO. 162286 : June 5, 2009

GLEN PASCUAL Y MALUMAY alias "yeye" and PAULITO PASCUAL Y JUDALENA

alias "boyet," Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, in connection with Section 2, Rule 125 of the Rules of Criminal
Procedure, seeking to set aside the entry of judgment in CA-G.R. CR No. 26329 and to
reinstate the appeal of herein petitioners before the Court of Appeals (CA).

The instant petition is brought about by the following factual and procedural antecedents:

On July 25, 1996, Criminal Case No. 96-151438 for homicide was filed against
petitioners with the Regional Trial Court (RTC) of Manila, Branch 6, the Information on
which reads:

That on or about June 30, 1996, in the City of Manila, Philippines, the said accused,
conspiring and confederating together with two others whose true names, real identities
and present whereabouts are still unknown and helping one another, did then and there
wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal
violence upon the person of TEOFILO CORNEL Y DACASIN, by then and there kicking,
boxing the latter on the different parts of his body and, thereafter, striking him in the
head with a stone, thereby inflicting upon him mortal and fatal wounds which were the
direct and immediate cause of his death thereafter.

CONTRARY TO LAW.1

During their arraignment on January 31, 1997, petitioners, with the assistance of their
counsel de parte, pleaded "not guilty."

332
At the trial, the RTC found the following facts based on the testimonies of prosecution
witnesses Rodolfo C. Cortez (Cortez), an eyewitness to the mauling incident which led to
the killing of the victim; Edgardo Ko (Ko), the police investigator of the case; Flora Cornel
(Flora), who testified as to the civil liability of the case, she, being the mother of the
victim; and the testimony of petitioner Paulito Pascual, for the defense:

On June 30, 1996, at about 12:30 in the morning, Rodolfo Cortez was on his way to buy
liempo at Andok's Litson Manok (Andok's) located at the corner of Palawan and Rosalito
Streets, along G. Tuazon, Sampaloc, Manila. Cortez was approaching Andok's when he
saw a male person sporting long hair being kicked, mauled and ganged up on by six
persons in front of the same store. Cortez recognized two of the six persons as
petitioners Glen Pascual alias "Yeye" and Paulito Pascual alias "Boyet," as the former
sometimes played basketball with Cortez and the latter lived in Masbate Street, the next
street from Leo Street, where Cortez lived. Petitioner Glen Pascual hit the head of the
victim with a knapsack, which caused the victim to fall with his face down. While the
victim was lying prostrate on the ground, petitioners Glen Pascual and Paulito Pascual
continuously kicked the said victim. Cortez next saw petitioner Glen Pascual with a shiny
instrument, which the latter struck on the neck area (the lower earlobe) of the victim.
After that, Cortez heard somebody shout the name "Yeye," which made petitioner Glen
Pascual turn around, prompting both of them to have an eye to eye contact.2

The following day, after the mauling incident, while Cortez was on his way home from
work, he passed by the barangay hall and noticed that somebody was lying in state.
Cortez entered the barangay hall and recognized the corpse inside the coffin as the
same victim who was mauled the night before. Cortez informed somebody, who turned
out to be the brother of the victim, about the mauling incident which led to the killing of
the victim and told the latter that he was willing to testify as to the incident he
witnessed.3 Thus, on July 2, 1996, Cortez executed an Affidavit4 stating what he
witnessed during the mauling.

Edgardo Ko testified that on June 30, 1996, at 10:00 in the morning, while he was in his
office at the Western Police District, Homicide Section, he received a telephone call from
Senior Police Officer (SPO4) Domingo Almeda of the Balic-Balic Police Station informing
him that a victim of a mauling incident was admitted dead on arrival at the Ospital ng
Sampaloc. Hearing said information, he and PO3 Diomedes Labarda then proceeded to

333
the said hospital and traced the victim's body inside the emergency room. Upon seeing
the victim's body, Ko examined it. It showed lacerated wounds at the back of his head,
busted lips and a puncture wound on the chin. He also came to know the name of the
victim as Teofilo Cornel y Dacasin (Teofilo). Afterwards, Ko and his companion
proceeded to the scene of the mauling incident. They conducted an ocular inspection
and found splashes of blood along the gutter of the road. They also found the
bloodstained, gray and aquamarine colored knapsack containing assorted technician's
tools and clothing which allegedly belonged to the victim. They recovered said bag at the
Pascual compound at 1024 Rosalito Street, Sampaloc, Manila.5

The autopsy conducted by Dr. Antonio S. Vertido, Medico-Legal Officer of the National
Bureau of Investigation (NBI), upon a letter-request of the victim's brother, indicated the
following: (1) the victim suffered fractures, linear, on the right and left fronto-temporo-
parietal bones; (2) as a result of the said injuries, the victim suffered hematoma on the
scalp, generalized, and hemorrhages, subdural, on the right and left cerebral -
hemisphere; (3) the injuries could have been caused by a blunt instrument like a lead
pipe or a 2x2 piece of wood; (4) considering that the victim suffered fractures on both
sides of his head, the blunt instrument could have been used twice in inflicting the
wounds; (5) that the person who inflicted the blunt instrument could have been one arm's
length from the victim, and that if the blunt instrument was placed inside a bag and that
bag was used to hit the head of the victim, the same would still be a blunt instrument and
could have produced the same injuries; (6) that the external injuries like lacerated
wounds, hematoma, and contusions were also caused by a blunt instrument; (7) that
these wounds could have been sustained also if the victim was boxed and kicked,
because a closed fist is a blunt object; and (8) that in view of the location of the external
injuries in the anterior position of the body of the victim, the assailant and the victim
could have been facing each other about an arm's length from each other.6

On the other hand, petitioner Paulito Pascual, in his testimony, narrated that on June 30,
1996, he went to sleep at around 11:30 in the evening and woke up at about 12:30 to
1:00 in the morning because his housemaid arrived and informed him that there was a
commotion outside his house. He went outside the house but did not see any
commotion; instead, he saw a lone person lying prostrate along G. Tuazon Street. He
returned to the house and asked the housemaid as to the identity of the person lying
prostrate on the ground. While he was inside his house, three policemen entered and

334
invited him for investigation while four other policemen remained outside the compound
where the house was located and held his relatives, i.e., Balam Pascual, Eddie Mamaril
and Tiyo Van Pascual for questioning. They all boarded an owner-type jeepney and the
policemen brought them to the police headquarters at Police Station 5. The policemen
did not show him any warrant for his arrest or for the arrest of his other relatives. They
were detained at the police station for one week. Thereafter, he was transferred to the
Manila City Jail. He did not know the victim or the name and identity of the person he
saw lying prostrate outside his house.7

After trial, the RTC found petitioners guilty beyond reasonable doubt of the crime
charged. The dispositive portion of the Decision8 dated September 7, 2001 reads as
follows:

WHEREFORE, in view of the afore-going, the Court finds accused GLEN PASCUAL Y
MALUMAY alias "YEYE" and PAULITO PASCUAL Y JUDALENA alias "BOYET"
GUILTY beyond reasonable doubt of the crime of HOMICIDE. The Court hereby
sentences them to suffer an indeterminate sentence of SIX (6) YEARS AND ONE (1)
DAY TO TWELVE (12) YEARS and to jointly and severally pay the mother of the victim,
Mrs. Flora Cornel the following amounts:

A. P50,000.00 for the death of Teofilo Cornel y Dacasin;

b. P50,000.00 as reimbursement of burial expenses; andcralawlibrary

c. P50,000.00 as moral damages.

SO ORDERED.9

Due to the conviction, petitioners filed an Urgent Motion for Reconsideration10 dated
September 25, 2001, which was denied by the trial court.11

Consequently, petitioners filed an Urgent Notice of Appeal12 on October 17, 2001 and,
on July 9, 2002, the CA issued a notice13 to petitioner's former counsel, Atty. Edilberto R.
Balce, requiring petitioners to file their brief within thirty (30) days from receipt of the said
notice. On August 13, 2002, petitioners filed through their new counsel, Atty. Humberto
B. Basco, an Urgent Ex-Parte Motion for Extension of Time to Submit Appeal

335
Brief,14 which was granted by the CA in a Resolution15 dated October 15, 2002.
However, no brief was filed by petitioners.

For failure of petitioners to file the required brief, their appeal was deemed abandoned
and dismissed, pursuant to Section 8, Rule 124 of the Revised Rules of Criminal
Procedure, by the CA on February 13, 2003.16And, as a consequence thereof, an Entry
of Judgment was made on March 8, 2003.

Subsequently, petitioners filed an Urgent Omnibus Motion17 dated September 10, 2003
with the CA alleging that the dismissal of the appeal amounted to punishing them for
something which they did not do or in which they had no participation whatsoever. They
also argued that the dismissal of the appeal and the entry of judgment did not preclude
the CA from reinstating the appeal, as there were instances when the same court had
set aside entries of judgments and reinstated appeals due to the failure of counsels to
file appellants' briefs.

The Office of the Solicitor General (OSG), in its Comment18 dated January 28, 2004,
argued that the claim of the petitioners that they were not informed by their counsel of
the filing of the motion for extension of the period for the filing of their brief and the
dismissal of the appeal on account of the non-filing of the said required pleading, was
devoid of any merit. The OSG pointed out that the petitioners were aware of the notice to
file brief, since what they disclaimed knowledge of were merely the motion for extension
filed by their counsel and the resolution dismissing the
appeal.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

It was also observed by the OSG that the lack of coordination by the petitioners with
their counsel respecting the appeal may be attributed to the possibility that petitioners
were confused as to who their counsel was, as shown in their Omnibus Motion, wherein
they referred to their counsel as Atty. Humberto Basco on page 1 and as Atty. Edilberto
R. Balce on page 3, which indicate that the petitioners did not even bother to know who
their counsel was. It was also claimed by the OSG that petitioners omitted to state in
their Motion the date when they discovered the dismissal of their appeal and, thereby,
hiding the unreasonable delay or laches on their part with regard to their Urgent Motion,
which was filed more than 11 months since the Resolution dismissing the appeal was
promulgated. In sum, the OSG, citing jurisprudence,19 contended that a client is bound

336
by the actions of his counsel, as well as by his mistake or negligence, and that a party
cannot blame his counsel for negligence when he himself is guilty of neglect.

In their Reply (to Comment)20 dated February 10, 2004, petitioners argued that they
relied on the supposed professionalism of every member of the Bar. They also claimed
that no amount of prodding would guarantee that the brief would be prepared and filed
on time, as the lawyer concerned was negligent. According to them, if they made any
mistake, it was their act of trusting their lawyer and not their failure to follow up the status
of the case. It was also their contention that they should not be blamed for the fact that
they had not secured the services of a counsel because they tried hard to convince
lawyers to handle their case, but they seemed to believe that their case was hopeless.
Finally, citing jurisprudence,21 they state that procedural rules should be liberally
construed in order to promote their object and assist the parties in obtaining just, speedy
and inexpensive determination of every action or proceeding.

In its Resolution22 dated February 18, 2004, the CA denied the Urgent Omnibus Motion
dated September 10, 2003 of petitioners by agreeing with the OSG that petitioners were
aware of the notice to file brief, and that they themselves were guilty of neglect for failing
to monitor the status of their appeal. The CA also ruled that petitioners did not state
when they discovered the dismissal of their appeal, the omission of which appears to
hide their own delay in filing the motion, which was one for reconsideration of a final
resolution and, hence, subject to a reglementary period.

On March 11, 2004, petitioners filed a Motion for Extension of Time to File Petition for
Review on Certiorari,23 which was denied by this Court in a Resolution24 dated April 12,
2004 for petitioners' failure to show that they had not lost the fifteen (15)-day
reglementary period within which to appeal pursuant to Section 2, Rule 45 of the 1997
Rules of Civil Procedure, as amended, in view of the lack of statement of the date of
receipt of the assailed judgment of the CA.

The present petition was filed on April 6, 2004.

On May 18, 2004, petitioners filed a Motion for Reconsideration of this Court's
Resolution dated April 12, 2004 on the ground of negligence of their counsel. They
claimed that they could not comply with the requirement to indicate in their petition the

337
date when they received the Resolution of the CA dismissing their appeal, because they
never received a copy of the Resolution of the CA; and that their counsel was so grossly
negligent that he did not even bother to inform petitioners of the developments in their
appeal. In its Resolution dated May 24, 2004, this Court required the OSG to file a
comment on the petition and on the motion for reconsideration.

In its Comment on the petition dated September 2, 2004, the OSG argued that the
petitioners were likewise at fault for the dismissal of their appeal because they failed to
diligently monitor the status of their appeal. The OSG reiterated the arguments it raised
in its Comment dated January 28, 2004. Anent the petitioners' motion for
reconsideration, the OSG countered that despite the provisions of Section 6, Rule 1 of
the Rules of Court, which provides that the said procedural rules, as a general rule, are
liberally construed, periods for filing an appeal or a motion for reconsideration are strictly
enforced. Thus, according to the OSG, having had actual notice of the issuance of the
Resolution of the CA dismissing their appeal, petitioners should have indicated the date
of such notice in their petition with this Court, which inclusion is necessary to establish
compliance with Section 2, Rule 45 of the Rules of Court.

On October 13, 2004, the Court granted petitioners' Motion for Reconsideration of its
Resolution dated April 12, 2004 denying petitioners' Motion for Extension to File Petition
dated March 11, 2004. In the same Resolution, this Court gave due course to the instant
petition and required the parties to submit their respective memoranda within thirty (30)
days from notice.

On November 30, 2004, petitioners submitted their Memorandum, and on February 4,

2005, the OSG filed a Manifestation and Motion praying that it be allowed to adopt its
Comment dated September 2, 2004 as its Memorandum, which the Court granted on
March 16, 2005.

The issues raised in this petition are:

THE DISMISSAL OF PETITIONERS' APPEAL AMOUNTED TO PENALIZING THEM

FOR SOMETHING OVER WHICH THEY HAD NO CONTROL WHATSOEVER.

338
B

THE HONORABLE COURT OF APPEALS ERRED IN RIGIDLY APPLYING THE

RULES RATHER THAN THE SPIRIT BEHIND THEM.

The petition has no merit.

Petitioners insist that they relied on the supposed professionalism of their counsel.
According to them, having received the notice from the Court of Appeals to file a brief,
their counsel was supposed to know his duty, not only as their counsel but also as an
officer of the court; and they conclude that they should not be blamed and penalized if
the conduct of their counsel fell way short of what was expected of him. This reasoning
of petitioners merits no consideration.

It is a well-settled rule that the client is bound by the counsel's conduct, negligence, and
mistakes in handling the case; and the client cannot be heard to complain that the result
might have been different had his lawyer proceeded differently.25

In People of the Philippines and Bricio Ygana v. Rafael Bitanga,26 an exception to the
foregoing rule is enunciated, and that is when the negligence of counsel had been so
egregious that it prejudiced his client's interest and denied him his day in court. For this
exception to apply, however, the gross negligence of counsel should not be
accompanied by his client's own negligence or malice.27 Clients have the duty to be
vigilant of their interests by keeping themselves up to date on the status of their
case.28 Failing in this duty, they suffer whatever adverse judgment is rendered against
them.

The CA is correct in its finding that petitioners were aware of the notice to file brief, since
what the petitioners disclaimed knowledge of was only their counsel's motion for
extension to file the brief. The previous pleadings, as well as the petition itself, are
without any claim by petitioners that they had no knowledge of the notice to file brief with
the CA. No allegation was even made that after the discovery of the dismissal of their
case by the CA, petitioners asked or confronted their lawyer for the latter's failure to file
the brief. It is the duty of a party-litigant to be in contact with his counsel from time to
time in order to be informed of the progress of his case.29 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

339
All of the above would lead anyone to conclude that petitioners were not vigilant.
Although there is no doubt that petitioners' counsel was negligent, such negligence was
not so gross because it still afforded petitioners the necessary remedy, provided that
they themselves were not negligent. Hence, the negligence of their counsel binds them.
A contrary view would be inimical to the greater interest of dispensing justice. For all that
a losing party would need to do is invoke the mistake or negligence of his counsel as a
ground for reversing or setting aside a judgment adverse to him, thereby putting no end
to litigation. To allow this obnoxious practice would be to put a premium on the willful
and intentional commission of errors by accused persons and their counsel, with a view
to securing favorable rulings in cases of conviction.30

Petitioners likewise argue that the CA rigidly applied the rules rather than the spirit
behind them. They proceeded to cite a case wherein the rules were relaxed and the
relief sought, which was the cancellation of the entry of judgment by the CA, was
ordered upon the finding of negligence on the part of the counsel. However, the cited
case bears scant resemblance to the instant case. As discussed earlier, petitioners'
counsel may have committed negligence, but such was not so gross as to deprive them
of their right to due process. On the contrary, Mario S. Mariveles v. Court of
Appeals,31 which petitioners cited, the negligence committed by the counsel was so
great that the rights of the accused were prejudiced. Thus:

It is true that the failure of counsel to file brief for the appellant which led to the dismissal
of the appeal does not necessarily warrant the reinstatement thereof. However, where
the negligence of the counsel is so great that the rights of the accused are prejudiced
and he is prevented from presenting his defense, especially where appellant raises
issues which place in serious doubt the correctness of the trial court's judgment of
conviction, the aforesaid rule must not be rigidly applied to avoid a miscarriage of justice.
These teachings of jurisprudence are present in the case at bar.

Hence, the above case is inapplicable to the instant case.

WHEREFORE, the petition is DENIED, and the Resolution dated February 18, 2004 of
the Court of Appeals in CA-G.R. CR No. 26329 is AFFIRMED.

SO ORDERED.

340
Endnotes:

*
Designated to sit as an additional member, per Special Order No. 646 dated May 15,
2009.

**
Designated to sit as an additional member, per Special Order No. 631 dated April 29,
2009.

1
Records, p. 1.

2
Rollo, p. 21.

3
Id. at 15-16.

4
Id. at 21-22.

5
Id. at 22-23.

6
Id. at 23.

7
Id. at 25.

8
Penned by Presiding Judge Lolita C. Dumlao; id. at 20-28.

9
Rollo, p. 28.

10
Records, pp. 270-274.

11
Order dated October 4, 2001; id. at 277.

12
Id. at 279.

13
CA rollo, p. 31.

14
Id. at 32.

15
Id. at 36.

341
16
Resolution of the Court of Appeals, Fourth Division, penned by Associate Justice
Mario L. Guariña III, with Associate Justices Godardo A. Jacinto and Martin S. Villarama,
Jr., concurring; id. at 38.

17
CA rollo, pp. 42-52.

18
Id. at 73-79.

19
Barangay 24 of Legazpi City v. Imperial, G.R. No. 140321, August 24, 2000, 338
SCRA 694; Gacutana-Fraile v. Domingo, G.R. No. 138518, December 15, 2000, 348
SCRA 414; Sapad v. Court of Appeals, G.R. No. 132153, December 15, 2000, 348
SCRA 304; Macapagal v. Court of Appeals, G.R. No. 110610, April 18, 2000, 271 SCRA
491; and Villanueva v. People, G.R. No. 135098, April 12, 2000, 330 SCRA 695.

