THIRD DIVISION
[G.R. No. 222643. January 24, 2018.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. WILKIE ABALLE y FUENTES, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJanuary 24, 2018, which reads as follows: HTcADC
"G.R. No. 222643 (PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. WILKIE ABALLE y FUENTES, Accused-Appellant.) — Under review is the affirmance by the Court of Appeals (CA) through its decision promulgated on September 18, 2015 1 of the conviction of the accused for murder handed down in Criminal Case No. AR-3607 on September 20, 2013 by the Regional Trial Court (RTC), Branch 26, in Argao, Cebu imposing reclusion perpetua on him. 2
Antecedents
The accused was charged with murder by the Office of the Provincial Prosecutor of Cebu in the information dated May 16, 2006 for the fatal shooting of Juan Dela Peña on March 3, 2006, alleging as follows:
That on the 3rd day of March 2006, at about past 5:00 o'clock in the afternoon, more or less at Sitio Maay-ay, Barangay Uba-ub, Municipality of Argao, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with the use of a firearm and with treachery, did then and there, willfully, unlawfully and feloniously attack, assault and shoot JUAN DELA PEÑA twice, hitting the latter fatally on his back thereby inflicting upon him injuries which caused his instantaneous death.
CONTRARY TO LAW. 3
The CA summarized the respective evidence of the parties as follows:
The prosecution presented July Mapalo who testified that after school on March 3, 2006, at around 5 o'clock in the afternoon, he went to Maay-ay, Ubaub, Argao, Cebu to go to his grandfather Juan Dela Peña. At that time, July saw his grandfather, who was watching a cockfight near the basketball court. He approached his grandfather and told the latter to go home with him. He then walked toward a parking area. Checking if his grandfather was following him, July looked back and saw his grandfather Juan already with a group watching a game of cara y cruz. At that same time, July saw accused Aballe point a gun at the back of Juan and shoot the latter. Juan held his chest as he stumbled to the ground. Aballe fired another shot leaving Juan dead. The people around Juan scampered and Aballe walked away with the gun in his hand. Shocked at what he saw, July remained still where he was standing.
Francisco Dela Peña corroborated July's testimony. He narrated that he was also at Maay-ay when the incident took place. He was on his way home and decided to stop by to check the games in the basketball court. He then heard two gunshots and saw people scampering away. He approached the place where he heard the gunshots and saw his brother, Juan, already covered with blood. He looked around the people and saw Aballe walking away while holding a gun.
On the other end, the defense put forth a defense of alibi and tried to impeach July's testimony by contradictory evidence.
The defense presented two witnesses, Marissa Cañete and Ednalyn Chavez, who testified that they were with July on the very same day the shooting incident happened. According to them, July did not witness the incident as he did not actually go to the public market where the crime took place. Marissa testified that she and July went home together from school. They rode a coal dump truck in order to go to their respective houses. According to Marissa, before the truck reached the public market, July already disembarked at a road near his house. As such, when the truck reached the public market where the shooting incident happened, July was not anymore riding the truck and there were no more people around the said place. Ednalyn, meanwhile, affirmed that July rode with them on a coal dump truck that day the shooting incident happened. Ednalyn narrated that July was the first to disembark from the coal truck, but July asked the truck driver to wait for him. After dropping by their house, July rode back on the truck until they reached the public market. When they reached the public market, they saw a few people, and there they were informed of what happened. She admitted that she saw July in the public market and he was on his way to the house of his lolo.
Aballe also testified on his own behalf. Corroborated by the testimonies of Christian Tinat and Manuel Napoles, Aballe tried to establish that he was not at Maay-ay, Ubaub, Argao, Cebu when the shooting incident happened. According to Aballe, on March 3, 2006, he went to Carbon Market, Cebu City to deliver vegetables. At 5 o'clock in the afternoon, he went to the house of his sister in Talisay City to inform her about their sick father. He had dinner at his sister's house. Thereafter, he had a drinking spree with his sister's husband, Manuel Napoles, and a friend, Christian Tinat. He stayed in Talisay until the next day. He learned about the shooting of Juan when he arrived at [his] house in Argao, Cebu. 4 aScITE
As stated, on September 20, 2013, the RTC rendered judgment finding the accused guilty of murder, and penalizing him with reclusion perpetua. It accorded full credence and weight to the testimony of July Mapalo to the effect that he had witnessed the accused shooting Juan Dela Peña twice; and rejected the accused's alibi because of his failure to establish the physical impossibility of his being at the scene of the crime at the time of the incident. 5 It disposed thusly:
WHEREFORE, the Court finds accused WILKIE ABALLE y FUENTES GUILTY beyond reasonable doubt of the crime of MURDER and hereby sentences him to suffer the penalty of RECLUSION PERPETUA and to indemnify the heirs of the victim Juan Dela Peña the sum of PhP50,000.00 as civil indemnity ex delicto, PhP50,000.00 as moral damages and PhP30,000.00 as exemplary damages.
