FIRST DIVISION
[G.R. No. 250930. October 6, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs. JOMAR AVELINO ESPAÑOLA, accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedOctober 6, 2021which reads as follows:
"G.R. No. 250930 — People of the Philippines v. Jomar Avelino Española
The appeal is DISMISSED.
Appellant is guilty
Murder is defined and penalized under Article 248 of the Revised Penal Code (RPC) as amended by Republic Act No. 7659, 1viz.:
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 perpetua 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;
xxx xxx xxx
5. With evident premeditation.
xxx xxx xxx
To sustain a conviction for murder, the prosecution must establish the following elements: (1) a person was killed; (2) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and (4) the killing is not parricide or infanticide. 2
There is no question here pertaining to the presence of the first and fourth elements.
The second element of murder — that the accused killed the person — was proven by the prosecution through the positive testimonies of Lilia Villahermosa (Lilia) and Mike Villahermosa (Mike). Lilia narrated that she saw Jomar Avelino Española (appellant), together with co-accused Hendrex Capuno (Capuno), Mark Mendoza (Mendoza), Justin Manuel (Manuel), and an unknown man, as the persons who stabbed her son, thus:
Atty. Asubar [to the witness]
"xxx xxx xxx
Q: Now Madam Witness, after Richard went out of the house, what happened next?
A: I suddenly heard a noise (biglang may kumalabog), sir.
Q: So what did you do after you heard that?
A: I ran towards our door, sir.
Q: And then, what did you do?
A: I opened the gate and I saw my son bloodied and he was being stabbed, sir.
Q: Now Madam Witness, you did not mention that when you opened the door, you saw your son being stabbed. Do you know who stabbed your son, Madam Witness?
A: Jomar, Justin, Mark, Hendrex and someone I do not know, sir." 3
When asked to identify the accused, Lilia positively named appellant as one of those who attacked Richard Villahermosa (Richard), thus:
Atty. Asubar [to the witness]
"Q: Now Madam witness, you made mention of the name Mark Mendoza, Justin Manuel, Jomar Española, Hendrex Capuno and another person whom you made mention you were not able to identify. Now, if these accused are present in this Court, will you be able to identify them, Madam witness?
A: Yes sir.
Q: Now [are] Hendrex Capuno, Mark Mendoza, Justin Manuel, Jomar Española and another person present in this room?
A: No sir. Only one of them.
Q: And who is that person present in this room, Madam witness?
A: One alias Kulet or Jomar, sir.
Acting Court Interpreter: The witness is pointing to a man wearing yellow shirt, who when asked [of] his name identified himself as Jomar Española." 4 (Emphasis supplied)
Even on cross, Lilia was steadfast m her account of the incident, viz.:
Atty. Bedana
"xxx xxx xxx
Q: Good morning, Madam Witness. The last time you testified before the Court on cross-examination, you identified your Sinumpaang Sumbong Salaysay. Exhibit D for the prosecution.
My question is, Madam Witness, during your direct examination on April 7, 2015, you were asked by your counsel, 5th question page 4 of your transcript of stenographic notes. You were asked by your counsel and I quote:
Q: Now Madam Witness, you did not mention that when you opened the door, you saw your son being stabbed. Do you know who stabbed your son, Madam Witness?
A: Jomar, Justin, Mark, Hendrex and someone I do not know, sir
Do you remember having asked this way?
A: Yes, ma' am.
Q: Do you confirm that answer that you gave during the April 7 testimony?
A: Yes, ma'am.
Q: Also on that day, April 7, 2015, in the transcript of stenographic notes page 6, there is a question. Third question:
Q: Who were they, referring to accused, who ran away?
A: The first one who ran was Kulet, Justine, Mark, and the other one whom I don't know, and Hendrex was the last one who ran away.
Do you remember having asked and answered that way?
A: Yes, ma'am.
Q: Do you confirm that portion of your testimony now?
A: Yes, ma'am." 5
Indubitably, Lilia testified in detail how appellant, Capuno, Mendoza, Manuel, and an unknown man attacked and stabbed Richard to death. They continuously stabbed him until they heard her shout for help, at which point, they stopped and ran away.
Mike corroborated Lilia's testimony and positively identified appellant as one of the assailants, thus:
"xxx xxx xxx
Q08: What did you do when you heard your mama shouting for help?
A: Agad akong bumalik papunta sa aming bahay at pagdating ko sa kanto ng eskinita sa harap ng aming bahay nabigla ako ng makita ko ang aking kuya [Richard] na sinasaksak ng limang tao sa likod at iba sa harap ng kanyang katawan nina Hendrex Capuno, Mark Mendoza, Justin Manuel alyas "Justine" at Jamar Espa[ñ]ola alyas "kulet" at isa pang lalake na pawang may mga dalang patalim.
Q09: What kind of weapon were they carrying? x x x
A: Parang mga kutsilyo.
xxx xxx xxx" 6
Like Lilia, Mike identified appellant, Capuno, Mendoza, Manuel, and an unknown man, as the persons who attacked and stabbed his brother Richard to death.