20
CA rollo, pp. 81-85.

21
Nepomuceno v. Court of Appeals, G.R. No. 126405, February 25, 1999, 303 SCRA
679, 682; Nerves v. Civil Service Commission, G.R. No. 123561, July 31, 1997, 276
SCRA 610, 617; and A-One Feeds, Inc. v. Court of Appeals, G.R. No. L-35560, October
30, 1980, 100 SCRA 590, 594.

22
CA rollo, p. 87.

23
Rollo, pp. 3-4.

24
Id. at 7.

25
People v. Salido, G.R. No. 116208, July 5, 1996, 256 SCRA 291, 295, citing Tupas v.
Court of Appeals, 193 SCRA 597 (1991).

26
G.R. No. 159222, June 26, 2007, 525 SCRA 623, 632-633, citing Apex Mining, Inc. v.
Court of Appeals, 377 Phil. 482, 493 (1999); Salonga v. Court of Appeals, 336 Phil. 514,
527 (1997); Legarda v. Court of Appeals, G.R. No. 94457, March 18, 1991, 195 SCRA
418, 426.

27
Tan v. Court of Appeals, G.R. No. 157194, June 20, 2006, 491 SCRA 452, 462.

342
28
Mercado v. Security Bank Corporation, G.R. No. 160445, February 16, 2006, 482
SCRA 501, 506.

29
Bernardo v. Court of Appeals, G.R. No. 106153, July 14, 1997, 275 SCRA 413, 430.

30
Aurora Tamayo v. People, G.R. No. 174698, July 28, 2008, 560 SCRA 312, 326-327,
citing Ceniza-Manantan v. People, 531 SCRA 364, 379-380 (2007).

31
G.R. No. 85964, Minute Resolution dated March 13, 1989.

343
 G.R. No. 172896 : April 19, 2010

ROÑO SEGURITAN Y JARA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

DEL CASTILLO, J.:

In a criminal case, factual findings of the trial court are generally accorded great weight
and respect on appeal, especially when such findings are supported by substantial
evidence on record. [1] It is only in exceptional circumstances, such as when the trial
court overlooked material and relevant matters, that this Court will re-calibrate and
evaluate the factual findings of the court below. In this case, we hold that the trial court
did not overlook such factual matters; consequently, we find no necessity to review,
much less, overturn its factual findings.

This petition for review on certiorari assails the Decision[2] of the Court of Appeals (CA)
dated February 24, 2006 in CA-G.R. CR No. 25069 which affirmed with modification the
Judgment[3] of the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 06 in Criminal
Case No. VI-892 finding petitioner Roño Seguritan y Jara guilty beyond reasonable
doubt of the crime of homicide. Likewise impugned is the Resolution[4] dated May 23,
2006 which denied the Motion for Reconsideration.[5]

Factual Antecedents

[6]
On October 1, 1996, petitioner was charged with Homicide in an Information, the
accusatory portion of which reads as follows:

That on or about November 25,1995, in the municipality of Gonzaga, province of

Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused,
ROÑO SEGURITAN y JARA alias Ranio, with intent to kill, did then and there willfully,
unlawfully and feloniously assault, attack and box one Lucrecio Seguritan, inflicting upon
the latter head injuries which caused his death.

344
Contrary to law.

During the arraignment, petitioner entered a plea of not guilty. Thereafter, trial ensued.

The Version of the Prosecution

In the afternoon of November 25, 1995, petitioner was having a drinking session with his
uncles Lucrecio Seguritan (Lucrecio), Melchor Panis (Melchor) and Baltazar Panis
(Baltazar), in the house of Manuel dela Cruz in Barangay Paradise, Gonzaga, Cagayan.
Petitioner, who was seated beside Lucrecio, claimed that Lucrecio's carabao entered his
farm and destroyed his crops. A heated discussion thereafter ensued, during which
petitioner punched Lucrecio twice as the latter was about to stand up. Petitioner's
punches landed on Lucrecio's right and left temple, causing him to fall face-up to the
ground and hit a hollow block which was being used as an improvised stove.

Lucrecio lost consciousness but was revived with the assistance of Baltazar. Thereafter,
Lucrecio rode a tricycle and proceeded to his house in the neighboring barangay of
Calayan, Cagayan. Upon his arrival, his wife noticed blood on his forehead. Lucrecio
explained that he was stoned, then went directly to his room and slept.

At around 9 o'clock in the evening, Lucrecio's wife and daughter noticed that his
complexion has darkened and foamy substance was coming out of his mouth. Attempts
were made to revive Lucrecio but to no avail. He died that same night.

After the burial of Lucrecio on December 4, 1995, his wife learned of petitioner's
involvement in her husband's death. Thus, she sought the assistance of the National
Bureau of Investigation (NBI). NBI Medico-Legal Officer Dr. Antonio Vertido (Dr. Vertido)
exhumed Lucrecio's body and performed the autopsy. Dr. Vertido found hematomas in
the scalp located in the right parietal and left occipital areas, a linear fracture in the right
middle fossa, and a subdural hemorrhage in the right and left cerebral hemisphere. Dr.
Vertido concluded that Lucrecio's cause of death was traumatic head injury.[7]

On May 21, 1996, Melchor executed a sworn statement before the Gonzaga Police

345
Station recounting the events on that fateful day, including the punching of Lucrecio by
petitioner.

At the time of Lucrecio's death, he was 51 years old and earned an annual income of
P14,000.00 as a farmer.

The Version of the Defense

Petitioner denied hitting Lucrecio and alleged that the latter died of cardiac arrest.
Petitioner claimed that he suddenly stood up during their heated argument with the intent
to punch Lucrecio. However, since the latter was seated at the opposite end of the
bench, Lucrecio lost his balance and fell before he could be hit. Lucrecio's head hit the
improvised stove as a result of which he lost consciousness.

Petitioner presented Joel Cabebe, the Assistant Registration Officer of Gonzaga,

Cagayan, and Dr. Corazon Flor, the Municipal Health Officer of Sta. Teresita, Cagayan,
to prove that Lucrecio died of a heart attack. These witnesses identified the Certificate of
Death of Lucrecio and the entry therein which reads: "Antecedent cause: T/C
cardiovascular disease."[8]

Ruling of the Regional Trial Court

On February 5, 2001, the trial court rendered a Decision convicting petitioner of

homicide. The dispositive portion of the Decision reads:

WHEREFORE, the Court finds the accused GUILTY beyond reasonable doubt of the
crime of homicide and sentences the accused to an indeterminate sentence of 6 years
and 1 day of prision mayor as minimum to 17 years and 4 months of reclusion
temporal as maximum. The accused is ordered to pay the heirs of the late Lucrecio
Seguritan the amount of P30,000.00 as actual damages and the amount of P135,331.00
as loss of earning capacity and to pay the costs.

SO ORDERED.[9]

346
The Decision of the Court of Appeals

On appeal, the CA affirmed with modification the Judgment of the RTC.

Thus:

WHEREFORE, the judgment appealed from is partly AFFIRMED, WITH

MODIFICATION, to read as follows: The Court finds the accused GUILTY beyond
reasonable doubt of the crime of homicide and sentences the accused to an
indeterminate penalty of SIX (6) YEARS AND ONE (1) DAY of prision mayor, as
minimum, to TWELVE (12) YEARS AND ONE (1) DAY of reclusion temporal, as
maximum. The accused Roño Seguritan is ordered to pay the heirs of the late Lucrecio
Seguritan the amount of P 30,000.00 as actual damages, the amount of P135,331.00 as
loss of earning capacity, P 50,000.00 as moral damages and to pay the costs.

SO ORDERED.[10]

Petitioner filed a Motion for Reconsideration but it was denied by the CA in its Resolution
dated May 23, 2006.

Issues

Thus, this petition for review raising the following issues:

The Court of Appeals erred in affirming the trial court's judgment of conviction.

II

The Court of Appeals erred in convicting the accused of the crime of homicide.[11]

347
Our Ruling

The petition is denied.

Petitioner disputes the conclusion that the fracture on the right middle fossa of the skull,
beneath the area where a hematoma developed was due to the blow he delivered
because according to the testimony of Dr. Vertido, the fracture may also be caused by
one falling from a height. Petitioner also maintains that the punches he threw at Lucrecio
had nothing to do with the fatal head injuries the latter suffered. According to him,
Lucrecio sustained the head injuries when he accidentally hit the hollow block that was
used as an improvised stove, after falling from the opposite end of the bench. Petitioner
insists that Lucrecio died due to a fatal heart attack.

In fine, petitioner contends that the appellate court, in affirming the judgment of the trial
court, overlooked material and relevant factual matters which, if considered, would
change the outcome of the case.

We are not persuaded.

It is on record that Lucrecio suffered two external injuries and one internal injury in his
head. The autopsy report showed that Lucrecio died of internal hemorrhage caused by
injuries located at the upper right portion of the head, left side of the center of his head,
and a "fracture, linear, right middle fossa, hemorrhage, subdural, right and left cerebral
hemisphere."

We find no reason to doubt the findings of the trial court, as affirmed by the appellate
court, that petitioner punched Lucrecio twice causing him to fall to the ground. Melchor
categorically testified that petitioner punched Lucrecio twice and as a result, Lucrecio fell
to the ground and lost consciousness. Melchor would not have testified falsely against
petitioner, who was his nephew. He even hesitated to testify as shown by his execution
of a sworn statement just after the autopsy of Lucrecio which revealed that the cause of
death was traumatic head injury attributed to petitioner.

Melchor's eyewitness account of the fist blows delivered by petitioner to Lucrecio and the

348
manner by which the latter fell from the bench and hit his head on the improvised stove
is consistent with the autopsy findings prepared and testified to by Dr. Vertido. Thus:

xxxx
Court:
Q: What is the right parietal area?
A: This is the right parietal area, sir.
(Witness pointing to the upper right portion of the head).
: And then the left occipital area, this is left occipital area with a hematoma again
measuring 5.0 x 4.0 centimeters, sir.
(Witness pointing to the back left part, middle back portion)[12]
xxxx
Fiscal Feril:
Q: What about this which reads "Fracture, linear, right middle fossa", where is this
injury located?
xxxx
Court:
Q: Will you point that from your head?
A: x x x [A]t the base of the brain of the skull, sir.
If you look at the head at the cut portion, the fracture is located on the base of
the brain, particularly on the right mid-cranial fossa, sir.[13]
xxxx
Fiscal Feril:
Q: Could it be possible that the victim suffered the injuries specifically the fracture
while he was falling to the ground, hitting solid objects in the process?
A: Well, with regard to the hematomas there is a possibility [that it could be caused
by] falling from a height x x x although it produces hematoma, sir.
Court:
Q: Falling from a height?
A: Yes, sir.
Fiscal Feril:
Q: If an external force is administered to such victim, such as x x x fist blow[s]
would it accelerate this force and cause these injuries?
A: Definitely it could accelerate, sir.[14]

349
We find no merit in petitioner's argument that he could not be held liable for the head
fracture suffered by Lucrecio. The height from which he stood to deliver the fist blows to
Lucrecio's head is sufficient to cause the fracture.

The testimony of Dr. Vertido also ruled out petitioner's contention that Lucrecio died of a
heart attack. The fact that Lucrecio's cause of death is internal hemorrhage resulting
from the head injuries suffered during his encounter with the petitioner and the certainty
that he had no heart problem are evident in the following portion of Dr. Vertido's
testimony:

Atty. Antonio:
Q: Did you notice anything unusual in the heart of Lucrecio Seguritan?
A: Well, with regard to our examination of the heart Your Honor I limit only the
examination on the atomic portion, gross findings, when we say gross findings
that can be seen by the eyes and so if for example other that the findings on the
brain, if I have not seen my injury from the brain then my next examination to
contemplate would be to bring a portion of each particular organ to Manila and
have it subjected to a hispathologic examination over the microscope. But then
we found out that there is an injury to the brain so why should I now perform a
hispathologic examination on the heart, when in fact there is already a gross
finding on the brain, meaning that the cause of death now is of course, this
traumatic injury, sir.
Court:
Q: Supposed the victim had a heart attack first and then fell down later, can you
determine then x x x the cause of death?
A: Well, your Honor as I said a while ago I opened up the heart, I examined the
heart grossly and there was no findings that would find to a heart attach on its
function, the heart was okay and coronaries were not thickened so I said well -
grossly there was no heart attack.[15]
xxxx
Court:
Q: Since you were conducting just a cursory examination of the heart, my question
again is that, could you have determined by further examination whether the

350
 victim suffered a heart attack before the injuries on the head were inflicted?
A: That is why sir, I said, I examined the heart and I found out that there was
noting wrong with the heart, and why should I insist on further examining the
heart.[16]

The notation in the Certificate of Death of Lucrecio that he died of a heart attack has no
weight in evidence. Dr. Corazon Flor, who signed said document testified that she did
not examine the cadaver of Lucrecio. She stated that a circular governing her profession
did not require her to conduct an examination of Lucrecio's corpse, as long as the
informant tells her that it is not a medico-legal case. Renato Sidantes (Renato), the
brother-in-law of Lucrecio who applied for the latter's death certificate, had no knowledge
of the real cause of his death. Thus, Dr. Flor was mistakenly informed by Renato that the
cause of Lucrecio's death was heart attack.

The petitioner belatedly contends that the delay in the autopsy of Lucrecio's body and its
embalming compromised the results thereof. To substantiate his claim, he quotes the
book entitled Legal Medicine authored by Dr. Pedro Solis, viz:

"a dead body must not be embalmed before the autopsy. The embalming fluid may
render the tissue and blood unfit for toxilogical analyses. The embalming may alter the
gross appearance of the tissues or may result to a wide variety of artifacts that tend to
destroy or obscure evidence."

"the body must be autopsied in the same condition when found at the crime scene. A
delay in the performance may fail or modify the possible findings thereby not serving the
interest of justice."[17]

Petitioner's reliance on this citation is misplaced. Petitioner failed to adduce evidence

that the one month delay in the autopsy indeed modified the possible findings. He also
failed to substantiate his claim that the embalming fluid rendered the tissue and blood of
Lucrecio unfit for toxilogical analysis.

Further, it is settled that courts will only consider as evidence that which has been
formally offered.[18]The allegation that the results of the autopsy are unworthy of

351
credence was based on a book that was neither marked for identification nor formally
offered in evidence during the hearing of the case. Thus, the trial court as well as the
appellate court correctly disregarded them. The prosecution was not even given the
opportunity to object as the book or a portion thereof was never offered in evidence. [19]

A formal offer is necessary since judges are required to base their findings of fact and
judgment only - and strictly - upon the evidence offered by the parties at the trial. To rule
otherwise would deprive the opposing party of his chance to examine the document and
object to its admissibility. The appellate court will have difficulty reviewing documents not
previously scrutinized by the court below.[20] Any evidence which a party desires to
submit to the courts must be offered formally because a judge must base his findings
strictly on the evidence offered by the parties at the trial.[21]

We are not impressed with petitioner's argument that he should be held liable only for
reckless imprudence resulting in homicide due to the absence of intent to kill Lucrecio.
When death resulted, even if there was no intent to kill, the crime is homicide, not just
physical injuries, since with respect to crimes of personal violence, the penal law looks
particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof.[22] Accordingly, Article 4 of the Revised
Penal Code provides:

Art. 4. Criminal liability - Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different
from that which he intended.

xxxx

Petitioner committed an unlawful act by punching Lucrecio, his uncle who was much
older than him, and even if he did not intend to cause the death of Lucrecio, he must be
held guilty beyond reasonable doubt for killing him pursuant to the above-quoted
provision. He who is the cause of the cause is the cause of the evil caused.[23]

Considering the foregoing discussion, we find that both the trial court and the appellate

352
court correctly appreciated the evidence presented before them. Both courts did not
overlook facts and circumstances that would warrant a reevaluation of the evidence.
Accordingly, there is no reason to digress from the settled legal principle that the
appellate court will generally not disturb the assessment of the trial court on factual
matters considering that the latter as a trier of facts, is in a better position to appreciate
the same.

Further, it is settled that findings of fact of the trial court are accorded greatest respect by
the appellate court absent any abuse of discretion.[24] There being no abuse of discretion
in this case, we affirm the factual findings of the trial court.

Penalty and Damages

The penalty for Homicide under Article 249 of the Revised Penal Code is reclusion
temporal the range of which is from 12 years and one day to 20 years. Applying the
Indeterminate Sentence Law, the penalty next lower in degree is prision mayor the range
of which is from six years and one day to 12 years. In this case, we find that the
mitigating circumstance of no intention to commit so grave a wrong as that committed,
attended the commission of the crime. Thus, the appellate court correctly imposed the
indeterminate penalty of six years and one day of prision mayor, as minimum, to 12
years and one day of reclusion temporal, as maximum.

As regards the amount of damages, civil indemnity must also be awarded to the heirs of
Lucrecio without need of proof other than the fact that a crime was committed resulting
in the death of the victim and that petitioner was responsible therefor. [25] Accordingly, we
award the sum of P50,000.00 in line with current jurisprudence.[26]

The award of P135,331.00 for the loss of earning capacity was also in order. [27] The
prosecution satisfactorily proved that the victim was earning an annual income of
P14,000.00 from the harvest of pineapples. Besides, the defense no longer impugned
this award of the trial court.

However, the other awards of damages must be modified. It is error for the trial court
and the appellate court to award actual damages of P30,000.00 for the expenses

353
incurred for the death of the victim. We perused the records and did not find evidence to
support the plea for actual damages. The expenses incurred in connection with the
death, wake and burial of Lucrecio cannot be sustained without any tangible document
to support such claim. While expenses were incurred in connection with the death of
Lucrecio, actual damages cannot be awarded as they are not supported by receipts.[28]

In lieu of actual damages, the heirs of the victim can still be awarded temperate
damages. When pecuniary loss has been suffered but the amount cannot, from the
nature of the case, be proven with certainty, temperate damages may be recovered.
Temperate damages may be allowed in cases where from the nature of the case,
definite proof of pecuniary loss cannot be adduced, although the court is convinced that
the aggrieved party suffered some pecuniary loss.[29] In this regard, the amount of
P25,000.00 is in accordance with recent jurisprudence.[30]

Moral damages was correctly awarded to the heirs of the victim without need of proof
other than the fact that a crime was committed resulting in the death of the victim and
that the accused was responsible therefor.[31] The award of P50,000.00 as moral
damages conforms to existing jurisprudence.[32]

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R.
CR No. 25069 finding petitioner Roño Seguritan y Jara guilty of homicide and
sentencing him to suffer the penalty of six years and one day of prision mayor as
minimum, to 12 years and one day of reclusion temporal as maximum, and to pay the
heirs of Lucrecio Seguritan the amounts of P50,000.00 as moral damages and
P135,331.00 as loss of earning capacity is AFFIRMED with MODIFICATION that
petitioner is further ordered to pay P25,000.00 as temperate damages in lieu of actual
damages, and P50,000.00 as civil indemnity.

