G.R. No.
201565 October 13, 2014 being the District Supervisor of public schools, hitting the latter on the
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
EX-MAYOR CARLOS ESTONILO, SR., MAYOR REINARIO "REY" ESTONILO,
EDELBRANDO ESTONILO a.k.a. "EDEL EUTIQUIANO a.k.a. ESTONILO,"
ITCOBANES "NONONG NONOY ITCOBANES," ESTONILO-at large, TITING
GALI BOOC-at large, ITCOBANES-at ORLANDO large, TAGALOG MATERDAM
a.k.a. "NEGRO MATERDAM," and CALVIN DELA CRUZ a.k.a. "BULLDOG DELA
CRUZ," Accused,
vs.
EX-MAYOR CARLOS ESTONILO, SR., MAYOR REINARIO "REY" ESTONILO, EDE
LB RANDO ESTONILO a.k.a. "EDEL ESTONILO," EUTIQUIANO ITCOBANES
a.k.a. "NONONG ITCOBANES," and CALVIN DELA CRUZ a.k.a. "BULLDOG
DELA CRUZ," Accused-Appellants.
DECISION
LEONARDO-DE CASTRO, J.:
In this appeal, accused-appellants Ex-Mayor Carlos Estonilo, Sr. (Carlos, Sr.),
Mayor Reinario Estonilo (Rey), Edelbrando Estonilo (Edel), Eutiquiano
Itcobanes (Nonong), and Calvin Dela Cruz (Bulldog) seek liberty from the
judgment1 of conviction rendered by the Regional Trial Court (RTC), Branch
45, Manila, which found them guilty beyond reasonable doubt of the complex
crime ofMurder with Direct Assault in Criminal Case No. 05-238607.
The above-named accused-appellants, along with four others, namely: Nonoy
Estonilo (Nonoy),2 Titing Booc (Titing),3 and Gali Itcobanes (Gali),4 and
Orlando Tagalog Materdam (Negro)5 were all charged in an Information
dated July 30, 2004 that reads:
That on or about April 5, 2004 at 8:00 o’clock in the evening thereof, at Celera
Elementary School,6 Brgy. Villa Inocencio, Municipality of Placer, Province of
Masbate, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, armed with firearms, conspiring,
confederating and mutually helping one another, with evident premeditation
and treachery, did then and there willfully, unlawfully and feloniously attack,
assault and shoot one FLORO A. CASAS, while in the performance of his duty
different parts of his body which caused his instantaneous death.7
On November 8, 2005, the prosecutor filed an Amended Information,8 which
provides:
That on or about April 5, 2004, at Celera Elementary School, Brgy. Villa
Inocencio, Municipality of Placer, Province of Masbate, Philippines, and
within the jurisdiction of the Honorable Court of Masbate, the above-named
accused EX-MAYOR CARLOS ESTONILO, SR. and MAYOR REINARIO "REY"
ESTONILO, conspiring and confederating together and helping one another,
with intent to kill, and with evident premeditation and treachery, did then
and there willfully, unlawfully and feloniously induce their co-accused,
EDELBRANDO ESTONILO AL[I]AS "EDEL ESTONILO[,] " EUTIQUIANO
ITCOBANES AL[I]AS "NONONG ITCOBANES[,] " NONOY ESTONILO, TITING
BOOC, GALI ITCOBANES, ORLANDO MATERDAM Y TAGALOG ALIAS "NEGRO
MATERDAM[,]" [and] CALVIN DELA CRUZ AL[I]AS "BULLDOG DELA CRUZ[,]"
who wereall armed with firearms, to attack, assault and use personal violence
upon the person of one FLORO A. CASAS, while in the performance of his duty
being a District Supervisor of public schools, by then and there shooting the
latter, hitting said FLORO A. CASAS on the differentparts of his body which
were the direct and immediate cause of his death thereafter.9 When they
were arraigned on November 9, 2005, the accused-appellants pleaded not
guilty to the crime charged. On the same date, the RTC issued a pre-trial order
which stated, among others:
a) Upon request by the prosecution, the defense admitted the following:
1. The identities of the five (5) accused present;
2. As to the jurisdiction of this Court, there was an Order from the Honorable
Supreme Court asto the transfer of venue;
3. The fact of death of Floro A. Casas;
4. That the victim Floro A. Casas at the time of his death was a District
Supervisor of the Department of Education.
b) However, upon request by the defense, the prosecution did not admit that
Ex-Mayor Carlos Estonilo, Sr. and Mayor Reinario Estonilo were not at the
scene ofthe incident during the incident.10
The prosecution presented nine witnesses, namely: Elsa Q. Casas (Elsa), the
victim’s wife; Felix Q. Casas (Felix), the victim’s son; Dr. Ulysses P. Francisco
(Dr. Francisco), the Municipal Health Officer, Placer, Masbate; Senior Police
Officer 4 Restituto L. Lepatan, Sr. (SPO4 Lepatan), Placer Police Station;
Serapion M. Bedrijo (Serapion), employee of Municipal Councilor candidate
Boy dela Pisa; Carlo S. Antipolo (Antipolo), a resident of Placer, Masbate;
Diego L.Casas (Diego), cousin of the victim; Rosalinda V. Dahonan (Rosalinda),
a resident of Placer, Masbate; and Servando P. Rosales (Servando), former
employee of Ex-Mayor Carlos, Sr.11 The testimonies of the foregoing
witnesses consisted of the following:
Felix narrated that on April 4, 2005,the day before his father, Floro Casas
(Floro), was gunned down, he was with the latter and some teachers at the
Celera Inocencio Elementary School, Placer, Masbate; that they were working
on the closing ceremonies to be held the following day; that one Ranio
Morales called on Floro and told him that Mayor Carlos, Sr. wanted to see
him at his (Ranio) house; that Floro and Felix went to see Mayor Carlos, Sr.;
that when they saw Mayor Carlos, Sr., he showed them (Floro and Felix) a
program of a celebration of the Federation of 7th Day Adventist that
contained the names of the governor, the congressman, and Placer mayoralty
candidate Vicente Cotero (Cotero), as guests of the said activity; that Felix
asked his father why Cotero’s picture was so big while Mayor Carlos, Sr.’s
name was not mentioned in the program; that Floro replied that he cannot
help it because Cotero paid for the program; that the answer angered Mayor
Carlos, Sr. and he scolded Floro; that Mayor Carlos, Sr. said "you are now for
Cotero but you’re only Estonilo when you ask for my signature to sign the
voucher. This is up to now thatyou will be the supervisor of Celera"; that Floro
responded "when are you a superintendent when you don’t have any
scholastic standing. Just look if I will still vote for your son"; that Mayor Carlos,
Sr. replied "let’s see if you can still vote"; and that the following day, Floro
was shot to death.12
But prior to the April 4, 2005 incident, Felix recounted that on December 10,
2003, upon invitation of Nonoy, he joined the latter’s group for a drinking
spree at a videoke bar; that they talked about the death of one Titing Villester;
that Nonoy told Felix that "brod, do not be afraid, because others are
supposed to be afraid [of] us because they believe that we were the ones who
killed Titing Villester" that afterwards Felix and the group were fetched at the
videoke bar by Edel, a messenger of Mayor Carlos, Sr.; that they were brought
to the house of one Bobong Baldecir (a nephew of Mayor Carlos, Sr.) in
Daraga; that uponarriving thereat, Rey uttered "it’s good that Dodong (Felix’s
nickname) is with you; that Nonoy then said "who would not [be] otherwise,
his father would be the next victim after Titing Villester";13 that Rey then
turned to Felix and said, "it’s very important that your father is with us
because a District Supervisor has a big [role] in the Comelec’s choice for those
teachers who would become members of the Board of Election Inspectors";
that Felix clarified that Rey was then the 2004 mayoralty candidate for Placer,
Masbate; and that Felix went along with him since he was in Daraga, the
bailiwick of the Estonilos.14
On cross examination, the counsel for the accused tried to discredit Felix by
questioning him on why it took him a long time to execute an affidavit relative
to his father’s killing. Felix explained that he went to Cebu to stay away from
Placer, which isunder the Estonilo’s jurisdiction.15 The defense confronted
Felix of a criminal case against him for illegal use of prohibited drugs, for
which he was out on bail.16
On March 28, 2006, the prosecution presented two witnesses, Dr. Ulysses
Francisco yPedrano and SPO4 Restituto Lepatan, Sr. The prosecution and the
defense entered into stipulation offacts relative to their testimonies.
[Stipulation of Facts on Dr. Ulysses P. Francisco’s testimony:]
1. That Dr. Ulysses P. Francisco, a Municipal Health Officer of Placer, Masbate,
is expert in medicine;
2. That he was the one who conducted the Post-Mortem Examination on the
dead body of Floro Casas yBaronda on April 6, 2004 at Katipunan, Placer,
Masbate;
3. That in connection with his examination, he prepared the Post Mortem
Examination Report, marked as Exhibit "F," the printed name and signature
of Dr. Ulysses P. Francisco, marked as Exhibit "F-1";
4. That he also prepared the Certificate of Death, marked as Exhibit "G" and
the Sketch of a Human Body, marked as Exhibit "H";
5. The veracity and truthfulness of the Post-Mortem Findings indicated in the
Post-Mortem Examination Report; and
6. In the course of the examination of the victim, the said witness recovered
three slugs: the 1 st slug was marked as Exhibit "I," the fragmented slug as
Exhibit "I-1," and the metallic object consisting of two pieces of Exhibit "I-2."
