G.R. No. 87236 February 8, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTOR T NEO y C !

" , a#$a% OP O, a &er'a$( )E)OT ESCORE L a(* a &er'a$( RO+ CO"ILL , accused. The above-named accused were charged with the crime of Robbery with Homicide by Assistant City Fiscal alvador !. olima of Cebu City in an "nformation 1 filed on #$ %ecember &$'( with the Regional Trial Court)RTC* of Cebu, the accusatory portion of which reads+ That on or about the ##nd day of %ecember, &$'(, at about ,+-. p.m., in the City of Cebu, /hilippines, and within the 0urisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping with one another, armed with bottle )sic* of beer grande and RC Cola, with deliberate intent and by means of force upon things, to wit+ by entering the inhabited house of one Herminia ia y y and once inside, with intent of gain and without the 1nowledge and consent of said Herminia ia y y, the owner thereof, did then and there ta1e, steal and carry away the following+ one )&* sharp cassette valued at / -,,..... one )&* %enonet 2arao1e valued at 3,...... one )&* ony cassette recorder &,...... Fifty ),.* pcs. cassette tape #,...... one )&* Casio calculator &..... 44444 T!TA5 / &-,(..... valued in all )sic* at /&-,(....., belonging to said Herminia ia y y, to the damage and pre0udice of the latter in the amount of /&-,-....., /hilippine Currency6 and with intent to 1ill, did then and there attac1, assault and use personal violence upon 5inda )sic* Aglipa Robert, maid of Herminia ia y y, owner of the said house, who was the only person inside the house at that time, by hac1ing said 5inda )sic* Aglipa Robert with said bottle of beer grande and RC Cola at her head and face, thereby inflicting upon her the following physical in0uries+ CAR%"! R7 /"RAT!R8 ARR7 T 9A ":7 /;7<9!;"A =5 C7R7=RA5 C!;T< "!; !/7; %7/R7 7% C!99<;"AT7% F> FR!;TA5 AR7A )R* 9<5T"/57 5AC7RAT"!; !; TH7 FAC7 as a conse?uence of which said 5inda )sic* Aglipa Robert died instantaneously. C!;TRAR8 T! 5A@. !nly accused :ictor Taneo y CaAada and Roy Codilla were apprehended. Accused =ebot 7scoreal has remained at large and an alias warrant for his arrest issued on $ February &$'3 had been returned unserved for the reason that he is not 1nown at the given address. 2 !n $ February &$'3, Roy Codilla, assisted by counsel, entered a plea of not guilty while :ictor Taneo voluntarily pleaded guilty. 3 "n view thereof, the trial court , issued an !rder finding the latter guilty as charged and sentencing him to suffer the penalty of reclusion perpetua. The dispositive portion of the order reads+ @H7R7F!R7, finding accused :ictor Taneo y CaAada guilty beyond reasonable doubt of the crime of Robbery with Homicide as charged and appreciating in his favor the mitigating circumstance of plea of guilty, he is hereby sentenced to suffer RECLUSION PERPETUA. "t appearing that the articles stolen were recovered, no pronouncement as to indemnity. -

Trial on the merits against Roy Codilla then ensued. The witnesses who testified for the prosecution were %r. Herminia ia, accused :ictor Taneo, /at. 7nrico 9inisterio and %r. Baime /ereC, and those who testified for the defense were accused Roy Codilla, /olice Cpl. Bovito Roa, 5olit Cabriana and Felicidad /areAo. The evidence for the parties is summariCed by the trial court as follows+ %r. Herminia ia, an !ptometrist, is a resident of aint 9ichael :illage at =anilad, Cebu City. Her clinic is located at Bunguera treet, Cebu City. Two years ago, sometime in &$'D when she lost two big cassette recorders in her residence, she decided to hire the services of a guard. A gt. Codinas and an army man named =ros, recommended accused Roy Codilla to her. 7mployed on a daily basis, accused Codilla spent most of his time in securing the =anilad residence. There are )sic* times though that he would guard the Bunguera clinic for a few hours. !n one occasion at the clinic, Codilla introduced to %r. ia =ebot 7scoreal as his friend. @hen Codilla started bringing his friends to the house of %r. ia, the latter felt peeved because CodillaEs friends were of ?uestionable and suspicious-loo1ing characters )sic*. he was told by Codilla that his companions were 0eepney dispatchers in the downtown area. ;ot being at ease with such situation, she fired Codilla. Almost two years later, at ,+-. oEcloc1 in the afternoon of %ecember ##, &$'(, %r. iaEs neighbors ;ic1y /adriga and Ricardo Ferrer went to her clinic and informed her that some persons who burglariCed her house were apprehended by them and that they brought the in0ured maid, 5anda, to a hospital. At the 9abolo /olice tation, she saw :ictor Taneo, a young boy 4 Arnel Fo and Bose Robert 4 her houseboy and brother of her maid, 5anda Robert. he in?uired from Bose why he was at the police station and the latter replied that after Taneo and Fo were arrested, he was brought along by the police for ?uestioning. Bose further disclosed that he was invited by Roy Codilla for a round of beer drin1s at a small store behind %r. iaEs residence and that when he