The accused, being a detention prisoner, shall be credited in full time of his preventive imprisonment which shall be deducted from the penalty imposed.
SO ORDERED. 6
The accused appealed the conviction to the CA, 7 submitting for consideration and resolution the following issues, to wit:
I
WHETHER OR NOT THE EVIDENCES (SIC) PRESENTED BY THE PROSECUTION [IS] SUFFICIENT TO CONVICT THE APPELLANT TO (SIC) THE CRIME CHARGED.
II
WHETHER OR NOT THE HONORABLE COURT COMMITTED ERRORS OF FACTS AND QUESTIONS OF LAW IN RENDERING JUDGMENT AGAINST THE APPELLANT FOR THE CONVICTION OF GUILTY BEYOND REASONABLE DOUBT DESPITE INCONSISTENCY OF THE LONE PROSECUTION WITNESS. 8
The accused contended that the testimonies of the Prosecution's witnesses were not credible for being inconsistent and improbable; that July's testimony was not consistent about the time he reached the public market in Sitio Maay-ay, Barangay Ubaub, Argao, Cebu; that July could not have identified the gunman in view of his admission that it was dark when the shooting happened; that it was highly improbable for July to still have the temerity to stay and observe the shooting incident even as people were then scampering in different directions considering his admission of being terrified upon hearing the gunshots; and that witness Francisco could not have clearly seen the shooting considering his admission that there was a crowd between him and the crime scene.
In contrast, the Office of the Solicitor General (OSG) submitted that the evidence of the State established the guilt of the accused beyond reasonable doubt because the State's witnesses were competent and consistent.
On September 18, 2015, the CA affirmed the conviction of the accused, 9 disposing as follows:
WHEREFORE, the instant appeal is DENIED. The assailed Decision dated September 20, 2013 of the Regional Trial Court of Argao, Cebu, Branch 26 in Criminal Case No. AR-3607 is hereby AFFIRMED. The aggregate amount of the monetary awards therein shall earn interest at the rate of six percent (6%) per annum from the finality of this Decision until the same is fully paid.
SO ORDERED.10
In affirming the conviction, the CA ruminated:
It is doctrinal that findings of trial courts on the credibility of witnesses deserve a high degree of respect and will not be disturbed on appeal absent a clear showing that the trial court had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance, which could reverse a judgment of conviction. In fact, in some instances, such findings are even accorded finality. This is so because the assignment of value to a witness' testimony is essentially the domain of the trial court, not to mention that it is the trial judge who has the direct opportunity to observe the demeanor of a witness on the stand, thus providing him unique facility in determining whether or not to accord credence to the testimony or whether the witness is telling the truth or not.
To Our mind, the trial court carefully assessed the testimonies of the witnesses in finding Aballe's guilt. We do not see any clear showing that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that could alter the trial court's findings. HEITAD
We do not see any inconsistency and improbability in July's statements. July narrated the material details which are necessary to prove Aballe's guilt. His testimony was certain and straightforward. He testified that as he looked back to where his grandfather Juan was, he saw Aballe pointing a gun at Juan. July saw Aballe shoot Juan twice. Having personally known Aballe for being their neighbor, July was certain that Aballe was the perpetrator. Even his reaction to the shooting incident could not be considered improbable. It is settled "that different people react differently to a given situation or type of situation, and there is no standard form of human behavioral response when one is confronted with a strange or startling or frightful experience; witnessing a crime is an unusual experience which elicits different reactions from the witnesses and for which no clear-cut standard form of behavior can be drawn." In this case, July was so shocked to see the shooting of his grandfather rendering his body stiff and still, and that could explain why he was not able to run immediately.
