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1 REPUBLIC OF THE PHILIPPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION Branch 54, Manila PEOPLE OF THE

PHILIPPINES. - versus SPO2 RASSY PAGAYUNAN, et al., Accused. x---- ---------- -------- ---x MEMORANDUM The PROSECUTION, by the undersigned Senior State Prosecutor and Prosecution Attorneys and to this Honorable Court respectfully submits the instant Memorandum on the basis of the following presentation: Criminal Case No. 06-242828 For: Murder

PREFATORY STATEMENT

Case law has it that like alibi, self-defense or defense of relatives are inherently weak defenses which, as experience has shown, can easily be fabricated. If the accused admits the killing, the burden of evidence, as distinguished from burden of proof, is shifted on him to prove with clear and convincing evidence the essential elements of the justifying circumstance of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression; and (c) lack of sufficient provocation on the part of the accused defending himself. Defense of a relative requires the following essential elements: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed by the accused to prevent or repel the unlawful aggression of the victim; and (c) in case of provocation given by the person being attacked, the one evading the attack, defense had no part therein. For the accused to be entitled to exoneration based on self-defense or defense of relatives, complete or incomplete, it is essential that there be unlawful aggression on the part of the victim, for if there is no unlawful aggression, there would be nothing to prevent or repel. 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.1
FACTS OF THE CASE 1. On the night of February 10, 2010, a dancing and singing contest was being held at the barangay auditorium of Barangay Calunacon, San Andres,
1

People vs. Marcelo Aleta, G.R. No. 179708, April 16, 2009.

2 Romblon near the house of the victim, SPO2 Amado Gaac, Jr. At around 11:30 in the evening, a commotion ensued outside the auditorium. It involved SPO2 Rassy Pagayunan, the victim and three (3) other civilians namely, Harry and Boyet, both surnamed Pagayunan, and one Ermin Hindap. 2. According to witness Alma De Goma2, she heard a gunshot from the outside of the auditorium. As the sound of the gunshot alarmed the victim, a member of the Philippine National Police, he immediately went out of their house to check on the commotion. At this instance, witness saw Harry Pagayunan forcibly holding the body of the victim with hands on his back, while accused Boyet Pagayunan was heard shouting, Barila ron, barila ron, meaning shoot it, shoot it. Meanwhile, from the position of the victim, SPO2 Rassy Pagayunan shot him once with the use of M16 Armalite rifle 3 hitting the victim at the back below the scapular area. This caused victim to stoop forward but was able to hold the balusters of the entrance of the gate to avoid falling down. Then, SPO2 Rassy Pagayunan was heard saying, Sino pa ang kakampi dito? and left the place on board his motorcycle towards the town of San Andres. 3. Thereafter, the victim was brought by witness Flairie Lynn G. Cusi, together with Luis and Tanly Danilo, to San Andres Municipal Hospital on board a tricycle but was further instructed by the doctors in that hospital that the victim should be taken to Romblon Provincial Hospital due to his serious wounds. Witness Flairie Cusi testified in court that while in the hospital she asked the victim who shot him. The victim then uttered the name Rassy Pagayunan.4 Unfortunately, despite medical treatment, the victim eventually died.5 4. As a result of the killing of SPO2 Amado Gaac Jr., a complaint6 was filed by Pastora Jimenez Gaac (Pastora for brevity) for murder against all the accused. Pictures7 of the cadaver and the crime scene were requested to be taken by Pastora in order that it may be presented in court. At the crime scene, shortly after the shooting incident, an empty shell of an armalite rifle8 was recovered by witness Mariano Falla9. A barangay tanod assigned at the gate in the evening of February 10, 2003, he later on testified on seeing all the accused within the vicinity of the barangay hall and specifically described the participation of each of the accused. 5. In his counter-affidavit, accused Rassy Pagayunan poses defense of a relative to justify his act of shooting victim Amado Gaac Jr.
2 3

According to him, he saw the

Exhibit T. Exhibit H. 4 Exhibit ____. 5 Exhibit A and A-1. 6 Exhibit U and U-1. 7 Exhibits Q, Q-1 to Q-11. 8 Exhibit ____. 9 Exhibit ____.

3 victim, drunk and pushing his younger brother Harry Pagayunan. Thereafter, the victim drew his service revolver for which he and his brother struggled for possession. He also saw the victim kicked accused Harry Pagayunan, which then compelled him to shoot the victim.10 6. Meanwhile, accused Harry Pagayunan denies any participation in the killing of the victim and claims that it was the latter who pushed him and suddenly drew his service revolver. As they were struggling for the possession of the gun, he then lost hold of the barrel and ran away from the victim. He later on heard a gunshot.11 7. Lastly, accused Boyet Pagayunan refutes the charge against him by claiming the defense of alibi. While admitting of being present at the dance hall on the night of February 10, 2003, he claims that he headed home earlier than his brother because he was already hungry and had no money to buy food.12 Issues A. WHETHER THE KILLING OF AMADO GAAC JR. WAS ATTENDED BY AGGRAVATING CIRCUMSTANCES WHICH WOULD QUALIFY THE CHARGE TO MURDER B. WHETHER OR NOT ACCUSED RASSY PAGAYUNAN, HARRY PAGAYUNAN AND BOYETH PAGAYUNAN ARE GUILTY BEYOND REASONABLE DOUBT FOR THE MURDER OF AMADO GAAC, JR. C. WHETHER THE ACCUSED BOYETH PAGAYUNAN IS GUILTY OF THE MURDER OF AMADO GAAC, JR. IN CONSPIRACY WITH RASSY PAGAYUNAN AND HARRY PAGAYUNAN EVIDENCE FOR THE PROSECUTION 8. The fact remains that a person has died in this case and if the surrounding circumstances warrant, the crime of homicide could have been charged, instead of murder. However, the evidence presented belies such fact and the charge for murder was proper considering the strong and obvious presence of aggravating circumstances in this case. I. RASSY PAGAYUNAN, HARRY PAGAYUNAN AND BOYETH PAGAYUNAN, HAVING ACTED IN CONSPIRACY WITH EACH OTHER, WITH EVIDENT PREMEDITATION, TREACHERY AND
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Exhibit C. Exhibit D. 12 Exhibit E.

4 ABUSE OF SUPERIOR STRENGTH, ARE GUILTY BEYOND

REASONABLE DOUBT FOR THE MURDER OF AMADO GAAC, JR.

The presence of aggravating circumstances, such as evident premeditation, treachery and abuse of superior strength qualify the charge to murder. ----------------------------------------9. Evidence points that all accused planned the treacherous killing of the victim with superior strength in the night of the dance party. When accused Rassy Pagayunan arrived at the house of the victim as he was invited to a drink at about 10:00 p.m., he did not shoot the victim right away. He waited for the latter to get out of his house before performing the act. Accused did not shoot the victim immediately upon entering his house because there were other visitors and that he was alone at that time. As witness Alma de Goma said, there were visitors at the victims house when he invited accused Rassy Pagayunan for a drink. Direct Examination by Prosecutor Fradejas: Q To what direction did Police Rassy Pagayunan go? A He was going towards the house of Police Amado Gaac. Q A What did he do there? That evening he was invited by SPO2 Amado Gaac Jr., in his house because he was preparing for the coming fiesta (p. 6, TSN, June 22, 2004).

Cross Examination by Atty. Victoriano: Q When Rassy Pagayunan came that evening, you took notice of him also the first time? A Yes, sir. Q A Q A Q A And according to you last June 22, 2004, page 6 of the tsn, this Amado Gaac invited Rassy agayunan because the following daw was a brgy. Fiesta of the place, is that correct? Yes, sir. And you saw in fact Rassy Pagayunan going to the place where Amado Gaac was entertaining his visitor to which Rassy Pagayunan was invited? Yes, sir. And this Rassy Pagayunan was seen by you partaking of the food and drinks offered by the host SPO2 Amado Gaac Jr. is that correct? Yes, sir (pp. 22 & 23, TSN, July 23, 2004).

Cross Examination of Atty. Victoriano Q Among the three, who arrived first? A Razzy Pagayunan. Q A And he arrived past 10:00 in the evening? Yes, sir. x x x

Q A Q A Q A Q A Q A Q A

Of course, you have seen also the victim policeman Amado Gaac, Jr.? Yes, sir. Upon the arrival of Rassy Pagayunan, Amado Gaac, Jr. even invited Razzy Pagayunan to his house, is that what happened? Yes, sir. And while there, you observed then that Amado Gaac Jr. entertained him with drinks and finger food? Yes, sir. And of course, aside from Razzy Pagayunan, Amado Gaac Jr. had other visitors who drunk with Razzy Pagayunan and Amado Gaac Jr. in his house? Yes, sir. While Amado Gaac Jr. was entertaining his visitors including Razzy Pagayunan, there was trouble outside of the dancing hall? No, sir. x x x And you have observed Razzy Pagayunan standing from where he was offered by his host Amado Gaac Jr. and went out of the dancing hall? Yes, sir.13

Courts Clarificatory Question: Q How was the invitation happened when Razzy Pagayunan entered the gate of the dancing hall while Amado Gaac Jr. was inside his house? A Razzy Pagayunan entered the house of Amado Gaac Jr. Q A So, it is not true that Razzy Pagayuanan was invited, he just went inside the hose of Amado Gaac Jr.? When Razzy Pagayunan entered the house, Amado Gaac Jr. said, join the group.14

Even accused Rassy Pagayunan admitted the presence of visitors and relatives of the victim at the latters house when he arrived thereat. Thus, Cross Examination by Prosecutor Fradejas: Q You were not the only person who was drinking that evening in that table where you were allegedly drinking with policeman Gaac? A When I arrived, there were plenty of visitors in their table. Q A It is policeman Gaac who was entertaining his visitors? Not only him but also his relatives . 15 Hence, accused Rassy Pagayunan saw the presence of visitors and relatives at
13

pp. 2 to 4, TSN, November 3, 2004. pp. 18 & 19, TSN, November 3, 2004. Page 19, TSN, July 8, 2005.