returned to the house, his sister was already in0ured. The young boy, Arnel, eGplained that Roy invited him to go to %r. iaEs house. :ictor Taneo claimed that it was Roy Codilla who told him to go along with him )Codilla* to the house of %r. ia to get some valuables, li1e cassette recorders. he saw blood-stains inside her house splattered in the 1itchen, on a beer bottle and on the telephone set. At the groundfloor of /erpetual uccour Hospital, the severely in0ured and bloody maid managed to reveal to her )%r. ia* in the presence of CoraCon FonCales and /atrolman 5opeC, that Roy Codilla was the who )sic* struc1 her. Co-accused :ictor Taneo, alias !pao )2albo* testified that he is a 0eepney dispatcher )bar1er*. =ebot 7scoreal, another accused herein who has remained at large, is his long-time friend who is also a bar1er at Buan 5una treet, Cebu City. !n %ecember ##, &$'( at &&+.. oEcloc1 in the morning, he saw =ebot 7scoreal tal1ing to a person. He approached 7scoreal and the latter introduced him to the person who turned out to be Roy Codilla. After 1nowing each other, the conversation continued with Codilla saying that he )Codilla* planned to rob the house of his former employer, %r. ia, as his revenge. Codilla then told him )Taneo* to procure money to be used in entertaining %r. iaEs houseboy, Bose Robert. They were briefed by Codilla that in the house of %r. ia are a maid and houseboy. Codilla stated that after the robbery has been pulled )sic*, Codilla will bring them to 9anila. @ith his /#...., they, Codilla, Arnel Fo, 7scoreal and himself, boarded a 0eepney towards the place of %r. ia. @hile houseboy Bose Robert and househelper 5anda Robert were cleaning the yard, Codilla entered the ia premises for the purpose of inviting Bose Robert outside. Codilla told his companions to stay behind at the corner street and to wait for his signal. 5ater, he saw Codilla placing his arm around the shoulder of Bose proceeding towards the store where the houseboy was offered some drin1s. After the agreed signal of Codilla, placing his right hand on the right side of his head, they went inside the house of %r. ia. 5eaving behind Bose at the store, Codilla 0oined them. 7scoreal

stayed outside as loo1out. !nce inside, Codilla boGed the maid hitting her in the midsection of the stomach. The maid fell on the floor and Codilla ordered them to finish her off as she can identify them. He and Codilla got co1e bottles under the dining table and struc1 the maid on her forehead, head and mouth. They too1 from a room ony )sic* Cassette Recorder, harp )sic* Cassette Recorder and some tapes, while Arnel Fo in another room, gathered some calculators. !utside the house with the loot, Codilla directed him and Arnel Fo to pass out one way while Codilla and 7scoreal will proceed to the main road. Along the way, he and Arnel were arrested and were brought bac1 to the house of %r. ia. There they saw the neighbors carrying the body of the maid who was still alive and moaning. 5ater, the houseboy arrived. "n 0ail )==RC* Codilla offered him /#,...... to save him )Codilla* because he has a wife and children. At the outset he refused, but the wife of Codilla forced him to receive the money with her plea that " )sic* save her husband for the sa1e of their family. 7very visit of the wife of Codilla to 0ail, he was given money by 9rs. Codilla which totalled all in all /D...... "n Court, he pointed at the wife of Codilla. His mother paid Roy Codilla /D..... because she bul1ed )sic* at the idea of saving Codilla. And even if he were given the promised sum of /#,......, he still would ta1e the witness stand considering that he landed in 0ail because of Codilla. Arresting officer Rico 9inisterio declared that in response to a phone call, he and some police companions went to the house of %r. ia and too1 custody of Taneo and Arnel Fo who were captureden )sic* flagrante delicto by the civilians of t. 9ichael :illage. The following day, they arrested Roy Codilla at the %uty Free hop at 5ahug, Cebu City. %r. Baime /ereC testified that on %ecember ##, &$'( he treated 5anda Robert for multiple lacerations in head )sic* and face caused by a blunt ob0ect. Five hours later, the patient died due to compression )sic* of vital brain centers. He issued the corresponding death certificate )7Gh. HAH*. For the defense+ /olice Cpl. Bovito Roa, a guard at ==RC testified that on ;ovember #-, &$'3, he caught two persons digging a tunnel at ==RC and one of them was :ictor Taneo. <pon in?uiry, Taneo told him that actually Roy Codilla has nothing to do with the robbery-homicide in %r. iaEs residence. He cannot recall, though, who the other inmate was. ;either can he recall until now the name of the ==RC investigator at that time. Taneo told him that the reason why he )Taneo* implicated Codilla was because the complainant )referring to %r. ia* promised him /-..... but only /#..... was given to him. Accused Codilla, testified that in &$'# he was enlisted in the /hilippine Army. He was discharged in &$'D fro )sic* having gone A@!5. "n April &$'D, he was hired by %r. ia as security guard of her residence at t. 9ichael :illage, =anilad, Cebu City. !n 9ay, &$',, %r. ia terminated his services. He denied the charge that he and Taneo committed robbery-homicide in ia )sic* residence at ,+-. p.m. of %ecember ##, &$'( because on that day he was in the house of Bose Robert, his friend, who 0ust arrived from 9anila and went home at &.