[Stipulation of Facts on SPO4 Restituto L. Lepatan, Sr.’s testimony:]
1. That there exists a Police Blotter in the Record/Blotter Book of the Placer,
Masbate Police Station relativeto the shooting incident that occurred on April
5, 2004 at Celera Elementary School. Said Police Blotter was requested to be
marked by the prosecution as Exhibit "J";
2. That said witness prepared the Police Report dated April 17, 2004 relative
to the blotter written on the Blotter Book. Said Police Report was requested
to be marked as Exhibit "J-1" and the signature of Sr. Police Officer IV
Restituto L. Lepatan, Sr. as Exhibit "J-1-a";
3. The existence of the Police Blotter as appearing in the Blotter Book page
number 325. Said Police Blotter book page 325 was requested to be marked
as Exh. "K" and the bracketed portion thereof as Exh. "K-1."17
According to Dr. Francisco, Floro sustained gunshot wounds caused by more
than one firearm based on the sizes of the slugs recovered and that some of
them were fired at close range. The counsel for the accused waived his cross
examination.18
Prosecution witness Serapion testified that while he was printing the name
of Municipal Councilor candidate Boy dela Pisa on the street facing the Celera
Elementary School on the night of April 5, 2004, he heard gunshots coming
from inside the compound of the school; that after two or three minutes, he
saw more or less six persons coming out of the school; that he was able to
identify three of themas present in the courtroom: Edel, Nonoy, and Nonong;
that he saw the six men approach Mayor Carlos, Sr.’s vehicle, which was
parked near the school; that Mayor Carlos, Sr. and Rey came out of a house
nearby; that upon reaching the vehicle, Serapion heard Nonoy say to Mayor
Carlos, Sr. "mission accomplished, sir"; that Mayor Carlos, Sr. ordered Nonoy
and his group to escape, which they did using two motorbikes towards the
direction of Cataingan; and thereafter, that Mayor Carlos, Sr. and Rey drove
towards the direction of Daraga.19
During his cross examination, the defense tried to discredit Serapion by
confronting him with the fact thathe has a pending criminal case for
frustrated murder and that he was out on bail.20 Antipolo testified that on
April 5, 2004, he was riding his motorcycle and passing by the gate of the
Celera Elementary School when he heard gunshots and someone shouted
that Floro was shot; that he stopped, alighted from his motorcycle, went to
the gate, and saw four persons holding short firearms; that he identified
Nonoy and Negro as the two who fired at Floro about seven times; that he
identifiedEdel and Nonong as the two other gun holders; that at that
moment, Gali shouted "sir, that’s enough, escape!"; that Gali was
accompanied by someone named Ace, Titing and Bulldog; that right after Gali
shouted for them to escape, all of them hurriedly left the school compound;
that he saw Mayor Carlos, Sr.’s pick-up vehicle arrive soon thereafter; that
Mayor Carlos, Sr., Rey and Negro alighted from the vehicle and watched the
proceedings; that he heard Mayor Carlos, Sr. say "leave it because it’s already
dead"; and that afterwards, the police officers arrived.21
In an attempt to discredit Antipolo, the defense counsel confronted him with
a criminal case against him for homicide of one Edgardo Estonilo (brother of
accused-appellant Edel) that happened on October 30, 2005.22
Elsa was presented to testify on the probable motive for the killing of Floro,
the circumstances surrounding the killing and its discovery, their family
background, her husband’s line of work, how she felt on their loss, and the
expenses relative to his killing. She testified that she heard there were people
who were jealous of Floro’s position because he could bring voters to his side
during election time;that Placer mayoralty candidate Cotero donated medals
for the 2003-2004 closing ceremony of the entire district of public schools;
that during the closing ceremony, the donor’s name was announced, which
angered then Mayor Carlos, Sr.;23 that when Floro was processing a voucher
worth ₱70,000.00, Mayor Carlos, Sr. refused to sign the same and even threw
the voucher on the floor saying "let this be signed by Vicente Cotero"; and
that Floro’s cousin, Diego Casas, helped Floro secure the Mayor’s signature
by ensuring Mayor Carlos, Sr. that Floro was for him, and only then did Mayor
Carlos, Sr. agree to sign the voucher.24
Diego L. Casas corroborated Elsa’s testimony relative to the fact that he
helped Floro secure Mayor Carlos, Sr.’s signature on the voucher.25
Rosalinda testified that at 7:00 a.m. on April 10, 2004, Mayor Carlos, Sr. went
to her house and told her thathe would kill her husband following Floro; that
she was shocked and scared, thus, she went to the Placer Police Station and
reported the incident; that she went to see her husband, who was then
campaigning for mayoralty candidateCotero, and informed him of what
happened; and that she went to Elsa’shouse and informed the latter of the
threat.26
Servando attested that at about 7:00 a.m. on April 1, 2004, he was in the
house of Mayor Carlos,Sr. together with said Mayor, Nonong, Edgar Estonilo,
the group of Bulldog, Negro, Alias "S" [Ace], Rollie, Nonong, Edel, and Gali;
that he witnessed Mayor Carlos, Sr. say "ipatumba si Floro Casas"; that
Servando later learned thatthe mayor’s men were unsuccessful in their goal
because Floro was no longer in Barangay Taberna, where they intended to
execute the mayor’s order;and that Mayor Carlos, Sr. and his men again
planned to kill Floro at Celera Elementary School on April 4, 2004.27
During cross examination, the defense confronted Servando with the latter’s
Affidavit of Retraction, which he executed on June 14, 2004. The affidavit
contained a withdrawal of his Sinumpaang Salaysaytaken on May 30, 2004 at
the Philippine National Police-Criminal Investigation and Detection Group
(PNP-CIDG) Camp Bonny Serrano, Masbate City relative to the criminal
complaint for direct assault with murder filed against Mayor Carlos, Sr. and
his company. He was also asked about two criminal charges filed against him
in Cebu relative toviolation of Republic Act No. 9165, illegal sale and illegal
possession of dangerous drugs.28 On re-direct examination, Servando
narrated that Mayor Carlos, Sr.’s nephew, Bobong Baldecir, fetched him from
his house and he was brought to the house of Mayor Carlos, Sr. in Daraga;
that from there, he was brought to Atty. Besario in Cebu; that Atty. Besario
informed him about the Affidavit of Retraction that he was supposed to sign,
which he did not understand as it was written in English; and that he clarified
that the contents of the affidavit was not his but those of Bobong.29
The defense on its part called to the witness stand Jesus Baldecir, Jr.
(Jesus/Bobong), Quirino D. Calipay (Quirino), and the five accused-appellants.
Jesus denied Servando’s allegation that he (Jesus) forced him to sign the
Affidavit of Retraction. Jesus narrated that Servando gave word that he
(Servando) wanted to meet him (Jesus); that upon their meeting, Servando
told him that he wanted to retract his sworn statement because Mayor
Carlos, Sr. and his company did nothing wrong; that Jesus, Servando and
Servando’s wife went to Cebu to meet Atty. Besario; that while traveling,
Servando told him that was evading the men of Governor Go, Vicente Cotero
and Casas because he feared for his life; that during the meeting Atty. Besario
prepared the affidavit and translated it to Cebuano dialect; that afterwards,
Jesus, Servando and Servando’s wife went to the Capitol so that Servando
could sign it before the prosecutor; that Jesus, Atty. Besario, Servado and his
wife, and Dante Estonilo (another nephew of Mayor Carlos) went to Manila
to meet with the media; that the media asked Servando whether he was
forced to sign, or was given money or reward to sign the affidavit of
retraction, Servando replied in the negative; and that the purpose of the press
meeting was to present Servando and show that he was not kidnapped.30
But during his cross examination, Jesus admitted that his nickname was
Bobong, and that Mayor Carlos, Sr. ishis uncle; that he is one of the accused
in the criminal case for the kidnapping of Servando; and that it was Dante
(Dante) Estonilo who arranged for the meeting with the media, and who
served as Servando’s and his wife’s companion, while he was with Atty.
Besario.31 During his turn, accused-appellant Mayor Carlos, Sr. testified that
in the early evening of April 5, 2004 hewas in a house near the Celera
Elementary School attending a birthday party; that while thereat, he heard
successive gunshots and went out to ridehis vehicle so he could check the
source of the gunshots; that when he reached the school gate someone
informed him that Floro was gunned down; that he did not see the victim
because according to the people it was boarded in a jeep and brought to the
hospital; and that he and his son, Rey, confirmed that they were at the school
minutes after the incident.32
During cross examination, Mayor Carlos said that he and Floro were close
friends; that he learned that he and his son were suspects in Floro’s killing
five months after the incident; that he confirmed that Rey and Calvin dela
Cruz were with him while inquiring about the shooting at the school; and that
he denied having met Felix on April 4, 2004, seeing Rosalinda after April 5,
2004, or that Servando was his bodyguard.33
Accused-appellant Rey testified that in the early evening of April 5, 2004 he
was in his house and was planning tocampaign at Barangay Matagantang,
Placer, Masbate; that on his way to said barangay, he passed by Celera
Elementary School and noticed his father’s vehicle, and that there were
several people thereat; that he stopped and stayed in the school for a few
minutes, and then proceeded to meet his candidates for counselors at Ranio’s
house; and that afterwards, they all went to Barangay Matagantang.34
On cross examination, Rey expressed that this criminal case may be politically
motivated because his opponents could not attribute anything to him since
he won as mayor.35
Quirino narrated that in the evening of April 5, 2004, he and his family were
having supper at their house located in front of Celera Elementary School’s
guardhouse, when they heard gunshots; that they immediately laid down,
while Quirino ran across the road and took cover at the school fence; that he
peeped through the fence and saw three persons firing a gun; that he could
not identify them or their victim because it was a bit dark; that after 10 to 20
seconds, hewent back home; that a certain Joel Alcantara and his companions
went to him asking him to go with them inside the school, once inside the
school, they saw Floro lying face down; that he took the liberty to go to the
police headquarters located five minutes away; and that when he and the
Placer Chief of Police arrived at the school, he noticed Mayor Carlos, Sr.
standing near the gate.36
For his part, accused-appellant Nonong testified that in the evening of April
5, 2004 he was engaged in a drinking spree in Nining Berdida’s house at
Barangay Pili, Placer, Masbate; and that he stayed in her place until 11:00
p.m.37
During his cross examination, accused-appellant Nonong acknowledged that
Mayor Carlos, Sr. is his uncle and Rey is his second cousin; that he was not
Mayor Carlos, Sr.’s bodyguard, but admitted that he handled the latter’s
fighting cocks; and admitted that Barangay Pili is 40 to 45 minutes away from
the poblacionof Placer.38
Edel related that in the evening of April 5, 2004, he was sleeping in his house
when Rey called him to go to Ranio’s house in Placer, Masbate for a meeting;
that their group passed by Celera Elementary School and saw that there were
plenty of people, one of whom was Mayor Carlos, Sr.; that their group
stopped to inquire about what happened, and learned that Floro was gunned
down; and that he and his group stayed for about five minutes and left.39
Accused-appellant Bulldog was also presented in court and confirmed that he
was with Mayor Carlos, Sr. and his wife attending a birthday party near the
Celera Elementary School; that they went to the school to check on what
happened and learned that Floro was shot; and that they did not stay long
and went home to Daraga.40
During cross examination, he deniedthat he was the bodyguard of Mayor
Carlos, Sr.; and that he was merely accompanying the latter to help in pushing
his vehicle in case the starter failed to work.41
After trial, the RTC found the accused-appellants guilty beyond reasonable
doubt of the crime charged. The fallo of its March 30, 2009 Decision provides:
WHEREFORE, premises considered, this Court finds the accused EX-MAYOR
CARLOS ESTONILO, SR., MAYOR REINARIO "REY" ESTONILO, EDELBRANDO
ESTONILO alias "EDEL ESTONILO," EUTIQUIANO ITCOBANES alias "NONONG
ITCOBANES," and CALVIN DELA CRUZ alias BULLDOG DELA CRUZ" GUILTY
BEYOND REASONABLE DOUBT of the crime of Murder with Direct Assault
under Article 248 and Article 148 in relation to Article 48 all of the Revised
Penal Code and each of said accused are hereby sentenced to suffer the
penalty of imprisonment of twenty (20) years and one (1) day to forty (40)
years of reclusion perpetua.
