Concepcion v. People

SECOND DIVISION

[G.R. No. 167135. November 27, 2006.]

RODOLFO CONCEPCION, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

GARCIA, J p:

By this petition for review, petitioner Rodolfo Concepcion seeks the annulment and setting aside of the Decision 1 dated September 27, 2004 of the Court of Appeals (CA), as reiterated in its Resolution of February 17, 2005, in CA-G.R. CR No. 22911, affirming an earlier decision of the Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro which adjudged the petitioner guilty beyond reasonable doubt of the crime of Attempted Murder against the person of one Ramil Lopez.

The facts:

On November 14, 1995, at around 8:30 p.m., Ramil Lopez, along with Francisco Flores, Eduardo Flores and Nestor Bauson, was drinking and discussing a business project at the sulambi of Ramil's house in Brgy. Mina de Oro, Bongabong, Oriental Mindoro. Ramil and Eduardo were sitting on top of a table while Francisco was seated on a bench nearby. Suddenly, the group's attention was drawn to the sound of footsteps coming from the kitchen. Ramil focused his flashlight towards the direction of the approaching footsteps and saw petitioner Rodolfo Concepcion aiming a gun at him and thereupon firing it, hitting Ramil on his left arm. Eduardo, who was seated next to Ramil, was also hit on the right arm.

Francisco Flores immediately went out of the house and focused his own flashlight to the source of the gunshot. With the beam of his flashlight, Francisco saw the petitioner carrying a firearm and running away. Francisco then assisted Ramil and brought him to the Bongabong Hospital.

The following day, November 15, 1995, Ramil was transferred to the Provincial Hospital where he was initially treated and diagnosed to have sustained a "fracture, distal humerus, left open type III, secondary to high velocity gunshot wound with foreign body," which had a healing period of more than thirty (30) days.

Consequent to the foregoing incident, an Information 2 for Frustrated Murder was filed against the petitioner before the RTC of Pinamalayan, Oriental Mindoro. The Information alleges:

That on or about the 14th day of November, 1995, at around 8:30 o'clock in the evening, in Barangay Mina De Oro, Municipality of Bongabong, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with a decided purpose to kill, while armed with a shotgun, did then and there willfully, unlawfully and feloniously attack, assault and shot therewith one RAMIL LOPEZ, inflicting upon the latter gunshot wounds on his left arm, thus performing all the acts of execution necessary to produce the crime of murder but nevertheless did not produce it, by reason of causes independent of his will, that is, by the timely medical attendance which prevented his death.

That in the commission of the crime the qualifying circumstances of treachery and evident premeditation and the aggravating circumstance of nocturnity are attendant.

CONTRARY TO LAW.

When arraigned, the petitioner, assisted by counsel, entered a plea of "Not Guilty." In time, trial ensued. TcICEA

On November 13, 1998, the trial court rendered its decision 3 finding the petitioner guilty of only the lesser crime of Attempted Murder because the prosecution failed to present sufficient and convincing evidence to show that Ramil's wound was fatal. Dispositively, the decision reads:

ACCORDINGLY, accused RODOLFO CONCEPCION is hereby found GUILTY beyond reasonable doubt, as principal of the crime of ATTEMPTED MURDER, defined and penalized in Art. 248 in relation to Art. 6 and 51 of the RPC, qualified with treachery and their (sic) being proved the aggravating circumstance of dwelling without any mitigating circumstance to offset the same. The Court sentences him to an indeterminate imprisonment raging (sic) from four (4) years, two (2) months, one (1) day of PRISION CORRECTIONAL as to minimum to ten (10) years of PRISION MAYOR as maximum.

SO ORDERED.

Unable to accept his conviction, the petitioner went on appeal to the CA in CA-G.R. CR No. 22911, insisting on his innocence and arguing that the trial court committed reversible error in finding him guilty of the crime of attempted murder and in not giving weight and credence to his defense of alibi. He likewise disputes the trial court's finding of the existence of the qualifying circumstance of treachery.

In the herein assailed Decision 4 dated September 27, 2004, the appellate court affirmed that of the trial court. With his motion for reconsideration having been denied by the same court in its Resolution of February 17, 2005, petitioner is now with this Court with his catchall argument that the CA erred in affirming the verdict of guilt pronounced by the trial court notwithstanding the lack of evidence to support the same.

We DENY.

A cursory reading of the petition readily reveals that the core issue tendered by the petitioner boils down to the trial court's appreciation of the testimonies of the prosecution and defense witnesses.