+-. oEcloc1 in the morning of said day, passing first in his auntEs house at Camp 5apulapu.. He came to 1now co-accused Taneo only after he was arrested by the police on %ecember #,, &$'(. %uring his employment as guard, he sleeps )sic* in the bedroom of %r. ia since there are two beds 4 one for her and the other for him. %r. ia used to call him whenever she counts )sic* her money and deposit )sic* them in the safe inside her room. There

were two instances when she let him count a siCeable sum of money. He has never ta1en any valuable thing from the ia residence. %r. ia instigated Taneo to implicate him because at one time that %r. ia hired somebody to lob a grenade in the house of the wife of her boyfriend, he stopped her. )A picture of the alleged boyfriend 7lieCer 9agdales was produced by him in Court 7Gh. H&H*. That is the only reason why %r. ia wanted him to be 0ailed. !n cross eGamination, he testified that while employed by %r. ia, he has )sic* good relations with her. %r. ia even at times gave him T-shirts aside from his pay. 5iving in the ia house are the doctor herself, her four children, houseboy Bose Robert and maid 5anda Robert. He was ordered by %r. ia to throw a hand grenade at the house of her ) iaEs* boyfriend which )sic* he relented. As a result, she scolded him and then he left for 9anila. "n ;ovember, &$'(, he returned to Cebu and went to the house of %r. ia but houseboy Bose told him that the doctor was not there. !n %ecember ##, &$'(, at &.+.. a.m. he returned to %r. iaEs house to say hello because it was Christmas time and besides, the houseboy invited him to a drin1ing spree. He found out that the persons in the ia residence were only the houseboy Bose, maid 5anda and /ableo, the water-gatherer. @hen he, Bose and /ableo went to the li?uor store, only the maid was left in the house. After parta1ing one bottle of beer grande at &&+.. a.m. he proceeded to the house of his brother at Hipodromo where he stayed until D+.. p.m. From there he went home to Camputhaw, 5ahug. He meet )sic* co-accused Taneo only at the prison cell at 9abolo /olice tation. There Taneo told him that he )Taneo* does not 1now him. He only 1new =ebot 7scoreal. He was pic1ed up by some policemen near his home. =efore his arrest, he did not 1now the arresting officers, thus, he has no ?uarrel of misunderstanding with them. 9rs. 5olit Cabriana, a volunteer wor1er in the 0ail ministry testified that she met Taneo in 0ail and he told her that he 1illed the maid of %r. ia in t. 9ichaelEs :illage at Talisay, Cebu using an empty beer bottle. His companion at that time was only =ebot 7scoreal. he 1nows Roy Codilla and she as1ed him why he was in 0ail and the latter answered that he was not in the house of %r. ia when the crime was committed. Codilla told her that he was then in his house at Lahug and in his brother's house at Lahug and in his brother's house in andaue Cit!. 5ater, on cross-eGamination, she declared that for the four years of her missionary wor1 in ==RC 0ail she did not have an occasion to tal1 to Codilla because he is not under her bible class. Felicidad /areAo of Camputhaw, 5ahug, Cebu City testified that she is a neighbor of accused Codilla. Her house is two houses away. Her closeness to the mother of Codilla is such that they treat each other li1e sisters. "n the afternoon of %ecember ##, &$'(, she was in the Codilla residence for their prayer meeting and she saw for the first time accused Codilla at past D+.. oE cloc1 that afternoon viewing T: in the second floor of their house. he went home at about that time also and never saw Codilla anymore. 6 Fiving full faith and credit to the prosecutionEs version of the incident, particularly to the testimonies of %r. ia, which it describes to be straightforward, without hesitation and concise.H 7 and that of :ictor Taneo who HI:Jividly in detail, . . . disclosed how he met CodillaH and how the latter Hlaid his plan to EhitE the house of his former employer for revenge,H 8 and considering the statement given by 5anda to %r. ia at the hospital 4 that she, 5anda, was struc1 by Roy Codilla 4 as part of the res gestae, 9 the trial court, in its %ecision dated and promulgated on &D %ecember &$'', 1. found the accused Roy Codilla guilty beyond reasonable doubt of the crime charged. The dispositive portion of the decision reads+ @H7R7F!R7, finding accused Roy Codilla guilty beyond reasonable doubt of the crime of robbery with homicide, he is hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify 0ointly and severally with accused :ictor Taneo the heirs of the deceased 5anda Robert the sum of /-.,...... and to pay the costs.