Moreover, Aballe failed to present concrete evidence to show any reason or motive on the part of July to testify wrongly against him. In the absence of proof to the contrary, the presumption is that the witness was not moved by any ill-will and was untainted by bias, and thus worthy of belief and credence.
Between July's positive testimony and Aballe's defense of alibi, the latter prevails. We emphasize the principle that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses. The trial court correctly assessed Aballe's claim of alibi in this wise:
The accused adopts alibi as his defense. He first presented Christian Tinat who testified that it was on March 4, 2006 that he had a drinking spree with the accused and a certain Manuel in Talisay City which started after dinner and ended at 10:00 o'clock in the evening. On the following day, he saw the accused preparing his trip to Argao which is 55 kilometers away from Cebu City. The accused further presented his brother-in-law Manuel Napoles who stated that it was on March 3, 2006 that he had been drinking Beer Grande with the accused and Christian Tinat from 5:00 P.M. to 10:00 P.M. in Talisay City. x x x
A careful reading of the evidence presented by the accused to prove his defense of alibi shows that the accused failed to establish a clear and convincing evidence to show that he was in Talisay City at the time of the incident and that it was physically impossible for him to be at the scene of the crime.
Anent the claim of the defense that July did not actually witness the shooting incident, We opine that the trial court was correct in not giving weight to the testimonies of Marissa and Ednalyn. We affirm the trial court in holding:
x x x. The accused presented Marissa Cañete who stated that on March 3, 2006, she was with July Mapalo who rode on a coal dump truck from Gutlang to Maay-ay. She further stated that it is not true that July Mapalo was in the market place on March 3, 2006, at 5:30 in the afternoon, because he disembarked near his house at 6:00 o'clock in the evening. x x x. Defense witness Ednalyn Chavez testified that on March 3, 2006, July Mapalo rode on the same dump truck that they were riding and who disembarked on the road towards his house but after changing his clothes, he rode back on the same truck that they were riding. July Mapalo disembarked at the Public Market. She saw July in that place who was on his way to the house of his Lolo. In short, the testimony of defense witness Marissa Cañete that July Mapalo did not go to the Public Market where the shooting incident happened is inconsistent with the testimony of another defense witness Ednalyn Chavez who stated that she saw July Mapalo in the Public Market on March 3, 2006. Thus, the positive testimony of prosecution witness July Mapalo that he was at the scene of the crime in Maay-ay, Ubaub, Argao, Cebu prevails over the negative testimony of defense witnesses.
Juan's death is undisputed. The killing is neither parricide nor infanticide. Likewise, evidence point that Aballe shot Juan at his back. Because Juan was shot at his back twice with no inkling that he was going to be shot, Aballe employed treachery or means which tended directly and specially to insure its execution, without risk to him arising from the defense which Juan might make. Convincingly, the evidence of the prosecution proved beyond reasonable doubt the following elements of the crime of murder: ATICcS
1. That a person was killed;
2. That the accused killed him;
3. That the killing was attended by any of the qualifying circumstances mentioned in Art. 248;
4. The killing is not parricide or infanticide. 11
Hence, this appeal.
On August 17, 2016 and February 1, 2017, the Court noted the OSG's and the accused's respective manifestations waiving the filing of supplemental briefs, and adopting their submissions in the CA. 12
Ruling of the Court
The appeal lacks merit, but the Court modifies the criminal liability of the accused from murder to homicide because the records contained no evidence showing how the lethal attack mounted by the accused against the victim had commenced.
It appears that the CA concurred with the RTC's finding that the crime was murder because the accused had shot the victim "at his back" twice when the victim had "no inkling that he was going to be shot." Such manner of attack, according to the CA, constituted treachery because the accused thereby adopted "means which tended directly and specially to insure its execution, without risk to him arising from the defense which Juan might make." Hence, the CA ruled that the crime was murder.