As civil liability pursuant to Article 100 of the Revised Penal Code, the
aforesaid sentenced the accused are all hereby ordered to solidarily
indemnify the family of the victim Floro Casas in the amount of Fifty Thousand
Pesos (₱50,000.00). Likewise, by way of moral damages, the said accused are
furthermore ordered to solidarily pay the said family the amount of One
Hundred Thousand Pesos (₱100,000.00).
The accused are, however, credited in the service of their sentence the full
time during which they have been denied.
Let this case be archivedas against the accused NONOY ESTONILO, TITING
BOOC, and GALIITCOBANES who have warrants of arrest issued against them
but still remain at large, pending their arrest/s.
As to the accused ORLANDO TAGALOG MATERDAM ALIAS "NEGRO
MATERDAM," separate trial isnecessary considering that he was only recently
arrested when the trial of this case as to the other accused was already about
to end.42
The RTC gave credence to the eyewitness account of Antipolo and the
corroborating testimony of Serapion, who were both present at the school
grounds during the shooting incident. The RTC pronounced that the evidence
on record showed unity of purpose in the furtherance of a common criminal
design, that was the killing of Floro. Accused-appellants Nonoy and Negro
were the gunmen, while accused-appellants Edel and Nonong served as
backup gunmen. Accused-appellant Bulldog, and accused Gali, Titing and one
alias Ace served as lookouts.43
The RTC found accused-appellants Mayor Carlos, Sr. and Rey to have ordered
their co-accused to kill Floro based on the testimony of Servando, who was
present when the group planned to kill Floro. Thus, the RTC concluded that
Ex-Mayor Carlos, Sr. is a principal by inducement. And accused-appellant Rey
conspired with his father. In sum, the prosecution was able to establish
conspiracy and evident premeditation among all the accused-appellants.44
The accused-appellants’ defense of alibi and denial did not withstand the
positive identification of the prosecution witnesses. The accused appellants
claimed that they were somewhere else in Placer, Masbate when the
shooting took place. However, they were not able to establish the physical
improbability of their being in the crime scene at the time of the shooting.
The RTC was convinced thatthe motive for the murder was due to Floro’s
support for mayoral candidate Vicente Cotero. Since the victim was a district
supervisor of public schools, the RTC convicted the accused appellants of the
complex crime of murder with direct assault.45
All five accused-appellants appealed the foregoing RTC decision to the Court
of Appeals alleging that the RTC erred in concluding that motive was duly
established, in appreciating the prosecution evidence and disregarding the
salient points of the defense evidence, and in convicting the accused.46
In its May 12, 2011 Decision, the Court of Appeals affirmed with modification
the RTC decision.47 The dispositive part thereof reads:
WHEREFORE, in light of the foregoing, the instant appealed is denied. The
Decision dated 30 March 2009 of the Regional Trial Court of Manila, Branch
45 is hereby AFFIRMED with modificationin that the penalty imposed upon
accused-appellants shall simply be reclusion perpetua with its accessory
penalties and that the award of civil indemnity is increased to Seventy[-]Five
Thousand Pesos (₱75,000.00).48
The Court of Appeals sustained the findings of fact and conclusions of law of
the RTC considering that the RTC had observed and monitored at close range
the conduct, behavior and deportment of the witnesses as they testified. The
Court of Appeals corrected the penalty imposed, and explained that reclusion
perpetuais an indivisible penalty which should be imposed without specifying
the duration.
On June 29, 2011, the accused-appellants moved for reconsideration,49 which
the Court of Appeals denied in its November 8, 2011
Resolution.50 Unsatisfied, the accused-appellants appealed their case before
this Court.51
This Court’s Ruling
The accused-appellants pray for the reversal of the judgment of conviction in
the criminal case on the following assignment of errors: the RTC and the Court
of Appeals erred in (1) giving credence and weight to the prosecution
evidence, (2) finding that there was conspiracy among the accused-
appellants, and (3) finding the accused-appellants guilty beyond reasonable
doubt based on the prosecution evidence.
In essence, the defense disagrees with the disposition of the Court of Appeals
affirming their conviction for murder with direct assault on the ground that
some of the testimonies of the prosecution witnesses constitute
circumstantial evidence, and that the prosecution was not able to prove their
guilt beyond reasonable doubt.
The appeal fails.
After a review of the record of the case, this Court sustains the conviction of
the accused-appellants for murder with direct assault.
The age-old rule is that the task ofassigning values to the testimonies of
witnesses on the witness stand and weighing their credibility is best left to
the trial court which forms its first-hand impressions as a witness testifies
before it. It is, thus, no surprise that findings and conclusions of trial courts
on the credibility of witnesses enjoy, asa rule, a badge of respect, for trial
courts have the advantage of observing the demeanor of witnesses as they
testify.52
This Court had nevertheless carefully scrutinized the records but found no
indication that the trial and the appellate courts overlooked or failed to
appreciate facts that, if considered, would change the outcome of this case.
The trial court and the appellate court did not err in giving credence to the
testimonies of the prosecution witnesses, particularly of Antipolo who was
an eyewitness to the crime.
Antipolo’s testimony did not suffer from any serious and material
inconsistency that could possibly detract from his credibility. He identified the
accused-appellant Nonoy and accused Negro as those who fired at Floro
about seven times, while accused-appellants Edel and Nonong were on
standby also holding their firearms. He also witnessed accused Gali shouting
to the gunmen to stop and escape. He narrated that after all the accused left,
Mayor Carlos, Sr., Rey and Materdam arrived aboard the mayor’s vehicle. He
also heard Mayor Carlos said "leave it because it’s already dead." From his
direct and straightforward testimony, there is no doubt as to the identity of
the culprits.
To successfully prosecute the crime of murder, the following elements must
be established:53 (1) that a person was killed; (2) that the accused killed him
or her; (3) that the killing was attended by any of the qualifying circumstances
mentioned in Article 248of the Revised Penal Code; and (4) that the killing is
not parricide or infanticide.54
In this case, the prosecution was able to clearly establish that (1) Floro was
killed; (2) Ex-Mayor Carlos, Sr., Rey, Edel, Nonong, and Calvin were five of the
nine perpetrators who killed him; (3) the killing was attended by the
qualifying circumstance of evident premeditation as testified to by
prosecution eyewitnesses, Servando and Antipolo, as well as treachery as
below discussed; and (4) the killing of Floro was neither parricide nor
infanticide.
Of the four elements, the second and third elements are essentially contested
by the defense. The Court finds that the prosecution unquestionably
established these two elements.
For the second element, the prosecution presented pieces of evidence which
when joined together point to the accused-appellants as the offenders.
Foremost, there is motive to kill Floro. It was Floro’s support for Vicente
Cotero, who was Rey’s opponent for the position of mayor in Placer, Masbate.
Second, the prosecution was able to establish that the accused appellants
planned to kill Floro on two separate occasions. The prosecution witness,
Servando, was present in Mayor Carlos, Sr.’shouse when they were plotting
to kill Floro. He also heard Mayor Carlos, Sr. say "ipatumba si Floro Casas."
Third, Antipolo was an eye witness to the killing. His testimony was
corroborated by another witness, Serapion, who testified having seen the
accused-appellants leaving the school a few minutes after he heard the
gunshots. Serapion also recounted having heard one of them said "mission
accomplished sir," after which, Mayor Carlos, Sr. ordered them to leave.
Essentially, the prosecution evidence consists of both direct evidence and
circumstantial evidence. The testimony of the eyewitness Antipolo is direct
evidence of the commission of the crime.
Circumstantial evidence is that evidence which proves a fact or series of facts
from which the facts in issue may be established by inference.55 It consists of
proof of collateral facts and circumstances from which the existence of the
main fact may be inferred according to reason and common
experience.56 Here, the circumstantial evidence consists of the testimonies of
Servando and Serapion. Servando was present when Mayor Carlos, Sr.
ordered his men to kill Floro. Whether this order was executed can be
answered by relating it to Antipolo’s eyewitness account as well as Serapion’s
testimony.
As for the third element of qualifying circumstance, the prosecution witness,
Servando, testified that he was present on the two occasions when the
accused-appellants were planning tokill Floro. His categorical and straight
forward narration proves the existence of evident premeditation.
Treachery also attended the killing of Floro. For treachery to be present, two
elements must concur: (1) at the time of the attack, the victim was not in a
position to defend himself; and (2) the accused consciously and deliberately
adopted the particular means, methods, or forms of attack employed by him.
The essence of treachery is that the attack is deliberate and without warning,
done in a swift and unexpected way, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape. In this case, accused-
appellant Nonoy and accused Negro successively fired at Floro about seven
times – and the victim sustained 13 gunshot wounds all found to have been
inflicted at close range giving the latter no chance at all to evade the attack
and defend himself from the unexpected onslaught. Accused-appellants Edel
and Nonong were on standby also holding their firearms to insure the success
of their "mission" without risk to themselves; and three others served as
lookouts. Hence, there is no denying that their collective acts point to a clear
case of treachery.