SO ORDERED.

Carpio, (Chairperson), Brion, Abad, and Perez, JJ., concur.

354
Endnotes:

[1]
People v. Narca, 341 Phil. 713-714 (1997).

[2]
CA rollo, pp. 155-164; penned by Associate Justice Santiago Javier Ranada and
concurred in by Associate Justices Roberto A. Barrios and Mario L. Guariña III.

[3]
Records, pp. 186-194; penned by Judge Rolando R. Velasco.

[4]
Rollo, p. 33.

[5]
CA rollo, pp. 164-175.

[6]
Records, p. 1.

[7]
Id. at 121.

[8]
Id. at 133.

[9]
Id. at 194.

[10]
CA rollo, p. 163.

[11]
Rollo, p. 15.

[12]
TSN, December 15, 1998, p. 32.

[13]
Id. at 31-32.

[14]
Id. at 37-38.

[15]
TSN, December 15, 1998, pp. 41-42.

355
[16]
Id. at 44-45

[17]
Rollo, p. 21.

[18]
Rules of Court, Rule 132, Section 34.

[19]
Candido v. Court of Appeals, 323 Phil. 95, 99 (1996).

[20]
Id. at 100.

[21]
Id.

[22]
United States v. Gloria, 3 Phil. 333, 335 (1904).

[23]
People v. Ural, 155 Phil. 116, 123 (1974).

[24]
People v. San Gabriel, 323 Phil. 102, 108 (1996).

[25]
People v. Diaz, 443 Phil. 67, 90-91 (2003).

[26]
People v. Satonero, G.R. No. 186233, October 2, 2009.

[27]
See People v. Nullan, 365 Phil. 227, 257-258 (1999).

[28]
People v. San Gabriel, supra note 24.

[29]
Canada v. All Commodities Marketing Corp., G.R. No. 146141, October 17, 2008,
569 SCRA 321, 329.

[30]
People v. Bascugin, G.R. No. 184704, June 30, 2009.

[31]
People v. San Gabriel, supra note 24.

[32]
People v. Satonero, supra note 26.

356
 G.R. No. 182412 : November 28, 2011

PEOPLE OF THE PHILIPPINES, Appellee, v. JOJO DELA PAZ y

TABOCAN, Appellant.

DECISION

BRION, J.:

On appeal is the decision1red dated September 28, 2007 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 02331, which affirmed and modified the decision of the Regional
Trial Court (RTC), Branch 276, of Muntinlupa City.2red The RTC found Jojo dela
Paz y Tabocan (appellant) guilty beyond reasonable doubt of raping a woman who has
the mental age of a five-year old child. The CA modified the RTC decision by
imposing reclusion perpetua instead of life imprisonment, and by ordering the payment
of moral damages.

The Facts

The appellant and AAA3red were neighbors whose houses were located in the same
residential compound in Summitville, Putatan, Muntinlupa City. AAA, who suffers from
mental retardation, lived with her mother and brothers, and was 30 years old when the
rape occurred.

Sometime from December 1993 to January 1994, the appellant—whenever he would

take a bath—would call AAA to join him in the common comfort room of the compound;
he timed their entrance when no one was looking. Once inside, the appellant would kiss
and embrace AAA, undress her, make her lie down on the floor, proceed to lie on top of
her, insert his organ into hers, and make pumping motions with his buttocks. AAA felt
pain in her vagina each time and had bleeding.

In May 1994, AAA’s mother (BBB) noticed AAA’s swelling abdomen and began to
suspect that AAA was pregnant. She confronted AAA and told her that she could be with

357
child. Initially, AAA denied her mother’s allegation, but she eventually disclosed what the
appellant did to her in the communal comfort room.

BBB brought AAA to a medical doctor who, after an obstetric ultrasonography, confirmed
that she was indeed pregnant and was five (5) months on the family way. BBB reported
the matter to their barangayofficials and executed a Sinumpaang Salaysay4red before
the Women’s Desk of the Muntinlupa Police Station.5red This led to the appellant’s arrest
and the filing of a criminal case against him for rape.6red

BBB also brought AAA to the National Bureau of Investigation (NBI) for neuro-psychiatric
evaluation. Dr. Erlinda Marfil, the neuro-psychiatrist in the team of medical doctors and
psychologists who evaluated AAA, found her to be a mental retardate with the mental
age of a five-year old child. Dr. Marfil also diagnosed AAA to have psychosis.7red

At the trial, the prosecution presented AAA,8red BBB,9red arresting and investigating
officer Estela Formales,10red and NBI medical officers Dr. Marfil11red and Dr. Antonio
Vertido.12red In her testimony, AAA repeatedly declared that the appellant was the one
who caused her pregnancy.13red She also testified that she had given birth to a baby
boy.14red

The appellant15red and his brother Eddie dela Paz16red testified for the defense. The
appellant interposed the defenses of denial and alibi. He claimed that he could not have
raped AAA inside the common comfort room of their compound as he was always away
during daytime, working as a plumber either in Soldier’s Hill — which he stated was less
than a kilometer away — or in Intercity Subdivision in Sucat. He was at a loss as to why
a rape charge was filed against him. The appellant also claimed that he was subjected to
a strangling hold and a gun was poked at him by one of the arresting officers during his
custodial investigation to secure his statement that although he had engaged in intimate
acts with AAA, he did not insert his penis inside her.

His brother, who has a store inside the compound, claimed that it was impossible for
AAA to enter the compound’s common comfort room without being noticed, either by him
or by the other residents of the compound.

The RTC’s r uling

358
The RTC found AAA to be coherent and believable. It held that AAA had no reason to
falsely testify against the appellant or to falsely identify him as the father of her child. It
held that it was not physically impossible for the appellant to be at the scene of the crime
at the time of its commission since the distances between this scene and his places of
work were short and could easily be negotiated using public transportation. The RTC
also pointed out that the appellant’s brother could not be expected to observe the
comfort room all the time since he also attended to his store. While the RTC no longer
took up the matter in the decision, the transcripts show that the RTC disbelieved the
appellant’s claim of coercion during custodial investigation since he kept changing his
testimony on the matter.17red

The RTC imposed the penalty of “life imprisonment, with no hope of parole,” 18red and
ordered the appellant to acknowledge the child as his natural child and to pay AAA the
amount of P50,000.00 “by way of indemnity.”19red

The Court of Appeals’ Ruling

The CA affirmed the appellant’s conviction but imposed reclusion perpetua to rectify the
penalty of life imprisonment erroneously imposed by the RTC. It also imposed the
payment of P50,000.00 as moral damages.

The CA held that the prosecution “indubitably” established the rape and the mental
retardation of the victim. The CA agreed that AAA was a credible witness for her
testimony was “candid and straightforward[, ] and replete with adequate details of her
ravishment”20red despite her low intelligence. It upheld the RTC’s reliance on the
testimonies of Dr. Marfil and AAA in concluding that AAA is indeed intellectually
disabled. The CA pointed out that a woman with a mental age below that of a person
less than 12 years of age is effectively “deprived of reason” and that sexual intercourse
with her constitutes rape under either paragraph (2) or paragraph (3), Article 335 of the
Revised Penal Code. It disregarded the appellant’s alibi by pointing out that he could
have still committed the rape either before he left for work or after coming home from
work.

The Court’s Ruling

359
We affirm the judgment of the CA, with the modification that exemplary damages in the
amount of P30,000.00 be awarded in addition to civil indemnity and moral damages.

Our review confirms that the CA and the RTC correctly appreciated the evidence in
arriving at their findings of fact. These findings are of course conclusive on this Court
unless shown to have been attended by grave abuse of discretion. We found no such
grave abuse of discretion and in fact found, after due consideration of the facts on
record, that indeed AAA is intellectually disabled and yet was a credible witness. Her
positive identification of the appellant as her comfort room lover and as the father of her
child established his sexual relationship with her. By law and jurisprudence, sexual
intercourse with a mentally retarded woman incapable of giving rational consent
constitutes rape.21red

The RTC and the CA correctly rejected the defenses of denial and alibi as these are the
weakest of defenses and are easy to concoct and fabricate.22red In this case, the
appellant’s alibi is not persuasive for his failure to demonstrate the physical impossibility
of his presence at the crime scene; for instance, he himself admitted that the crime
scene was only about one kilometer away from his place of work. Likewise, his denial is
unpersuasive in light of AAA’s positive and credible testimony on the sexual intercourse
he instigated and essentially forced upon her at the communal comfort room.

We affirm the RTC’s award of civil indemnity in the amount of P50,000.00 and its order
for the appellant to acknowledge AAA’s child as his natural child. The award
of P50,000.00 as civil indemnity conforms with current jurisprudence on simple
rape,23red while the order is authorized under Article 345 of the Revised Penal
Code.24red In this case, the order is appropriate since the records25red show the
appellant to be unmarried.26red

We likewise affirm the CA’s award of moral damages in the amount of P50,000.00.
Moral damages are awarded to rape victims without need of proof other than the fact of
rape, as the victim suffered moral injuries from the experience she underwent. 27red

Finally, considering the intellectual disability of the private complainant in this case, we
award P30,000.00 as exemplary damages. Exemplary damages are imposed as a public
example in order “to protect hapless individuals from [sexual] molestation.”28red

360
WHEREFORE,in view of these considerations, we AFFIRM the September 28, 2007
decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02331, subject to
the MODIFICATION that exemplary damages in the amount of P30,000.00 be imposed
in addition to civil indemnity and moral damages.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

CARPIO, J., Chairperson, PEREZ, SERENO, and REYES, JJ.

Endnotes:

1
red Penned by Associate Justice Rebecca de Guia-Salvador, and concurred in by
Associate Justices Magdangal M. de Leon and Ricardo R. Rosario; rollo, pp. 2-29.

2
red In Criminal Case No. 94-595; penned by Presiding Judge Norma C. Perello.
CA rollo, pp. 17-26.

3
red Pursuant to Section 44 of Republic Act No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004, and Section 63, Rule XI of The
Rules and Regulations Implementing the Anti-Violence Against Women and Their
Children Act of 2004, the real name of the victim is withheld to protect her and her
relatives’ privacy.

4
red Records, p. 5.

5
red TSN, September 5, 1994.

361
6
red The accusatory portion of the Information dated May 31, 1994
reads: chanroblesvirtuallawlibrary

That on or about the period from December 1993 to 27th day of May, 1994, in the
Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused [referring to the appellant], by means of
force, violence and intimidation, did then and there willfully, unlawfully and feloniously
have carnal knowledge of the complainant [AAA], a retardate. (CA rollo, p. 8.)

7
red Records, pp. 28-29.

8
red TSNs, October 19, 1995 and March 11, 1996.

9
red TSN, September 5, 1994.

10
red TSN, October 19, 1995.

11
red TSN, October 24, 1994.

12
red TSN, November 28, 1994.

13
red TSN, October 19, 1995.

14
red Id. at10.

15
red TSN, November 5, 1998.

16
red TSN, May 20, 1997.

17
red TSN, November 5, 1998, p. 17.

18
red Supra note 2, at 26.

19
red Ibid.

20
red Supra note 1, at 9.

362
21
red Paragraphs (2) and (3), Article 335, Revised Penal Code; People v. Almacin, 363
Phil. 18, 30 (1999).

22
red People v. Ayade, G.R. No. 188561, January 15, 2010, 610 SCRA 246, 252.

23
red People v. Ofemiano, G.R. No. 187155, February 1, 2010, 611 SCRA 250,
260, cf. People of thePhilippines v. Conrado Laog y Ramin, G.R. No. 178321, October 5,
2011.

red Art. 345. Civil liability of persons guilty of crimes against chastity. — Person guilty
24

of rape, seduction or abduction, shall also be sentenced: chanroblesvirtuallawlibrary

1. To indemnify the offended woman.

2. To acknowledge the offspring, unless the law should prevent him from so doing.

3. In every case to support the offspring.

25
red TSN, November 5, 1998, p. 2.

26
red People v. Oliquino, G.R. No. 171314, March 6, 2007, 517 SCRA 579, 598,
citing People v. Sgt. Bayani, 331 Phil. 169, 202 (1996).

27
red People v. Nieto, G.R. No. 177756, March 3, 2008, 547 SCRA 511.

28
red People v. Neverio, G.R. No. 182792, August 25, 2009, 597 SCRA 149.

363
 G.R. No. 191063, October 09, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALDRIN M. GALICIA, Accused-

Appellant.

DECISION

PEREZ, J.:

On appeal is the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03143
promulgated on 14 November 2008, which affirmed with modification the 5 November
2007 Decision2 of the Regional Trial Court (RTC) of Makati City, Branch 58, finding the
appellant guilty beyond reasonable doubt of the crime of murder in Criminal Case No.
05-1602.

The Facts

On 10 January 2005,3 accused-appellant Aldrin M. Galicia (Galicia) and co-accused Jun

Asuncion were charged with the crime of Murder punishable under Article 248 of the
Revised Penal Code in an Information,4 the accusatory portion of which
reads:chanRoblesvirtualLawlibrary

That on or about 11:45 in the morning of June 10, 2004, at N. Gonzales St., cor. F.
Platon St., Barangay II, Poblacion, Tanauan City and within the jurisdiction of this
Honorable Court, the above named accused conspiring and confederating and mutually
helping one another, with treachery and evident premeditation, one of the accused JUN
ASUNCION y NOBERO, armed with a firearm, and with deliberate intent to kill, did then
and there willfully, unalwfully and feloniously in an unexpected manner, shot Judge
Voltaire Rosales, hitting the latter on his head and neck thus causing fatal injuries which
resulted to the instantaneous death of said Judge Rosales. Said accused escaped
through the use of a motorcycle then driven by the accused ALDRIN GALICIA y
MICOSA.

Upon arraignment, Galicia pleaded not guilty5 to the charge. On the other hand, accused
Jun Asuncion remained at large.

364
Thereafter, trial on the merits ensued.

The prosecution evidence, established primarily from the eyewitness accounts of Maricel
Flores (Flores) and Ramil Enriquez (Enriquez), is culled by the summary6 of State’s
evidence of guilt presented by the Office of the Solicitor General (OSG), quoted
hereunder:chanRoblesvirtualLawlibrary

On June 10, 2004, at 9:15 in the morning, [Flores] was tending to a garden of the
carinderia located at No. 58 N. Gonzales St., Tanauan, Batangas where she was
working, when she noticed two (2) men three to four meters away. x x x

One of them approached her and asked what she was planting. She replied that she
does not know the name of the plant. She noticed that the man has big eyes, dark skin
and has a prominent jaw (pangahin). He was wearing a black jacket and a helmet which
was open in front. The other man remained where he was standing and was wearing a
gray jacket. That man was later identified by [Flores] as [Galicia]. Beside him was a
black motorcycle which has no plate number and the engine still running. x x x

When [Flores] noticed that it was about to rain, she invited them to come inside the
carinderia. As [Flores] entered the diner, she turned her face towards the two men and
stared hard. x x x

After a few moments while she was attending to the chores inside the diner, she heard
successive gunshots. Immediately she looked out of the window and from her vantage
point, she saw a green Pajero 7 to 10 meters away, slowly crossing and swerving to the
right toward Platon St. x x x

After the shots were fired, she saw the two men she talked to earlier riding their
motorcycle and speeding away. The motorcycle was driven by [Galicia]. Then in a split
second, she saw the Pajero hitting the wall at the corner of Platon and N. Gonzales St. x
x x

Moments later, policemen arrived and they took pictures of the Pajero as well as the
crime scene. x x x

365
On July 7, 2004, she summoned her courage to disclose what she knew and executed
an affidavit before the Tanauan Police Station. She disclosed what she witnessed
because her conscience bothered her. x x x

Likewise, on June 10, 2004 in the morning, [Enriquez], an agent of the Surety
Commonwealth Insurance Company of Tanauan City, Batangas was walking at N.
Gonzales St., Tanauan City headed towards Jollibee when he noticed a black Enduro
motorcycle without plate number with two riders cruising the streets. x x x

Suddenly from where [Enriquez] was standing, he saw a green Mitsubishi Pajero pass
by. Then he saw the two riders of the motorcycle firing upon somebody inside the
vehicle. He saw appellant manning the motorcycle. x x x

After firing the shots, the motorcycle sped away. [Enriquez] later learned that the
occupant of the Green Mitsubishi Pajero was Judge Voltair[e] Rosales. He knew him
considering his job as bondsman. x x x

On the part of Galicia, the Public Attorney’s Office (PAO) rendered the following version
of events:7

At about 11:45 a.m. of June 10, 2004, Judge Voltaire Rosales was killed while on board
his Pajero van at N. Gonzales St. Corner F. Platon St., Barangay II, Poblacion, Tanauan,
Batangas. At about one o’ clock of the same day, a team of SOCO Investigators from
PNP Region 4, Canlubang, Laguna, arrived at the scene of the crime and conducted an
investigation. The PNP-SOCO’s investigation revealed that the “assailants (of Judge
Voltaire Rosales) were wearing “black bonnets” (Exh. “A”). Nobody questioned by the
police investigators could identify the assailants.

On January 24, 2005, seven months after the incident, an Information for Murder was
filed against Galicia and one Jun Asuncion in the Regional Trial Court, Tanauan City,
Batangas.

The Information alleged thus:

366
The undersigned State Prosecutors of the Department of Justice accuse ALDRIN
GALICIA y MICOSA and JUN ASUNCION y NOBERO of the crime of MURDER defined
under Article 248 of the Revised Penal Code as amended by Republic Act 7659,
committed as follows:

x x x

CONTRARY TO LAW.
Having been arrested, Galicia filed an Application For Bail on the ground that the
Prosecution’s evidence against him is not strong.

After hearing, the Regional Trial Court of Makati, Branch 145, thru Judge Cesar
Santamaria, denied the application for bail.

Upon motion for inhibition filed by Galicia, the case was re-raffled and assigned to
Branch 58 of the same Regional Trial Court, which conducted the trial and convicted
Galicia in its Decision subject of the appeal.

The prosecution presented as witnesses the following PNP SOCO Investigators,

namely: Police Supt. Ligaya Sim Cabal of the PNP Regional Crime Laboratory, Calamba
City, Laguna; Gregorio de Guzman, Chief Inspector and Team Leader of the SOCO
team dispatched to the crime scene; Jerome Quiasao, Chief Forensic Photographer and
Operating Officer, PNP Regional Crime Laboratory, Camp Vicente Lim, Calamba,
Laguna; and Jupri Delantar, the forensic chemical officer of the Batangas Provincial
Crime Laboratory. The Prosecution also presented Antonio Vertido, medico-legal officer
of the NBI, Southern Tagalog Region and two civilians, namely: [Flores] and [Enriquez].

The medico-legal officer and the PNP-SOCO Investigators testified on post-

crime matters. Civilian witnesses [Flores] and [Enriquez], who claimed to be within the
area where the crime was committed, testified on facts which they allegedly and
purportedly observed.