The entence on accused Taneo contained in the !rder dated February $, &$'3 insofar as indemnification is concerned is hereby modified. ! !R%7R7%. 11 The trial court re0ected CodillaEs defense of alibi because his residence in barangay Camputhaw, the place where he claims to have been at the time of the robbery, His only less than an hour by 0eepney to the ia residence in =anilad . . . "t was therefore not physically impossible for Codilla to be at the scene of the crime when the crime was committed.H 12 9oreover, Codilla was positively identified by Taneo who had no motive to per0ure his testimony. Accused Roy Codilla, hereafter referred to as the Appellant, seasonably filed his ;otice of Appeal, 13 manifesting therein that he is appealing the decision to the Court of Appeals. "n view of the penalty imposed, the appeal should have been elevated to this Court. !n the other hand, for obvious reasons, accused Taneo did not interpose an appeal. The records of the case were erroneously transmitted to the Court of Appeals which, however, forwarded them to this Court on &. 9arch &$'$. 1, This Court accepted the appeal on #. eptember &$'$. 1"n his brief, the appellant, through his counsel de officio 16 who were appointed as such by this Court due to the death of his counsel de parte, 17 submits the following assignment of errors+ ". The Trial Court erred in considering the alleged statement of the victim, 5anda Roberts )sic*, as part of the res gestae. "". The Trial Court erred in giving weight to the testimony of appellantEs co-accused, :ictor Taneo. """. The Trial Court erred in declaring that accused-appellantEs identity was established. 18 "n support of the first assigned error, appellant claims that the alleged statement of 5anda Robert could have been made at least four )D* hours after the occurrence of the incident 4 a considerable lapse of time. Hence, perPeople ". Roca, 19 it cannot be said that the declarant did not have the opportunity to concoct or contrive her statement. ;either can such statement ?ualify as a dying declaration because it does not concern the cause and surrounding circumstances of the declarantEs death and that at the time it was made, the declarant was not under the consciousness of an impending death. As a matter of fact, it is doubtful if 5anda did indeed ma1e the statement considering that as testified to by the doctor who had treated her, she had impaired consciousness6 besides 9rs. iaEs companions, one CoraCon FonCales and a policeman named 5opeC, were not presented to corroborate iaEs testimony. Anent the second assigned error, appellant contends that in view of the first error and the inadmissibility of the statement of 5anda Robert, the prosecution was left with nothing save for the testimony of :ictor Taneo which, however, is wea1 and does not constitute sufficient basis for the appellantEs conviction. "n the first place, Taneo admitted to /at. 9inisterio that he )Taneo* and =ebot 7scoreal were the ones who manhandled the maid. econd, TaneoEs credibility as a witness is ?uestionable6 he had twice been apprehended for robbery under /.%. ;o. ,-#, and had twice been prosecuted therefor in Criminal Case ;o. C=<-,'3& and Criminal Case ;o. C=<-,''& before =ranches >:" and >": of the Regional Trial Court of Cebu. =oth cases, however, were dismissed on the ground of failure to prosecute. Appellant then pontificates+ HFrom a hardened soul li1e :ictor TaneoEs, it is very difficult to elicit the truth.H 2. "n addition thereto, appellant alleges that TaneoEs testimony would indicate that the same was for sale as the latter claimed that he was as1ed by Roy Codilla to testify in his favor for the amount of /#,......, but that CodillaEs wife could only raise /D...... The third assigned error is premised on the assumption that the appellantEs conviction is based solely on the bare allegation of 9rs. ia that the victim, 5anda Robert, had identified Codilla as her mauler, and on the testimony of :ictor Taneo which, as claimed in the first and second assigned errors is inadmissible and wea1. Appellant then faults the prosecution for not presenting Bose Robert who could have attested to the appellantEs presence and participation in the crime or shed light on TaneoEs claim that )a* the appellant went to the ia house ahead of the rest to distract Bose RobertEs attention by

inviting him to a drin1ing spree and )b* the appellant left Bose at the sari-sari store and went bac1 to iaEs house. The appeal is devoid of merit. At the outset, it is to be observed that at the bottom of the assigned errors is the issue of the credibility of witnesses Herminia ia and :ictor Taneo. %eeply embedded in our 0urisprudence and amply supported by an impressive array of cases is the rule that when the issue of credibility of a witness is concerned, the appellate court will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the ?uestion, having heard the witness himself and observed his deportment and manner of testifying during the trial, unless certain facts of substance and value had been plainly overloo1ed which, if considered, might affect the results of the case. 21 @e have painsta1ingly