Defense of denial and alibi
The twin defenses of denial and alibi raised by the accused-appellants must
fail in light of the positive identification made by Antipolo and Serapion. Alibi
and denial are inherently weak defenses and must be brushed aside when
the prosecution has sufficiently and positively ascertained the identity of the
accused as in this case. It is also axiomatic that positive testimony prevails
over negative testimony.57 The accused-appellants’ alibis that they were at
different places at the time of the shooting are negative and self-serving and
cannot be given more evidentiary value vis-à-vis the affirmative testimony of
credible witnesses. The accused-appellants, the victim, and the prosecution
witnesses reside in the same municipality and are, therefore, familiar with
one another. More so, that the two principal accused in this case are
prominent political figures. Therefore, the prosecution witnesses could not
havebeen mistaken on the accused appellants’ identity including those who
remained at large.
Further, it has been held that for the defense of alibi to prosper, the accused
must prove the following: (i) that he was present at another place at the time
of the perpetration of the crime; and (ii) that it was physically impossible for
him to be at the scene of the crime during its commission. Physical
impossibility involves the distance and the facility of access between the
crime scene and the location of the accused when the crime was committed;
the accused must demonstrate that he was so far away and could not have
been physically present atthe crime scene and its immediate vicinity when
the crime was committed.58 Here, the accused-appellants utterly failed to
satisfy the above-quoted requirements. In fact, Mayor Carlos, Sr. and his
other co-accused, except for Nonong, admitted that they were near the
school before the incident and at the school minutes after the killing took
place. Certainly, the distance was not too far as to preclude the presence of
accused-appellants at the school, and/or for them to slip away from where
they were supposed to be, unnoticed.
Penalties
On the offense committed by accused-appellants, the RTC correctly
concluded that they should be held accountable for the complex crime of
direct assault with murder. There are two modes of committing atentados
contra la autoridad o sus agentesunder Article 148 of the Revised Penal Code.
Accused-appellants committed the second form of assault, the elements of
which are that there must be an attack, use of force, or serious intimidation
or resistance upon a person in authority or his agent; the assault was made
when the said person was performing his duties or on the occasion of such
performance; and the accused knew that the victim is a person in authority
or his agent, that is, that the accused must have the intention to offend, injure
or assault the offended party as a person in authority or an agent of a person
in authority.
In this case, Floro was the duly appointed District Supervisor of Public Schools,
Placer, Masbate, thus, was a person in authority. But contrary to the
statement of the RTC that there was direct assault just because Floro was a
person in authority, this Court clarifies that the finding of direct assault is
based on the fact that the attack or assault on Floro was, in reality, made by
reason of the performance of his duty as the District Supervisor.
When the assault results in the killing of that agent or of a person in authority
for that matter, there arisesthe complex crime of direct assault with murder
or homicide.
The offense is a complex crime, the penalty for which is that for the graver
offense, to be imposed in the maximum period. Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, provides for the penalty
of reclusion perpetua to death for the felony of murder; thus, the imposable
penalty should have been death. Plus the fact that there exists an aggravating
circumstance, pursuant to Article 63, paragraph 2 of the Revised Penal Code,
the proper penalty is death. But the imposition of death penalty has been
prohibited by Republic Act No. 9346, entitled "An Act Prohibiting the
Imposition of Death Penalty in the Philippines"; thus, the RTC, as affirmed by
the Court of Appeals, properly imposed upon accused-appellants the penalty
of reclusion perpetua.
The Proper Indemnities
As to the proper monetary awards imposable for the crime charged,
modifications must be made herein.1âwphi1 The award of ₱100,000.00 each
as civil indemnity and moral damages is proper to conform with current
jurisprudence.59
Further, when a crime is committed with an aggravating circumstance either
as qualifying or generic, an award of exemplary damages is justified under
Article 223060 of the New Civil Code. Thus, conformably with the above, the
legal heirs of the victim are also entitled to an award of exemplary
damages61 in the amount of ₱100,000.00.
Lastly, an interest at the rate of six percent (6%) per annum shall be imposed
on all the damages awarded, to earn from the date of the finality of this
judgment until fully paid, in line with prevailing jurisprudence.62
At this point, notice must be made that on January 28, 2014, the
Superintendent, New Bilibid Prison informed this Court of the death of
accused-appellant Ex-Mayor Carlos, Sr. on January 9, 2013. In view thereof,
the case against deceased Ex-Mayor Carlos, Sr. is hereby ordered dismissed.
WHEREFORE, premises considered, the Court of Appeals Decision dated May
12, 2011 in CA-G.R. CR.-H.C. No. 04142, affirming the Decision dated March
30, 2009, promulgated by the Regional Trial Court of Manila, Branch 45, in
Criminal Case No. 05-238607, finding accused appellants REINARIO "REY"
ESTONILO, EDELBRANDO "EDEL" ESTONILO, EUTIQUIANO "NONONG"
ITCOBANES, and CAL VIN "BULLDOG" DELA CRUZ GUILTY beyond reasonable
doubt of Murder with Direct Assault, is hereby AFFIRMED with
MODIFICATIONS, the award of civil indemnity and moral damages is
increased to ₱100,000.00 each, in addition to ₱100,000.00 as exemplary
damages, and the imposition of 6% thereon as legal interest upon finality of
this Court's Decision.
SO ORDERED.
G.R. No. 202692 November 12, 2014
EDMUND SYDECO y SIONZON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
Assailed and sought to be set aside in this petition for review under Rule 45
are the December 28, 2011 Decision1 and July 18, 2012 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CR No. 33567. The assailed issuances
affirmed the decision3 of the Regional Trial Court (RTC) of Manila, Branch 12,
in Criminal Case Nos. 09-270107-08 which, in turn, affirmed that of the
Metropolitan Trial Court (MeTC) in Manila adjudging petitioner Edmund
Sydeco (Sydeco) guilty of drunk driving and resisting arrest.4
The factual backdrop:
On July 20, 2006, separate Informations, one for Violation of Section 56(f) of
Republic Act No. (RA) 41365 and another, for Violation of Article 151 of the
Revised Penal Code (RPC)6 were filed against petitioner Sydeco with the
MeTC in Manila and eventually raffled to Branch 14 of that court. The
accusatory portions of the interrelated informations, docketed as Crim. Case
No. 052527-CN for the first offense and Crim. Case No. 052528-CN for the
second, respectively read:
1. Crim. Case No. 052527-CN
That on or about June 11, 2006, in the City of Manila, Philippines, the said
accused, being then the driver and owner of a car, did then and there willfully
and unlawfully, drive, manage and operate the same along Roxas Blvd. cor.
Quirino Avenue, Malate, in said city, while under the influence of liquor, in
violation of Section 56(f) of Republic Act 4136.
Contrary to law.
2. Crim. Case No. 052528-CN
That on or about June 11, 2006, in the City of Manila, Philippines, the said
accused, did then and there willfully and unlawfully resist and disobey P/INSP
Manuel Aguilar, SPO2 Virgilio Paulino, SPO4 Efren Bodino and PO3 Benedict
Cruz III, bonafide member of the Philippine National Police, Malate Police
Station-9, duly qualified and appointed, and while in the actual performance
of their official duties as such police officers, by then and there resisting,
shoving and pushing, the hands of said officers while the latter was placing
him under arrest for violation of Article 151 of the Revised Penal Code.
Contrary to law.
By Order of September 19, 2006, the MeTC classified the cases as falling
under, thus to be governed by, the Rule on Summary Procedure.
When arraigned, petitioner, as accused, pleaded "Not Guilty" to both
charges.
During the trial of the two consolidated cases, the prosecution presented in
evidence the oral testimonies of SPO4 Efren Bodino (Bodino),7 PO2
Emanuelle Parungao8 and Ms. Laura Delos Santos,9 plus the documents each
identified while in the witness box, among which was Exh. "A", with sub-
markings, the Joint Affidavit of Arrest10 executed by SPO2 Bodino and two
other police officers. The defense’s witnesses, on the other hand, consisted
of Sydeco himself, his wife, Mildred, and Joenilo Pano.
The prosecution’s version of the incident, as summarized in and/or as may be
deduced from, the CA decision now on appeal is as follows:
On or about June 11, 2006, P/Insp. Manuel Aguilar (Aguilar), SPO4 Bodino,
PO3 Benedict Cruz III and another officer were manning a checkpoint
established along Roxas Boulevard corner Quirino Ave., Malate, Manila when,
from about twenty (20) meters away, they spotted a swerving red Ford
Ranger pick up with plate number XAE-988. Petitioner was behind the wheel.
The team members, all inuniform, flagged the vehicle down and asked the
petitioner to alightfrom the vehicle so he could take a rest at the police
station situated nearby,before he resumes driving.11 Petitioner, who the
policemen claimed was smelling of liquor, denied being drunk and insisted he
could manage to drive. Then in a raised voice, petitioner started talking rudely
to the policemen and in fact yelled at P/Insp. Aguilar blurting: "P…g ina mo,
bakit mo ako hinuhuli." Atthat remark, P/Insp. Aguilar, who earlier pointed
out to petitioner that his team had seen him swerving and driving under the
influence of liquor, proceeded to arrestpetitioner who put up resistance.
Despite petitioner’s efforts to parry the hold on him, the police eventually
succeeded in subduing him who was then brought to the Ospital ng Maynila
where he was examined and found to be positive of alcoholic breath per the
Medical Certificate issuedby that hospital, marked as Exh. "F". Petitioner was
then turned over to the Malate Police Station for disposition.12 Petitioner, on
the other hand, claimed tobe a victim in the incident in question, adding in
this regard that he has in fact filed criminal charges for physical injuries,
robbery and arbitrary detention against P/Insp. Aguilar et al. In his Counter-
Affidavit13 and his Complaint-Affidavit14 appended thereto, petitioner
averred that, in the early morning of June 12, 2006, he together with Joenilo
Pano and Josie Villanueva, cook and waitress, respectively, in his restaurant
located along Macapagal Ave., Pasay City, were on the way home from on
board his pick-up when signaled to stop by police officers at the area
immediately referred to above. Their flashlights trained on the inside of the
vehicle and its occupants, the policemen then asked the petitioner to open
the vehicle’s door and alight for a body and vehicle search, a directive he
refused to heed owing to a previous extortion experience. Instead, he opened
the vehicle window, uttering, "plain view lang boss, plain view lang."