As it were, petitioner would have the Court review once more the factual determinations of the trial court, as affirmed by the appellate court. Under Section 1, Rule 45, of the 1997 Rules of Civil Procedure, an appeal to this Court by way of a petition for review on certiorari should raise only questions of law which must be distinctly set forth in the petition. Of course, there are exemptions to this rule. Thus, the Court may be minded to review the factual findings of the CA only in the presence of any of the following circumstances: (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the findings of facts are contradicted by the presence of evidence on record; (8) the findings of the CA are contrary to those of the trial court; (9) the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties. 5

Unfortunately for the petitioner, none of the above exists in this case. Nonetheless, we shall address petitioner's lament.

Petitioner contends that the two courts below erred in giving full faith and credit to the testimonies of the principal prosecution witnesses, namely: the victim himself, Ramil Lopez, and Francisco Flores. He argues that the discrepancies in their respective testimonies make the two unreliable witnesses and rendered doubtful what they mouthed in court. In particular, petitioner points to the divergence in the testimonies of the two as to the weapon used in the night of the incident. According to the petitioner, while the victim declared that the weapon was a 12-gauge shotgun or de sabog, witness Francisco Flores, on the other hand, testified that it was a short hand gun or paltik, which looked like a .45 caliber gun. acHDTA

For sure, Francisco Flores testified that the paltik or homemade gun used by the petitioner had the appearance of a .45 caliber gun, 6 while Ramil described the gun as a "de sabog" and that its caliber was that of a 12-gauge shotgun. 7 However, it should be noted that witness Flores described the gun on the basis of its appearance while Ramil described it based on the type of ammunition employed. The alleged discrepancy, therefore, on their respective testimonies regarding the description of the weapon is very much reconcilable.

Further, petitioner underscores the fact that in the testimony of Flores, the latter stated that the group heard footsteps from the tungko and the victim focused his flashlight towards that direction, yet the victim himself did not corroborate such fact. Additionally, petitioner placed much emphasis on Flores' admission that after he (Flores) heard a shot, he only saw the side of the face of the attacker running away and disappearing into the darkness. To the petitioner, it was impossible for Flores to have identified him as the assailant.

We fail to see any reason to doubt the positive testimony of Flores that he saw the petitioner carrying a short firearm and running away from the scene of the crime after the gunshot rang out. Although Flores was not able to get a frontal view of the assailant, he was able to clearly see the side of the latter as illuminated by the beam of his own flashlight. Case law teaches that the illumination produced by a flashlight is sufficient to permit identification of a person. 8 Thus, under the circumstances, Flores' identification of the petitioner was sufficiently established.

Basic is the rule that the trial court's factual findings, especially its assessment of the credibility of witnesses, are generally accorded great weight and respect on appeal. When the issue is one of credibility, the Court will generally not disturb the findings of the trial court unless it plainly overlooked certain facts of substance and value that, if considered, might affect the outcome of the case. The reason therefor is not hard to discern: trial courts are in a better position to decide questions of credibility having heard the witnesses and observed their deportment and manner of testifying during the trial. 9

Petitioner next contends that the qualifying circumstance of treachery was not proven. Again, we disagree. For treachery to be appreciated as a qualifying circumstance, two conditions must concur, to wit: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted. 10

The foregoing elements were sufficiently established in this case. As found by the trial court and later affirmed by the CA, the petitioner attacked Ramil Lopez suddenly and unexpectedly, denying the latter the opportunity to defend himself from the unprovoked attack. In the words of the trial court:

The shooting was characterized by treachery. The suddenness of the attack without any provocation on the part of Ramil Lopez, who was then seated on top of the table, innocently conversing with the Lopez brothers and Nestor Bauson, and totally unaware of the impending attack, gave the victim no opportunity to repel or offer any defense from such attack. Alevosia was certainly present. 11

The evidence further shows that the petitioner came from the right side of Ramil, and, from a distance of about twenty (20) meters from him, opened fire at the latter. 12 The manner in which the petitioner shot Ramil Lopez manifests that the mode of attack was deliberately adopted.

Petitioner's defenses of denial and alibi were correctly rejected by the trial court. We quote with approval its findings in this regard:

Rodolfo Concepcion's protestation of innocence, his twin defense(s) of alibi and denial cannot prevail over the positive testimonies of the prosecution witnesses. It is a well-settled rule that alibi — the much abused sanctuary of felons and which is considered as an argument with a bad reputation cannot prevail over the positive identification of the prosecution witnesses ( People v. Miranday, 242 SCRA 620).