On the other hand, Galicia presented himself and the following as his witnesses, namely:
Lourdes Rosales, Teresita Mabilangan-Lucido and Katherine Sison Ramilo.

367
In essence, the defense witnesses testified that Galicia could not have committed the
crime charged because on the day and time of the incident, he was attending the wake
of his grandfather Armando Lucido in Brgy. Pantay Matanda, Tanauan City, who testified
that Armando Lucido died on June 7, 2004 and was in state at his house in Pantay
Matanda, Tanauan City from June 8, 2004 until June 11, 2004 when his remains were
brought to Cabanatuan City, where his wife and children reside, for final interment.

x x x

Witness Lourdes Rosales, the Barangay Chairwoman of the place where the incident
happened, testified in essence that on June 11, 2004 at around 6 p.m., she was asked
by her cousin Carmelita Yabut, the owner of the carinderia where [Flores] works, to go to
their house to talk to [Flores]. When she arrived at the house, she saw policemen who
wanted to talk to [Flores] but the latter refused to talk to them. As a Barangay
Chairwoman, she asked [Flores] to talk to the policemen so they will not keep coming
back and to tell them the truth of what happened. Finally, [Flores] was convinced to talk
to the policemen with the barangay chairwoman accompanying her. During the interview
by the policemen, [Flores] said that “she did not see the incident and also did not see the
perpetrator.”

After evaluating the evidence presented by the parties, the trial court rendered a
Decision8 dated 5 November 2007, finding the appellant guilty of murder, the dispositive
portion of which reads:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, this Court renders judgment finding the accused
ALDRIN GALICIA GUILTY beyond reasonable doubt of the crime of Murder and is
hereby sentenced to suffer the penalty of RECLUSION PERPETUA. Consequently, he
is hereby ordered to indemnify the victim the amount of Php50,000.00 as civil damages.

Considering that the Court has not yet acquired jurisdiction over the person of accused
Jun Asuncion who has remained at large, let an alias warrant of arrest be issued against
him.

368
Aggrieved, Galicia assailed the decision on appeal. The CA sustained the trial court’s
finding and found the same to be in order.

The appellant now seeks recourse in this Court maintaining the issues raised before the
CA as reversible errors committed by the court a quo in giving credence to the
testimonies of Flores and Enriquez despite serious contradictions and material
inconsistencies, while disregarding or ignoring the testimony of defense
witness Barangay Chairwoman Lourdes Rosales.

Our Ruling

We find the appeal bereft of merit.

Time and again, we have ruled that factual findings of the trial court, especially those
affirmed by the CA, are conclusive on this Court when supported by the evidence on
record.9 In numerous instances, this Court observes restraint in interfering with the trial
court’s assessment of the witnesses’ credibility, absent any indication or showing that
the trial court overlooked some material facts or gravely abused its discretion, more so,
when the CA sustained such assessment, as in this case, where it affirmed the trial
court’s findings of fact, the veracity of the testimonies of the witnesses, the determination
of physical evidence and conclusions.

As exception to the rule, the only time a reviewing court is not bound by the trial court’s
assessment of credibility arises upon a showing of a fact or circumstance of weight and
influence that was overlooked which, if considered, could affect the outcome of the
case.10 With this exception as basis we reviewed the records for any indication of
arbitrariness or clear oversight of some fact or circumstance of weight that can warrant a
reversal of the findings of the courts a quo. We found none.

Galicia calls our attention to the discrepancy between the respective testimonies and
affidavits of prosecution witnesses Flores and Enriquez, to
wit:chanRoblesvirtualLawlibrary

A. Testimony of Flores:11

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 1. She pointed to “Galicia” as the man driving the motorcycle while the other man
approached her in the garden at back x x x. However, she contradicted herself
and said that she asked the first man who approached her, this time pointing to
Galicia who was in court, to go inside the carinderia (canteen) since it was
raining x x x;

2. She also declared that after she heard the gunshots, she looked out of the
window of the carinderia and saw Judge Rosales’ Pajero moving slowly then
hitting the wall at the corner of Gonzales and Platon Streets. [Flores] testified that
she did not know how the Pajero was fired upon, how the firing began, and how it
ended, and she did not see the persons who fired the gun; and

3. She also declared in court that the two assailants were wearing helmets. The
portion of the helmet going down the right and left sides of their faces to the chin
measured two inches wide, thereby the impossibility of recognizing the face.

B. Testimony of Enriquez:12

1. In his Sinumpaang Salaysay taken on September 8, 2004 taken by PO3 Johnson

Melgar , he declared that on June 10, 2004 at about 12:00 p.m noontime, he was
walking along F. Platon Street towards N. Gonzales Street, when at a distance of
about 15 meters from the intersection, he saw a black Enduro motorcycle stop;

2. In his testimony before the Honorable Court on February 15, 2007, [Enriquez]
testified that on June 10, 2004 at about 11:45 AM to 12:00 o’ clock noon, he was
walking along N. Gonzales Street when he saw a black Enduro motorcycle;

3. [Enriquez] testified that he was very familiar with F. Platon and N.Gonzales
Streets in Tanauan City because he often passed these streets;

4. On cross-examination, however, when he was confronted with these material

contradictions, [Enriquez] could only offer an explanation that he signed his
Sinumpaang Salaysay x x x without reading the same x x x and that at that time
when he signed the said Sinumpaang Salaysay, “he was so confused that he did
not know anymore what to do x x x. He was still confused at the time his
Sinumpaang Salaysay x x x was filed at the fiscal’s office x x x. Even at the time

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 he signed Exhibit “00” during the hearing of this instant case before the lower
court on February 15, 2007, Ramil Enriquez declared that he was still confused;

5. While he was about 15 meters away from the intersection of N. Gonzales and F.
Platon Streets, he saw an “Enduro” motorcycle. When questioned further on
cross-examination, [Enriquez] declared that he is not a motorcycle enthusiast
and, in fact, does not know anything about this “Enduro” motorcycle;

6. What is more telling is when [Enriquez] testified that there was no word “Enduro”
on the motorcycle that he saw x x x. With all these factors, it is highly improbable
for the witness to say that what he saw at a distance of 15 meters away was an
“Enduro” motorcycle;

7. In his Sinumpaang Salaysay, [Enriquez] declared that “the one who was driving
the motorcycle (who he later pointed to as “Galicia”) had a slim body, brown
complexion, 5’7” or 5’8” in height, and wearing black jacket and camouflaged
pants.

On cross-examination, however, he testified that the one driving the motorcycle

was wearing a long-sleeved grey jacket and long camouflaged pants, and that
the jacket covered his entire body and his hands, while the pants covered his
entire legs. With his long-sleeved jacket and long camouflaged pants, it would be
physically impossible to see the color and complexion of the one driving the
motorcycle. To state that his complexion is brown is simply a lie. Later, [Enriquez]
relented in his testimony and said that what he testified was a speculation,
assumption and conclusion; and

8. [Enriquez] also declared that the one driving the motorcycle is 5’7” or 5’8” in
height. On cross-examination, however, he testified that the driver remained
sitting and that he never alighted from the motorcycle.

Given all these observations, Galicia insists that either the prosecution has no evidence
at all against him or its evidence is weak and insufficient to convict him beyond
reasonable doubt.

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We are not swayed. A judicious review and examination of the entire record of the
instant case provide compelling reason to affirm Galicia’s conviction.

At the outset, let it be emphasized that the issue being raised is one of credibility which
is naturally factual – a domain of the trial court that had the opportunity to observe the
deportment and manner of the witnesses as they testified13 whose finding is, as such,
entitled to respect. And we do not consider the accused’s observations as relevant facts
of substance which can affect the result of the case.

Deciding on the merit of the submitted inconsistencies between the prosecution

witnesses’ testimonies and affidavits, we reiterate our ruling in People v.
Villadares,14 where we held that discrepancies and/or inconsistencies between a
witness’ affidavit and testimony do not necessarily impair his credibility as affidavits are
taken ex parte and are often incomplete or inaccurate for lack or absence of searching
inquiries by the investigating officer. What is important is, in the over-all analysis of the
case, the trial court’s findings and conclusions are duly supported by the evidence on
record.

As we have observed, the testimonies of Flores and Enriquez when taken together,
would point to the culpability of Galicia and his cohort as the perpetrators in the killing of
Judge Voltaire Rosales. It may be true that Flores did not witness the actual shooting as
she recounted only the time immediately prior to and after the shooting transpired.
However, such missing detail as to the actual shooting was supplied by state witness
Enriquez who testified in a straightforward manner how Galicia and his co-accused fired
upon the Pajero.

A perusal of the testimony of Flores would reveal that she was in a position to positively
identify the appellant as one of the two motorcycle riding men in the scene of the crime
before and after the fatal shooting of the victim. On the witness stand, Flores stated that
the co-accused of Galicia approached and talked to her at a distance of merely 3 to 4
meters, whereas, his companion identified later on as Galicia was on the
motorcycle.15 Prior to being approached, Flores was in the garden in front of which
Galicia and his co-accused stood,16 thus, she had a good enough view of the
appearance of the two men. Besides, Flores was then alarmed by their presence as she

372
was entertaining thoughts of the carinderia being robbed by them; reason why she took
a hard look at their faces. In fact, she was able to describe their physical features and so
identified appellant Galicia in open court. She even insisted during her cross-
examination that despite the helmet, the faces of appellant and his co-accused were
exposed.17

We entertain no doubt as to the culpability of Galicia and his co-accused even though
Flores did not see the actual shooting. Note that, she stated in a categorical manner that
after she heard the gunshots, she looked out of the window and saw the two men riding
in the motorcycle she saw earlier, who were speeding away from the Pajero. 18 She was
situated barely 7 to 10 meters from where the incident happened at the corner of Platon
and N. Gonzales Streets,19 the same location where prosecution witness Enriquez saw
the actual shooting.

The testimonial accounts of the prosecution witnesses jibed with the physical evidence
and the medico-legal report. Dr. Antonio Vertido who conducted the autopsy20 on Judge
Rosales’ body certified that the cause of death was the gunshot wounds sustained at the
head and the area of the neck and jaw.

So that, the inconsistencies in the color of Galicia’s clothes, his complexion, the brand of
the motorcycle and his height are trivial and cannot affect the credibility of the
prosecution witnesses. As aptly held, the evaluation by the trial court of the testimony of
a witness is accorded with highest respect because the trial court had the direct and
singular opportunity to observe the facial expression, gesture and tone of voice of a
witness while testifying and therefore, competent to determine whether or not the
witness is telling the truth.21

The variance in the testimonies of Flores and Enriquez, in some minor details, is
considered natural. As inconsequential is the initial hesitation and/or failure of witness
Flores to divulge to Barangay Chairwoman Rosales what she had witnessed. What is
significant is that the testimonies are categorical on material aspects, specifically on the
positive identification of Galicia as the person responsible for the crime.

We also consider in this case that no ill motive was found on the part of the witnesses

373
that could have impelled them to testify against Galicia. In People v. Nogra,22 we ruled
that where there is nothing to show that the witnesses for the prosecution were actuated
by improper motive, their positive and categorical declarations on the witness stand,
under the solemnity of an oath, deserve full faith and credence. It necessarily prevails
over alibi and denial, especially when neither alibi nor denial is substantiated by clear
and convincing evidence.

We agree with the lower courts that treachery attended the killing of Judge Rosales. The
attack, as testified to by the prosecution witnesses, was sudden and unexpected. The
victim had no inkling that an attack was forthcoming and had no opportunity to put up
any defense.

In the same vein, contrary to the finding of the CA, we appreciate the existence of the
qualifying circumstance of evident premeditation. The essence of evident premeditation
is that the execution of the criminal act is preceded by cool thought and reflection upon
the resolution to carry out the criminal intent within a space of time sufficient to arrive at
a calm judgment. In this case, it was clearly shown that the two accused who were
“riding in tandem” hatched the means on how to carry out and facilitate the commission
of the crime. The time that had elapsed while the accused were waiting for their victim to
pass by, is indicative of cool thought and reflection on their part that they clung to their
determination to commit the crime. We are therefore convinced that the elements of
evident premeditation were established by the trial court with equal certainty as the
criminal act itself.23 Since the crime has already been qualified to murder by the
attendant circumstance of treachery, the other proven circumstance of evident
premeditation should be appreciated as a generic aggravating circumstance.24

The Penalties

The crime of murder qualified by treachery is penalized under Article 248 of the Revised
Penal Code, as amended, with reclusion perpetua to death. For the death of Judge
Voltaire Rosales, given the aggravating circumstance of evident premeditation that
attended the commission of the crime, the penalty of death should have been meted
against Galicia. However, due to the dictates of Republic Act No. 934625 prohibiting its

374
imposition, the lower courts correctly sentenced the appellant to suffer the penalty
of reclusion perpetua only.

As to Damages

The award of moral damages by the CA should be increased from P50,000.00 to

P100,000.00.26 As borne out by human nature and experience, a violent death invariably
and necessarily brings about emotional pain and anguish on the part of the victim’s
family. It is inherently human to suffer sorrow, torment, pain and anger when a loved one
becomes the victim of a violent or brutal killing. Such violent death or brutal killing not
only steals from the family of the deceased his precious life, deprives them forever of his
love, affection and support, but often leaves them with the gnawing feeling that an
injustice has been done to them. For this reason, moral damages must be awarded even
in the absence of any allegation and proof of the heirs’ emotional suffering. 27

Likewise, in conformity with our ruling in People v. Halil Gambao, et al.,28 where the
penalty for the crime committed is death which, however, cannot be imposed as earlier
discussed, we increase the award of civil indemnity from P50,000.00 to P100,000.00. In
addition, the award of exemplary damages in the amount of P100,000.00, is in order.
Further, in accordance with current policy, we also impose on all the monetary awards
for damages an interest at the legal rate of 6% from date of finality of this Decision until
fully paid.29ChanRoblesVirtualawlibrary

WHEREFORE, the appealed judgment is AFFIRMED with the MODIFICATION that

appellant Aldrin M. Galicia is ordered to pay the heirs of the victim Judge Voltaire
Rosales the amount of P100,000.00 as civil indemnity; P100,000.00 as moral damages;
and P100,000.00 as exemplary damages, all in addition to the interest on all these
damages assessed at the legal rate of 6% from date of finality of this Decision until fully
paid.chanRoblesvirtualLawlibrary

SO ORDERED.

Carpio, (Chairperson), Brion, Del Castillo, and Perlas-Bernabe, JJ., concur.

375
Endnotes:

1
CA rollo, pp. 155-175; Penned by Associate Justice Mariflor P. Punzalan Castillo with
Presiding Justice Conrado M. Vasquez, Jr. and Associate Justice Rosmari D.
Carandang concurring.

2
Id. at 102-120.

3
Records, Vol. I, pp. 1-3.

4
Id. at 1.

5
Id. at 97.

6
CA rollo, pp. 133-135; Appellee’s Brief.

7
Id. at 66-68; Brief for Accused-Appellant.

8
Id. at 102-120.

9
People v. Barde, G.R. No. 183094, 22 September 2010, 631 SCRA 187, 209.

10
People v. Valdez, G.R. No. 175602, 18 January 2012, 663 SCRA 272, 282
citing People v. Darilay, G.R. Nos. 139751-752, 26 January 2004, 421 SCRA 45, 54.

11
CA rollo, pp. 67-71.

12
Id. at 83-87.

13
People v. Meris, 385 Phil. 667, 683 (2000).

14
406 Phil. 530, 540 (2001).

376
15
TSN, 24 November 2005, pp. 9-11.

16
Id. at 8.

17
Id. at 65-66 and TSN 8 December 2005, pp. 5-6.

18
TSN 24 November 2005, pp. 20-22.

19
Id. at 23-26.

20
Records, Vol. I, p. 247; Autopsy Report BTNO-04-221, Exhibit “M” to “M-1.”

21
People v. Villadares, supra note at 14 at 537 citing People v. Cortes, G.R. No. 129693,
24 January 2000, 323 SCRA 131.

22
G.R No. 170834, 29 August 2008, 563 SCRA 723, 735.

23
People v. Sia, 421 Phil. 784, 800 (2001).

24
See Aquino, The Revised Penal Code, Vol. 1, 1976 ed., page 341 citing cases. See
also People v. Dueno, 179 Phil. 14, 29 (1979).

25
An Act Prohibiting the Imposition of Death Penalty in the Philippines approved on 24
June 2006.

26
People v. Halil Gambao, et al., G.R. No. 172707, 1 October 2013.

27
People v. Cabote, 420 Phil. 867, 879 (2001).

28
Supra note 26.

29
People v. Campos, G.R. No. 176061, 4 July 2011, 653 SCRA 99, 116 citing People v.
Dela Cruz, G.R. No. 174371, 11 December 2008, 573 SCRA 708, 721-722.

377
 G.R. No. 192123, March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician–anesthesiologist who has been pronounced guilty of

reckless imprudence resulting in serious physical injuries by the Regional Trial Court
(RTC) and the Court of Appeals (CA). He had been part of the team of anesthesiologists
during the surgical pull–through operation conducted on a three–year old patient born
with an imperforate anus.1

The antecedents are as follows:chanRoblesvirtualLawlibrary

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus.
Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring one
end of the large intestine out through the abdominal wall,3 enabling him to excrete
through a colostomy bag attached to the side of his body. 4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila
for a pull–through operation.5 Dr. Leandro Resurreccion headed the surgical team, and
was assisted by Dr. Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr.
Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced
bradycardia,7 and went into a coma.8 His coma lasted for two weeks,9 but he regained
consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged
a complaint for reckless imprudence resulting in serious physical injuries with the City
Prosecutor’s Office of Manila against the attending physicians.12

378
Upon a finding of probable cause, the City Prosecutor’s Office filed an information solely
against Dr. Solidum,13 alleging: –

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused,
being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such
was tasked to administer the anesthesia on three–year old baby boy GERALD ALBERT
GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been
born with an imperforate anus [no anal opening] and was to undergo an operation for
anal opening [pull through operation], did then and there willfully, unlawfully and
feloniously fail and neglect to use the care and diligence as the best of his judgment
would dictate under said circumstance, by failing to monitor and regulate properly the
levels of anesthesia administered to said GERALD ALBERT GERCAYO and using
100% halothane and other anesthetic medications, causing as a consequence of his
said carelessness and negligence, said GERALD ALBERT GERCAYO suffered a
cardiac arrest and consequently a defect called hypoxic encephalopathy meaning

insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT
GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage
and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred
to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family Courts Act of
1997),15 where it was docketed as Criminal Case No. 01–190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond
reasonable doubt of reckless imprudence resulting to serious physical
injuries,16 decreeing:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P.