Obviously irked by this remark, one of the policemen, P/Insp. Aguilar, as it
turnedout, then told the petitioner that he was drunk, pointing to three cases
of empty beer bottles in the trunk of the vehicle. Petitioner’s explanation
about being sober and that the empty bottles adverted to came from his
restaurant was ignored as P/Insp. Aguilar suddenly boxed him (petitioner) on
the mouth and poked a gun at his head, at the same time blurting, "P…g ina
mo gusto mo tapusin na kita dito marami ka pang sinasabi." The officers then
pulled the petitioner out of the driver’s seat and pushed him into the police
mobile car, whereupon he, petitioner, asked his companions to call up his
wife. The policemen then brought petitioner to the Ospital ng Maynila where
they succeeded in securing a medical certificate under the signature of one
Dr. Harvey Balucating depicting petitioner as positive of alcoholic breath,
although he refused to be examined and no alcohol breath examination was
conducted. He was thereafter detained from 3:00 a.m.of June 12, 2006 and
released in the afternoon of June 13, 2006. Before his release, however, he
was allowed to undergo actual medical examination where the resulting
medical certificate indicated that he has sustained physical injuries but
negative for alcohol breath. Ten days later, petitioner filed his Complaint-
Affidavit against Dr. Balucating, P/Insp. Aguilar and the other police officers.
Petitioner also stated in his counter-affidavit that, under Sec. 29 of R.A. 4136,
or the Land Transportation and Traffic Code, the procedure for dealing with
a traffic violation is not to place the erring driver under arrest, but to
confiscate his driver’s license.
On June 26, 2009, the MeTC rendered judgment finding petitioner guilty as
charged, disposing as follows:
WHEREFORE, premises considered, the prosecution having established the
guilt of the accused beyond reasonable doubt, his conviction of the offenses
charges is hereby pronounced. Accordingly, he is sentenced to:
1. Pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case
No. 052527-CN; and
2. Suffer imprisonment of straight penalty of three (3) months and
pay a fine of two hundred fifty pesos (₱250.00) for Criminal Case No.
052528-CN.
For lack of basis, no civil liability is adjudged.
The Branch Clerk of Court is directed to certify to the Land Transportation
Office the result of this case, stating further the data required under Section
5815 of Republic Act 4136.
Therefrom, petitioner appealed to the RTC on the main submissions that the
MeTC erred in: 1) according credit to the medical certificate issued by Dr.
Balucating, although the records custodian of Ospital ng Maynila was
presented to testify thereon instead of the issuing physician, and 2) upholding
the veracity of the joint affidavit of arrest of P/INSP Manuel Aguilar, SPO4
Efren Bodino, and PO3 Benedict Cruz III, considering that only SPO4 Bodino
appeared in court to testify.
By Decision16 dated February 22, 2010, the RTC affirmed the conviction of the
petitioner, addressing the first issue thus raised in the appeal in the following
wise: Dr. Balucating’s failure to testify relative to petitioner’s alcoholic breath,
as indicatedin the medical certificate, is not fatal as such testimony would
only serve to corroborate the testimony on the matter of SPO4 Bodino, noting
thatunder the Rules of Court,17 observations of the police officers regarding
the petitioner’s behavior would suffice to support the conclusion of the
latter’s drunken state on the day he was apprehended.18
Apropos the second issue, the RTC pointed out that the prosecution has the
discretion as to how many witnesses it needs to present before the trial court,
the positive testimony of a single credible witness as to the guilt of the
accused being reasonable enough to warrant a conviction. The RTC cited
established jurisprudence19 enunciating the rule that preponderance is not
necessarily with the greatest number as "[W]itnesses are to be weighed, not
numbered." Following the denial by the RTC of his motion for
reconsideration, petitioner went to the CA on a petition for review, the
recourse docketed as CA-G.R. CR No. 33567. By a Decision dated December
28, 2011, as would be reiterated in a Resolution of July 18, 2012, the
appellatecourt affirmed that of the RTC, thus:
WHEREFORE, the petition is DENIED. The assailed Decision dated February
22, 2010 of the RTC, Manila, Branch 12, is AFFIRMED.
SO ORDERED.
Hence, this petition on the following stated issues:
I. The CA erred in upholding the presumption of regularity in the performance
of duties by the police officers; and
II. The CA erred in giving weight to the Medical Certificate issued by Dr.
Harvey Balucating, in the absence of his testimony before the Court.
The petition is meritorious.
Prefatory, the rule according great weight, even finality at times, to the trial
court’s findings of fact does hold sway when, as here, it appears in the record
that facts and circumstancesof weight and substance have been overlooked,
misapprehended or misapplied in a case under appeal.20 Corollary, it is basic
that an appeal in criminal prosecutions throws the whole case wide open for
review, inclusive of the matter of credibility and appreciation of evidence.21`
Peace officers and traffic enforcers,like other public officials and employees
are bound to discharge their duties with prudence, caution and attention,
which careful men usually exercise in the management of their own affairs.22
In the case at bar, the men manning the checkpoint in the subject area and
during the period material appearednot to have performed their duties as
required by law, or at least fell short of the norm expected of peace officers.
They spotted the petitioner’s purported swerving vehicle. They then signaled
him to stop which he obeyed. But they did not demand the presentation of
the driver’s license orissue any ticket or similar citation paper for traffic
violation as required under the particular premises by Sec. 29 of RA 4136,
which specifically provides:
SECTION 29. Confiscation of Driver’s License. – Law enforcement and peace
officers of other agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or any regulations issued
pursuant thereto, or of local traffic rules and regulations x x x confiscate the
license ofthe driver concerned and issue a receipt prescribed and issuedby
the Bureau therefor which shall authorize the driver to operate a motor
vehicle for a period not exceeding seventy-two hours from the time and date
of issue of said receipt. The period so fixed in the receipt shall not be
extended, and shall become invalid thereafter.x x x (Emphasis added.) Instead
of requiring the vehicle’s occupants to answer one or two routinary questions
out of respectto what the Court has, in Abenes v. Court of Appeals,23 adverted
to as the motorists’ right of "free passage without [intrusive] interruption,"
P/Insp. Aguilar, et al. engaged petitioner in what appears to be an
unnecessary conversation and when utterances were made doubtless not to
their liking, they ordered the latter to step out of the vehicle, concluding after
seeing three (3) empty cases of beer at the trunk of the vehicle that petitioner
was driving under the influence of alcohol. Then petitioner went on with his
"plain view search" line. The remark apparently pissed the police officers off
no end as one of them immediately lashed at petitioner and his companions
as "mga lasing" (drunk) and to get out of the vehicle, an incongruous response
to an otherwise reasonable plea. Defense witness, Joenilo Pano, graphically
described this particular event in his sinumpaang salaysay, as follows:
x x x matapos kami huminto ay naglapitan sa amin ang mga pulis, nag flash
light sa loob ng sasakyan at sa aming mga mukha.
x x x isang pulis ang nag-utos sa aminna kami ay magsi-baba at buksan ang
pintuan ng nasabing sasakyan.
x x x dahil doon sinabi ni Kuya sa mga pulis, na hindi pwede iyon at pinigilan
niya ako at ang aking kasama kong waitress na bumaba.
x x x iginiit ni Kuya sa mga pulisang salitang "PLAIN VIEW LANG BOSS, PLAIN
VIEW LANG" pero iyon ayhindi nila pinansin. Sa halip as isang pulis ang
nagsabi na "MGA LASING KAYO HETO MAY CASE PA KAYO NG BEER".
x x x habang nagpapaliwanag si Kuya, isang pulis ang biglang kumuha ng susi
ng sasakyan habang ang isang pulis ang biglang sumuntok sa bibig ni Kuya,
nagbunot ng baril at tinutukan sa ulo si Kuya.
x x x dahil doon ay nagmakaawa ako na wag barilin si Kuya subalit ako rin ay
tinutukan ng baril. x x x na matapos suntukin si Kuya aypinagtulungan siya ng
mga pulis na ilabas sa sasakyan at nang mailabas siyaay pinagtulakan siya ng
mga pulis sa gilid ng kalsada habang hawak ang kanilang baril.24
Pano’s above account ironicallyfinds in a way collaboration from the arresting
officers themselves who admitted that they originally had no intention to
search the vehicle in question nor subject its occupants to a body search. The
officers wrote in their aforementioned joint affidavit:
xxxx
That we arrested the suspect, Edmund Sydeco y Siozon x x x for violation of
RA 4136 (Driving under the influence of liquor), and violation of Article 151 of
the RPC (Resisting Arrest) x x x committed on or about 3:30A.M., June 11,
2006 along x x x Malate, Manila. x x x He began to raise his voice and converse
with us rudely without considering that we are in uniform, on duty and
performing our job. P/INSP Manuel Aguilar pointed out that we saw him
swerving and driving under the influence of liquor that was why we are
inviting him to our police station in which our intention was to make him rest
for a moment before he continue to drive. x x x (Emphasis added.)
In fine, at the time of his apprehension, or when he was signaled to stop, to
be precise, petitioner has not committed any crime or suspected of having
committed one. "Swerving," as ordinarily understood,refers to a movement
wherein a vehicle shifts from a lane to another or to turn aside from a direct
course of action or movement.25 The act may become punishable when there
is a sign indicating that swerving is prohibited or where swerving partakes the
nature ofreckless driving, a concept defined under RA 4136, as:
SECTION 48. Reckless Driving. – Noperson shall operate a motor vehicle on
any highway recklessly or without reasonable caution considering the width,
traffic, grades, crossing, curvatures, visibility and other conditions of the
highway and the conditions of the atmosphere and weather, or so as to
endanger the property or the safetyor rights of any person or so as to cause
excessive or unreasonable damage to the highway.