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6 the house of the victim as a hindrance to execute the necessary act with the thought that their presence could have offered resistance to thwart any attack from him who was then alone and without his brothers. 10. Moments after, a warning shot was heard before the shot that killed Amado Gaac. Such warning shot that was first fired by accused Rassy Pagayunan was to lure victim Amado Gaac to go out of the gate and there, the three accused will carry out the plan to kill him. Contrary to what the defense presented that the shot was intended as a warning in order to pacify the trouble between Rene Marique and Rudy Gabaldon, witness Alma de Goma testified that the same pertains to an incident which occurred at a much earlier time, i.e. at 9:00 p.m. Direct Examination by Prosecutor Fradejas: Q During the singing and dancing competition, do you of any unusual incident that happened? A There was an incident but it was already pacified by the barangay tanod and the police. Q A What time was that when there was sort of a commotion? About 9:00 p.m. 16

Cross Examination by Atty. Victoriano: Q How long after the trouble which you first became aware when you the first firing of the gun? A More or less one (1) hour, sir.17

Even the document presented by the accused Rassy Pagayunan confirms the commotion

that

between Rene Marique and Rudy Gabaldon transpired at 9:30 p.m.

of February 10 2003.18 Indeed, the warning shot was given by accused Rassy Pagayunan to attract the curiosity of the victim to get out of the gate in order for the accused Harry and Boyet Pagayunan to hold the hands and choke the neck of the victim, and later succeeding in their plans of killing the victim. As testified by witness Alma de Goma, Cross Examination by Atty. Victoriano Q Miss Goma how many times have you heard firing of armalite before this incident? A When Rassy Pagayunan made a warning shot. x x x Q A
16 17

So, the first time that you heard the firing of an armalite was the warning shot, is that correct? Yes, sir, my first time, sir.19

Page 6, TSN, June 22, 2004. Page 21, TSN, July 23, 2004. 18 Exhibit 3 and Exhibit 3-A. 19 page 13, TSN, July 23, 2004.

Redirect Examination of Prosecutor Fradejas: Q When for the first time did Razzy Pagayunan fired his firearm? A When he went out of the house and the dancing hall. Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A You mean that the house and dancing hall has the same gate? Yes, sir. In what place did Razzy Pagayunan fired his firearm? In barangay Calunacon. Where in barangay Calunacon? Going to Odiongan. How far? Six to eight meters away. After Razzy Pagayunan fired his firearm, do you know what Amado Gaac, Jr. do? He went out and inquired what is the trouble about x x x. How far was he from Rassy Pagayunan at that time? Near. How many meters? From here which is ten to twelve meters away. And at that time that he was asking the question, do you know where was Boyet Pagayunan? He was already outside. How about Harry Pagayunan? Still inside the gate. After asking those questions, do you know what did Boyet Pagayunan do? He choked Amado Gaac Jr. What about Harry Pagayunan? He was approaching and twisted the hands backward. How about Razzy Pagayunan? He held the back collar of Amado Gaac Jr. At that time, Rassy Pagayunan is armed? Yes, sir. What kind of weapon? Armalite rifle.20

Courts Clarificatory Question: Q So, it is about 11 oclock in the evening, did you notoce where Razzy Pagayunan proceed when he left the table of Amado Gaac Jr.? A He went out of the gate of the dancing hall. x x x

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Pages 14 to 16, TSN, November 3, 2004.

8 Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A When he went out, what happened? He fired his armalite rifle. When he fired outside the gate, what happened? Amada Gaac Jr. went out. x x x You did not see Razzy Pagayunan fired his firearm? I saw it. Despite the fact that you were not near the gate? Yes, sir. When you came near, what happened outside when Amado Gaac Jr. was already outside the gate? I saw Boyet Pagayunan choking Amado Gaac Jr. on his next and Harry Pagayunan held the both hands backwards of Amado Gaac Jr. You did not notice the two accused went outside the gate? When the warning shot was fired, the two accused went out.

How long after the warning shot was fired when Amado Gaac Jr. went out of the gate? About ten seconds.
There was a commotion because of the fire? The people were surprised. When you went near the gate and Amado Gaac Jr. was already there, what did he do? Amado Gaac Jr inquired, what is the trouble about. And what happened next? He was choked by Boyet Pagayunan. Held his hand at the back and his neck was chocked? Yes, sir. At this time, Rassy Pagayunan was about five meters away? Rassy Pagayunan was already there. Near? Yes, sir. Relative to the body of Amado Gaac Jr., where was this accused held at that time? Ride side of Amado Gaac Jr. How about the person choking his neck? In front. This Amado Gaac Jr. was dropped to the baluster? Yes, sir. Near the baluster that was fired upon by Razzy Paguyanan? Yes, sir.

9 Q A Q A Q A Q A Q A From the back also? Yes, sir. Did you see the barrel of the gun? Yes, sir. How far from the body of Amado Gaac Jr.? About one foot. There are no other persons very near except these four? No, sir. You were nearest to them? Yes, sir.21

11. Further, the victim was unarmed when he was killed. Neither did he provoke any accused. Thus, Alma de Goma said,

Cross Examination by Atty. Victoriano: Q Amado Gaac Jr. in so far as you are concerned have no weapon at all? A No, sir. x x x Q A The only person who had a weapon was Razzy Pagayunan, an armalite rifle? Yes, sir. x x x

Q That whole evening prior to the shooting of Amado Gaac Jr. by Razzy Pagayunan, Amado Gaac Jr. had never done anything against Razzy Pagayunan since his arrival? A No, sir. Q According to you, Razzy Pagayunan held the back collar of the shirt of Amado Gaac Jr. is that what he did? A Yes, sir. Q A Q And he was holding the back collar of Amado Gaac Jr. who was not doing anything and shot him, is that the idea you would like to convey before this Honorable Court? Yes, sir. x x x You claimed that with no reason at all Harry Pagayunan twisted the left and right hand of Amado Gaac Jr. behind his back, Boyet Pagayunan choked his neck and Razzy Pagayunan held his collar at the back, you would like to convery before this Honraoble Court that these three accused have no reason at all brought Amado Gaac Jr. towards the baluster, is that correct? Yes, sir. x x x From the very beginning up to the point when Amado Gaac Jr. was fired upon, he had not injured any of the accused? No, sir. x x x Because there were three accused from the very beginning up to the end in so Pages 22 to 24, TSN, November 3, 2004.

A Q A Q
21

10 far as you are concerned, Amado Gaac Jr. had never offended any of them that evening? No, sir.22

Cross Examination by Atty. Victoriano Q You claimed you are present when Amado Gaac Jr. was fired at by accused Rassy Pagayunan but prior to that there was no trouble at all, is that you would like to convey before this Court? A Yes, sir.23 13. From the foregoing, evident premeditation, treachery and abuse of superior strength attended the killing of the victim. After he invited accused Rassy Pagayunan to drink at his house, the former never had any inkling that the latter would kill him. When accused Rassy Pagayunan fired a shot on the air, it was not a warning shot, but intended to lure the victim to get out of his house not knowing that the former and his co-accused would kill him. Once outside, the victim outnumbered by the accused was held by his hands and neck to forestall resistance and rendered him defenseless before he was treacherously killed. Evident premeditation exists since external facts, as demonstrated by all accused, prior to the killng of the victim, are too evident and not merely suspected, which indicate that they deliberately planned the killing of the latter.24 Meanwhile, the essence of treachery is the sudden and unexpected attack by the aggressor on unsuspecting victims, depriving the latter of any real chance to defend themselves, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victims.25 This case amptly demonstrated the presence of treachery by the restraint upon the victim, which effectively rendered him defenseless and unable to effectively repel, much less, evade the assault. The Court does not require that at all times, a swift and unexpected commencement of the attack must occur
Thus, there is treachery where the victim was stabbed in a defenseless situation, as when he was being held by the others while he was being stabbed, as the accomplishment of the accused's purpose was ensured without risk to him from any defense the victim may offer [People v. Condemena, G.R. No. L-22426, May 29, 1968, 23 SCRA 910; People v. Lunar,
22 23

Pages 8 to 10, TSN, November 3, 2004. Page 3, TSN, April 29, 2005. 24 People vs. Malinao, G.R. No. 128148, February 16, 2004. 25 People vs. Gutierrez, G.R. No. 188602, February 4, 2010.