eGamined the records of this case and the transcripts of stenographic notes of the testimonies of the witnesses and find no cogent reason to disregard the rule and give way to the eGception. The full faith and credit given by the trial court to the testimonies of the Herminia ia and :ictor Taneo are supported by the evidence. "n fact, the tenor of the assigned errors and the arguments summoned to support them betray the appellantEs realiCation of the infirmity of his stand. @ere it not for the gravity of the offense charged and the penalty imposed, this conclusion could have written an early finis to the appeal. =ut then, @e are called to s?uarely meet the issues raised by the assigned errors. &. The court a #uo correctly considered the statement given by the victim, 5anda Robert, to Herminia ia as part of the res gestae. 5andaEs declaration that it was the appellant who struc1 her was given while she was still at the ground floor of the /erpetual uccour Hospital awaiting to be admitted for treatment. he was rushed to said hospital immediately after the incident in ?uestion and was operated on for four )D* hours starting at '+.. oEcloc1 that evening until &#+.. midnight. he died five ),* days later. The following three )-* re?uisites must concur before evidence of the res gestae may be admitted+ )&* the principal act, the res gestae, be a startling occurrence6 )#* the statements were made before the declarant had time to contrive or devise6 and )-* the statements must concern the occurrence in ?uestion and its immediately attending circumstances. 22 "n People "s. Ner, 23 this Court, spea1ing through Chief Bustice Concepcion, held+ . . . All that is re?uired for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event witnessed by the person who made the declaration 2, before he had time to thin1 and ma1e up a story, 2- or to concoct or contrive a falsehood, 26 or to fabricate an account, 27and without any undue influence in obtaining it, 28 aside from referring to the event in ?uestion or its immediate attending circumstances. 29 The cases are not uniform as to the interval of time that should separate the occurence of the startling event from the ma1ing of the declaration. @hat is important is that the declarations were voluntarily and spontaneously made Hso nearly contemporaneous as to be in the presence of the transaction which they illustrate and eGplain, and were made under such circumstances as necessarily to eGclude the idea of design or deliberation . . .H 3. "n the instant case, @e find the interval of time between the robbery and the infliction of the in0uries upon 5anda Robert, and her ma1ing of the statement, which the appellant claims to before )D* hours or more, to be sufficient and ade?uate to bring such statement to be so nearly contemporaneous as to be in the presence of the transaction or occurrence which it illustrated or eGplained. 5anda was brought to the hospital where she made the statement immediately after the commission of the crime. Fiven her condition at that time 4 she was hovering between life and death 4 she could have hardly been eGpected to con0ure up a story or concoct and contrive a falsehood by falsely imputing upon the appellant responsibility for her in0uries. There is as well no doubt that the principal act in ?uestion was a startling occurrence upon which 5andaEs statement about her assailant relates to. "n short, all the re?uisites for the admission of such statement as part of the res gestae are present. Appellants claim that 5anda could not have uttered the incriminatory words because she had Himpaired consciousness,H as testified to by the doctor, is pure speculation. he gave her statement while she was

still awaiting treatment in the hospital. There is no evidence on record to show that at the time she did so, she was in no condition to spea1, utter a word or answer ?uestions. 9oreover, appellantEs counsel failed, on cross-eGamination, to eGtract from the doctor any admission that Himpaired consciousnessH would include inability to spea1 or answer a ?uestion, or that such a condition eGisted for some time before he had seen or eGamined the patient. ;either was eGpert testimony introduced to prove that the in0uries sustained by 5anda rendered her unconscious upon their infliction or sometime thereafter 4 specifically, when she had reached the hospital. As to the appellantEs insinuation that 9rs. ia may have fabricated her testimony regarding 5andaEs statement, suffice it to restate what @e had said earlier+ The full faith and credit accorded by the trial court to her testimony is supported by the evidence and its observation of her demeanor. %eclared the lower court+ The Court painsta1ingly scrutiniCed the testimonies of the witnesses of both sides including close eGamination of the demeanor of those who too1 the stand. The testimony of %r. ia was straightforward, without hesitation and concise. 