SOLIDUM GUILTY beyond reasonable doubt as principal of the crime charged and is
hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS and ONE (1)

379
DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10)
DAYS of prision correccional as maximum and to indemnify, jointly and severally with
the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz
Gercayo, the amount of P500,000.00 as moral damages and P100,000.00 as exemplary
damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby
CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary
liability,18 the RTC excluded them from solidary liability as to the damages, modifying its
decision as follows:chanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum,
guilty beyond reasonable doubt as principal of the crime charged and is hereby
sentenced to suffer the indeterminate penalty of two (2) months and one (1) day
of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision
correccional as maximum and to indemnify jointly and severally with Ospital ng Maynila,
private complainant Luz Gercayo the amount of P500,000.00 as moral damages and
P100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby
cancelled.19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum, 20 pertinently stating
and ruling:chanRoblesvirtualLawlibrary

The case appears to be a textbook example of res ipsa loquitur.

x x x x

380
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major
operation. As noted by the OSG, the accused himself testified that pre–operation tests
were conducted to ensure that the child could withstand the surgery. Except for his
imperforate anus, the child was healthy. The tests and other procedures failed to reveal
that he was suffering from any known ailment or disability that could turn into a
significant risk. There was not a hint that the nature of the operation itself was a
causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute
the accident to a failure in the proper administration of anesthesia, the gravamen of the
charge in this case. The High Court elucidates in Ramos vs. Court of Appeals 321
SCRA 584 –

In cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper
standard of care. Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of
and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way, under usual and
ordinary conditions, by which the patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and
the injury sustained, and in line with the hornbook rules on evidence, we will afford the
factual findings of a trial court the respect they deserve in the absence of a showing of
arbitrariness or disregard of material facts that might affect the disposition of the
case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it

381
creates a presumption of negligence, it need not offend due process, as long as the
accused is afforded the opportunity to go forward with his own evidence and prove that
he has no criminal intent. It is in this light not inconsistent with the constitutional
presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7,
2010.22

Hence, this appeal.

Issues
Dr. Solidum avers that:chanRoblesvirtualLawlibrary

I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF
THE LOWER COURT IN UPHOLDING THE PETITIONER’S CONVICTION FOR THE
CRIME CHARGED BASED ON THE TRIAL COURT’S OPINION, AND NOT ON THE
BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A
CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO
THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE COURT
ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS THIS
BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST
PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE
DOUBT, AND NOT ON THE BASIS OF ITS PRESUMPTIVE CONCLUSION.

II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF
RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT
THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE

382
THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY
ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS REGULATED BY AN
ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES
IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW
APPLICABLE IN THE CASE.

III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT
JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE
THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT
AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND LEGAL
BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the
doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum
was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the
Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as “the thing or the transaction speaks for
itself.” The doctrine res ipsa loquitur means that “where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care.”24 It is simply “a recognition of the
postulate that, as a matter of common knowledge and experience, the very nature of
certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some

383
explanation by the defendant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the basis of such experience or
common knowledge, negligence may be deduced from the mere occurrence of the
accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.”25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law,
but merely a mode of proof or a mere procedural convenience. The doctrine, when
applicable to the facts and circumstances of a given case, is not meant to and does not
dispense with the requirement of proof of culpable negligence against the party
charged. It merely determines and regulates what shall be prima facie evidence thereof,
and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when
and only when, under the circumstances involved, direct evidence is absent and not
readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was
significantly and exhaustively explained in Ramos v. Court of Appeals,28 where the
Court said –

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa
loquitur has been applied when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference of negligence as the cause of
that harm. The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the
need for expert medical testimony is dispensed with because the injury itself provides
the proof of negligence. The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical science, and
not to matters that are within the common knowledge of mankind which may be testified
to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and

384
experience are competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non–expert witnesses.
Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper
standard of care. Where common knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of
and the injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury suffered by
him.

Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show that he is not guilty of the
ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in malpractice cases where a layman
is able to say, as a matter of common knowledge and observation, that the

385
consequences of professional care were not as such as would ordinarily have followed if
due care had been exercised. A distinction must be made between the failure to secure
results, and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res ipsa loquitur can have
no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril
to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment
was not accomplished. The real question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would themselves reasonably speak to
the average man as the negligent cause or causes of the untoward consequence. If
there was such extraneous intervention, the doctrine ofres ipsa loquitur may be utilized
and the defendant is called upon to explain the matter, by evidence of exculpation, if he
could.

In order to allow resort to the doctrine, therefore, the following essential requisites must
first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur
unless someone is negligent; (2) the instrumentality or agency that caused the injury
was under the exclusive control of the person charged; and (3) the injury suffered must
not have been due to any voluntary action or contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa
loquitur inappropriate. Although it should be conceded without difficulty that the second
and third elements were present, considering that the anesthetic agent and the
instruments were exclusively within the control of Dr. Solidum, and that the patient, being
then unconscious during the operation, could not have been guilty of contributory
negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull–through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the time of his submission
to the physicians. Yet, he experienced bradycardia during the operation, causing loss of

386
his senses and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to
the brain that caused the slowing of the heart rate, scientifically termed as bradycardia,
would not ordinarily occur in the process of a pull–through operation, or during the
administration of anesthesia to the patient, but such fact alone did not prove that the
negligence of any of his attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to him had sensed in the
course of the operation that the lack of oxygen could have been triggered by the vago–
vagal reflex, prompting them to administer atropine to the patient. 30

This conclusion is not unprecedented. It was similarly reached in Swanson v.

Brigham,31 relevant portions of the decision therein being as
follows:chanRoblesvirtualLawlibrary

On January 7, 1973, Dr. Brigham admitted 15–year–old Randall Swanson to a hospital

for the treatment of infectious mononucleosis. The patient’s symptoms had included a
swollen throat and some breathing difficulty. Early in the morning of January 9 the
patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection
of the patient’s air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr.
Brigham received a telephone call from the hospital, advising him that the patient was
having respiratory difficulty. The doctor ordered that oxygen be administered and he
prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a
second time to advise the doctor that the patient was not responding. The doctor
ordered that a medicine be administered, and he departed for the hospital. When he
arrived, the physician who had been on call at the hospital had begun attempts to revive
the patient. Dr. Brigham joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25
a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage.
He also found that the air passage had been adequate to maintain life up to 2 or 3
minutes prior to death. He did not know what caused the air passage to suddenly close.

x x x x

It is a rare occurrence when someone admitted to a hospital for the treatment of

387
infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke res ipsa
loquitur. The fact that the injury rarely occurs does not in itself prove that the injury was
probably caused by someone’s negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474
P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the
doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The
Negligence Case – Res Ipsa Loquitur § 24:10 (1972). The evidence presented is
insufficient to establish the first element necessary for application of res ipsa
loquitur doctrine. The acute closing of the patient’s air passage and his resultant
asphyxiation took place over a very short period of time. Under these circumstances it
would not be reasonable to infer that the physician was negligent. There was no
palpably negligent act. The common experience of mankind does not suggest that death
would not be expected without negligence. And there is no expert medical testimony to
create an inference that negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines
whether the CA correctly affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance that the circumstances
justly demand, whereby such other person suffers injury.32 Reckless imprudence, on the
other hand, consists of voluntarily doing or failing to do, without malice, an act from
which material damage results by reason of an inexcusable lack of precaution on the
part of the person performing or failing to perform such act.33

Dr. Solidum’s conviction by the RTC was primarily based on his failure to monitor and
properly regulate the level of anesthetic agent administered on Gerald by overdosing at
100% halothane. In affirming the conviction, the CA
observed:chanRoblesvirtualLawlibrary

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the
findings and conclusions in his report except for an observation which, to all intents and
purposes, has become the storm center of this dispute. He wanted to correct one piece
of information regarding the dosage of the anesthetic agent administered to the

388
child. He declared that he made a mistake in reporting a 100% halothane and said that
based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the

following:chanRoblesvirtualLawlibrary

(a) the anesthesia record – A portion of the chart in the record was marked as Exhibit
1–A and 1–B to indicate the administration at intervals of the anesthetic agent.

(b) the clinical abstract – A portion of this record that reads as follows was marked
Exhibit 3A. 3B – Approximately 1 hour and 45 minutes through the operation, patient
was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was immediately
administered. However, the bradycardia persisted, the inhalational agent was shut off,
and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg
was given. However, the patient did not respond until no cardiac rate can be
auscultated and the surgeons were immediately told to stop the operation. The patient
was put on a supine position and CPR was initiated. Patient was given 1 amp of
epinephrine initially while continuously doing cardiac massage – still with no cardiac rate
appreciated; another ampule of epinephrine was given and after 45 secs, patient’s vital
signs returned to normal. The entire resuscitation lasted approximately 3–5 mins. The
surgeons were then told to proceed to the closure and the child’s vital signs throughout
and until the end of surgery were: BP = 110/70; CR = 116/min and RR = 20–22
cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was
ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia
persisted, but for one reason or another, he read it as 100% halothane. He was asked
to read the anesthesia record on the percentage of the dosage indicated, but he could
only sheepishly note I can’t understand the number. There are no clues in the clinical
abstract on the quantity of the anesthetic agent used. It only contains the information
that the anesthetic plan was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and
45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be

389
apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100%
halothane was the pure oxygen introduced after something went amiss in the operation
and the halothane itself was reduced or shut off.

The key question remains – what was the quantity of halothane used before bradycardia
set in?

The implication of Dr. Vertido’s admission is that there was no overdose of the
anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on this
conclusion. He made the assurance that he gave his patient the utmost medical care,
never leaving the operating room except for a few minutes to answer the call of nature
but leaving behind the other members of his team Drs. Abella and Razon to monitor the
operation. He insisted that he administered only a point 1% not 100% halothane,
receiving corroboration from Dr. Abella whose initial MA in the record should be enough
to show that she assisted in the operation and was therefore conversant of the things
that happened. She revealed that they were using a machine that closely monitored the
concentration of the agent during the operation.

But most compelling is Dr. Solidum’s interpretation of the anesthesia record itself, as he
takes the bull by the horns, so to speak. In his affidavit, he says, reading from the
record, that the quantity of halothane used in the operation is one percent (1%) delivered
at time intervals of 15 minutes. He studiedly mentions – the concentration of halothane
as reflected in the anesthesia record (Annex D of the complaint–affidavit) is only one
percent (1%) – The numbers indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the patient Gerard Gercayo for his
entire operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly eliminated
by the body during the entire operation.

x x x x

In finding the accused guilty, despite these explanations, the RTC argued that the volte–
face of Dr. Vertido on the question of the dosage of the anesthetic used on the child
would not really validate the non–guilt of the anesthesiologist. Led to agree that the

390
halothane used was not 100% as initially believed, he was nonetheless unaware of the
implications of the change in his testimony. The court observed that Dr. Vertido had
described the condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the symptoms attributed to a
failing central nervous system such as stupor, loss of consciousness, decrease in heart
rate, loss of usual acuity and abnormal motor function, are manifestations of this
condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen to
1% halothane was used? Ultimately, to the court, whether oxygen or halothane was the
object of mistake, the detrimental effects of the operation are incontestable, and they
can only be led to one conclusion – if the application of anesthesia was really closely
monitored, the event could not have happened.34

The Prosecution did not prove the elements of reckless imprudence beyond reasonable
doubt because the circumstances cited by the CA were insufficient to establish that Dr.
Solidum had been guilty of inexcusable lack of precaution in monitoring the
administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
Court of Appeals35 that:chanRoblesvirtualLawlibrary

Whether or not a physician has committed an “inexcusable lack of precaution” in the

treatment of his patient is to be determined according to the standard of care observed
by other members of the profession in good standing under similar circumstances
bearing in mind the advanced state of the profession at the time of treatment or the
present state of medical science. In the recent case of Leonila Garcia–Rueda v. Wilfred
L. Pacasio, et. al.,this Court stated that in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians and surgeons
practicing in the same field, he will employ such training, care and skill in the treatment
of his patients. He therefore has a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the
physician’s conduct in the treatment and care falls below such standard. Further,
inasmuch as the causes of the injuries involved in malpractice actions are determinable
only in the light of scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation.

391
xxxx

In litigations involving medical negligence, the plaintiff has the burden of establishing
appellant’s negligence and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the surgeon as well as a causal connection of such
breach and the resulting death of his patient. In Chan Lugay v. St Luke’s Hospital,
Inc., where the attending physician was absolved of liability for the death of the
complainant’s wife and newborn baby, this Court held that:
“In order that there may be a recovery for an injury, however, it must be shown that the
‘injury for which recovery is sought must be the legitimate consequence of the wrong
done; the connection between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes.’ In other words, the
negligence must be the proximate cause of the injury. For, ‘negligence, no matter in
what it consists, cannot create a right of action unless it is the proximate cause of the
injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.’”

An action upon medical negligence – whether criminal, civil or administrative – calls for
the plaintiff to prove by competent evidence each of the following four elements, namely:
(a) the duty owed by the physician to the patient, as created by the physician–patient
relationship, to act in accordance with the specific norms or standards established by his
profession; (b) the breach of the duty by the physician’s failing to act in accordance with
the applicable standard of care; (3) the causation, i.e., there must be a reasonably close
and causal connection between the negligent act or omission and the resulting injury;
and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against
unreasonable risk, commonly referred to as standards of care, set the duty of the
physician to act in respect of the patient. Unfortunately, no clear definition of the duty of
a particular physician in a particular case exists. Because most medical malpractice
cases are highly technical, witnesses with special medical qualifications must provide
guidance by giving the knowledge necessary to render a fair and just verdict. As a result,

392
the standard of medical care of a prudent physician must be determined from expert
testimony in most cases; and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care and skill commonly
possessed and exercised by similar specialists under similar circumstances. The
specialty standard of care may be higher than that required of the general practitioner. 37

The standard of care is an objective standard by which the conduct of a physician sued
for negligence or malpractice may be measured, and it does not depend, therefore, on
any individual physician’s own knowledge either. In attempting to fix a standard by which
a court may determine whether the physician has properly performed the requisite duty
toward the patient, expert medical testimony from both plaintiff and defense experts is
required. The judge, as the trier of fact, ultimately determines the standard of care, after
listening to the testimony of all medical experts. 38

Here, the Prosecution presented no witnesses with special medical qualifications in

anesthesia to provide guidance to the trial court on what standard of care was
applicable. It would consequently be truly difficult, if not impossible, to determine
whether the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself
who served as the Chairman of the Committee on Ethics and Malpractice of the
Philippine Society of Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had conducted the
investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum, 40 to
wit:chanRoblesvirtualLawlibrary

Presented for review by this committee is the case of a 3 year old male who underwent a
pull–thru operation and was administered general anesthesia by a team of anesthesia
residents. The patient, at the time when the surgeons was manipulating the recto–
sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the triggering of the vago–vagal
reflex, administered atropine to block it but despite the administration of the drug in two
doses, cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re–established in less than five (5)

393
minutes and that oxygen was continuously being administered throughout, unfortunately,
as later become manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia,

the committee find that the same were all in accordance with the universally accepted
standards of medical care and there is no evidence of any fault or negligence on the part
of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico–Legal Officer of the National Bureau of

Investigation, was also presented as a Prosecution witness, but his testimony
concentrated on the results of the physical examination he had conducted on Gerald, as
borne out by the following portions of his direct examination, to
wit:chanRoblesvirtualLawlibrary

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction
of Anesthesia and in this case, halothane was used as a sole
anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned
that after one hour and 45 minutes after the operation, the patient
experienced a bradycardia or slowing of heart rate, now as a
doctor, would you be able to tell this Honorable Court as to what
cause of the slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a
bradycardia of time because is some reason one way or another
that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and
that is a possibility, we’re talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within
that situation.

394
FISCAL CABARON Now, this representation would like to ask you about the slowing
of heart rate, now what is the immediate cause of the slowing of
the heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the
heart rate is when you do a vagal reflex in the neck wherein the
vagal receptors are located at the lateral part of the neck, when
you press that, you produce the slowing of the heart rate that
produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the
deficiency in the supply of oxygen by the patient, would that also
cause the slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart
rate, if there is a hypoxia or there is a low oxygen level in the
blood, the normal thing for the heart is to pump or to do not a
bradycardia but a … to counter act the Hypoxia that is being
experienced by the patient (sic).
xxxx
Q Now, you made mention also doctor that the use of general
anesthesia using 100% halothane and other anesthetic
medications probably were contributory to the production of
hypoxia.
A Yes, sir in general sir.41

On cross–examination, Dr. Vertido expounded more specifically on his interpretation of

the anesthesia record and the factors that could have caused Gerald to experience
bradycardia, viz:chanRoblesvirtualLawlibrary

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly
read to this Honorable court your last paragraph and if you will
affirm that as if it is correct?
A “The use of General Anesthesia, that is using 100% Halothane
probably will be contributory to the production of Hypoxia and – – –
–”

395
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the – – –
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a
doctor but will you kindly look at this and tell me where is 100%,
the word “one hundred” or 1–0–0, will you kindly look at this
Doctor, this Xerox copy if you can show to this Honorable Court
and even to this representation the word “one hundred” or 1–0–0
and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1–0–0 and if
there is, you just call me and even the attention of the Presiding
Judge of this Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA I’m asking you, just answer my question, did you see there 100%
and 100 figures, tell me, yes or no?
WITNESS I’m trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also
temporarily, because this is just a xerox copy presented by the
fiscal, that the percentage here that the Halothane administered by
Dr. Solidum to the patient is 1% only so may we request that this
portion, temporarily your Honor, we are marking this anesthesia
record as our Exhibit 1 and then this 1% Halothane also be
bracketed and the same be marked as our Exhibit “1–A”.
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are
so many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that
contributed to what you call hypoxia and according to you, when

396
 this Gerald suffered hypoxia, there are other factors that might lead
to this Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other,
some or it might be due to operations being conducted by the
doctor at the time when the operation is being done might also
contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald,
Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this
Gerald, there is a possibility that this Gerald might [be] exposed to
some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that
correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42

At the continuation of his cross–examination, Dr. Vertido maintained that Gerald’s

operation for his imperforate anus, considered a major operation, had exposed him to
the risk of suffering the same condition.43 He then corrected his earlier finding that 100%
halothane had been administered on Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for “failing to monitor and regulate properly the levels
of anesthesia administered to said Gerald Albert Gercayo and using 100% halothane
and other anesthetic medications.”45 However, the foregoing circumstances, taken
together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly
imprudent in administering the anesthetic agent to Gerald. Indeed, Dr. Vertido’s findings

397
did not preclude the probability that other factors related to Gerald’s major operation,
which could or could not necessarily be attributed to the administration of the
anesthesia, had caused the hypoxia and had then led Gerald to experience bradycardia.
Dr. Vertido revealingly concluded in his report, instead, that “although the
anesthesiologist followed the normal routine and precautionary procedures, still hypoxia
and its corresponding side effects did occur.”46

The existence of the probability about other factors causing the hypoxia has engendered
in the mind of the Court a reasonable doubt as to Dr. Solidum’s guilt, and moves us to
acquit him of the crime of reckless imprudence resulting to serious physical injuries. “A
reasonable doubt of guilt,” according toUnited States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious
doubt; not a doubt engendered merely by sympathy for the unfortunate position of the
defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having
weighed the evidence on both sides, you reach the conclusion that the defendant is
guilty, to that degree of certainty as would lead you to act on the faith of it in the most
important and crucial affairs of your life, you may properly convict him. Proof beyond
reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond
the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him
from civil liability. But we cannot now find and declare him civilly liable because the
circumstances that have been established here do not present the factual and legal
bases for validly doing so. His acquittal did not derive only from reasonable doubt. There
was really no firm and competent showing how the injury to Gerard had been caused.
That meant that the manner of administration of the anesthesia by Dr. Solidum was not
necessarily the cause of the hypoxia that caused the bradycardia experienced by
Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the
cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on
speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to

398
address the unusual decree of the RTC, as affirmed by the CA, of expressly holding
Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree was
flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed
instituted with the criminal action refers only to that arising from the offense charged. 48 It
is puzzling, therefore, how the RTC and the CA could have adjudged Ospital ng Maynila
jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that
Ospital ng Maynila, being an artificial entity, had not been charged along with Dr.
Solidum. The lower courts thereby acted capriciously and whimsically, which rendered
their judgment against Ospital ng Maynila void as the product of grave abuse of
discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the
CA overlooked. We deem it important, then, to express the following observations for the
instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its
fundamental right to be heard was not respected from the outset. The RTC and the CA
should have been alert to this fundamental defect. Verily, no person can be prejudiced
by a ruling rendered in an action or proceeding in which he was not made a party. Such
a rule would enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability
would be properly enforceable pursuant to Article 103 of the Revised Penal Code. But
the subsidiary liability seems far–fetched here. The conditions for subsidiary liability to
attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103
of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation
“engaged in any kind of industry.” The term industry means any department or branch of
art, occupation or business, especially one that employs labor and capital, and is
engaged in industry.49 However, Ospital ng Maynila, being a public hospital, was not
engaged in industry conducted for profit but purely in charitable and humanitarian
work.50 Secondly, assuming that Ospital ng Maynila was engaged in industry for profit,
Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the

399
discharge of his duties during the operation on Gerald. Yet, he definitely was not such
employee but a consultant of the hospital. And, thirdly, assuming that civil liability was
adjudged against Dr. Solidum as an employee (which did not happen here), the
execution against him was unsatisfied due to his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES
AND SETS ASIDE the decision promulgated on January 20, 2010; ACQUITS Dr.
Fernando P. Solidum of the crime of reckless imprudence resulting to serious physical
injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.