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G.R. No. L-15579, May 29, 1972, 45 SCRA 119.] In the instant case, it has been established that the accused-appellant stabbed the victim on the chest while his companions held both of the victim's arms.26 (Emphasis ours.)

Finally, the aggravating circumstance of abuse of superior strength is likewise present in this case. The act of accused Harry Pagayunan in twisting hands of the victim on his back while accused Boyet Pagayunan act of choking the victim on the neck before accused Rassy Pagayunan fired his M16 armalite to kill Amado Gaac Jr. illustrates the use of superior strength. As held by the Court,
Abuse of superior strength is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of in the commission of the crime (People vs. Bongadillo, 234 SCRA 233 [1994]). When four armed assailants, two of whom are accused-appellants in this case, gang up on one unarmed victim, it can only be said that excessive force was purposely sought and employed. (Emphasis ours.)27

The acts of all the accused are conclusive that they are in unanimity to achieve a common design or purpose. ------------------------------------------------12. It also clear from the testimonies of the eyewitnesses that (i) accused Boyet Pagayunan shouted to accused Rassy Pagayunan to shoot the victim, and (ii) accused Rassy Pagayunan was not initially with accused Harry and Boyet Pagayunan when they held the hands and choked the neck, respectively, of the victim. As witness Mariano Falla testified: Direct Examination by Prosecutor Fradejas: Q I want you to set your thoughts on February 10, 2003, at around 10:30 oclock in the evening, can you still recall where were you on that particular date and time? A I was a barangay tanod assigned on a gate. Q A Q A Q
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Gate of what particular place? Barangay Hall. x x x And while you were on duty at that time as tanod, do you recall of any unusual incident that happened? That incident that happened on Patrolman Gaac. What was that incident all about? People vs. Tabarnero, G.R. No. 168169, February 24, 2010. Id.

12 A February 10, 2003 at around 11 oclock in the evening I saw Patrolman Gaac going out of the fate and I saw also Harry Paguyanan following him (as demonstrated by the witness, his both hands twisted at the back). You claimed that you know a person by the name of Boyet Pagayunan, do you know the whereabouts of Boyet Pagayunan that evening? I have seen also Boyet Pagayunan choking the neck of Patrolman Gaac x x x. How far were you from Patrolman Gaac? Near only. (Witness pointing to a distance of about three (3) full arms length). x xx Now, to which direction were they going at that time? Going to the baluster while the three (3) of them were nearing the baluster, they were in oblique position sidewise with Boyet in front but slightly on the left of Patrolman Gaac. While they were in that position as you claimed, do you know ehre was SPO2 Rassy Pagayunan that evening? He was near the road after coming from the gate and Boyet shouted shot him now then Rassy Pagayunan came near and then when he came he shot. x x x What else happened? He shot Amado Gaac. How did he shoot Amado Gaac? Hitting his back. x x x When he was pointing the M16 rifle on the back of policeman Gaac, what did he do with the gun? He fired it.

Q A Q A Q A

Q A

Q A Q A Q A

Corroborating the testimony of witness Mariano Falla on the participation of each of the accused, witness Alma De Goma recalls on the witness stand,

Direct Examination by Prosecutor Fradejas: Q After Policeman Rassy Pagayunan went to the house of Policeman Amado Gaac, what happened? A Rassy Pagayunan came out and fired a warning shot. Q A Q A Q A You are referring to the armalite rifle which he was carrying that evening? Yes, sir. Now, after he fired the shot upward, do you know what Policeman Gaac do? When Policeman Gaac heard the warning shot, he came and verified what was the trouble outside. And what happened next after that? I heard from Amado Gaac asking anong gulo ran, meaning, what is that trouble about? x x x

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Q A

When he inquired, what happened next? After the inquiry made by Police Officer Amado Gaac, he went out of the gate and I saw Boyet Pagayunan choked Police Officer Amado Gaac and I also saw Harry Pagayunan twisted both hands of Gaac backward and I also saw Rassy Pagayunan held the collar on the neck of Police Officer Amado Gaac by his left hand. Now, when you saw the condition of Police Officer Amado Gaac, his neck being choked by Boyet Pagayunan, his hands twisted by Harry Pagayunan and the back neck collar was held by Rassy Pagayunan, tell the Court, where did they bring Police Officer Gaac? They brought the victim in front of the baluster x x x. What else if any did they do to Policeman Gaac? At that time when Boyet Pagayunan was choking Policeman Gaac and Harry Pagayunan was twisting the hands backward of Amado Gaac I saw Rassy Pagayunan with a firearm or a gun and pointed the nozzle of the gun at the back left side of Amado Gaac which is about six inches. After that position, what else did Policeman Rassy Pagayunan do after holding the collar of Policeman Gaac? With this position I heard Boyet Pagayunan shouting Barila ron, meaning, shot not. What else? After that Harry Pagayunan got his hands from the left collar of Policeman Amado Gaac and Rassy Pagayunan tapped him towards his right. Then what happened? When Harry Pagayunan was not already in the scene I saw Rassy Pagayunan fired at Policeman Amado Gaac.28

A Q A

Q A Q A Q A

Cross Examination by Atty. Victoriano: Q In that precise moment when Harry Pagayunan held both hands of Amado Gaac, Jr., where was Razzy Pagayunan? A He was approaching Amado Gaac Jr. 29 Clearly, the acts of the accused show unanimity in attaining their purpose. As explained in People vs. Elarcosa and Orias30,
Conspiracy exists 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. Once this is established, each and every one of the conspirators is made criminally liable for the crime actually committed by any
28 29

Pages 7 to 11, TSN, June 22,2004. Page 6, TSN, November 3, 2004. 30 G.R. No. 186539, June 29, 2010.

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one of them. In the absence of direct proof, the agreement to commit a crime may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to a joint purpose and design, concerted action, and community of interest.[47] It does not matter who inflicted the mortal wound, as each of the actors incurs the same criminal liability, because the act of one is the act of all. As we held in People v. Alib: Accused-appellants likewise argue that the trial court erred in finding conspiracy since their complicity in the crime was not sufficiently established by the prosecution. They maintain that the victim suffered only one (1) hack wound on the right side of his head and no other wound was found on his body, thereby negating their participation in the crime. The argument is bereft of merit. In a conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all participants performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring about the death of the victim. (Emphasis supplied.)

The positive and categorical identification of the eyewitnesses discredits the defense of alibi. ---------------------------------------14. Further, Mariano Falla and Alma de testified on Goma positively and categorically

how all the accused conspired in killing victim. They were no driven by

any ill motive. The testimony of the witnesses positively and categorically described how accused Boyet Pagayunan choked the neck of the victim. According to Mariano Falla: Direct Examination by Prosecutor Fradejas: Q You claimed that you know also a person by the name of Boyet Pagayunan , do you know the whereabouts of Boyet Pagayunan that evening? A I have seen also Boyet Pagayunan choking the neck of Patrolman Gaac x x x Q A How far were you from Patrolman Gaac? Near only x x x 31

While according to witness Alma de Goma, Direct Examination by Prosecutor Fradejas Q Now, after he fired the shot upward, do you know what Policeman Gaac do? A When Policeman Gaac heard the warning shor, he came out and verified what was the trouble outside. Q And what happened next after that? A I heard from Amado Gaac asking anong gulo ran meaning, what is the trouble about? x x x
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Page 11, TSN, October 20, 2003.

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Q When he inquired, what happened next? A After the inquiry made by Police Officer Amado Gaac, he went out fo the fate and I saw Boyet Pagayunan choked Police Officer Amado Gaac and I also saw Harry Pagayunan twisted both hands of Gaac backward and I also saw Rassy Pagayunan held the colar on the nect of Police Officer Amado Gaac by his left hand.32

Said witness cannot also be mistaken about the identity of accused Boyet Pagayunan when,

Direct Examination by Prosecutor Fradejas: Q How about Boyet Pagayunan , do you know him? A I know him because he is my classmate from first year to fourth year in the high school. Q A If he is in the courtroom, will you point to us if he is here? Yes, sir. (Witness is pointing to somebody in the courtroom who identified himself as Boyet Pagayunan)33

Thus, the positive identification of accused Boyet Pagayunan by eyewitnesses Mariano Falla and Alma De Goma, which were categorical and consistent, not attended by any ill motive. It is well settled that positive identification, where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving weight in law.34 Moreover,
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence. In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition[s] where concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed
32 33

Pages 7 & 8, TSN, June 22, 2004. Page 19, TSN, June 22, 2004. 34 Zarate vs. Regional Trial Court, Branch 43, Gingoog City, Misamis Oriental, G.R. No. 152263, July 3, 2009.