31 @hile it may be true that %r. iaEs companions, CoraCon FonCales and a policeman )a certain 5opeC*, could have been presented to corroborate her testimony, such non-presentation did not affect the probative value of such testimony for, as even the appellant candidly admits, the testimony of the companions could only be corroborative. As such, therefore, their testimonies were properly dispensed with and their non-presentation did not imply suppression of evidence and did not prove to be fatal to the prosecutionEs case. 32 =esides, if the appellant was honestly convinced of the falsity of iaEs testimony and the fact that none of her companions would corroborate her story, he should have availed of the compulsory process to have them produced as his own witnesses, or even as hostile witnesses. 33 #. Appellant insists that :ictor TaneoEs credibility is ?uestionable because the latter had earlier been charged in two criminal cases for robbery6 the former admits, however, that these cases were dismissed for failure to prosecute. ection #., Rule &-. of the Rules of Court provides that eGcept as provided for in the succeeding sections, all persons who can perceive, and perceiving, can ma1e 1nown their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case or conviction of a crime unless otherwise provided by law, shall not be a ground for dis?ualification. Clearly, the mere pendency of a criminal case against a person does not dis?ualify him from becoming a witness. As a matter of fact, conviction of a crime does not dis?ualify such person from being presented as a witness unless otherwise provided by law. 3- At his arraignment, :ictor Taneo voluntarily pleaded guilty to an information which charges conspiracy. He was not discharged as a state witness 4 a sure guarantee of ac?uittal 36 4 and he did not impute criminal responsibility solely on the appellant. Thus, if he were to testify falsely against the latter, he must have been moved by a strong, improper and ulterior motive. That motive must have been established6 appellant failed to do so. "n the absence of evidence to show any reason or motive why witnesses for the prosecution should have testified falsely, the logical conclusion is that no improper motive eGisted, and that their testimony is worthy of full faith and credit. 37 -. ince the appellant had been identified, his defense of alibi must fail. "t is a fundamental 0udicial dictum that the defense of alibi cannot prevail over the positive identification of the accused. 38 The prosecutionEs failure to present Bose Robert 4 a fact capitaliCed upon by the appellant in his third assignment of error 4 was not fatal. At best, RobertEs testimony would have been merely corroborative. /rescinding from all the foregoing, @e find the appealed decision of the trial court to be in accordance with the facts and applicable laws and 0urisprudence. 7Gcept for the indemnity which is hereby increased from /-.,...... to /,.,...... to conform with the present policy of this Court, the said decision must be affirmed. @H7R7F!R7, the appealed decision of &D %ecember &$'' of =ranch &. of the Regional Trial Court of Cebu in Criminal Case ;o. C=<-&.&-, is hereby AFF"R97%, sub0ect to the above modification on the indemnity. As modified, the indemnity is hereby increased to /,.,....... Costs against the appellant. G.R. No%. 8-2,8/,9 0u#y 6, 199,

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SGT. 0ERR+ ) L NON, accused-appellant. !n - ;ovember &$'., at about three oEcloc1 in the afternoon, Roberto 5aino and Fregorio antillan, both trustee inmates 1 of an Ramon /enal Farm, were eGchanging fist blows along the national highway in 5abuan, Kamboanga City. Accused gt. Berry =alanon, an enlisted man of the /hilippine Army assigned at the outhern Command Head?uarters ) !<THC!9*, Camp ;avarro, Calarian, Kamboanga City, 2 was standing nearby. As the fight progressed, gt. =alanon left for a nearby store. 9s. 9aria 5uningning insuan and 9s. 7lsa de la CruC, both teachers in the 5abuan =arangay High chool were seated on a bench in the house of Alim <sman some three feet away from the road waiting for a bus to ta1e them to Kamboanga City. They were twenty to twenty-five meters away from the protagonists. !ne of them shouted for help so 9s. insuan went near to pacify them saying, $Ta%a na !an&$ !ne of them retorted, $Ala% %o a'a% & & &'$but was cut short when =alanon went to 9s. insuan, wal1ed her five meters away and then told her not to interfere. Then he went bac1 to the two ?uarreling inmates, pulled a gun suddenly from his waist, and shot them one after another twice. A fifth shot was supposedly fired but the trial court did not consider the same as it has not been sufficiently established in the record. Fearing that =alanon was running amo1, 9s. insuan ran bac1 to where she was previously sitting. 9s. de la CruC, who was then siG months pregnant, remained seated on the bench as the startling occurrence unfolded before them. The sha1en tutors then proceeded on their way to the City. 5ater at siG oEcloc1 in the evening, gt. =alanon was pic1ed up by some ten members of the -(th "nfantry =atallion in connection with the 1illing of 5aino and antillan. ubse?uently, =alanon was charged with murder on two counts, both ?ualified by evident premeditation and treachery. gt. =alanon set up the defense of alibi and mista1en identity. He claimed he was Hdelivering information to anintelligence community.H !n -& !ctober &$',, Budge Carlito A. =ibna of the Regional Trial Court of Kamboanga City, =r. &-, convicted gt. =alanon of the crime charged ?ualified by treachery and sentenced him to two terms of reclusion perpetua, to indemnify the heirs of the victims at /-.,...... for each case, and to pay the costs. As a detention prisoner, he was credited in full for the period of his detention. 