Swerving is not necessarily indicative of imprudent behavior let alone
constitutive of reckless driving. To constitute the offense of reckless driving,
the act must be something more than a mere negligence in the operation of
a motor vehicle, and a willful and wantondisregard of the consequences is
required.26 Nothing in the records indicate that the area was a "no swerving
or overtaking zone." Moreover, the swerving incident, if this be the case,
occurred at around 3:00 a.m. when the streets are usually clear of moving
vehicles and human traffic, and the danger to life, limb and property to third
persons is minimal. When the police officers stopped the petitioner’s car,
they did not issue any ticket for swerving as required under Section 29 of RA
4136. Instead, they inspected the vehicle, ordered the petitioner and his
companions to step down of their pick up and concluded that the petitioner
was then drunk mainly because of the cases of beer found at the trunk of the
vehicle. On re-direct examination, SPO4 Bodino testified:
Q: On that particular date, time and place … what exactly prompted you to
arrest the accused (sic) the charged in for Viol. of Section 56(f) of R.A. 4136?
A: Noong mag check-up kami, naamoynamin na amoy alak siya at yung
sasakyan ay hindi maganda ang takbo.
Q: Now you stated in your affidavit of arrest Mr. Witness that you spotted the
vehicle of the accused swerving, is that correct?
A: Yes, sir.
Q. Is that also the reason why you apprehended him?
A: Yes, sir.
Q: And what happened after Mr. Witness, when you approached the vehicle
of the accused?
A: The accused was in a loud voice. He was asking, "Bakit daw siya
pinahihinto?"
xxxx
Q: How do you describe the resistance Mr. Witness?
A: He refused to ride with usgoing to the hospital, Your Honor.
x x x x27
Going over the records, it is fairly clear that what triggered the
confrontational stand-off between the police team, on one hand, and
petitioner on the other, was the latter’s refusal to get off of the vehicle for a
body and vehicle search juxtaposed by his insistence on a plain view search
only. Petitioner’s twin gestures cannot plausibly be considered as resisting a
lawful order.28 He may have sounded boorish or spoken crudely at that time,
but none of this would make him a criminal. It remains to stress that the
petitioner has not, when flagged down, committed a crime or performed an
overt act warranting a reasonable inference of criminal activity. He did not
try to avoid the road block established. He came to a full stop when so
required to stop. The two key elements of resistance and serious
disobedience punished under Art. 151 of the RPC are: (1) That a person in
authority or his agent is engaged in the performance of official duty or gives
a lawful order to the offender; and (2) That the offender resists or seriously
disobeys such person or his agent.29
There can be no quibble that P/Insp. Aguilar and his apprehending team are
persons in authority or agents of a person in authority manning a legal
checkpoint. But surely petitioner’s act of exercising one’s right against
unreasonable searches30 to be conducted in the middle of the night cannot,
in context, be equated to disobedience let alone resisting a lawful order in
contemplation of Art. 151 of the RPC. As has often been said, albeit expressed
differently and under dissimilar circumstances, the vitality of democracy lies
not in the rights it guarantees, but in the courage of the people to assert and
use them whenever they are ignored or worse infringed.31 Moreover, there
is, to stress, nothing in RA 4136 that authorized the checkpoint-manning
policemen to order petitioner and his companions to get out of the vehicle
for a vehicle and body search. And it bears to emphasize that there was no
reasonable suspicion of the occurrence of a crime that would allow what
jurisprudence refers to as a "stop and frisk" action. As SPO4 Bodino no less
testified, the only reason why they asked petitioner to get out of the vehicle
was not because he has committed a crime, but because of their intention
toinvite him to Station 9 so he could rest before he resumes driving. But
instead of a tactful invitation, the apprehending officers, in an act indicative
of overstepping of their duties, dragged the petitioner out of the vehicle and,
in the process of subduing him, pointed a gun and punched him on the face.
None of the police officers, to note, categorically denied the petitioner’s
allegation aboutbeing physically hurt before being brought to the Ospital ng
Maynila to be tested for intoxication. What the policemen claimed was that
it took the three (3) of them to subdue the fifty-five year old petitioner. Both
actions were done in excess of their authority granted under RA 4136. They
relied on the medical certificate issued by Dr. Balucating attesting that
petitioner showed no physical injuries. The medical certificate was in fact
challenged not only because the petitioner insisted at every turn that he was
not examined, but also because Dr. Balucating failed to testify as to its
content. Ms. Delos Santos, the medical record custodian ofthe Ospital ng
Maynila, testified, but only to attest that the hospital has a record of the
certificate. The trial court, in its decision, merely stated:
At the outset, the records of the case show that the same were not testified
upon by the doctor who issued it.1âwphi1 Instead, the Records Custodian of
the Ospital ng Maynila was presented by the Prosecution to testify on the said
documents.
However, although the doctor who examined the accused was unable to
testify to affirm the contents of the Medical Certificate he issued (re: that he
was found to have an alcoholic breath), this court finds that the observation
of herein private complainants as to the accused’s behavior and condition
after the incident was sufficient.
Under Section 50 of Rule 130 of the Revised Rules of evidence:
The opinion of a witness for which proper basis is given, may be received in
evidence regarding x x x x
The witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person Under Section 15 of the Revised Rules
on Summary Procedure, "at the trial, the affidavits submitted by the parties
shall constitute the direct testimonies of the witnesses who executed the
same."32
In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical
certificate Dr. Balucating issued on June 12, 2006 as to petitioner’s
intoxicated state, as the former was not able to testify as to its contents, but
on the testimony of SPO4Bodino, on the assumption that he and his fellow
police officers were acting in the regular performance of their duties. It
cannot be emphasized enough that smelling of liquor/alcohol and be under
the influence of liquor are differing concepts. Corollarily, it is difficult to
determine with legally acceptable certainty whether a person is drunk in
contemplation of Sec. 56(f) of RA 4136 penalizing the act of driving under the
influence of alcohol. The legal situation has of course changed with the
approval in May 2013 of the Anti-Drunk and Drugged Driving Act of 2013 (RA
10586) which also penalizes driving under the influence of alcohol (DUIA),33 a
term defined under its Sec. 3(e) as the "act of operating a motor vehicle while
the driver’s blood alcohol concentration level has, after being subjected to a
breath analyzer test reached the level of intoxication as established jointly by
the [DOH], the NAPOLCOM] and the [DOTC]. And under Sec. 3(g) of the IRR
of RA 10586, a driver of a private motor vehicle with gross vehicle weight not
exceeding 4,500 kilograms who has BAC [blood alcohol concentration] of
0.05% or higher shall be conclusive proof that said driver isdriving under the
influence of alcohol. Viewed from the prism of RA 10586, petitioner cannot
plausibly be convicted of driving under the influence of alcohol for this
obvious reason: he had not been tested beyond reasonable doubt, let alone
conclusively, for reaching during the period material the threshold level of
intoxication set under the law for DUIA, i.e., a BAC of 0.05% or over. Under
Art. 22 of the RPC,34 penal laws shall be given retroactive insofar asthey are
favorable to the accused. Section 19 of RA 10586 expressly modified Sec. 56(f)
of RA 4136. Verily, even by force of Art. 22 ofthe RPC in relation to Sec. 3(e)
of RA 10586 alone, petitioner could very well be acquitted for the charge of
driving under the influence of alcohol, even if the supposed inculpatory act
occurred in 2006.
Parenthetically, the Office of the City Prosecutor of Manila, per its
Resolution35 of November 21, 2006 found, on the strength of another
physical examination from the same Ospital ng Maynila conducted by Dr.
Devega on the petitioner on the same day,June 12, but later hour, probable
cause for slight physical injuries against P/Insp. Aguilar et al. That finding to
be sure tends to indicate that the police indeed man handled the petitioner
and belied, or at least cancelled out, the purported Dr. Balucating’s finding as
to petitioner’s true state.
The Court must underscore at this juncture that the petitioner, after the
unfortunate incident, lost no time incommencing the appropriate criminal
charges against the police officers and Dr. Balucating, whomhe accused of
issuing Exh. "F" even without examining him. The element of immediacy in
the filing lends credence to petitioner’s profession of innocence, particularly
of the charge of disobeying lawful order or resisting arrest. Certainly not to
be overlooked is the fact that petitioner,in so filing his complaint, could not
have possibly been inspired by improper motive, the police officers being
complete strangers to him and vice versa. Withal, unless he had a legitimate
grievance, it is difficult to accept the notion that petitioner would expose
himself to harm’s way by filing a harassment criminal suit against policemen.
Conviction must come only after it survives the test of reason.36 It is thus
required that every circumstance favoring one’s innocence be duly taken into
account.37 Given the deviation of the police officers from the standard and
usual procedure in dealing with traffic violation by perceived drivers under
the influence of alcoholand executing an arrest, the blind reliance and
simplistic invocation by the trial court and the CA on the presumption of
regularity in the conduct of police duty is clearly misplaced. As stressed in
People v. Ambrosio,38 the presumption of regularity is merely just that, a
presumption disputable by contrary proof and which when challenged by the
evidence cannot be regarded as binding truth. And to be sure, this
presumption alone cannot preponderate over the presumption of innocence
that prevails if not overcome by proof that obliterates all doubts as to the
offender’s culpability. In the present case, the absence of conclusive proof
being under the influence of liquor while driving coupled with the forceful
manner the police yanked petitioner out of his vehicle argues against or at
least cast doubt on the finding of guilt for drunken driving and resisting arrest.
In case of doubt as to the moral certainty of culpability, the balance tips in
favor of innocence or at least infavor of the milderform of criminal liability.
This is as it should be. For, it is basic, almost elementary, that the burden of
proving the guiltof an accused lies on the prosecution which must rely on the
strength of its evidence and noton the weakness of the defense.
WHEREFORE, in light of all the foregoing, the appealed Decision and
Resolution of the Court of Appeals in CA-G.R. CR No. 33567 are hereby
REVERSED and SET ASI:OE. Petitioner is hereby acquitted of the crimes
charged in Criminal Case No. 052527-CN and Criminal Case No. 052528-CN.
No pronouncement as to costs.
THIRD DIVISION July 27, 2016 G.R. No. 210710
PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee
vs.