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heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove. (Emphasis supplied)35

It has been held time and again that alibi, as a defense, is inherently weak and crumbles in the light of positive identification by truthful witnesses. It is evidence negative in nature and self-serving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence. x x x36

As intent to kill is a state of mind, certain factors are used to determine its presence which in effect, strengthens the probability that all the accused committed murder. ----------------------------------------15. It is even highly improbable to consider the claim of accused Rassy Pagayunan that when he shot the victim, the latter was standing, albeit in a stooping

position , and was about to shot accused Harry Pagayunan who was lying in front of
him. Weight should be given to the testimony of Dr. Gaudencio Fornadero on the relationship of the piercing or through and through effect of the bullet fired from an M16 rifle and the downward trajectory of the gunshot wound sustained by the victim. Thus,

Court Clarificatory Questions: Q How would you describe the entry wound, how big it it? A It was through and through , sir. x x x Q A Q A You said it passed through and through ? Yes, sir . x x x How would you describe the stomach? It passed through and through, perforating the stomach to lesser curvature, sir.37

Direct Examination by Prosecutor Fradejas: Q What is now the trajectory of the bullet, if the entrance wound is in the scapular area and the exit wound is in the epigastric area? A The trajectory is downward. Q A Q
35

If that is the trajectory of the bullet which is downward , can you tell is the position of the victim when he was fired at, if the gunman fired? x x x Most probably the accused is higher than the victim. Is it also possible doctor, that at the time the injury was inflicted the victim was People vs. Manchu, G.R. No. 181901, November 28, 2008. People vs. Elarcosa, G.R. No. 186539, June 29, 2010. Pages 13 & 14, TSN, November 4, 2004.

36 37

17

on the stooping position when he was fired at in the back by the accused causing the injury with the trajectory of the bullet going downward? Most probably. 38

As testified by accused Harry Pagayunan, Cross Examination by Prosecutor Fradejas: Q Before you heard the shot, Policeman Gaac was in front of you standing while you were lying on the ground? A Yes, sir.39 While accused Rassy Pagayunan testified that Cross Examination by Prosecutor Fradejas: Q Policeman Gaac was facing your brother Harry Pagayunan when you shot him at the back? A Yes, sir. x x x Q A Q A Q A How about Harry Pagayunan at the time of the shooting? Harry Pagayunan was lying facing up the cemented pavement. x x x When you saw policeman Gaac from behind, Harry Pagayunan was still there in front of policeman Gaac? Lying in front of policeman SPO2 Amado Gaac. x x x So, he was still there lying on the ground when you fired at the back of policeman Gaac? Yes, sir. But he was in a hurry standing going outside.

Court: Q Was he still there? A He was still there.40

Granting without admitting that the story of accused Rassy and Harry Pagayunan is true, still, the conclusions that can be drawn are, to wit: (i) that the latter should have also sustained a gunshot wound from the bullet which exited from the body of victim, or (ii) Rassy Pagayunan was not mindful if his brother Harry Pagayunan will be hit by the bullet passing through and exiting from the body of the victim. 16. Undoubtedly, intent to kill was also present in this case. As intent to kill is a state of mind that can only be discerned through external manifestations, i.e., acts and conduct of the accused at the time of the assault and immediately thereafter, the factors to consider are, to wit: (1) the means used by the malefactors; (2) the nature, location, and number of wounds sustained by the victim; (3) the conduct of the
38 39

Pages 12 & 13, TSN, January 9, 2004. Page 25, TSN, July 7, 2005. 40 Pages 32 to 34, TSN, July 8, 2005.

18 malefactors before, at the time, or immediately after the killing of the victim; and (4) the circumstances under which the crime was committed and the motives of the accused.41 The version on how the victim was killed, as seen and testified by witnesses Mariano Falla and Alma De Goma, besides being the truth, is consistent with the findings of Dr. Gaudencion Fornadero as to the nature, location, character and trajectory of the gunshot wound sustained by the victim, and the presence of tattooing on its point of entry. Thus, Direct Examination by Prosecutor Fradejas: Q Let us now proceed with your findings as indicated in the medico legal certificate, you made mention of a gunshot wound, infra-scapular area, left, thru and thru , epigastric area, tattooing in that point of entrance in this anatomical chart, will you tell us where is it? A It is here, the point of entry is at the back below the scapular area. x x x Q A Q A And since this is a gunshot wound, tell is what could have caused this kind of injury? It was caused by a gunshot. Since there is a tattooing , what can you tell the court, as to how come that there was the presence of tattooing on the wound? Tatooing is caused by a gunshot powder when the gun is fired and it is produced by a gunshot powder when the gun is fired and tattooing is produced when the end of the barrel is not more than 24 inches distance. Will you tell this Court, that it is possible that this wound was incurred when the victim was fired at when the nozzle of the gun pointed to that particular location with a distance of around 24 inches? Not more than 24 inches distance. x x x If the injury was found on the back part of the body of the victim, what could have been the relative position of the accused to the victim when the injury was inflicted? The accused was at the back of the victim. And where did this wound exited doctor? Epigastric area. Where is that exit wound which mentioned a while ago in the epigastric area? It is fronting the epigastric area. (This injury is indicated in the anatomical chart as Exhibit M). x x x What is now the trajectory of the bullet, if the entrance of the wound is in the scapular area and the exit wound is in the epigastric area? The trajectory is downward. If that is the trajectory of the bullet which is downward, can you tell us the position of the victim when he was fired at, if the gunman fired? x x x Most probably the accused is higher than the victim. Serrano vs. People, G.R. No. 175023, July 5, 2010.

Q A Q A Q A Q A Q A Q A
41

19

Q A

Is it possible doctor, that at the time the injury was inflicted the victim was on the stooping position when he was fired at in the back by the accused causing the injury with the trajectory of the bullet going downward ? Most probably.42 The presence of tattooing on the victims gunshot wound point of entry

suggests the closeness of range at which the victim was shot, not only to ensure his death, but to ensure the safety of accused Harry and Boyet Pagayunan that they will not be able to be hit by the bullet that would surely exit from the body of victim. 17. Intent to kill became even more evident with the kind of weapon used by the accused Rassy Pagayuna, even if he fired only one shot at the victim. PNP Ballistician Alfredo Magaro testified that a single gunshot wound from an M16 rifle is capable of killing a human target. Thus, Direct Examination by Prosecutor Fradejas: Q By the way, x x x can you tell the court the appropriate range of the bullet fired M-16 rifle, can you give us the appropriate distance from which the bullet could actually reach if it fired from that weapon? A Its maximum range is 300 meters. Q A How do you consider that, low powered firearm or high powered firearm? It is high powered firearm.

Q What make you conclude that it is high powered gun? A Because the velocity and its kenetic energy that is being absorbed by the object. Q If that weapon is fired at the distance of one foot to a person I am referring to the edge of the muzzle of that gun, what would the impact on that to a person if the person is hit at the back, will it throw him away? A x x x definitely that person will absorb more than 1,200 feet energy. Q A

And that would cause death? Yes, sir. 43


II THERE WAS NO VALID DEFENSE OF A RELATIVE AS ACCUSED FAILED TO PROVE WITH CLEAR AND CONVICING EVIDENCE, THE ELEMENTS OF THE SAID JUSTIFYING CIRCUMSTANCE

There was no defense of relative as accused merely fabricated such account


42 43

Pages 10 to 13, TSN, January 9, 2004. Pages 9 & 10, TSN, November 10, 2003.

20

and failed to establish the elements of such justifying circumstance ----------------------------------18. Accused cannot hide behind the justifying circumstance of defense of a relative which can only be raised when there is a concurrence of the requisites of: 1) unlawful aggression; 2) reasonable necessity of the means employed to repel the aggression; and 3) that the person making the defense had no part in the provocation44 It is clear that despite accused efforts, their defenses fall short of the elements of defense of a relative. 19. First, the testimonies given by the accused clearly manifest that defense merely fabricated the alleged unlawful aggression on the part of the victim, which purportedly consisted of the latter having allegedly pushed and poked his service pistol at accused Harry and a struggle ensuing between the parties which allegedly broke the handle of the service pistol. However, the testimonies and evidence hereunder would strongly attest to the improbability of the events as recounted by the defense, considering the following: a. Despite the accused insistence that there was a prior struggle between accused Harry and the victim for possession of the .38 caliber gun 45 which was the service revolver of the latter, no less than the unbiased and reliable testimony of PO2 Lupito Marcelino, custodian of the victims service revolver, would reveal that the said gun never figured in any part of the shooting of Amado Gaac, Jr. Thus, Courts Clarificatory Question: Q Counsel here manifested that you have the gun? A Yes, sir. Q A Q A Q A Q A Q
44 45

Whose gun was that? This is the gun of the late SPO2 Gaac. Why do you say that it was the gun of SPO2 Gaac? Because that time I am the Supply Officer. Before coming to Court, where did you get that gun? In the locker. Whose locker? Locker of the property division of San Andres Police Are you the property custodian? Station.

People v. Mendez, et al. G.R. No. 131815, August 14, 2002. Exhibit 2.

21 A Yes, sir. (pp. __ to ___, TSN, July 7, 2005). Gaac, what is

Direct Examination by Atty. Victoriano: Q: When you issued this Caliber 38 revolver to SPO2 Amado the condition of that firearm? A: In good condition, sir. Q: A: What is the serial number of that gun? P-16803, sir.