3 The cruG of the decision leaned on the credibility of witnesses 4 As compared to the testimonies of the prosecution witnesses, particularly 5uningning insuan, 7lsa de la CruC and Rogene Acasio who testified in straightforward, spontaneous and fran1 manner and has answered consistently even on crosseGamination, the vacillating and evasive answers of the accused gt. Berry =alanon during the course of his testimony does not inspire belief and reliability. , The aggravating circumstance of evident premeditation was not appreciated against gt. =alanon as HItJhere is no evidence on record to show when the plan to 1ill the deceased-victims was hatched by the accused . . . H "n the present recourse, accused-appellant basically raises factual issues. He stresses his presence at the !<THC!9 head?uarters in the morning of - ;ovember &$'., contrary to the testimony of prosecution witness Rogene Acasio, also an inmate, that he was drin1ing li?uor with =alanon and the victims. AppellantEs alibi cannot stand in the face of his clear and positive identification by Acasio who, appellant even admitted, had no ill will to implicate him )=alanon* in the crime. 9oreover, there is no compelling reason to depart from the assessment of the credibility of the witnesses made by the trial 0udge who, unli1e the reviewing court, had the occasion and opportunity to observe their demeanor and detect any badge of fabrication. =ut even granting arguendoappellantEs claim to be true, this does not contradict the testimonies of other prosecution witnesses that he shot the victims to death. Appellant faults the trial court for giving credence to the testimony of Acasio who was not only probably drun1, but was a convicted hi0ac1er and falsifier of public documents as well6 hence, apt to fabricate his testimony. =ut, probability is not evidence, and even if Acasio too1 alcohol, it does not follow that he was drun1. 9oreover, a drun1 person is competent to testify on what he sees or eGperiences, however limited or haCy his perception may be. "n the same way, a hi0ac1er or a falsifier is not necessarily a liar. <nder the Rules of Court, conviction of a crime, unless otherwise provided by law, shall not be a ground for dis?ualification of witnesses. 6 AppellantEs assertion that the victims being prisoners could not have left the /enal Colony without the permission of the warden, is completely irrelevant for they were admittedly shot and 1illed outside the prison walls.

@hile appellant denies having ordered a certain handicraft product from Acasio, 7 by reason of which Acasio claims to have 1nown him, appellant nonetheless admits that most of the living-out prisoners 1new him there because he used to pass by that place. 8 The distinction sought to be made by appellant is too trivial to affect the testimony of Acasio. After all, he )=alanon* does not deny that Acasio 1nows him. Appellant contends that he is not the assailant described by prosecution witness insuan since he does not have any wound or stitches 9 as confirmed by the prosecutor who Hwas not able to see any scarH behind his ears. 1. "t may be worth noting that 4 . . . ometimes in the course of time a scar may apparently disappear 4 that is to say, not be noticeable to the casual observer 4 but it is always there, to be found by him who loo1s carefully. =y compressing the surface where the scar is suspected, so as to eGpel the blood supply and then releasing it suddenly, the blood rushing bac1 will generally show an old scar very plainly, where before it could not be noticed. Thus also, where a person has been branded as well as where a scar has become invisible, by slapping the part several times or by rubbing it, the scar or brand may be made visible . . . cars decrease in siCe after time in an adult, but increase in siCe in a child . . . 11 As observed by the olicitor Feneral+ . . . it was only in Bune &$', that appellant showed his long-haired head for a cursory loo1, to the prosecuting fiscal, or almost five ),* years after the commission of the crime. The worn tatement of 9rs. 5uningning insuan was ta1en on ;ovember &', &$'.. Appellant was already under investigation at the time. @hy did he not claim at once that he had no scar, and instead alleged it for the first time after almost five ),* yearsL @hy did he not let a doctor eGamine his head and certify as to the presence or absence of a scarL The answer is obvious, his scar would have been very obvious at that time, even to an untrained eye. 12 "n her worn tatement, 5uningning simply described the assailant as Htall about ,E3H above, medium or little slim, fair compleGion, slit eyes, plain long hair )minus haircut along the wound with stitches,H 13 and nothing was categorically said