LUISITO GABORNE Y CINCO, Accused-Appellant
DECISION
PEREZ, J.:
Before the Court is an appeal from the Decision1of the Court of Appeals (CA)
dated 29 July 2013 in CA-G.R. CR HC No. 01183, affirming the Decision2of the
Regional Trial Court (RTC), Branch 33, Calbiga, Samar which found appellant
Luisito Gabome y Cinco guilty of the crime of Murder with the use of
Unlicensed Firearm, as defined in Article 248 of the Revised Penal Code (RPC)
as amended by Sec. 6 of Republic Act (R.A.) No. 7659, and Frustrated Murder
as defined in Article 248 in relation to Article 50 of the RPC, respectively.
Together with two others, appellant was charged with Murder with the use
of Unlicensed Firearm and Frustrated Murder in the following Informations:
Criminal Case No. CC-2007-1640
That on or about the 2nd day of February 2007, at about 11:00 o'clock in the
evening more or less, at Brgy. Mugdo, Hinabangan, Samar, Philippines, and
within the jurisdiction of this Honorable Court, the above named accused,
conspiring, confederating, mutually helping one another, with deliberate
intent to kill, and with treachery and evident premeditation, which qualify the
offense into murder, did there, willfully, unlawfully, and feloniously, shot (sic)
Sixto Elizan y Herrera, with the use of an unlicensed firearm a caliber [.]45
pistol, a special aggravating circumstance pursuant to RA 8294, which
accused have provided themselves for the purpose, thereby hitting and
inflicting upon the said Sixto Elizan y Herrera fatal gun shot wounds on the
different parts of his body, which gun shot wounds caused his instantaneous
death.3
Criminal Case No. CC-2007-1650
That on or about the 2nd day of February 2007, at around 11:00 o'clock in the
evening more or less, at Brgy. Mugdo, Municipality of Hinabangan, Province
of Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, conspiring, confederating, mutually helping one
another, with deliberate intent to kill, and with treachery, which qualifies the
offense to murder, did, then and there, willfully, unlawfully and feloniously
shot [sic] the victim, Rey Perfecto C. de Luna, with the use of a caliber [.]45
pistol, an unlicensed firearm, a special aggravating circumstance pursuant to
Rep. Act No. 8294, with which the accused have provided themselves for the
purpose, thereby inflicting upon the victim the following wounds, to wit:
- Gun shot wound (R) back penetrating (R) chest, lacerating diaphragm, (R)
lobe of the liver, thru and thru and greater omentum with massive
hemoperitoneum
- Gun shot wound (R) para spinal area at L2 penetrating abdomen perforating
ileum thru and thru
thus, accused have performed all the acts of execution which should have
produced the crime of murder as a consequence but which nevertheless did
not produce it by reason of some cause independent of the will of the
accused, that is, the timely medical treatment/intervention rendered to the
victim at Saint Paul's Hospital, Tacloban City.4
On arraignment, appellant entered a plea of NOT GUILTY5 for both charges.
Trial on the merits ensued thereafter.
The Facts
The antecedent facts culled from the Appellee's Brief6 and the records
of the case are summarized as follows:
On 2 February 2007 at around 10:30 in the evening, Rey Perfecto De Luna (De
Luna) and Sixto Elizan7 (Elizan) entered a videoke bar8 at Barangay Mugdo,
Hinabangan, Samar.9 Noli Abayan (Abayan), appellant and Joselito Bardelas
(Bardelas) followed five minutes thereafter.10
While Elizan and De Luna were drinking, singing and merely having fun, four
successive gunshots11 were fired through the window. Because of this, Elizan
and De Luna were hit from behind.12 Later on, De Luna13 and Marialinisa
Pasana14 (Pasana) saw appellant, who was then wearing a black t-shirt and a
black cap, holding a gun aimed at their location. Pasana also saw accused-
appellant and Bardelas escape after the incident.15
Elizan and De Luna were brought to St. Paul's Hospital at Tacloban
City.16 Unfortunately, Elizan was pronounced dead upon arrival. De Luna, on
the other hand, survived.17
Appellant steadfastly denied the accusations. According to him, he and his
companions ordered for bottles of beer. However, when they tried to order
for more bottles, the waitress refused to give them their order unless they
pay for their previous orders first.18 While Abayan was explaining to the
father of the owner of the videoke bar, appellant and Barde las went out to
urinate,19 however, the waitress locked the front door.20 While standing
outside, he heard the waitress utter the words, "If you will not pay, I [will]
have you killed, all of you, right this moment."21 He also consistently contend
that it was a man wearing black shirt and camouflage pants who fired shots
to the videoke bar,22 not him.
The following day, appellant and Bardelas were arrested and underwent
paraffin test.23
Ruling of the Regional Trial Court
On 12 March 2010, the RTC rendered a joint judgment finding accused-
appellant guilty of the two (2) charges of Murder with the use of Unlicensed
Firearm and Frustrated Murder. The dispositive portion of the decision reads:
WHEREFORE, premises considered, the [ c ]ourt finds the coaccused LUISITO
GABORNE y CINCO GUILTY BEYOND REASONABLE DOUBT as principal in the
crimes of:
A. Murder with the Use of an Unlicensed Firearm under Art. 248 of the
Revised Penal Code in Criminal Case No. CC-2007-1640 and considering the
presence of one (1) aggravating circumstance without any mitigating
circumstance to offset it, hereby sentences him to suffer imprisonment of
RECLUSION PERPETUA; to pay the Heirs of Sixto Elisan y Herrera
Php75,000.00 as civil indemnity for his death; Php50,000.00 in moral
damages and Php25,000.00 in exemplary damages and to pay the costs of
this suit.
B. Frustrated Murder penalized under Art. 248 in relation to Art. 50 of the
Revised Penal Code in Criminal Case No. CC-2007-1650 and considering the
presence of one (1) aggravating circumstance without any mitigating
circumstance to offset it hereby sentences him to suffer imprisonment of an
indeterminate penalty ranging from ELEVEN (11) YEARS of Prision Mayor as
minimum to EIGHTEEN (18) YEARS of Reclusion Temporal as maximum, to pay
Perfecto de Luna Php264,866.58 as civil liability without subsidiary
imprisonment in case of insolvency and to pay the costs of this suit.
The accused who underwent preventive imprisonment since February 3,
2007 shall be credited with the full time during which he was deprived of his
liberty if he agreed voluntarily and in writing to abide by the same disciplinary
rules imposed upon convicted prisoners otherwise he will be entitled to only
four-fifths (4/5) thereof.
Because the prosecution absolutely failed to prove guilt of accused NOLI
ABAYAN y LARGABO and co-accused JOSELITO BARDELAS y
BACNOTAN from the instant criminal charges, they are ACQUITTED in these
cases. No civil liability is assessed against them.
Because the said accused are detained, the Provincial Warden of Samar are
hereby ordered to release the said accused from detention unless they are
held for some other cause or ground.24
Ruling of the Court of Appeals
The CA found no merit in appellant's arguments. It pointed out that appellant
is estopped from questioning the legality of his arrest as it was raised for the
first time on appeal.25 Thus, the appellate court was fully convinced that there
is no ground to deviate from the findings of the RTC. The dispositive portion
of the decision reads:
WHEREFORE, the instant appeal is hereby DENIED. The Joint Judgment dated
March 12, 2010 rendered by Branch 33, Regional Trial Court of Calbiga,
Samar, gth Judicial Region in Criminal Case Nos. [CC-]2007-1640 and [CC-
]2007-1650 is hereby AFFIRMED WITH MODIFICATION as to the award of
damages, to wit:
1. The award of civil indemnity in Criminal Case No. [CC-]2007-1640 is
affirmed;
2. The award of moral damages in the amount of Php50,000.00 in Criminal
Case No. [CC-]2007-1640 is affirmed;
3. The award of exemplary damages in the amount of Php25,000.00 in
Criminal Case No. [CC-]2007-1640 is affirmed;
4. In Criminal Case No. [CC-]2007-1650, accused-appellant is ordered to pay
moral damages to the private offended party, Rey Perfecto De Luna, in the
amount of Php40,000.00;
5. In Criminal Case No. [CC-]2007-1650, accused appellant is likewise ordered
to pay exemplary damages to the private offended party, Rey Perfecto De
Luna, in the amount of Php20,000.00; and
6. Accussed-appellant is further ordered to additionally pay the private
offended parties in the two criminal cases, Rey Perfecto De Luna and the
heir/s of Sixto Elizan, interest on all damages at the legal rate of six percent
(6%) from the date of finality of this judgment until the amounts awarded
shall have been fully paid.26
Appellant appealed the decision of the CA. The Notice of Appeal was given
due course and the records were ordered elevated to this Court for review.
In a Resolution27 dated 19 February 2014, this Court required the parties to
submit their respective supplemental briefs. Both parties manifested that
they are adopting all the arguments contained in their respective briefs in lieu
of filing supplemental briefs.28
Our Ruling
We find that the degree of proof required in criminal cases has been met in
the case at bar. Appellant's defenses of denial and alibi are bereft of merit.
Assailing the legality of arrest should
be made before entering a plea
Before anything else, we resolve the procedural issue raised by the
appellant.29
Any objection involving a warrant of arrest or the procedure by which the
court acquired jurisdiction over the person of the accused must be made
before he enters his plea; otherwise, the objection is deemed
waived.30 In People v. Velasco,31this Court held that the accused is estopped
from assailing the legality of his arrest for his failure to move for the quashal
of the Information before arraignment. In this case, appellant only
questioned the legality of his arrest for the first time on appeal.32
Furthermore, even granting that indeed there has been an irregularity
in the arrest of the appellant, it is deemed cured by his voluntary submission
to the jurisdiction of the trial court over his person.33 Thus, appellant is
deemed to have waived his constitutional protection against illegal arrest34
when he actively participated in the arraignment35 and trial of this case.36
Elements of Murder and Frustrated
Murder were established
This Court finds that the circumstance of treachery should be appreciated,
qualifying the crime to Murder. According to the Revised Penal Code:
ARTICLE 248. Murder. - Any person who, not falling within the provisions of
Article 246 shall kill another, shall be guilty of murder and shall be punished
by reclusion temporal in its maximum period to death, if committed with any
of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a
vessel, derailment or assault upon a street car or locomotive, fall of an airship,
by means of motor vehicles, or with the use of any other means involving
great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic, or any other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of
the victim, or outraging or scoffing at his person or corpse.