Court: Stipulated, that firearm with serial No. P-16803 is the issued to Spo2 Amado Gaac? Pros. Fradejas: Yes, Your Honor.

same firearm

Q: According to you, that firearm issued to SPO2 Amado Gaac, Jr. you find it in good condition? A: Yes, sir. xxx Q: According to you, this revolver was in good condition when you issued the same to SPO2 Amado Gaac, Jr., how did you find this when it was given to you by his younger brother? A: When it was turned over to me, in the same condition, sir. Q: Do you mean to tell this Court that the handle was already broken when it was turned over to you by the younger brother of Spo2 Amado Gaac, Jr? A: Yes, sir. Q: Aside from the broken handle, was there a crack existing it was turned over to you? A: Yes, sir. Q: Would you tell us what was the previous condition of the that gun before it was turned over to SPO2 Amado Gaac custodian? A: In good condition, sir. The handle is in good condition, already when

handle of as property sir.

Q: Would you tell us if there is crack? A: Before I issued the said firearm, no crack sir, but when I conducted the inventory of the firearm every quarter, I noticed there was already crack, sir. Q: A: You mean you conducted an inventory before the Yes, sir.

incident?
of handle, sir.

Q: What did you observe from the handle of the gun policeman Gaac when you made an inventory? A: I noticed that there is a crack at the bottom of the Q: A: Q: A: How about some sort of tape? Before sir, he placed a tape on the crack of the How is the tape being placed there? It was wrapped, sir.

handle, sir.

22

Q: A: Q: A: Q: A:

Do you know the reason why the handle of the gun wrapped by SPO2 Amado Gaac before you conducted inventory before the incident? Because of the crack of course, sir. Were you able to observe how big (was) that crack? Almost one (1) inch, sir. It was a big crack? Yes, sir.

was the

Courts Clarificatory Questioning: Q: Now, when was the last time you conducted the A: Last November or December, sir. Q: A: Several months before the incident? Yes, sir.

inventory?

Q: Was there an occassion that you saw again the service policeman Amado Gaac? A: No, sir.

firearm

of

Continuation of Cross-examination of Pros. Fradejas: Q: When the gun was turned over to you that condition where it appears now, you are not surprise now becauseyou are well aware that is the condition before the incident after you conducted the inventory? A: Yes, sir. Q: In other words, you come to know of the actual condition of the gun because you are well aware of that condition before the incident? A: Yes, sir. Pros. Fradejas: That would be all Your Honor. Courts Clarificatory Questioning: Q: When was the last time before your conducted the gun of SPO2 Amado Gaac? A: Almost months, sir. Q: A: You mentioned it was wrapped with tape? Yes, sir. brother of SPO2 inventory, saw this

Q: When you retrieved that gun from the younger Amado Gaac, was the tape still there? A: No more, sir. Q: A: Where there traces that it was tape? No more, sir.

From the foregoing testimony, the following facts are readily apparent: 1) prior to the shooting of Amado Gaac, Jr., the handle of the service pistol46 was
46

Exhibit 2.

23 already broken, with an almost one inch crack at the bottom thereof, that the victim himself taped in place, and 2) after the subject incident, the custodian found the gun to be in the same condition/appearance prior to the subject incident(its handle was already broken), the only difference being that the tape which covered and held the crack was no longer present. Thus, the crack found on Exhibit 2, was the same crack that existed prior to the alleged incident, contrary to the accused theory that the crack on the handle of Exhibit 2 was caused by the alleged altercation between accused Harry and the victim. The handle of the .38 caliber gun could not have been broken during the alleged altercation between the victim and accused Harry because the cracked part of the handle was only wrapped by a tape prior to the incident and the absence of any traces of the tape shows that it was deliberately and not accidentally removed during the alleged altercation, as what accused would have us believe. Furthermore, it is worthy to note that the gun wasnowhere to be found at the scene of the crime. Instead, it came to the possession of the custodian only when it was given to him by the victims brother, a day after the death of the latter. Thus, the defense miserably failed to establish that the victim was armed with his service revolver at the time of the shooting incident. From the custodians statements, unbiased as they are, considering that it was accused who presented him as a witness, there is no other conclusion that can be reached than that accused fabricated the alleged gun-wrestling incident. The truth of the matter is, the .38 caliber gun was never used by the victim against accused Harry and no such gun-wrestling between the two had taken place on the night of the said incident. The gun was never a part of the night of the incident despite accused dismal attempts to insert it into the picture. This fact alone destroys the accused entire theory of alleged unlawful aggression on the part of the victim. b. Another peculiar fact, is that the victim never sustained any injuries to either of his hands, despite the alleged gun-wrestling incident between the victim and accused Harry, during which their hands, which were both holding on to the .38 caliber gun, allegedly hit the balusters located at the crime scene, with such force that purportedly resulted to the breaking of the handle of said gun. As testified by the accused Harry Pagayunan, Cross-examination by Prosecutor Fradejas:

24 Q You testified that in the evening when the incident took place you scuffled for the possession of the gun with Policeman Gaac, right? A Yes, sir. Q How did Policeman Gaac hold his gun at the time that you were struggling for the possession of the gun with him? A With his right hand. Q You are referring to his right hand, he was holding the handle of the gun, correct? A Yes, sir. Q This is the gun picture you are trying to tell us, the gun was pointed to you, he was holding the handle of the gun, you were in front and you were holding the muzzle of the gun, is that the picture you are trying to tell us? A I was using my both hands in holding the barrel and the hammer of the gun. Q A Q A You were in front of Policeman Gaac at that time, correct? Yes, sir. The gun did not fire? No, sir.

Q Your hand was not inside that trigger guard, not one of your finger is inside the trigger guard, correct? A No, sir, it was on the hammer. xxx Q What you did was that you hold the gun on the baluster, correct? A While in the process of grappling for the possession of the gun, it touches the baluster. Q A How many times did it hit the baluster, if you know? Maybe three (3) times.

Q And since you claimed that the hand of Policeman Gaac was holding the handle, are you telling us that every time that the gun hit the baluster, the hand of Policeman Gaac also hit the baluster, right? A I did not notice it anymore. Prosecutor Fradejas: But I just want to tell you Mr. Witness for the record that in the medical certificate there is no showing that there was an injury of Policeman Gaac (p. 19, TSN, July 7, 2005; please refer to Exhibits L and L-1). From the foregoing testimony of accused Harry Pagayunan, it appears that the victims right hand allegedly held the handle of the accused gun during the scuffle. However, if the handle of the revolver was held by the victims right hand, and the handle is alleged to have repeatedly hit the balusters with such force as to destroy said handle, it is interesting to note that the victims right hand had no trace of any injury, as the post-mortem medical certificate of the

25 victim of would clearly indicate47. c. Neither did accused Harry sustain any injury on his own hand despite the alleged altercation. He admitted that: Cross-examination by Prosecutor Fradejas: Q During the time that you struggled for the possession of the gun and when you said that the gun was hitting the baluster, you have not sustained any scratch in your hand, correct? A None, sir (p. 20, TSN, July 7, 2005). d. Similarly, another point of argument against the probability of the accused version of events is the absence of any injury on accused Harry even if he supposedly sustained injuries as a result of falling on the cemented pavement when the victim allegedly pushed him and he was purportedly kicked by the victim. Granting without admitting that he had sustained injuries, his failure to subject himself to medical examination strongly militates the accused theory. Accused Harry himself admitted that: Direct Examination by Atty. Mendoza: Q And what else happened, Mr. Witness, if any? A While we were in the process of wrestling for the possession of the gun, he kicked me strongly so I lost hold of that gun. Q A And after he kicked you, Mr. Witness, what happened? I fell down in the cemented pavement (pp. 9 & 10, TSN, July 7, 2005).

Cross-examination by Prosecutor Fradejas: Q What part of your body was kicked by Policeman Gaac? A Because Policeman Gaac hit me on my testicle. Q A Q A Q A How many times? Once. And so you grimace in pain? Yes, sir. After the incident, did you submit yourself to the Doctor? No, sir.

Q You have not sustained any injury at all, Mr. Witness? A I felt pain but I did not go to the Doctor for examination (p. 19, TSN, July 7, 2005). If accused Harry was allegedly kicked by the victim in such a painful manner as he himself had narrated, one would surmise why aside from the fact that he
47

Exhibits L and L-1.

26 had not sustained any injury, he also failed to subject himself to any medical examination. If he had nothing to hide, and if he was the true victim of aggression, as he claims himself to be, his natural reaction under the alleged circumstances would have been to put everything on record. e. More importantly, it is also surprising that the alleged incident between accused Harry and victim Amado Gaac, Jr., was never reported in the police blotter for the said date (please refer to Exhibit ___). Accused Harry Pagayunan himself testified that, Cross-examination by Prosecutor Fradejas: Q According to you, you were kicked by Policeman Gaac, did you place this incident, have it entered in the police blotter? A No, sir. Q About the pointing of the gun Policeman Gaac, did you report this to the police for the purpose of blotter? A No, sir because my opponents is a policeman(p. 26, TSN, July 7, 2005). On the other hand, accused Rassy Pagayunan also testified that, Cross Examination by Pros. Fradejas: Q Did you narrate to the police the incident or not? A No, sir. Q What you objected to the entry is only about the mere offense? A Yes, sir. Q A Q A admission of the

But not the facts that were written there, you did not object? I objected. You did not place your objection? No more (p. 39, TSN, July 8, 2005). One would tend to question why despite the fact that accused Rassy was

a police officer, who as such, is well versed with the standard operating procedures in reporting shooting incidents, both accused Harry and Rassy failed to report the alleged altercation between accused Harry and the victim, if indeed they were telling the truth, and if indeed it took place prior to the shooting of the victim, considering that this would have the greatest bearing on their defense.