about the location of the wound. ince 5uningning was describing appellantEs hair when she too1 eGception to a then visible haircut bordering a wound, said wound could have been on appellantEs pate or head which, when the prosecutor too1 a loo1 behind appellantEs ears, could have been hidden by his long hair. =ut even granting arguendo that 5uningning made incorrect statements about the wound, this pales in comparison with her and %e la CruCE positive identification of appellant on the stand. Appellant also discredits prosecution witness 7lsa de la CruC by highlighting her alleged inconsistent statements, i.e., she allegedly averred that she got a close view of the accused when she was still boarding the bus, but on cue from the prosecutor, she said she was already on board the bus, to wit, M+ . . . @hat was the basis for your identification of the accused Berry =alanonL A+ " identified him because when we already boarded the bus with 9rs. insuan he went near 9rs. insuan and 9rs. insuan was stepping one step )on* the bus and he was very near 9rs. insuan. Asst. City Fiscal 8u+ M+ How far was he when you saw him when you were about to board the busL A+ :ery near. Court+ M+ How many metersL A+ "f 9rs. insuan was stepping then " am at the bac1 of 9rs. insuan. 1,

9s. de la CruC could be referring to two instances when accused came close to 9s. insuan, i.e., when the latter was already inside the bus and when she was still boarding the bus, and the follow-up ?uestion of the prosecutor referred to the instance when the witnesses were still boarding. =ut even if we consider as inconsistent this portion of 9s. de la CruCE testimony, this is too trivial to affect their straightforward account of the shooting of the victims by appellant. @hile it may be unnatural for a person who has 0ust committed a grave felony to wal1 bac1 and forth and approach bystanders amiably instead of fleeing, criminal acts are aberrations and criminals are not eGpected to act naturally, especially in this case where the crime was committed in front of several witnesses. Appellant tries to revitaliCe the testimony of defense witness Rolando %aAo who claimed not to have seen any teacher nor heard shots at the scene of the crime, which account the trial court disregarded because he admitted that he did not 1now all the teachers of 5abuan =arangay High chool and that he went to the scene only after the shooting was over. =ut appellant ta1es eGception to the damaging parts of %aAoEs testimony, especially the statement that he saw the accused gt. Berry =alanon coming out from the !rellano store in 5abuan at three oEcloc1 in the afternoon and stood there a1imbo, 1- eGplaining that %aAo could not have been precise in stating the time because 4 gt. %aAo was not wearing a watch on that particular day. Hence, when he testified under oath that he did not hear the shots . . . the only plausible eGplanation was that he was not in the vicinity of the crime scene at the time the 1illings were committed. He only became aware of the crime after everyone else in the locality 1new of the same . . . <ndoubtedly then, his estimate of the time that he saw =alanon come out of the !rellano store was wrong. 8et the falsity of the testimony itself was never established. He did in fact see =alanon at the scene after the crime was committed. This, however, should not be used as a basis to totally discredit =alanonEs testimony. =alanon himself was not wearing a watch on that day. Conse?uently, his estimate of the time he reached 5abuan could li1ewise be wrong. 16 ince the testimony of defense witness %aAo did not do any good to appellantEs cause, the latter now belabors to 0ustify every unfavorable statement made by said witness. =ut even if we totally disregard the statements of %aAo, appellant himself, as pointed out by the olicitor Feneral, admitted at one point that he left the !<THC!9 at about one oEcloc1 in the afternoon, 17 contrary to his statement that he never left the !<THC!9 until four-thirty in the afternoon. 18 "nterestingly, since appellant admitted that he and his witness %aAo could not be eGpected to be precise in their estimates of the time, it naturally follows that appellant could not also state with precision that at about three oEcloc1 that afternoon he was not at the scene of the crime. The ?ualifying circumstance of treachery is not disputed since the victims were suddenly shot, uneGpectedly, and were not in a position to defend themselves. @hile the victims were using their bare fists to settle their differences, the accused used a deadly firearm to silence them. AppellantEs guilt having been established beyond reasonable doubt, the affirmance of his conviction is imperative. @H7R7F!R7, the decision of the court a #uo finding accused-appellant FT. B7RR8 =A5A;!; F<"5T8 of 9urder on two )#* counts ?ualified by treachery, and sentencing him to reclusion perpetua in each case, and to pay the costs, is AFF"R97% with the modification that the indemnity for the death of each victim is increased to /,.,......, or a total of /&..,...... for the two )#* victims, in consonance with eGisting 0urisprudence. Costs against accused-appellant.