Sereno, C.J., Leonardo–De Castro, Villarama, Jr., and Reyes, JJ., concur.

Endnotes:

1
Imperforate anus is a defect that is present from birth (congenital) in which the opening
to the anus is missing or blocked. The anus is the opening to the rectum through which
stools leave the body.
http://www.nlm.nih.gov/medlineplus/ency/article/001147.html. Visited on March 3, 2014.

2
Rollo, p. 55.

3
http://www.nlm.nih.gov/medlineplus/ostomy.html. Visited on March 3, 2014.

4
Rollo, p. 10.

5
Id. at 53.

6
Id. at p. 10.

7
Bradycardia is an abnormally slow heart rate of less than 60 beats per minute. A
normal heartbeat is between 60 and 100 beats per

400
minute. http://www.intelihealth.com/IH/ihtIH/c/9339/23653.html. Visited on March 3,
2014.

8
Rollo, p. 55.

9
Id.

10
Id. at 11.

11
Id.

12
Id.

13
Id. at 51A–52.

14
Id. at 51A.

15
Id. at 53.

16
Id. at 53–81.

17
Records, p. 539.

18
Id. at 551–554.

19
Id. at 561.

20
Rollo, pp. 10–21; penned by Associate Justice Mario L. Guariña III (retired), with
Associate Justice Sesinando E. Villon and Associate Justice Franchito N. Diamante
concurring.

21
Id. at 12–21.

22
Id. at 22.

401
23
Id. at 30–31.

24
Jarcia, Jr. v. People, G.R. No. 187926, February 15, 2012, 666 SCRA 336, 351.

25
Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584,
599.

26
Supra note 24, at 352.

27
Id.

28
Supra note 25, at 600–603.

29
Reyes v. Sisters of Mercy Hospital, G.R. No. 130547, October 3, 2000, 341 SCRA 760,
771.

30
Records, p. 110.

31
571 P.2d 217, 18 Wash. App. 647; Wash. Ct. App. 1917.

32
Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 497.

33
Id. at 495.

34
Rollo, pp. 87–91.

35
G.R. No. 122445, November 18, 1997, 282 SCRA 188, 200–202.

36
Flamm, Martin B., Medical Malpractice and the Physician Defendant, Chapter 11,
Legal Medicine, Fourth Edition (1998), pp. 123–124, American College of Legal
Medicine, Mosby, Inc., St. Louis, Missouri.

37
Id. at 123–124.

402
38
Id. at 124.

39
TSN of December 1, 1999.

40
Records, p. 110.

41
TSN of November 11, 1997, pp. 16–31.

42
TSN of November 11, 1997, pp. 44–53.

43
TSN of December 10, 1997, pp. 2–3.

44
Id. at 5–10.

45
Rollo, p. 51.

46
TSN of December 10, 1997, p. 13.

47
91 Fed. Rep. 864, 868.

48
Section 1, Rule 111, Rules of Court.

49
Regalado, Criminal Law Conspectus, First Edition (2000), National Book Store, Inc., p.
263.

50
Id. at 264

403
 G.R. No. 191060, February 02, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. TOMAS DIMACUHA, JR.,

EDGAR ALLEN ALVAREZ, RODEL CABALLERO, LUIS EVANGELISTA, RICKY
BARRIAO, LITO GUALTER, TESS GUALTER, BOGS EVANGELISTA, ALIAS THEO,
ALIAS NONONG, ALIAS JOHNY AND JOHN DOES, ACCUSED, EDGAR ALLEN
ALVAREZ AND RODEL CABALLERO, Accused-Appellants.

RESOLUTION

DEL CASTILLO, J.:

Appellants Edgar Allen Alvarez (Alvarez) and Rodel Caballero (Caballero), together with
the accused who remain at-large, were charged with the crime of murder1 for the fatal
shooting of Nicanor Morfe Agon (Agon).2 During the arraignment, appellants entered
separate pleas of not guilty.3 After trial, the Regional Trial Court (RTC) of Batangas City,
Branch 2, rendered a Decision4 dated May 11, 2007 finding the appellants guilty beyond
reasonable doubt of the crime charged, viz:chanRoblesvirtualLawlibrary

WHEREFORE, in view of all the foregoing, accused EDGAR ALLEN ALVAREZ and
RODEL CABALLERO, are hereby found guilty of the crime of Murder defined and
penalized under Article 248 of the Revised Penal Code, with the qualifying and/or
aggravating circumstance of treachery and evident premeditation and both accused are
hereby sentenced to suffer the penalty of RECLUSION PERPETUA. They are further
ordered to pay the heirs of Nicanor Agon y Morpe jointly and severally the amount of
P100,000.00 as civil liability and to pay the costs.

Considering that accused Tomas Dimacuha, Jr., Luis Evangelista, Ricky Barriao, Alias
Joey, Alias Theo, Alias Nonong, Alias Johny and John Does are still at large, let the
charges against them be archived subject to revival upon their apprehension.

Let a copy of this decision be furnished the Secretary of Justice for his information of the
procedural lapses in the selection of George Vitan as prosecution witness and for his
appropriate action.

404
SO ORDERED.5

Aggrieved, appellants appealed to the Court of Appeals (CA). In a Decision6 dated

October 8, 2009, the CA affirmed with modifications the ruling of the
RTC, viz:chanRoblesvirtualLawlibrary

WHEREFORE, the appeal is DENIED. The assailed decision is AFFIRMED insofar as

the Accused-Appellants Edgar Allen Alvarez and Rodel Caballero are found guilty
beyond reasonable doubt of Murder and are penalized with imprisonment of reclusion
perpetua. However, the award of civil indemnity is REDUCED from One Hundred
Thousand Pesos (Php100,000.00) to Fifty Thousand Pesos (Php50,000.00). In addition,
the Accused-Appellants are ORDERED to pay, jointly and severally, the heirs of Nicanor
Morfe Agon the amounts of Fifty Thousand Pesos (Php50,000.00) as moral damages
and Twenty Five Thousand Pesos (Php25,000.00) as exemplary damages. Costs
against the Accused-Appellants.

SO ORDERED.7

Hence, this appeal.

In a Resolution8 dated August 16, 2010, the Court directed the parties to file their
respective supplemental briefs, if they so desire. Both, however, opted to adopt the
briefs they submitted before the CA as their supplemental
briefs.9chanroblesvirtuallawlibrary

Appellants insist that the evidence was insufficient to warrant their conviction. First, the
witnesses for the prosecution did not testify on the material allegations stated in the
complaint sheet and the sworn statements, thereby depriving them of the opportunity to
cross-examine said witnesses. Second, there was no proof that Agon and the person
referred to in the death certificate are one and the same. Third, the prosecution failed to
present in court the murder weapons, as well as the slugs. Fourth, there was no
testimony proffered on the caliber of the gun used in shooting Agon. And lastly,
appellants maintain that they were denied due process when the RTC ordered the

405
discontinuance of their presentation of additional witnesses.

The Court is not convinced.

The elements of the crime of murder are: (1) a person was killed; (2) the accused killed
him or her; (3) the killing was attended by any of the qualifying circumstances mentioned
in Article 248 of the Revised Penal Code (RPC); and (4) that the killing is not parricide or
infanticide.10 These requisites have been established by the prosecution.

The gunman himself who testified for the prosecution, George Vitan (Vitan), testified that
his group “Black Shark” killed Agon. One of the responding policemen PO2 Arnold
Abdon, for his part, testified that he went to the hospital where Agon was taken and the
latter was already dead when he arrived. Further, the Medico-Legal Officer, Dr. Antonio
S. Vertido, testified on the post-mortem examination he conducted upon Agon which
showed that the latter sustained six gunshot wounds, two of which were fatal. The
element therefore that a person was killed is obtaining in this case.

That appellants killed Agon was established through the prosecution witnesses
composed of Vitan and two other self-confessed former members of “Black Shark”, Arnel
Balocon and Romulo Gasta. Their testimonies pointed to appellants as among those
who planned and executed the killing of Agon.

The fatal shooting of Agon was attended by treachery, a qualifying circumstance listed
under Article 248 and notably, alleged in the Information. For treachery to be properly
appreciated, two conditions must be present: (1) at the time of the assault, the victim
was not in a position to defend himself; and (2) the offender consciously adopted the
particular means, methods, or forms of attack employed by him.11These conditions were
present in the killing of Agon. The assault upon Agon was deliberate, swift and sudden,
denying him the opportunity to protect or defend himself. He was unarmed and unaware
of the plot of appellants to kill him. Moreover, the means, method or manner of execution
of the attack was deliberately and consciously adopted by appellants, the same being in
accordance with their group’s plan to liquidate Agon. As aptly ruled by the
RTC:chanRoblesvirtualLawlibrary

406
The prosecution evidence show that herein accused, together with their group
deliberately executed their aggression without any risk arising from their victim, who was
caught unaware, helpless and defenseless. At the time the group commenced their
aggression, Nick Agon was entirely unsuspecting, as he was on board his Mitsubishi
Pajero traversing a narrow street leading to the highway. He (Agon) was surprised when
Theo and George Vitan suddenly approached from the right side of his vehicle and
promptly fired at him successively. This manner purposely adopted by the duo coupled
with the help given by their comrades to ensure the commission of the crime clearly
constitutes treachery; x x x.12

Finally, the killing of Agon was neither parricide nor infanticide.

All the elements of the crime of murder being present in this case, the RTC and the CA
thus correctly ruled in finding appellants guilty of the said crime.

It must be noted as well that the evidence adduced by the prosecution is also sufficient
to establish the presence of the aggravating circumstance of evident premeditation,
which has the following elements: (1) the time when the offender determined to commit
the crime; (2) an act manifestly indicating that the accused clung to his determination;
and (3) a sufficient lapse of time between determination and execution to allow himself
time to reflect upon the consequences of his act.13 Vitan testified that the plan to kill
Agon was conceived a day before the victim was fatally shot. Appellants and their
cohorts therefore, had adequate time to reflect on the consequences of their
contemplated crime prior to its execution. The period of time when appellants planned to
kill Agon and the time when they implemented such plan afforded them the opportunity
for meditation and reflection on the consequences of the murder they committed.

The lower courts’ finding of conspiracy must also be sustained. There is conspiracy
“when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. It arises on the very instant the plotters agree, expressly
or impliedly, to commit the felony and forthwith decide to pursue it.” 14 Here, the evidence
is sufficient to prove that appellants conspired to murder Agon. Vitan testified that on
February 21, 2004, he, the accused and appellants agreed to murder Agon. In
accordance with their plan, they proceeded the next day, February 22, 2004, to the

407
cockpit arena, a place which they knew that Agon would be at on that particular day.
Upon their arrival thereat, the members of the group which included appellants
positioned themselves according to their plan and waited for Agon to leave. Later on,
Caballero signaled Vitan and the other alleged gunman, accused Theo (Theo), that the
target had left the arena and that his vehicle was already approaching their position.
When Agon’s vehicle came, Vitan and Theo fired at him. Vitan, Caballero, Alvarez, who
acted as one of the back-ups, and the rest of the group then fled the scene of the crime.
Clearly, there was unity of action and purpose among the members of “Black
Shark,” which include appellants in killing Agon.

Conspiracy having been established, evidence as to who delivered the fatal blow is no
longer indispensable. Hence, it is immaterial if Caballero’s role was merely to signal the
gunmen and Alvarez’s, to act as back-up. Each of the offender is equally guilty of the
criminal act since in conspiracy the act of one is the act of
15
all. chanroblesvirtuallawlibrary

Anent appellants’ claim of denial of due process since their presentation of additional
witnesses was disallowed by the RTC, the Court finds that the CA had already amply
and correctly addressed this issue, thus:chanRoblesvirtualLawlibrary

x x x We find that the RTC had every reason to discontinue the presentation of evidence
by the Accused-Appellants. They sought postponements, to reiterate, not only once or
twice, but on many instances. Considering that the RTC and its entire staff had to travel
outside the province of Batangas, and the fact that the Accused-Appellants intended to
present other witnesses, they should have therefore been more discerning in seeking
the resetting of the trial proceedings to avoid unreasonable delay.

As the RTC correctly held, the concept of speedy trial is available not only to the
accused but also the State because, while an accused does have rights, let it not be
forgotten that the aggrieved also have the same rights. Thus, the Accused-Appellants
were not denied due process considering that they were able to testify on their own
behalf and that it is within their power, which they miserably failed, to ensure that they
are able to present their case without delay 16

408
In the same vein, appellants’ other arguments, i.e., that there was no testimony
respecting the complaint sheet; that the murder weapons and the slugs were not
presented in evidence; and that the medico-legal officer who conducted the post-mortem
examination on Agon did not testify on the identity and caliber of the firearms used in the
killing, do not deserve credence. The non-presentation of such items and testimonies is
not indispensable to the successful prosecution of the appellants since they are not
elements of the crime of murder.17chanroblesvirtuallawlibrary

As to the alleged failure of the prosecution witnesses to testify on their sworn

statements, suffice it to say that the failure of the prosecution witnesses to reiterate the
contents of their sworn statements during trial does not affect their credibility and render
the sworn statements useless and insignificant, as long as they are presented as
evidence in open court. The sworn statements and the open court declarations must be
evaluated and examined together to obtain a thorough determination of the merits of the
case. The presentation of these sworn statements during the trial and the attestation of
the prosecution witnesses thereto render the same admissible in evidence. Moreover,
appellants’ contention that they were denied the opportunity to cross-examine the
prosecution witnesses on the contents of their sinumpaang salaysay(s) has no factual
basis. The records reveal that they cross-examined the witnesses after the prosecution’s
direct examination.

It must be noted that in the face of the glaring evidence against them, appellants could
only muster the defenses of denial and alibi. As consistently ruled by the Court, denial
and alibi are disfavored on account of the facility with which they can be concocted to
suit the defense of an accused. Being negative defenses, they must be corroborated and
substantiated by clear and convincing evidence; otherwise, they would merit no weight in
law and cannot be given greater value in evidence than the testimony of credible
witnesses who testified on affirmative matters.18 In this case, appellants failed to proffer
corroborative evidence in spite of the opportunities provided to them. Hence, their self-
serving testimonies of denial and alibi cannot prevail over Vitan’s positive identification of
them as perpetrators of the crime. Indeed, their defenses do not deserve any weight in
evidence.

409
Going now to the imposable penalty, the crime of murder is punished by reclusion
perpetua to death. The RTC and the CA were correct in ruling that the attendant
circumstance of treachery qualified the killing to murder. However, with the aggravating
circumstance of evident premeditation also found to be present, the greater penalty of
death is the imposable penalty pursuant to Article 6319 of the RPC. Nevertheless, in lieu
of death penalty, the imposition upon appellants of the penalty of reclusion perpetua in
this case is proper pursuant to Republic Act No. 9346.20 It must also be added that
appellants are not eligible for parole.21chanroblesvirtuallawlibrary

With respect to damages, the amounts of civil indemnity, moral damages and exemplary
damages awarded by the CA must be increased to P100,000.00 each in line with
prevailing jurisprudence.22Moreover, temperate damages in the amount of P25,000.00
must also be awarded in view of the absence of evidence of burial and funeral
expenses. Lastly, interest of 6% per annum shall be imposed on all the awards of
damages from the date of finality of this judgment until fully
paid.23chanroblesvirtuallawlibrary

WHEREFORE, the October 8, 2009 Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 03048 affirming the conviction by the Regional Trial Court of Batangas City,
Branch 2 of appellants Edgar Allen Alvarez and Rodel Caballero of the crime of murder
for which they were sentenced to suffer the penalty of reclusion perpetua,
is AFFIRMED with MODIFICATIONS that (1) appellants are not eligible for parole; (2)
the awards of civil indemnity, moral damages and exemplary damages to the victim’s
heirs are each increased to P100,000.00; (3) appellants are further ordered to pay the
victim’s heirs temperate damages in the amount of P25,000.00; and, (4) all damages
awarded shall earn interest at the rate of 6% per annum from date of finality of this
judgment until fully paid.

SO ORDERED.

Carpio, (Chairperson), Velasco, Jr.,* Mendoza, and Leonen, JJ., concur.

Endnotes:

410
*
Per Special Order No. 1910 dated January 12, 2015.

1
The accusatory portion of the Information reads as follows:chanRoblesvirtualLawlibrary

That on or about the 22nd day of February 2004, at Sta. Rita, Batangas City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
confederating, mutually helping each other and with conspiracy and with intent to kill, did
then and there willfully, unlawfully and feloniously killed [sic] NICKANOR MORFE AGON
in the following manner, to wit: They planned to kill Nickanor Morfe Agon as they
followed him first from the cockpit, while his [P]ajero was about to turn, it slowed down
and at that juncture, and taking advantage of superior strength armed with several guns,
they fired at him for many times and on the different parts of his body thereby inflicting
upon him mortal wounds which were the direct and immediate cause of his death.