27 Furthermore, the excuse advanced by accused Harry for his failure to report to the police the alleged prior altercation due to his fear of the victim who was a police officer, has no leg to stand on, since it is a fact that his own brother, accused Rassy, was himself a policeman and had as much clout and authority as the victim. f. It is also incredible that, based on accused version of events, accused Harry was unable to restrain the victim, despite accused Harrys admission that he was bigger than the victim, and the latter was allegedly walking in a zig-zag manner due to severe intoxication at the time when the victim confronted accused Harry. According to accused Harry Pagayunan: Cross-Examination by Pros. Fradejas: Q What is your height Mr. Witness? A 56. Q A How about Patrolman Gaac, can you give us an estimate? I could not.

Courts Clarificatory Question: Q Who is bigger than you? A I am taller and I am bigger (p. 22, TSN July 7, 2005). Re-Direct Examination by Atty. Mendoza: Q At that time that you were approached or confronted by SPO2 Gaac, was he drunk, Mr. Witness? A He was drunk. xxx Q Why do you say that Gaac was drunk? A He was walking in a zigzag when he approached me (pp. 27 & 28, TSN, July 7, 2005). g. Another glaring fact would be the failure of accused to present Fred Gonzales and Mila Santiago. It may be recalled that accused averred in their testimonies that before the gun-wrestling incident between accused Harry and the victim, accused Harry confiscated the balisong of Fred Gonzales, and handed the knife to Mila Santiago, which in turn irked the victim and resulted to the altercation between accused Harry and the victim. Accused Harry testified that: Direct Examination by Atty. Mendoza: Q And that time 11:00 oclock in the evening, do you know an unusual incident that happened, Mr. Witness? A I saw Fred Gonzales playing with his knife. Q And who is this Fred Gonzales? if there was

28 A Q A A resident of Calunacon, San Andres, Romblon. And do you know this Fred Gonzales prior to the shooting Yes, sir. incident?

Q And when you saw Fred Gonzales with a fan knife, what did you do, if any? Court: Q How was he playing with his knife? A While dancing he was making a motion with his right hand as if he is holding a knife (p. 7, TSN, July 7, 2005). Atty. Mendoza: Q Going back to my question, what did you do when you saw this Fred Gonzales playing with his balisong? xxx A I got the balisong and turned it over to Mila Santiago the barangay captain of that place and to be returned after the party. Q And after you gave the balisong to the barangay captain, happened next , Mr. witness? A After about an hour Amando Gaac called me. what

Q And when you were called by SPO2 Amado Gaac, what did he tell you, if any? A I was told why I am interfering in the affair when in fact I am only a visitor(p. 8, TSN, July 7, 2005). Evidently, if there was any truth to the facts as narrated by accused, there was nothing that would have hindered them from presenting the above personalities to prove the aforesaid incidents preliminary to the killing of the victim. The failure to present any evidence to corroborate accused statements not only made their testimonies purely self-serving, but more importantly, exposed the defenses theory for what it truly is, mere fabricated lies to place the blame on the true victim of aggression, Amado Gaac, Jr. h. Finally, accused attempts to mislead us into believing that before the alleged altercation between accused Harry and the victim, a trouble occurred between a certain Rene Manrique and Rudy Gabaldon which supposedly prompted accused Rassy to fire a warning shot in the air. The defense insists that this incident occurred immediately prior to the shooting of Amado Gaac, Jr. to explain the warning shot heard by witness Alma De Goma and Mariano Falla immediately before the victim Amado Gaac, Jr. was shot. Again, this theory of the defense is controverted head-on by their own

29 testimonial evidence and their own documentary exhibit (please refer to Exhibit 3). No less than accused Rassy testified that the trouble between Rene Manrique and Rudy Gabaldon transpired at 9:30 p.m. of February 10, 2003, about three (3) hours prior to the shooting of Amado Gaac, Jr. thus, Direct Examination by Atty. Mendoza: Q When you rushed to the place, what happened next? A I pacified the trouble between Rene Manrique and Rudy Q A Q A

Gabaldon.

Is the trouble pacified? The trouble was stopped because I fired a warning shot to the air. How many shot? One warning shot. accompany

Q After that, what happened next? A I advised OIC Amando Gadon and Adrian Topaz to Gabaldon in going home. Q A Q A Q A

How about you, what did you do? I accompanied Rene Manrique and his wife in going to

their house.

When you accompanied Manrique and his wife, what happened next? I advised them not to go back to the dancing hall. When you returned back to the dancing hall, what happened next? I saw my compare SPO2 Amado Gaac already drunk. the vicinity of

Q You said that there was a report that there was trouble in that area, was that trouble blottered in the police station? A I think it was placed in the police blotter. Q What is your proof that it was indeed blotter in the police A the statement of the OIC was attached that there was that place. Q A Can you show it to the court? Witness holding a certification. x x x

station? trouble

in

Atty. Mendoza: At this juncture may we request that entry No. 2055 dated February 10, 2003, 9:30 pm. be bracketed and be marked as exhibit 3 for the purpose of the petition for bail and that the entry itself be bracketed and mark as exhibit 3-A (pp. 8 to 10, TSN, July 8, 2005); Cross-Examination of Pros. Fradejas: Q To stop the trouble, you fired your gun? A I fired a warning shot. xxx Q You mentioned that you brought Manrique to his house, where is the house of Manrique? A Going to Calatrava but far from the dancing hall?

30 xxx Q A Q A xxx Q A Q A TSN,

You brought Manrique to Calatrava? No, sir. Did you not go with him to their house? No, sir. You were together with Manrique in going to his house? I did not reach anymore to his house. How far were you from the house of Manrique? One-half distance of his house and the dancing hall (pp. July 8, 2005).

24

to

26,

The foregoing contradicting evidence cannot prevail over the positive and categorical declarations of witness Alma De Goma. Direct Examination by Prosecutor Fradejas: Q During the singing and dancing competition, do you know of any unusual incident that happened? A There was an incident but it was already pacified by the barangay tanod and the police. Q A xxx Cross Examination by Atty. Victoriano: Q Miss Goma how many times you heard firing of armalite before this incident? A When Rassy Pagayunan made a warning hot. x x x Q So, the first time that you heard the firing of an armalite was the warning shot, is that correct? A Yes, sir, my first time, sir (p. 13, TSN, July 23, 2004). Redirect Examination by Prosecutor Fradejas: Q When for the first time did Rassy Pagayunan fired his firearm? A When he went out of the house and the dancing hall. Q A Q A Q A Q A You mean that the house and dancing hall has the same gate? Yes, sir. In what place did Rassy Pagayunan fired his firearm? In barangay Calunacon. Where in barangay Calunacon? Going to Odiongan. How far? Six to eight meters away. what Amado What time was that when there was a sort of commotion? About 9:00 p.m. (p. 6, TSN, June 22, 2004).

Q After Rassy Pagayunan fired his firearm, do you know Gaac, Jr. do? A He went out and inquired what is the trouble about. x x x

31

Q A Q A Q A Q A Q A Q A Q A

How far was he from Rassy Pagayunan at that time? Near. How many meters? From here which is ten to twelve meters away. And at that time that he was asking the question, do you know where was Boyet Pagayunan? He was already outside. How about Harry Pagayunan? Still inside the gate. After asking those questions, do you know what did Boyet Pagayunan do? He hocked Amado Gaac, Jr. How about Harry Pagayunan? He was approaching and twisted the hands backward. How about Rassy Pagayunan? He held the back collar of Amado Gaac, Jr.

Therefore, since accused Rassy testified that he fired a single warning shot to pacify the fight between Rene Manrique and Rudy Gabaldon, that occurred around 9:30 p.m., and immediately after pacifying the two and escorting Rene Manrique to the road to Manriques house, he returned to discover the altercation between the victim and his brother accused Harry which indisputably took place around 11:30 p.m., the question now remains as to the two (2) hour gap between the warning shot and the shot fired at the victim. This gap, which the defense miserably failed to account for strengthens the conclusion that the said incident between Manrique and Gabaldon was only used by the defense, to explain the warning shot heard by no less than two (2) witnesses who positively testified on the matter. It is also worthy to note that accused Rassys own testimony reveals that he was at the police station from 4:00 to 10:00 in the evening and he left for the fiesta upon instruction of the OIC Police only at around 10:00 in the evening. Upon arriving at the barangay hall, he drank with the victim for about an hour or until about 11:00 in the evening, before the incident between Manrique and Gabaldon took place(please refer to pp. 4 to 6 , TSN, July 8, 2005) . Again, accused Harrys testimony is incongruous to the testimonial and documentary evidence of defense indicating that the Manrique and Gabaldon took place at 9:30 in the evening.