Treachery or alevosia exists "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 the execution, without risk to himself arising from the defense which the offended party might make." 13 The concurrence of two conditions is, therefore, necessary, namely: (1) the employment of means, methods, or manner of execution which would insure the offender's safety from any defensive or any retaliatory act on the part of the offended party, which means that no opportunity is given the latter to defend himself or to retaliate; and (2) such means, method, or manner of execution was deliberately or consciously chosen. 14
On the basis of the foregoing requirements for treachery, we cannot uphold the CA's ruling on the characterization of the crime as murder. For treachery to be appreciated, indeed, the evidence must establish beyond reasonable doubt that treachery was present and seen by the witnesses right at the inception of the attack. Equally true is that a killing done at the spur of the moment is not treacherous. 15 Moreover, the mere suddenness of the attack did not suffice to make treachery exist in the absence of proof that the suddenness was purposely adopted to ensure the attack from retaliation or defense. 16 When the records of the trial do not show how the attack had been commenced by the accused, which was true herein, there could be no factual basis for holding that the accused killed the victim with treachery. Indeed, the perpetration of the killing with treachery cannot be competently supposed if there were no known particulars of the commencement of the attack, or the State's witnesses did not disclose how the attack had commenced. 17 We stress that the attendance of treachery must be proved as indubitably as the crime itself. 18
Accordingly, the accused was instead guilty of homicide, which is defined under Article 249 19 of the Revised Penal Code and punished with reclusion temporal (i.e., 12 years and one day to 20 years). Absent any modifying circumstances, the penalty is imposed in its medium period (i.e., from 14 years, eight months and one day to 17 years and four months). Applying the Indeterminate Sentence Law, the minimum of the indeterminate sentence is eight years of prision mayor, and the maximum is 12 years and one day of reclusion temporal.
We also revise the civil liability prescribed against the accused by deleting the grant of P30,000.00 as exemplary damages considering the absence of any aggravating circumstance. Conformably with People v. Jugueta, 20 we affirm the rest of the amounts awarded as civil liability for the death of the victim, specifically the P50,000.00 as civil indemnity and the P50,000.00 as moral damages, but we add P25,000.00 as temperate damages (in lieu of actual damages for the burial of the victim's remains). All such amounts shall earn interest of 6% per annum reckoned from the finality of this decision until full satisfaction.
WHEREFORE, the Court AFFIRMS the decision promulgated on September 18, 2015 by the Court of Appeals subject to the MODIFICATIONS, namely: (1) FINDING AND DECLARING accused WILKIE ABALLE y FUENTES guilty beyond reasonable doubt of HOMICIDE, and, accordingly, SENTENCING HIM TO SUFFER the INDETERMINATE PENALTY OF EIGHT YEARS OF PRISION MAYOR, AS THE MINIMUM, AND 12 YEARS AND ONE DAY OF RECLUSION TEMPORAL AS THE MAXIMUM; and (2) ORDERING HIM TO PAY to the heirs of the late Juan Dela Peña the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages, plus interest thereon of 6% per annum reckoned from the finality of this resolution until full satisfaction, and the costs of suit. TIADCc
(Martires, J., on wellness leave.)
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 4-12; penned by Associate Justice Germano Francisco D. Legaspi, with the concurrence of Associate Justice Pamela Ann Abella Maxino and Associate Justice Jhosep Y. Lopez.
2. CA rollo, pp. 154-161; penned by Presiding Judge Maximo A. Perez.
3.Id. at 154.
4.Rollo, pp. 4-6.
5. CA rollo, p. 161.
6.Id.
7.Id. at 75.
8.Id. at 98.
9.Supra note 1.
10.Id. at 11.
11.Id. at 8-10 (the bold underscoring and underlining are part of the original text).
12.Rollo, p. 31.
13. Article 14, par. 16, Revised Penal Code.
14.People v. Banayo, No. L-64164, June 22, 1984, 129 SCRA 725, 734-735; People v. Rhoda, No. L-58613, June 24, 1983, 122 SCRA 909, 921; People v. Macariola, No. L-40757, January 24, 1983, 120 SCRA 92, 103.
15.People v. Badajos, G.R. No. 139692, January 15, 2004, 419 SCRA 607, 624.
16.United States v. Namit, 38 Phil. 926 (1918).
17.People v. Sayaboc, G.R. No. 147201, January 15, 2004, 419 SCRA 659, 666.
18.People v. Aquino, G.R. No. 130613, October 5, 2000, 342 SCRA 141, 143.
19. Art. 249. Homicide. — Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.
20. G.R. No. 202124, April 5, 2016, 788 SCRA 331.