For alibi to prosper, it must be so convincing as to preclude any doubt that the accused could not have been physically present at the crime scene and at the time of the incident (People v. Morin, 241 SCRA 709). This is what accused failed to prove. It is to be noted that accused's residence is only one (1) km. away from the crime scene and it would only take half an hour to negotiate such distance.

It was not sufficiently shown that the alleged whereabouts of accused at the time of the shooting, as testified to by the defense witnesses, was far enough so as to foreclose any possibility for accused to be at the crime scene. 13

Lastly, petitioner would argue that even assuming he shot Ramil, at most he could only be held liable for the crime of serious physical injuries because the wound sustained by Ramil on his left arm was not mortal, as in fact it was medically determined to require a healing period of more than 30 days. HCDAcE

Again, petitioner's contention lacks merit.

The presence of the element of intent to kill determines whether the infliction of the injury should be punished as attempted murder or consummated physical injuries. 14 When such intent is lacking, the resulting felony is not attempted murder but only physical injuries, 15 And being a mental process, the intent to kill may be inferred from the weapon used, the extent of the injuries sustained by the offended party and the circumstances of the aggression. 16

Here, evidence abound as to the clear intent on the part of the petitioner to finish off his victim. Petitioner attacked Ramil Lopez with the use of a gun, a weapon capable of killing from a distance. The weapon was aimed at the upper portion of Ramil's body as evidenced by the fact that he suffered a gunshot wound on his left arm. The attack on Ramil could have been fatal had the bullet entered any of the vital parts of his upper body. Nonetheless, even as the prosecution had duly established the presence of intent to kill, there was no showing, however, that the wound sustained by Ramil was fatal and would have caused his death without immediate medical attention. The resulting crime, therefore, is only attempted murder, the accused not having performed all the acts of execution that would have brought about the victim's death. 17

On the whole, the petitioner miserably failed to advance any compelling reason to disturb the factual findings of the trial court, as affirmed by the CA. We thus go by the established principle that, on factual matters, the findings of trial courts, especially when affirmed by the appellate court, must be accorded the greatest respect in the absence, as here, of a showing that they ignored, overlooked, or failed to properly appreciate matters of substance or importance likely to affect the results of the litigation. 18

In fine, the Court finds no reversible error on the part of the CA in affirming the decision of the trial court convicting the petitioner of the crime of Attempted Murder.

WHEREFORE, the instant petition is DENIED and the assailed decision and resolution of the CA are AFFIRMED.

Costs against the petitioner.

SO ORDERED.

Puno, Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.

 

Footnotes

1. Penned by Associate Justice Amelita G. Tolentino with Associate Justices Roberto A. Barrios and Vicente S.E. Veloso, concurring, Rollo, pp. 74-89.

2. Id. at 30-31.

3. Id. at 32-35.

4. Supra note 1.

5. Gonzales v. Court of Appeals, 358 Phil. 806, 821 (1998); Polotan, Sr. v. Court of Appeals, 357 Phil. 250, 256-257 (1998). See also Lacanilao v. Court of Appeals, 330 Phil. 1074, 1079-1080 (1996).

6. TSN, January 14, 1997, p. 17.

7. TSN, October 21, 1997, p. 9.

8. People v. Loste, G.R. No. 94785, July 1, 1992, 210 SCRA 614, 620.

9. People v. Laceste, G.R. No. 127127, July 30, 1998, 293 SCRA 397.

10 People v. Porras, G.R. Nos. 114263-64, March 29, 1966, 255 SCRA 514, 529; People v. Belga, G.R. Nos. 94376-77, July 11, 1996, 258 SCRA 583, 598.

11. Supra note 3.

12 TSN, October 21, 1997, pp. 9-10.

13. Supra note 3.

14 Aquino R.C. and Griño-Aquino C.C., The Revised Penal Code, Vol. 1, 1997 Ed., p. 98.

15. People v. Pagador, G.R. Nos. 140006-10, April 20, 2001, 357 SCRA 299, 309.

16 People v. Boyles, et al., G.R. No. 15308, May 29, 1964, 11 SCRA 88, 96, citing People v. Parana, 64 Phil. 331 (1937).

17. People v. Reduca, G.R. Nos. 126094-95, January 21, 1999, 301 SCRA 516.

18. De Guia v. Court of Appeals, G.R. No. 120864, October 8, 2003, 413 SCRA 114, 129; Producers Bank of the Philippines v. Court of Appeals, G.R. No. 115324, February 19, 2003, 397 SCRA 651, 658-659; De la Cruz v. Sosing, et al., 94 Phil. 26, 29 (1953).