32 20. Succinctly stated, accused-appellant's tale is too riddled with loopholes to be believed. The Supreme Court has consistently held that to be credible, testimonial evidence should not only come from the mouth of a credible witness but it should also be credible, reasonable and in accord with human experience (People vs. Maspil, Jr.,

186 SCRA 751).


21. Such loopholes seriously undermine the claim of the defense for it is obvious that there was no unlawful aggression that would have precipitated accused act of killing the victim and apparently, of the three requisites of defense of relative, unlawful aggression is the most essential and primary, for without it any defense is not possible or justified (People v. Francisco, G.R. No. 121682, April, 12, 2000).

There was no reasonable necessity for means employed to repel/prevent the alleged unlawful aggression --------------------------------

22.The accused miserably failed to prove the second element of the justifying circumstance of defense of relative. The second element of self-defense -- reasonable necessity of the means employed to prevent or repel it -- requires the following: 1) a necessity of the course of action taken by the person making the defense and 2) a necessity of the means used. Both the course of action taken and the means used must be reasonable (People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004). 23. Granting without admitting that accused Rassy felt compelled to shoot the victim in defense of his brother, his acts nonetheless failed to fulfill the requirements of the second element in so much as the means employed to prevent the alleged unlawful aggression were unreasonably disproportionate to the perceived/alleged unlawful aggression. Such failure to employ commensurate force was manifest, viz: a. Accused Rassy had an opportunity to employ a less fatal blow against the victim as he himself admitted that he was merely 5 meters away from the victim when he shot the latter. Direct Examination by Atty. Mendoza: Q At that time you fired the shot to SPO2 Amado Gaac, how you? A Five meters more or less (p. 12, TSN, July 8, 2005).

far

were

33 Cross-Examination by Pros. Fradejas: Q How did you carry your armalite rifle while you were approaching policeman Gaac? A Holding with my both hands and the right hand appears to be near in the rear. Q So, when you were approaching them, how far were you to policeman Gaac when you saw them grappling for the possession of the gun of policeman Gaac? A More or less five meters. Courts Clarificatory Question: Q When they were already grappling for the possession of far were you? A More or less five meters. xxx Continuation of Cross-Examination by Pros. Fradejas: Q When you saw Harry Pagayunan and SPO2 Amado Gaac were grappling for the possession of the gun, you ran towards their direction? A I ran. Q A xxx Q You made mention that you ran, up to what part of the or to the baluster wre you able to reach? A Far. xxx Q Since according to you, you were five meters at that time and you were running, up to what distance were you when you were near to policeman Gaac? A I answered before that I was five meters. Q You made an answer that you were five meters when you saw them struggling for the possession of the gun, since police-man Gaac taking the gun and kicked Harry Pagayunan causing to fall down in front of the baluster, how far were you now when you wre already continuously running? A It is about three meters more or less. Q A Give us an estimate how long is your armalite riffle? I think it is about 39 inches. dancing hall Did you fire a warning shot in the air upon seeing the situation? No, sir. the gun, how

Q And you were holding the firearm like this with your firearm being pointed with your right hand on the trigger part with your left hand on the handle bar of the armalite riffle as you were running going towards their direction? A I only lifted the armalite riffle to the distance of three meters when I saw my brother fell down.

34 xxx Q You were already three meters distance away more or less from police man Gaac when you saw him in front of your brother Harry Pagayunan who was already fallen down in front of the baluster? A Yes, sir. xxx Q You will agree with me that a distance of three meters, you can use the handle bar in hitting policeman Gaac instead of firing at him and you can do it if you want to? A It could not reach because it is far. Q In that distance of three meters, the muzzle of the gun which is already only around one foot away from the back of policeman Gaac, is that estimate correct or wrong? A I could not estimate. xxx Q Policeman Gaac could not see you from behind was facing at you? A Yes, sir. xxx Q Instead of firing a warning shot to stop him, you did not do it but fired at his back? A When I saw my brother Harry Pagayunan was kicked by Amado Gaac and my brother fell down, Amado Gaac was about to shot him, I was compelled to shot him, referring to Amado Gaac (p. 27-32, TSN July 8, 2005). because his back

More telling is the fact that upon medical examination of the body of the victim, it was found that his gunshot wound revealed tattooing marks indicating that he was shot at a very close range- from a distance of not more than two (2) feet or twenty four (24) inches from the body of the victim. As testified to by Dr. Gaudencio Fornadero: Direct Examination by Pros. Fradejas Q Since there is a tatooing, what can you tell the court, as to how come that there was the presence of tatooing on the wound? A Tatooing is caused by a gunshot powder when the gun is fired and tatooing is produced when the end of the barrel is not more than 24 inches distance. Q Will you tell this Court, that it is possible that this gunshot wound was incurred when the victim was fired at when the nozzle of the gun pointed to that particular location with a distance of around 24 inches? A Not more than 24 inches distance.

35 Q A It could not be less? Yes sir (pp. 11, TSN, January 9, 2004 (please refer to Exhibit ).

b. With such distance, and with accused Rassys training as a policeman, one would wonder why he decided against using the butt of the rifle to disable the victim, and why, given his proximity to the victim, he chose not to aim at a body part which would have produced a non-fatal wound. Accused Rassy himself admitted that: Re-Cross Examination by Pros. Fradejas: Q Your purpose in shooting policeman Amado Gaac was to disable him? A Yes, sir. xxx Q You fired him at the back? A I want him to be disable to save my brother. Q You will agree with me that policeman used to disable a person by shooting him on the part of the body which would not hit his vital organs but by shooting him on the legs or foot? A I did not think anymore but I am thinking is to hit him on his body to save my brother. Q A But policeman are trained to disable by shooting on the leg or foot? Yes, sir. armalite

Q You can disable a person by striking him with a bat of the riffle? A I did not think it anymore because it is so sudden. Q A You said, he was very drunk? Yes, sir (p. 43 & 44, TSN July 8, 2005).

If indeed accused Rassy was merely defending his brother and the victim was truly endeared/close to him as he claims, he (accused Rassy) could have disabled the victim by shooting the latter in such an angle as to avoid hitting the latters vital organs. A policemans training and background are factors that must be considered in analyzing the reasonableness of the means employed to prevent or repel an alleged aggression. (Please see People v.

Herrera, G.R. Nos. 140557-58, December 5, 2001).


c. If his version would be believed, accused Rassy had sufficient time to assess the situation and to analyze the least fatal manner to disable the victim, as his testimony shows that he even had opportunity to shout at the

36 victim. Accused Rassy testified that: Direct Examination by Atty. Mendoza: Q After that, what else happened? A While nearing to the place I saw SPO2 Amado Gaac and my brother scuffling for the possession of the gun, at about five meters, I said, Pare, dont, that is my brother xxx (p. 11, TSN, July 8, 2005). It is apparent therefore, that accused Rassy had reasonable time and opportunity to inflict a less harmful injury on the victim. d. The high-powered weapon used against the victim as well as the wound he sustained which was caused by the shot, strongly militate against the existence of the second element of defense of a relative. The testimonies of the PNP Ballistician Alfredo Magaro reveal that a single gunshot wound, produced by the weapon used by accused Rassy, is capable of killing a human target. Thus, accused Rassys familiarity with his own service firearm, and his training as a police officer to disable targets, would have cautioned him from shooting the victim at an angle which he would definitely have known to be fatal. Direct Examination by Pros. Fradejas: Q By the way, xxx can you tell the court the appropriate range of the bullet fired M-16 rifle, can you give us the appropriate distance from which the bullet could actually reach if it is fired from that weapon? A Its maximum range is 300 meters. Q A How do you consider that, low powered firearm or high powered firearm? It is high powered firearm.

Q What make you conclude that it is high powered gun? A Because the velocity and its kenetic energy that is being absorbed by the object. Q If that weapon is fired at the distance of one foot to a person, I am referring to the edge of the muzzle of that gun, what would be the impact on that to a person if the person is hit at the back, will it throw him away? A x x x definitely that person will absorb more than 1,200 feet energy. Q And that would cause death? A Yes, sir (pp. 9 & 10, TSN, November, 10, 2003). Dr. Gaudencio Fornadero also testified that: Direct Examination by Prosecutor Fradejas: Q xxx by the way, doctor, xxx do you recall having attended to a patient by the name of Amado D. Gaac Jr.? A Yes, sir. xxx Q xxx what if any have you discover xxx about the injury

37 sustained by the victim? Based on my record there is a single gunshot wound at the back specifically in the scapular area (pp 6 to 8, TSN, January 9, 2004).