Thus, the elements of murder are: (1) that a person was killed; (2) that the
accused killed him or her; (3) that the killing was attended by any of the
qualifying circumstances mentioned in Article 248 of the RPC; and (4) that the
killing is not parricide or infanticide.37
Furthermore, there is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution
thereof, which tend directly and specially to insure its execution, without risk
to himself arising from the defense which the offended party might make.38
The requisites of treachery are:
(1) The employment of means, method, or manner of execution which will
ensure the safety of the malefactor from defensive or retaliating acts on the
part of the victim, no opportunity being given to the latter to defend himself
or to retaliate; and
(2) Deliberate or conscious adoption of such means, method, or manner of
execution.39
In this case, the hapless victims were merely drinking and singing infront of
the videoke machine when shot by the appellant. The firing was so sudden
and swift that they had no opportunity to defend themselves or to retaliate.
Furthermore, appellant's acts of using a gun and even going out of
the videoke bar evidently show that he consciously adopted means to ensure
the execution of the crime.
In addition, the lower courts appropriately found appellant liable for the
crime of Frustrated Murder.
A felony is frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which, nevertheless,
do not produce it by reason of causes independent of the will of the
perpetrator.40
Dr. Angel Cordero M.D. categorically said that De Luna could have died
because of the wounds if the surgery was not conducted timely.41 Hence,
appellant performed all the acts of execution which could have produced the
crime of murder as a consequence, but nevertheless, did not produce it by
reason of a cause independent of his will, which is, in this case, the timely and
able medical attendance rendered to De Luna.
The defense of denial cannot be given
more weight over a witness' positive
identification
Appellant denies the accusations on the ground that he has no motive to kill
Elizan and injure De Luna. This alibi is bereft of merit. Intent is not
synonymous with motive. Motive alone is not a proof and is hardly ever an
essential element of a crime.42 As a general rule, proof of motive for the
commission of the offense charged does not show guilt and absence of proof
of such motive does not establish the innocence of accused for the crime
charged such as murder.43 In Kummer v. People,44this Court held that motive
is irrelevant when the accused has been positively identified by an
eyewitness.
Evidently, accused-appellant's intent to kill was established beyond
reasonable doubt. This can be seen from his act of shooting Elizan and De
Luna from behind with a firearm while they were innocently singing and
drinking. Intent to kill was also manifest considering the number of gun shot
wound sustained by the victims.45
In the instant case, Pasana and De Luna positively identified accused-
appellant as the person who fired shots during the incident:
Pasana's testimony:
Q: Can you recall who among the five (5) went out?
A: Yes, Ma'am.
Q: Of the two (2) among the five (5) who went out, are these two (2) people
or persons here in court right now?
A: Yes, Ma'am.
Q: And who are these two (2) persons you are referring to, can you point it
out to the Honorable Court if they are here in [c]ourt right now?
A: That person, Ma'am.
Interpreter: Witness, Your Honor, is pointing to a person who earlier
identified himself as Luisi to Gaborne.
xxxx
Q: Point specifically, who among those persons?
A: That person, Ma'am.
Interpreter: Witness, Your Honor, is pointing to a person who identified
himself earlier as Luisito Gaborne.46
De Luna's Testimony:
Q: How about the appearance of the guy whom you said holding a gun, can
you recall?
A: I can recall him if he is inside the court, ma'am.
Q: Can you point it out to the court, the other guy whom you saw at the
videoke bar?
A: Yes, ma'am, if I can go with him in a short distance, I can point him.
Q: Can you point him?
A: (The witness stood up and approach (sic) the accused' bench and pointed
to a person and when asked his name answered to (sic): Luisito Gaborne)
Q: You said that there was also another guy by the window? (the court butt-
in [sic])
THE COURT:
Q: Excuse me, this man who answered Luisito Gaborne was the one holding
the fire arm?
A: Yes, your Honor.47
This Court gives the highest respect to the RTC's evaluation of the testimony
of the witnesses, considering its unique position in directly observing the
demeanor of a witness on the stand. From its vantage point, the trial court is
in the best position to determine the truthfulness of witnesses.48
It is doctrinally entrenched in our jurisprudence49 that the defense of denial
is inherently weak because it can easily be fabricated. Such defense becomes
unworthy of merit if it is established only by the accused themselves and not
by credible persons. Thus, this Court agrees with the lower courts in giving
the positive identification of the eyewitnesses more weight than appellant's
defense of denial.
Paraffin Tests are not conclusive
The positive identification made by the prosecution witnesses bears more
weight than the negative paraffin test result conducted the day after the
incident.
Paraffin tests, in general, have been rendered inconclusive by this Court.
Scientific experts concur in the view that the paraffin test was extremely
unreliable for use.1âwphi1 It can only establish the presence or absence of
nitrates or nitrites on the hand; however, the test alone cannot determine
whether the source of the nitrates or nitrites was the discharge of a firearm.
The presence of nitrates should be taken only as an indication of a possibility
or even of a probability but not of infallibility that a person has fired a gun,
since nitrates are also admittedly found in substances other than
gunpowder.50
In this case, prosecution witness, Pasana51 and the victim himself, De
Luna,52 testified in the trial court that it was indeed the appellant who was
holding the gun during the incident. It should also be considered that
appellant was arrested the day after the incident.53 Thus, it is possible for
appellant to fire a gun and yet bear no traces of nitrate or gunpowder as when
the hands are bathed in perspiration or washed afterwards.54
Corpus delicti of the crime can be
established by testimony
With regard to the appreciation of the aggravating circumstance of the use of
an unlicensed firearm, we agree with the trial court and the appellate court
that the same must be appreciated in the instant case. In People v.
Lualhati, this Court ruled that in crimes involving unlicensed firearm, the
prosecution has the burden of proving the elements thereof, which are: (1)
the existence of the subject firearm and (2) the fact that the accused who
owned or possessed the firearm does not have the corresponding license or
permit to possess the same.55
Appellant's contention that the corpus delicti was not established for the
reason that the firearm used was not presented as evidence is not persuasive.
In People v. Orehuela,56this Court held that the existence of the firearm can
be established by testimony, even without the presentation of the said
firearm. In the present case, the testimonies of Pasana and De Luna
indubitably demonstrated the existence of the firearms. Furthermore, the
certification57 from the Philippine National Police that appellant is not a
firearm license holder of any caliber proves that he is not licensed to possess
the same. Thus, the prosecution was able to prove the existence of the
firearm and that the appellant is not licensed to possess the same
notwithstanding the fact that the firearm used was not presented as
evidence.
Illegal Possession of Firearm as an
aggravating circumstance
in the crimes of Murder and
Frustrated Murder
The CA appropriately appreciated the use of an unlicensed firearm as an
aggravating circumstance in the crimes of Murder and Frustrated
Murder.1âwphi1 Under R.A. No. 1059, use of loose firearm in the commission
of a crime, like murder, shall be considered as an aggravating circumstance.58
In view of the amendments introduced by R.A. No. 8294 and R.A. No. 10591,
to Presidential Decree No. 1866, separate prosecutions for homicide and
illegal possession are no longer in order. Instead, illegal possession of firearm
is merely to be taken as an aggravating circumstance in the crime of
murder.59 It is clear from the foregoing that where murder results from the
use of an unlicensed firearm, the crime is not qualified illegal possession but,
murder.· In such a case, the use of the unlicensed firearm is not considered
as a separate crime but shall be appreciated as a mere aggravating
circumstance. Thus, where murder was committed, the penalty for illegal
possession of firearms is no longer imposable since it becomes merely a
special aggravating circumstance.60 The intent of Congress is to treat the
offense of illegal possession of firearm and the commission of homicide or
murder with the use of unlicensed firearm as a single offense.61
In the case at hand, since it was proven that accused-appellant was not a
licensed firearm holder,62 and that he was positively identified by the
witnesses as the one who fired shots against the victims, the use of an
unlicensed firearm in the commission of the crimes of Murder and Frustrated
Murder should be considered as an aggravating circumstance thereof.
The presence of such aggravating circumstance would have merited the
imposition of the death penalty for the crime of Murder. However, in view of
R.A. No. 9346, we are mandated to impose on appellant the penalty
of reclusion perpetua without eligibility for parole.
Damages and civil liability
This Court resolves to modify the damages awarded by the appellate court in
line with the recent jurisprudence.63 Appellant shall pay the Heirs of Sixto
Elizan y Herrera ₱100,000.00 as civil indemnity, ₱l00,000.00 as moral
damages, and ₱l00,000.00 as exemplary damages for the crime of Murder
with the use of Unlicensed Firearm.
Appellant shall also be liable to pay ₱75,000.00 as civil indemnity, ₱75,000.00
as moral damages, and ₱75,000.00 as exemplary damages for the crime of
Frustrated Murder. In addition, interest at the rate of six percent (6%) per
annum shall be imposed on all monetary awards from date of finality of this
Judgment until fully paid.
WHEREFORE, the 29 July 2013 Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 01183 is AFFIRMED with MODIFICATIONS. Appellant LUISITO
GABORNE Y CINCO is found GUILTY beyond reasonable doubt of the crime of
Murder with the use of Unlicensed Firearm and shall suffer a penalty
of Reclusion Perpetua, without eligibility for parole and shall pay the Heirs of
Sixto Elizan y Herrera Pl00,000.00 as civil indemnity, ₱l00,000.00 as moral
damages, and ₱100,000.00 as exemplary damages; and of the crime of
Frustrated Murder and is hereby sentenced to suffer the indeterminate
penalty ranging from eleven (11) years of Prision Mayor as minimum, to
eighteen (18) years of Reclusion Temporal as maximum and shall pay
₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and ₱75,000.00
as exemplary damages.
All monetary awards for damages shall earn interest at the legal rate of six
percent (6%) per annum from the date of finality of this judgment until fully
paid.

In the service of his sentence, appellant, who is a detention prisoner, shall be

credited with the entire period of his preventive imprisonment.

SO ORDERED.