CONTRARY TO LAW with qualifying and[/]or aggravating circumstances of evident

premeditation, treachery, with aid of armed men, for consideration or reward and with
use of motor vehicles. (Records, pp. 1-2)

2
Sometimes spelled as Nickanor Morfe Agon and Nicanor Morpe Agon in the records.

3
Id. at 106.

4
Id. at 314-329; penned by Presiding Judge Maria Cecilia I. Austria.

5
Id. at 328.

6
CA rollo, pp. 170-195; penned by Associate Justice Normandie B. Pizarro and
concurred in by Associate Justices Rosalinda Asuncion-Vicente and Ramon R. Garcia.

7
Id. at 194.

8
Rollo, p. 38.

9
Id. at 39-41 and 44-47.

411
10
People v. Lagman, G.R. No. 197807, April 16, 2012, 669 SCRA 512, 522.

11
Id. at 524.

12
Records, pp. 325-326.

13
People v. Nimuan, G.R. No. 182918, June 6, 2011, 650 SCRA 597, 604-605.

14
People v. Amodia, 602 Phil. 889, 911-912 (2009).

15
People v. Agacer, G.R. No. 177751, December 14, 2011, 662 SCRA 461, 472.

16
CA rollo, pp. 183-184.

17
People v. Nicolas, 448 Phil. 253, 264-265 (2003).

18
People v. Dela Paz, 569 Phil. 684, 700 (2008).

19
Article 63. Rules for the application of indivisible penalties. – x x x x

In all cases in which the law prescribes a penalty composed of two indivisible penalties
the following rules shall be observed in the application
thereof:chanRoblesvirtualLawlibrary

1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.

xxxx

20
AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE
PHILIPPINES.

21
People v. Tolentino, 570 Phil. 255, 284 (2008).

412
22
People v. Gambao, G.R. No. 172707, October 1, 2013, 706 SCRA 508, 535.

23
People v. Lagman, supra note 10 at 529.

413
 G.R. No. 206381, March 25, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DANIEL MATIBAG Y DE VILLA

@ “DANI” OR “DANILO,” Accused-Appellant.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal1 filed by accused-appellant Daniel Matibag y De

Villa @ “Dani” or “Danilo” (Matibag) assailing the Decision2 dated September 13, 2012 of
the Court of Appeals (CA) in CA-G.R. CR-HC No. 03759 which affirmed in toto the
Decision3 dated August 1, 2008 of the Regional Trial Court of Pallocan West, Batangas
City, Branch 3 (RTC) in Criminal Case No. 13941, finding Matibag guilty beyond
reasonable doubt of the crime of Murder.chanroblesvirtuallawlibrary

The Facts

In an Amended Information4 dated May 5, 2005, Matibag was charged with the crime of
Murder defined and penalized under Article 248 of the Revised Penal Code (RPC), as
amended,5 the accusatory portion of which reads:chanRoblesvirtualLawlibrary

That on or about March 27, 2005 at around 8:40 o’clock [sic] in the evening at Iron
Street, Twin Villa Subdivision, Brgy. Kumintang Ibaba, Batangas City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, while armed
with a Beretta Caliber .9MM Pistol with Serial No. 3191M9, a deadly weapon, with intent
to kill and with the qualifying circumstance of treachery, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with said pistol one Enrico Clar de
Jesus Duhan, while the latter was completely defenseless, thereby hitting him and
causing gunshot wounds at his head and chest, which directly resulted to the victim’s
death.

That the special aggravating circumstance of the use of unlicensed firearm is attendant
in the commission of the offense.

414
CONTRARY TO LAW.6cralawred
cralawlawlibrary

Matibag entered a plea of not guilty during his arraignment. After the termination of the
pre-trial, trial on the merits ensued.7cralawred

The prosecution asserted that at around 8:40 in the evening of March 27, 2005, Enrico
Clar de Jesus Duhan (Duhan), who just came from a meeting with the other officers of
the homeowners’ association of Twin Villa Subdivision, was walking along Iron Street in
Brgy. Kumintang Ibaba, Batangas City when Matibag confronted Duhan, and asked,
“ano bang pinagsasasabi mo?” Duhan replied “wala,” and without warning, Matibag
delivered a fist blow hitting Duhan on the left cheek and causing him to teeter
backwards. Matibag then pulled out his gun and shot Duhan, who fell face-first on the
pavement. While Duhan remained in that position, Matibag shot him several more times.
PO2 Tom Falejo, a member of the Philippine National Police, positively identified
Matibag and stated on record that he arrested the latter on the night of March 27, 2005.
Dr. Antonio S. Vertido who conducted an autopsy on Duhan confirmed that the latter
suffered gunshot wounds in the head and chest which led to his death. 8cralawred

In his defense, Matibag alleged that on said date, he was at the despedida party of his
neighbor when Duhan arrived together with the other officers of the homeowners’
association. Wanting to settle a previous misunderstanding, Matibag approached Duhan
and extended his hand as a gesture of reconciliation. However, Duhan pushed it away
and said, “putang ina mo, ang yabang mo,” thereby provoking Matibag to punch him in
the face. Matibag saw Duhan pull something from his waist and fearing that it was a gun
and Duhan was about to retaliate, Matibag immediately drew his own gun, shot Duhan,
and hurriedly left the place. Matibag went to see his police friend, Sgt. Narciso Amante,
to turn himself in, but the latter was unavailable at the time. As Matibag headed back
home, he was stopped by police officers who asked if he was involved in the shooting
incident. He then readily admitted his involvement.9cralawred

The RTC Ruling

In a Decision10 dated August 1, 2008, the RTC convicted Matibag as charged,

415
sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the
heirs of Duhan the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, ?59,000.00 as actual damages, and P25,000.00 as exemplary
11
damages. cralawred

The RTC refused to give credence to Matibag’s claim of self-defense as he failed to

prove the presence of unlawful aggression on Duhan’s part, finding that: (a) Duhan’s
words and actions prior to Matibag’s attack could not be considered as a real threat
against him; (b) no firearm was recovered from the victim; (c) Matibag’s account that
Duhan was about to pull something from his waist, which thus led him to believe that he
was about to be shot, remained uncorroborated; and (d) the number of gunshot wounds
Duhan sustained contradicts the plea of self-defense.12cralawred

Separately, the RTC appreciated the existence of the qualifying circumstance of

treachery since the attack was sudden, unprovoked, and without any warning on the
victim who was unarmed and in a defenseless position.13 Likewise, the special
aggravating circumstance of use of unlicensed firearm was appreciated since a firearm
was used in the commission of a crime and, hence, considered unlicensed. 14cralawred

Dissatisfied, Matibag appealed15 to the CA.chanroblesvirtuallawlibrary

The CA Ruling

In a Decision16 dated September 13, 2012, the CA affirmed Matibag’s conviction in

toto.17cralawred

The CA agreed with the RTC’s findings that: (a) treachery attended the killing of Duhan
as the attack on him was sudden;18 and (b) an unlicensed firearm was used in
committing the crime, which is considered as a special aggravating
circumstance.19cralawred

Hence, the instant appeal.

The Issue Before the Court

416
The sole issue for the Court’s resolution is whether or not the CA correctly upheld the
conviction of Matibag for Murder.chanroblesvirtuallawlibrary

The Court’s Ruling

The appeal is bereft of merit.

In the review of a case, the Court is guided by the long-standing principle that factual
findings of the trial court, especially when affirmed by the CA, deserve great weight and
respect. These factual findings should not be disturbed on appeal, unless there are facts
of weight and substance that were overlooked or misinterpreted and that would
materially affect the disposition of the case. The Court has carefully scrutinized the
records and finds no reason to deviate from the RTC and CA’s factual findings. There is
no indication that the trial court, whose findings the CA affirmed, overlooked,
misunderstood or misapplied the surrounding facts and circumstances of the case.
Hence, the Court defers to the trial court on this score, considering too that it was in the
best position to assess and determine the credibility of the witnesses presented by both
parties.20cralawred

On this score, the Court now proceeds to resolve this case on points of law.

Matibag is charged with the crime of Murder, which is defined and penalized under
Article 248 of the RPC, as amended. In order to warrant a conviction, the prosecution
must establish by proof beyond reasonable doubt that: (a) a person was killed; (b) the
accused killed him or her; (c) the killing was attended by any of the qualifying
circumstances mentioned in Article 248 of the RPC; and (d) the killing is not Parricide or
Infanticide.21cralawred

Under Article 14 of the RPC, there is treachery when the offender commits any of the
crimes against the person, employing means, methods, or forms in the execution thereof
which tend directly and specially to ensure its execution, without risk to himself arising
from the defense which the offended party might make. In People v. Tan,22 the Court
explained that the essence of treachery is the sudden and unexpected attack, without

417
the slightest provocation on the part of the person attacked.23 In People v. Perez,24 it was
explained that a frontal attack does not necessarily rule out treachery. The qualifying
circumstance may still be appreciated if the attack was so sudden and so unexpected
that the deceased had no time to prepare for his or her defense.25cralawred

In this case, the prosecution was able to prove that Matibag, who was armed with a gun,
confronted Duhan, and without any provocation, punched and shot him on the
chest.26 Although the attack was frontal, the sudden and unexpected manner by which it
was made rendered it impossible for Duhan to defend himself, adding too that he was
unarmed.27 Matibag also failed to prove that a heated exchange of words preceded the
incident so as to forewarn Duhan against any impending attack from his assailant.28 The
deliberateness of Matibag’s act is further evinced from his disposition preceding the
moment of execution. As the RTC aptly pointed out, Matibag was ready and destined to
effect such dastardly act, considering that he had an axe to grind when he confronted
Duhan, coupled with the fact that he did so, armed with a loaded handgun.29 Based on
these findings, the Court concludes that treachery was correctly appreciated.

This finding of treachery further correlates to Matibag’s plea of self-defense. Note that by
invoking self-defense, Matibag, in effect, admitted to the commission of the act for which
he was charged, albeit under circumstances that, if proven, would have exculpated him.
With this admission, the burden of proof shifted to Matibag to show that the killing of
Duhan was attended by the following circumstances: (a) unlawful aggression on the part
of the victim; (b) reasonable necessity of the means employed to prevent or repel such
aggression; and (c) lack of sufficient provocation on the part of the person resorting to
self-defense.30cralawred

Among the foregoing elements, the most important is unlawful aggression. It is well-
settled that there can be no self-defense, whether complete or incomplete, unless the
victim had committed unlawful aggression against the person who resorted to self-
defense.31 Jurisprudence states that not every form or degree of aggression justifies a
claim of self-defense.32 For unlawful aggression to be appreciated, there must be an
actual, sudden, and unexpected attack or imminent danger thereof, not merely a
threatening or intimidating attitude,33 as against the one claiming self-defense.

418
Evidently, the treacherous manner by which Matibag assaulted Duhan negates unlawful
aggression in the sense above-discussed. As mentioned, the prosecution was able to
prove that the attack was so sudden and unexpected, and the victim was completely
defenseless. On the other hand, Matibag’s version that he saw Duhan pull something
from his waist (which thereby impelled his reaction), remained uncorroborated. In fact,
no firearm was recovered from the victim.34 Hence, by these accounts, Matibag’s
allegation of unlawful aggression and, consequently, his plea of self-defense cannot be
sustained. The foregoing considered, the Court upholds Matibag’s conviction for the
crime of Murder, qualified by treachery, as charged.

Moreover, as the RTC and CA held, the special aggravating circumstance of use of
unlicensed firearm, which was duly alleged in the Information, should be appreciated in
the imposition of penalty. Presidential Decree No. (PD) 1866,35 as amended by Republic
Act No. (RA) 8294,36 treats the unauthorized use of a licensed firearm in the commission
of the crimes of homicide or murder as a special aggravating
circumstance:chanRoblesvirtualLawlibrary

Section 1. Presidential Decree No. 1866, as amended, is hereby further amended to

read as follows:
“Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. – x x x.chanrobleslaw

x x x x

“If homicide or murder is committed with the use of an unlicensed firearm, such
use of an unlicensed firearm shall be considered as an aggravating circumstance.

x x x x (Emphasis supplied)
cralawlawlibrary

Further, under Section 5 of RA 8294, the scope of the term “unlicensed firearm” has
already been expanded as follows:37cralawred

419
Sec. 5. Coverage of the Term Unlicensed Firearm. – The term unlicensed firearm shall
include:

1. firearms with expired license; or

2. unauthorized use of licensed firearm in the commission of the crime. (Emphasis
supplied)
cralawlawlibrary

Therefore, when Matibag killed Duhan with his firearm, the use thereof was unauthorized
under the purview of RA 8294 and is equally appreciated as a special aggravating
circumstance. As a result, the imposition of the maximum penalty of death, which is
reduced to reclusion perpetua in light of RA 9346,38 stands proper. To this, the Court
adds that Matibag is not eligible for parole.39cralawred

Finally, case law provides that for death resulting from the crime of Murder, the heirs of
the victim are entitled to the following awards: (a) civil indemnity ex delicto for the death
of the victim without need of evidence other than the commission of the crime; 40 (b)
actual or compensatory damages to the extent proved,41 or temperate damages when
some pecuniary loss has been suffered but its amount cannot be provided with
certainty;42 (c) moral damages;43 and (d) exemplary damages when the crime was
committed with one or more aggravating circumstances.44cralawred

In line with recent jurisprudence, civil indemnity in the amount of P100,000.00 and moral
damages in the amount of P100,000.00 are awarded to Duhan’s heirs without need of
evidence other than the commission of the crime and Duhan’s death. Considering further
that the crime was committed with treachery, exemplary damages in the sum of
P100,000.00 is also granted.45cralawred

The award of P59,000.00 as actual damages should, however, be deleted as the

records do not show that the prosecution was able to prove the amount actually
expended. In lieu thereof, P25,000.00 as temperate damages is awarded to conform
with prevailing jurisprudence.46 In addition, interest at the legal rate of six percent (6%)
per annum from date of finality of this Decision until fully paid is imposed on all monetary
awards.47cralawred

420
WHEREFORE, the appeal is DENIED. The Decision dated September 13, 2012 of the
Court of Appeals in CA-G.R. CR-HC No. 03759 finding accused-appellant Daniel
Matibag y De Villa @ “Dani” or “Danilo” GUILTY beyond reasonable doubt of the crime
of Murder, defined and penalized under Article 248 of the Revised Penal Code, as
amended, is hereby AFFIRMED with MODIFICATION sentencing him to suffer the
penalty of reclusion perpetua, without eligibility for parole, and ordering him to pay the
Heirs of Enrico Clar de Jesus Duhan the amounts of P100,000.00 as civil indemnity,
P100,000.00 as moral damages, P100,000.00 as exemplary damages, and P25,000.00
as temperate damages, in lieu of actual damages, all with legal interest at the rate of six
percent (6%) per annum from the finality of judgment until full payment.

SO ORDERED.cralawlawlibrary

Sereno, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez, JJ., concur.

Endnotes:

1
Rollo, pp. 10-11.

2
Id. at 37-52. Penned by Associate Justice Danton Q. Bueser with Associate Justices
Amelita G. Tolentino and Ramon R. Garcia concurring.

3
CA rollo, pp. 7-15. Penned by Judge Ruben A. Galvez.

4
Not attached to the rollo.

5
See rollo, pp. 38-39. See also Brief for Plaintiff-Appellee; CA rollo, pp. 91-92.

6
See rollo, p. 39. See also CA rollo, pp. 7 and 91-92.

7
Rollo, p. 39.

8
See rollo, pp. 39-40. See also CA rollo, pp. 7-9.

421
9
See rollo, pp. 40-41. See also CA rollo, pp. 10-11.

10
CA rollo, pp. 7-15.

11
Id. at 14-15.

12
See id. at 12-13.

13
See id. at 13.

14
Id. at 14.

15
See Notice of Appeal dated September 1, 2008; id. at 17.

16
Rollo, pp. 37-52.

17
Id. at 51.

18
See id. at 46-48.

19
See id. at 50-51.

20
See Almojuela v. People, G.R. No. 183202, June 2, 2014.

21
People v. Zapuiz, G.R. No. 199713, February 20, 2013, 691 SCRA 510, 518-519.

22
373 Phil. 990 (1999).

23
Id. at 1010.

24
404 Phil. 380 (2001).

25
Id. at 382.

422
26
Rollo, p. 46.

27
CA rollo p. 13.

28
Rollo, p. 46.

29
CA rollo, p. 13.

30
See Article 11 (1) of the RPC. See also Guevarra v. People, G.R. No. 170462,
February 5, 2014.

31
See Guevarra v. People, id.

32
See People v. Warriner, G.R. No. 208678, June 16, 2014.

33
People v. Aleta, 603 Phil. 571, 581 (2009), citing People v. Caabay, 456 Phil. 792, 820
(2003).

34
CA rollo, p. 13.

35
Entitled “CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION OF FIREARMS,
AMMUNITION OR EXPLOSIVES; AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES” (June 29,
1983).

36
Entitled “AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO.
1866, AS AMENDED, ENTITLED: CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION OF
FIREARMS, AMMUNITION OR EXPLOSIVES; AND IMPOSING STIFFER PENALTIES
FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES” (June 6,
1997).

423
37
See People v. Molina, 354 Phil 746, 790 (1998).

38
Entitled “AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE
PHILIPPINES.”

39
Pursuant to Section 3 of RA 9346, which states that “[p]ersons convicted of offenses
punished with reclusion perpetua, or whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as amended.” (See People v.
Tadah, G.R. No. 186226, February 1, 2012, 664 SCRA 744, 747. See also People v.
Lalog, G.R. No. 196753, April 21, 2014.)

40
See People v. Escleto, G.R. No. 183706, April 25, 2012, 671 SCRA 149, 160.

41
Civil Code, Article 2199.

42
Civil Code, Article 2224.

43
Civil Code, Article 2217.

44
Civil Code, Article 2230. See also People v. Escleto, supra note 40.

45
Following People v. Gambao (G.R. No. 172707, October 1, 2013, 706 SCRA 508, 533)
wherein it was held:
We take this opportunity to increase the amounts of indemnity and damages, where, as
in this case, the penalty for the crime committed is death which, however, cannot be
imposed because of the provisions of [RA] 9346:

1. P100,000.00 as civil indemnity;

2. P100,000.00 as moral damages which the victim is assumed to have
suffered and thus needs no proof; and
3. P100,000.00 as exemplary damages to set an example for the public
good.

424
These amounts shall be the minimum indemnity and damages where death is the
penalty warranted by the facts but is not imposable under present law.
46
See People v. Escleto, supra note 40, at 161.

47
Id.

425
 G.R. No. 215750, August 17, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CARLITO TAYAO Y

LAYA, Accused-Appellant.