Taking into consideration the above factors such as the distance of accused Rassy from the victim, his training and background as a policeman, his familiarity with his weapon and the nature thereof, the reasonable inference is that despite accused Rassys opportunity to employ a less fatal blow, he deliberately chose a more fatal one. It bears repeating that the nature of wounds inflicted by the accused are constantly and unremittingly considered as important indicia which disprove a plea for self-defense (or defense of a relative) because they demonstrate a determined effort to kill the victim and not just defend oneself or a relative, as in this case (People v. Magoyac, 330 SCRA

767 [2000].) Thus, granting without admitting there was unlawful aggression, the
defense of relative must still fail in light of the absence of the second element thereof. II. The physical and testimonial evidence presented, unquestionably prove the improbability of accused version of events on account of the following: a. The positions of the accused vis--vis the victim according to the defense theory, cannot be taken as true, for to do so would run counter to the very crux of defense of relative as shown hereunder: 1. Firstly, the evidence clearly reveal that when accused Rassy shot the victims back, the latter was in a stooping position and directly facing Rassys own brother, accused Harry, as admitted by no less than both accused during their direct examinations. Accused Rassy testified that: Cross-Examination by Pros. Fradejas: Q Policeman Gaac was facing your brother Harry Pagayunan when you shot him at the back? A Yes, sir. xxx Q How about Harry Pagayunan at the time of the shooting? A Harry Pagayunan was lying facing up the cemented pavement. xxx Q When you saw policeman Gaac from behind, Harry Pagayunan was still there in front of policeman Gaac? A Lying in front of policeman SPO2 Amado Gaac. Xxx Q So, he was still there lying on the ground when you fired at the back of

38 policeman Gaac? A Yes, sir. But he was in a hurry standing going outside. Court: Q Was he still there? A He was still there (pp. 32 to 34, TSN, July 8, 2005).

Accused Harry also admitted that: Cross-Examination by Pros. Fradejas: Q Before you heard the shot, Policeman Gaac was in front of you standing while you were lying on the ground? A Yes, sir (p.25, TSN, July 7, 2005). 2. Contrary to what the defense insists, the testimonies of the Dr. Gaudencio Fornadero unequivocally show that the bullet that was fired, passed through and through the body of victim Amado Gaac, Jr. and with a downward trajectory. Thus, Direct Examination by Pros. Fradejas Q Let us now proceed with your findings as indicated in the medico legal certificate, you made mention of a gunshot wound, infra-scapular area, left, thru and thru, epigastric area, tattooing in that point of entrance in this anatomical chart, will you tell us where is it? A It is here, the point of entry is at the back below the scapular area. x x x xxx Q If the injury was found on the back part of the body of the victim, what could have been the relative position of the accused to the victim when the injury was inflicted? A The accused was at the back of the victim. Q And where did this wound exited doctor? A Epigastric area. Q Where is that exit wound which you mentioned a while ago in the epigastric area? A It is in fronting the epigastric area. (This injury is indicated in the anatomical chart as Exhibit M) Q In your operative findings you declared Gunshot wound, infra-scapular area, left, penetrating the left dome of the diaphragm, shattering the left lobe of the liver, perforating the lesser curvature of the stomach, tell us doctor, in simple language, what do you mean by operative findings? A From the back the bullet passes the diaphragm and the diaphragm is the one that divides the abdominal liver shattered, I mean shattering the left lobe of the liver, perforating the lesser curvature of the stomach and the bullet exited to the epigastric area. Q What is now the trajectory of the bullet, if the entrance wound is in the scapular area and the exit wound is in the epigastric area? A The trajectory is downward.

39

Q It is also possible doctor, that at the time the injury was inflected the victim was on the stooping position when he was fired at in the back by accused causing the injury with the trajectory of the bullet going downward? A Most probably(pp. 10 to 13, TSN, January 9, 2004). Thus, if the accused version were to be believed, one would wonder why accused Rassy, with his training and familiarity with the subject firearm, persisted in shooting the victim at such range and angle when he would have placed his brother, who was purportedly lying on the ground and directly beneath Amado Gaac, Jr., in definite danger. In effect, what the defense would have us believe is that accused Rassy decided to place his brother in a more perilous situation than he already was in. This would have defeated the purpose of accused Harrys supposed defense of the latter. Clearly, accused version of the events is too incredible to be believed, for no one in his right mind, especially accused Rassy who is a police officer, trained to handle high-powered firearms such as the armalite used in the instant case, would put his own brothers life in danger by firing at the victim at such an angle. There is thus no question that accused version of events runs counter to human experience. Basic is the legal truism that evidence to be believed must not only proceed from the mouth of the credible witness but it must be credible in itself. No better test has yet been found to measure the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind (People vs. Maspil, Jr., 186 SCRA 751).

Accused actuations after the incident, put to doubt their entire defense. ----------------------------------The behavior of accused subsequent to the killing further negates their claim of defense of relative. Although accused claims to have been very close to the victim, Amado Gaac, Jr. and the latters family, not one of them called for help after accused Rassy shot the victim. More importantly, accused Harry and accused Rassy both failed to report in the police blotter the alleged altercation between accused Harry and the victim. If indeed accused Harry acted in defense of his younger brother who was then under

40 attack, he would not harbor any fear in immediately presenting himself to the proper authorities. Certainly, a righteous individual will not cower in fear and unabashedly admit the killing at the earliest possible opportunity if he were morally justified in doing so (People v. Manlulu, 231 SCRA 701, 709 [1994]). Persons who act in legitimate defense of their persons or rights invariably surrender themselves to the authorities and describe fully and in all candor all that has happened with a view to justify their acts. They lose no time in going to the punong barangay, the municipal mayor or the police and lay before them all the facts (People v. Manes , et al. G.R. No. 122737, February 17, 1999, quoting People vs. Espidol, CA

40 O.G. 3690; People vs. Alfredo Lacson, 83 Phil. 574; People vs. Pulido, 85 Phil. 695; People vs. Pelago, 24 SCRA 1027).

III ACCUSED BOYETH PAGAYUNAN IS GUILTY OF MURDER IN CONSPIRACY WITH ACCUSED RASSY PAGAYUNAN AND HARRY PAGAYUNAN

The Positive Identification of accused Boyeth by credible, impartial and competent testimonies of witnesses cannot prevail over the self-serving alibi. -------------------------------The testimonies of prosecution witnesses Alma De Goma and Mariano Falla positively and categorically identify the accused Boyeth and detail his presence and participation in the killing of Amado Gaac, Jr. Such positive identification by such disinterested witnesses unequivocally prevail over the flimsy denial by the defense.

The Supreme Court, in its recent decision entitled, People of the Philippines v. Mitsuel L. Elarcosa, et al., has repeated the settled rule that alibi, as a defense, is inherently weak and crumbles in the light of positive identification by truthful witnesses. It is evidence negative in nature and self-serving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence

(People v. Elarcosa, et al., G.R. No. 186539 June 29, 2010).


Significantly, a meticulous review of the records would reveal that accused

41 Boyeth failed to present convincing evidence that he did not leave the dance hall in Barangay Calonocan, Odiongan, Romblon, which incidentally is the same barangay where the crime was committed, on the evening of February 10, 2003. Also, considering that the dance hall is in the same barangay where the crime was committed, it was not physically impossible for accused Boyeth to be present at the

locus criminis at the time the same was committed. Concerning this, it bears stressing
that for alibi to prosper, it is not enough for the accused to prove that he was in another place 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 (People v. Guerrero, G.R. No. 170360, March 12, 2009,

580 SCRA 666, 683; People v. Garte, G.R. No. 176152, November 25, 2008, 571 SCRA 570, 583).
The alibi of accused Boyeth is corroborated only by the testimonies of his own brother and witnesses for the defense. However said defense is inherently weak and thus unworthy of belief considering the positive identification of accused Boyeth by witnesses Alma De Goma and Mariano Falla. Alibi becomes more unworthy of merit where it is established mainly by the accused himself, his relatives, friends, and comrades-in-arms, and not by credible persons (People v. Manzano, G.R. No. 108293,

September 15, 1995, 248 SCRA 239, 248; and People v. Panganiban, G.R. No. 97969, February 6, 1995, 241 SCRA 91, 100-101).
Thus, there being no strong and credible evidence adduced to overcome the testimony of prosecution witnesses pointing to him as one of the culprits, no weight can be given to accused Boyeths alibi.

CONCLUSION All the accused failed to discharge the burden of proof incumbent upon them. Accused who raise the justifying circumstance of defense of relative, have the burden to prove the existence of all the elements thereof. However, accused miserably failed to establish, with clear and convincing evidence, the existence of the first and second requisites of the justifying circumstances they raised- unlawful aggression and reasonable necessity of the means employed to prevent or repel it. It is axiomatic that where an accused pleads defense of relative, he

42

thereby admits authorship of the crime. Accordingly, the burden of evidence is shifted to the accused who must then prove with clear and convincing proof of the elements of said defense. ( Mahawan v. People,

G.R. No. 176609, December 18, 2008). The defense of relative, like the
alibi of accused Boyeth Pagayunan, is inherently a weak defense, which can easily be concocted (People v. Galvez, et al. G.R. No. 130397, January

17, 2002).
Juxtaposing the foregoing evidences to the aforestated case law, it is clear that the defenses theory must fail for being nothing but mere fabrications to evade the hands of justice. Furthermore, the evidence of the defense, inconsistent with each other, put to naught the entire account of the accused and do not inspire belief. The plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but also extremely doubtful in itself. Accused- having failed to discharge the burden proving their defense, their conviction shall of necessity follow, on the basis of their admission to the killing. Thus, based on the overwhelming evidences against the theory advanced by the defense, there can be no other conclusion other than that accused Rassy Pagayunan, Harry Pagayunan, and Boyeth Pagayunan are guilty beyond reasonable doubt for the murder of Amado Gaac, Jr.