DECISION

MENDOZA, J.:

Subject of this appeal is the June 3, 2014 Decision1 of the Court of Appeals (CA) in CA-
G.R. CR-HC No. 05532, which affirmed with modification the July 27, 2011 Decision2 of
the Regional Trial Court, Branch 90, Dasmarinas, Cavite (RTC), finding the accused-
appellant, Carlito Tayao y Laya (Carlito) guilty beyond reasonable doubt of the crime of
parricide, defined and penalized under Article 246 of the Revised Penal Code (RPC).
The Information charging Carlito with the crime of parricide
reads:ChanRoblesVirtualawlibrary

That on or about the 22nd day of November 2000, in the Municipality of Dasmarinas,
Province of Cavite, Philippines, a place within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, qualified by treachery and abuse of
superior strength, did, then and there, willfully, unlawfully and feloniously maul and
strangle his wife, MA. THERESA TAYAO y FERNANDEZ, with whom he was united in
lawful wedlock, with the use of stretchable (elastic) hose, inflicting upon the latter injuries
and asphyxia by ligature strangulation which resulted to her instantaneous death, to the
damage and prejudice of the latter's heirs.

CONTRARY TO LAW.3

On September 16, 2008, Carlito was arraigned and he pleaded "not guilty" to the crime
charged in the Information. Pre-trial and trial ensued.

During the trial, the prosecution presented Clarisse F. Tayao (Clarisse) and Cherry F.
Tayao (Cherry), daughters of Carlito; and Dr. Antonio Vertido (Dr. Vertido), National
Bureau of Investigation (NBI) Medico-Legal Officer, as its witnesses. The parties
stipulated that Dr. Vertido, who conducted a post-mortem examination on the body of the
victim, Ma. Theresa Tayao y Fernandez (Ma. Theresa), would testify that she died of

426
asphyxia by ligature strangulation and they agreed to dispense with his testimony.
Likewise, the presentation of Cherry as a witness was dispensed with after it was
stipulated that her testimony would only corroborate that of her sister, Clarisse's.

Version of the Prosecution

As succinctly recited in the CA decision, the version of the prosecution is as

follows:ChanRoblesVirtualawlibrary
The evidence for the prosecution established that on November 22, 2000, at about 9:00
a.m., inside the Tayao residence located at Block 64, Lot 6-B, Barangay Sto. Cristo,
DBB, Dasmarinas, Cavite, Clarisse woke up from her sleep and decided to go to the
bathroom. She woke up her sister, Charmaine F. Tayao, to accompany her to the
bathroom since she was afraid to go alone. The two (2) girls thereafter found their
mother, Ma. Theresa, lying lifeless on the floor somewhere between the bathroom and
the kitchen, with a plastic transparent hose (the kind used for nebulizers) tied around her
neck and with blood oozing from her nose. Horrified, the girls started crying. Their aunt,
Rizza F. Tayao (Rizza), who lives in a room right beside their house, came rushing in
after hearing their cries. The Accused-Appellant, who was still sleeping, was awakened
by the commotion. Rizza then loosened the plastic hose around Ma. Theresa's neck and
tried to revive her. The Accused-Appellant looked on and told her, "Wala na 'yan," to
which she replied, "Hindi," kailangang dalhin natin ito sa ospital." Thereafter, Nelio
Fernandez (Nelio), father of Ma. Theresa, came. Rizza and Nelio rushed Ma. Theresa to
the hospital but she was pronounced dead on arrival. Meanwhile, the Accused-Appellant
went to fetch his other daughters Cherry and Cate Lynn, from school. Nelio advised him
not to go anywhere thereafter. When Rizza came back in the afternoon to check on the
Accused-Appellant, she saw him sitting down and then went on to hang clothes which he
just washed, as if unfazed by the death of his wife.

From the documentary exhibits of the prosecution, it was also gathered that the
Accused-Appellant and Ma. Theresa were in a love-hate relationship; that they fought
and shouted at each other the night before the incident; that the Accused-Appellant is
capable of killing Ma. Theresa since he physically abused her and their children; that he
hit his child, Clarisse, on the head and feet with a broom for several times and banged
her head against the wall; that he banged the head of his other daughter, Cate Lynn,

427
against the wall; that the Accused-Appellant was allegedly using illegal drugs; and, that
the post-mortem examination of Ma. Theresa's body by Dr. Vertido revealed that the
cause of death was not suicide but asphyxia by ligature strangulation.4
Version of the Defense

The defense, on the other hand, presented the testimonies of Carlito and his daughter,
Cate Lynn, which narrated the following:ChanRoblesVirtualawlibrary
The Accused-Appellant denied the charges against him. He testified that at about 9:00 in
the morning of November 22, 2000, he was awakened by the cries of his daughter,
Clarisse. When he asked her what was wrong, she replied that her mother was at the
door of the bathroom. He then saw his wife, Ma. Theresa, in a sitting position, lifeless
and with a plastic transparent hose tied around her neck. Worried and scared, he asked
her, "Ano ba ang ginagawa mo d'yan?" and immediately cut the hose, which other end
was tied to a decorative block inside the bathroom. He tried to resuscitate her by blowing
air into her mouth but she was no longer moving. He asked help from one of his
brothers, Charlie Tayao, who went to fetch Nelio. Rizza also came and tried to revive
Ma. Theresa.

The Accused-Appellant then proceeded to the nearby Barangay health center to look for
an ambulance. Thereat, he met his father-in-law, Nelio, who suddenly boxed him in the
stomach. A neighbor, who saw what happened, commented that they should help Ma.
Theresa first. Nelio went to his daughter and, together with Rizza, brought the former to
the hospital. Nelio warned the Accused-Appellant not to leave the house.

In the afternoon, Rizza came back to the house and confirmed to the Accused-Appellant
that Ma. Theresa was dead. He thought that Ma. Theresa killed herself because she got
jealous of the fact that he still talks with his ex-girlfriend. He did not leave the house for
fear that once he did, he would look guilty and be blamed for her death. Thereafter, the
police came and brought him to the police station.

Thereat, the police officers urged the Accused-Appellant to admit that he killed Ma.
Theresa and asked him to hold the plastic hose that was tied around her neck. He
insisted that he did not kill his wife.

428
During his cross-examination, the Accused-Appellant admitted that he failed to submit a
counter-affidavit despite being given the opportunity to do so; that the plastic hose
wrapped around Ma. Theresa's neck was elastic; that the height of the door of the
bathroom was too low for her to hang herself; that he and his wife had a fight the night
before; and, as per the medico-legal certificate issued by Dr. Vertido, the cause of death
was asphyxia by ligature strangulation.

Cate Lynn testified that her mother, Ma. Theresa, killed herself. She disclosed that two
(2) days prior to Ma. Theresa's death or on November 20, 2000, she and her three (3)
siblings saw their mother trying to commit suicide inside their bedroom. They called their
father, the Accused-Appellant, who then removed the hose tied around their mother's
neck and asked her the reason why she was trying to kill herself. She then saw their
parents talk between themselves about the said incident.

When asked by the trial court if she knew of any reason why Ma. Theresa would want to
end her life, Cate Lynn answered that she did not know the specific reason but their
mother always asked them if they would want her dead. She also told the trial court that
her testimony was the truth.

On cross-examination, Cate Lynn admitted that she did not see her mother hang herself
and that her father banged her (Cate Lynn) head on the wall of their house for several
times on November 19, 2000.5
The Ruling of the RTC

In its July 27, 2011 Decision, the RTC found Carlito guilty as charged. In so finding, the
RTC wrote:ChanRoblesVirtualawlibrary
The testimony of the accused is incredible. His demeanor in Court is far from convincing
that he did not kill his wife. While his daughter [Cate Lynn] has tried to convince this
Court that her father did not kill his mother, yet, one fact still remains, she was at school
at the time of the incident and she did not see how her mother had died. On the other
hand, the testimony of Clarisse is a lot credible than her sister Caitlin's testimony. The
testimony and the findings of the medico-legal officer although simply stipulated by the
prosecution and the defense have clearly established that the cause of death of the
victim was asphyxia by ligature strangulation.

429
Research shows that suicides by ligature strangulation are rare events (14550616, Pub
Med - Indexed for MEDLINE, Google Search). Strangulation is death by crushing the
throat until breathing ceases. A ligature is an item other than the hands. This could be a
rope, pantyhose, necktie, shoelaces or anything else that can be wrapped around the
neck tightly. This is often a weapon of opportunity that the killer finds at the scene. In this
case, the weapon used was a stretchable plastic hose, which item could be easily found
in the household by the accused. Verily, the victim was found with the ligature in her
neck as she was slumped near the bathroom door. The accused even admitted that his
wife could not hang from the low bathroom door. Somehow, the Court could not mistake
this ligature strangulation with suicide. Based on the post-mortem examination of Dr.
Antonio Vertido, whose testimony on his findings was stipulated upon, the victim was
found with contused abrasion and hematoma on the forehead; hence, in the mind of the
Court, it is not possible that the victim had committed suicide. Obviously, the victim was
banged and beaten before the accused tied the ligature around her neck, until he had
already killed his wife. He did not even give any resistance to his wife's relatives when
he was told not to leave his house. Neither did he lift a finger to bring his wife to the
hospital. His claim that he was scared of his wife's relatives is downright hard to believe.
Likewise, his story that the police officers have forced him to admit to his wife's murder is
totally unfounded.

However, the expenses for the interment of the victim were not duly proven by proper
receipts. Neither did anyone testify as to such fact. Likewise, the award of moral
damages is not warranted for lack of factual and legal basis. However, the accused is
liable for the payment of indemnity for death or homicide which is pegged by the courts
to a minimum of Php 50,000.00.6
Accordingly, the RTC disposed:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, the Court hereby finds the accused CARLITO
TAYAO y LAYA "guilty" beyond reasonable doubt of the crime of Parricide as defined
and penalized under Article 246 of the Revised Penal Code and hereby sentences him
to suffer the penalty of reclusion perpetua, considering that the penalty of death can no
longer be imposed, and to indemnify the victim's heirs the sum of P50,000.00.

Costs against the accused.

430
SO ORDERED.7
The Ruling of the CA

Not in conformity, Carlito sought the review of his conviction by the CA. The appellate
court did evaluate the evidentiary records but it could not accommodate his claim of
innocence. The CA stated that the prosecution was able to prove all the elements of the
crime of parricide. Although there was no direct evidence to prove that Carlito killed his
wife, there was enough circumstantial evidence showing that he perpetrated the killing
beyond reasonable doubt. These were: [1] the medico-legal examination of Dr. Vertido
which proved that Ma. Theresa was strangled to death; [2] the suicide theory was weak;
[3] the frequent quarrels between Carlito and his wife; [4] Carlito regularly subjected his
wife and children to physical abuse and maltreatment; [5] Carlito was physically present
inside the house when the incident happened; and [6] Carlito's behavior after the
incident was consistent with guilt. To the CA, all the circumstantial evidence in this case
constituted an unbroken chain which led to the conclusion that Carlito was guilty of killing
his wife, to the exclusion of others.

Hence, in its June 3, 2014 Decision, the CA affirmed with modification the RTC decision
by increasing the amount of indemnity and imposing moral and exemplary damages.
Thus, the decretal portion of the CA decision reads:ChanRoblesVirtualawlibrary
WHEREFORE, the Decision of the Regional Trial Court of Dasmarinas, Cavite, Br. 90, in
Crim. Case No. 4973-08, is AFFIRMED with MODIFICATION in that the award of civil
indemnity is increased from Fifty Thousand Pesos (PI1P50, 000.00) to Seventy-Five
Thousand Pesos (PhP75,000.00). The Accused-Appellant is ORDERED to pay the heirs
of the victim moral damages in the amount of Seventy-Five Thousand Pesos
(PhP75,000.00) and exemplary damages in the amount of Thirty Thousand Pesos
(PI1P30, 000.00).

SO ORDERED.8chanroblesvirtuallawlibrary
Unsatisfied with the unfavorable CA decision, Carlito filed this appeal anchored on the

LONE ASSIGNMENT OF ERROR

431
THE COURT A QUO GRAVELY ERRED IN FINDING
THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF PARRICIDE.9

Carlito argues that the decisions of the courts below were based on wrong inferences
and misapprehension of facts; that although the death of Ma. Theresa was due to
asphyxia by ligature strangulation, there was no showing as to how it was done, when it
was done and who did it; that the testimony of Clarisse deserved scant consideration
because she failed to implicate him for the death of her mother; that the "banging and
beating" incidents were not true because Dr. Vertido failed to explain the cause of the
contused abrasion or hematoma; that Clarisse and Cate Lynn did not testify on her
physical injuries; that he demonstrated a husbandly care when he removed the rope
from her neck; that he did not attempt to escape after the incident occurred; and that the
"suicide theory" found support in the testimony of their daughter, Cate Lynn.

The Court's Ruling

The appeal lacks merit.

To justify a conviction upon circumstantial evidence, the combination of circumstances

must be such as to leave no reasonable doubt in the mind as to the criminal liability of
the accused. Rule 133, Section 4 of the Rules of Court enumerates the conditions when
circumstantial evidence is sufficient for conviction, to wit:ChanRoblesVirtualawlibrary
SEC. 4. Circumstantial Evidence, when sufficient. — Circumstantial evidence is
sufficient for conviction if:

chanRoblesvirtualLawlibrary(a) There is more than one circumstance;

(b)The facts from which the inferences are derived are proven; and cralawlawlibrary

(c) The combination of all circumstances is such as to produce conviction beyond

reasonable doubt.10chanroblesvirtuallawlibrary
In the case at bench, although there was no eyewitness who could positively point to
Carlito as the killer of his wife, the circumstantial evidence presented, when taken
together, sufficiently supported and justified Carlito's conviction beyond reasonable
doubt.

432
It is noteworthy that the post-mortem examination conducted by Dr. Vertido disclosed
that the cause of Ma. Theresa's death was asphyxia by ligature strangulation, not
suicide. She was found lying lifeless near the bathroom door with a plastic hose wrapped
around her neck. It was found that she suffered a contused abrasion and hematoma on
the forehead which may be caused by banging or beating. Appraising the physical
surroundings, it was very unlikely that she committed suicide because the bathroom
door was too low to allow her to hang herself - the plastic hose itself was stretchable and
would not hold her weight.

What was undisputed was the fact that Carlito and his wife had a marital relationship that
was far from being harmonious and peaceful. They frequently quarreled because of his
womanizing. In fact, they argued and shouted at each other the night before the horrible
incident happened. The Court agrees with the CA that their frequent quarrels could be
the motive of the slaying.

Taken against Carlito was his strange behavior during and after his wife was found
dead. When Rizza F. Tayao (Rizza), his sister-in-law, loosened the plastic hose around
her neck and tried to revive her, he only watched her and told her, "Wala nayan. " Rizza
then insisted that they bring her to the hospital but he only replied, "Hindi kailangang
dalhin natin ito sa ospital." It was Rizza and Nelio Fernandez, father of Ma. Theresa,
who rushed her to the hospital. What was even more unusual was the fact that after his
wife was rushed to the hospital, he did not follow but instead fetched his daughters :
from school. Later in the afternoon, Carlito just washed and hanged some clothes
without a care in the world. In this regard, the Court cites with approval what the CA
wrote on the matter:ChanRoblesVirtualawlibrary
Here is a case of a husband who refused to rush his dying wife to the hospital for
possible resuscitation, in the face of anguished pleas of his sister-in-law; who did not go
to the hospital to be with his dying wife but instead chose to go to school to fetch his
daughters; and, who still washed clothes in the face of the realization that his wife just
recently died. Such cold and heartless actuations are contrary to human nature. How the
Accused-Appellant could not feel pity or remorse in light of such incident is beyond
comprehension.

433
Foregoing considered, We are satisfied that the circumstantial evidence in this case
constitutes an unbroken chain which leads to the conclusion that the Accused-Appellant,
to the exclusion of all others, is guilty of killing his wife, Ma.
11
Theresa. chanroblesvirtuallawlibrary
It was also proven that Carlito had an uncontrolled violent behavior toward his wife and
children. He maltreated them by banging their heads against the wall of their house. It
was pointed out that his dangerous behavior was due to his drug abuse. All these, he
admitted when he was on the witness stand.

The Court looked into the defense of Carlito but found it to be weak and insufficient to
prevail over the circumstantial evidence of the prosecution. As earlier pointed out,
suicide was ruled out as it was impossible because the plastic hose wrapped around Ma.
Theresa's neck was stretchable and would not hold her weight. More importantly, the
bathroom door, from where she supposedly hanged herself, was too low.

The Court cannot give credence to the testimony of Cate Lynn who testified that her
mother committed suicide only because she already once tried to end her life. To begin
with, she did not witness her mother hang herself as she was in school when the
incident happened. Moreover, she earlier stated during the preliminary investigation that
her father killed her mother and that she wanted him locked up in jail.

Carlito's argument that he was forced by the police to confess the killing of his wife was
not substantiated. He failed to prove how he was forced and coerced by the police in
confessing to the crime against his wife. In the absence of any evidence of coercion, the
Court could only presume that the police simply performed their regular duty without
resorting to extrajudicial measures.

The Court, however, modifies the damages the CA awarded. In line with the recent
jurisprudence,12 the amount of civil indemnity, moral damages and exemplary damages
must be increased to P100,000.00. In addition, the Court imposes temperate damages
in the amount of P50,000.00. Temperate damages may be recovered when some
pecuniary loss has been suffered but definite proof of its amount was not presented in
court. All awards should earn interest at the legal rate of 6% per annum from the finality
of this judgment.13

434
WHEREFORE, the June 3, 2014 Decision of the Court of Appeals in CA-G.R. CR-HC
No. 05532, is AFFRMED with MODIFICATIONS, in that the accused-appellant, Carlito
Tayao y Laya, is sentenced to suffer the penalty of reclusion perpetua without the benefit
of parole, and to pay the heirs of the victim, Ma. Theresa Tayao y Fernandez, the
amounts of P100,000.00 as civil indemnity; P100,000.00 as moral damages;
P100,000.00 as exemplary damages; and P50,000.00 as temperate damages.

In addition, all the monetary awards shall earn interest at the legal rate of 6% per annum
from the date of finality of this decision until fully paid.

SO ORDERED.

Carpio, J., (Chairperson), Brion,* Del Castillo, and Leonen, JJ., concur.

Endnotes:

*
On Leave.

1
Rollo, pp. 2-17; penned by Associate Justice Normandie B. Pizarro and concurred in by
Associate Justices Andres B. Reyes, Jr. and Manuel M. Barrios.

2
Id. at 69-72; penned by Executive Judge Perla V. Cabrera-Faller.

3
As quoted in the CA Decision, id. at 3.

4
Id. at 5-6.

5
Id. at 6-8.

6
Id. at 71-72:

chanRoblesvirtualLawlibrary7 Id. at 72.

435
8
Id. at 16.

9
Brief for the Accused-Appellant, id. at 54.

10
People v. Gutingy Tomas, G.R. No. 205412, September 9, 2015.

11
Rollo,p. 13.

12
People v. Jugueta, G.R. No. 202124, April 5, 2016.

13
People v. Macaly Bolasco, G.R. No. 211062, January 13, 2016.

436