Indeed, the fact that Lilia and Mike are family members of the victim did not necessarily make them partial or biased witnesses. Mere relationship of a witness to the victim does not impair the witness' credibility. On the contrary, their close relationship to the victim would even make their testimony more credible, as it would be unnatural for them who are interested in vindicating the crime, to accuse someone else other than the real culprit. 7
Too, the respective testimonies of Lilia and Mike on how Richard was killed were corroborated by the medical findings of Police Chief Inspector Gracia Catherine Guno (PCI Guno), the Medico-Legal Officer. PCI Guno found that the "wounds on the trunk xxx in No. 7, No. 11[,] and No. 13 could have cause[d] the death of Villahermosa." Further, Richard sustained more or less twenty-three (23) stab wounds in different parts of his body which were caused by what PCI Guno described as a ''pointed sharp object." The multiple mortal wounds inflicted on the victim constitute physical evidence which further establish the truth of the eyewitness accounts of the witnesses. Further, their evidentiary value far outweighs any corroborative testimony which appellant requires of the prosecution. 8
As for the alleged inconsistency on the exact time when the incident happened, whether between one (1) o'clock and three (3) o'clock in the morning of December 21, 2012 or at exactly 2:45 in the morning of the same day, appellant is making a distinction with no difference. At any rate, time element is not a material element of the crime of murder. In another vein, the fact that Lilia's name did not appear in the Spot Report of the police right after the incident does not mean Lilia is not a credible witness. Non sequitur.
In any event, against the positive testimonies of Lilia and Mike and the medical findings of PCI Guno, appellant's denial and alibi necessarily fail.
Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving undeserving of weight in law. 9 For alibi to prosper, appellant must prove not only that he was at some other place when the crime was committed but that it was physically impossible for him to be at the locus criminis at the time of its commission. 10 Here, appellant failed to establish that it was physically impossible for him to be at Barangay 12, Caloocan City at the time of the stabbing incident. All he had to support his alibi are his bare allegations, nothing more.
Verily, the trial court's assessment of the credibility of the witnesses, the probative weight of their testimonies and the conclusions drawn from these factual findings are accorded the highest respect by the appellate court, whose review power is limited to the records of the case. This explains why the Court, not being a trial court, is loath to re-examine the evidence that had been analyzed and dissected by the trial court, especially when the latter's factual findings are affirmed in full by the appellate court. 11
Anent the third element —that the killing was attended by any of the qualifying circumstances mentioned in Art. 248 of the RPC — the prosecution failed to prove the presence of treachery but duly proved abuse of superior strength.
There is treachery when offenders commit any of the crimes against a person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to themselves arising from the defense which the offended party might make. 12 It requires: a) the employment of means of execution which gives the person attacked no opportunity to defend or retaliate; and b) the said means of execution were deliberately or consciously adopted. 13 More, in order to qualify the killing as murder, treachery must be proved by clear and convincing evidence or as conclusively as the killing itself. 14 The presence of treachery cannot be presumed. 15
In People v. Panerio, 16 the Court held that even where all indicia tend to support the conclusion that the attack was sudden and unexpected, yet no precise data on this point exists, treachery cannot be taken into account. Thus, when the witness did not see how the attack was carried out and cannot testify on how it began, the trial court cannot presume from the circumstances of the case that there was treachery. Circumstances which qualify criminal responsibility cannot rest on mere conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable existence.
Lilia and Mike both testified that they saw Richard being stabbed by appellant and the other accused. They did not witness though how the incident all started for the purpose of ascertaining whether treachery attended Richard's killing.
Nevertheless, the Court finds abuse of superior strength to have attended the killing. Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor/s that is plainly and obviously advantageous to the aggressor/s and purposely selected or taken advantage of to facilitate the commission of the crime. Evidence must show that the assailants consciously sought the advantage, or that they had the deliberate intent to use this advantage. More, what should be considered is not that there were three, four, or more assailants of one victim, but whether the aggressors took advantage of their combined strength to consummate the offense. It is therefore necessary to show that the attackers cooperated in such a way as to secure advantage of their superiority in strength. 17
In People v. Amodia, 18 abuse of superior strength was employed by Amodia and other three (3) co-accused in committing the killing. Evidence showed that the victim was unarmed when he was attacked. Two assailants held his arms on either side, while the other two, on the victim's front and back, each armed with a knife and a piece of wood that they later used on the victim. Under these circumstances, no doubt exists that there was gross inequality of forces between the victim and the four (4) accused and that the victim was overwhelmed by forces he could not match.
Here, in the early morning of December 21, 2012, Richard just stepped out of their house to follow his brother Mike in buying mami. Then, his mother heard a noise outside the house which caused her to step out to check. Near the gate, she witnessed her son Richard being stabbed simultaneously by five (5) men frontally and in the back. Among the assailants was appellant himself. She recalled that the assailants were all armed with bladed weapons. It was also established that Richard sustained more or less twenty-three (23) stab wounds in different parts of his body as indicated in the Medico-Legal Report No. A12-813N. Evidently, appellant and the other accused took advantage of their number and their bladed weapons to ensure the death of the victim. This is a clear case of abuse of superior strength.
All told, the Court of Appeals correctly affirmed the trial court's conviction of appellant.
Imposable Penalty
Appellant was correctly sentenced to reclusion perpetua in the absence of any aggravating or mitigating circumstance; and ordered to pay P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P75,000.00 as exemplary damages to the heirs of Richard Villahermosa consistent with People v. Jugueta. 19 Too, actual damages of P58,400.00 were properly sustained per the two (2) Funeral Service Contracts 20 dated December 21 and 26, 2012. Finally, the Court of Appeals correctly granted six percent (6%) interest per annum on the total monetary award.
WHEREFORE, the appeal is DISMISSED. The assailed Decision dated November 9, 2018 of the Court of Appeals in CA-G.R. CR-HC No. 09892 is AFFIRMED. Appellant Jomar Avelino Española is found GUILTY of MURDER and sentenced to reclusion perpetua.
He is further required TO PAY the heirs of Richard Villahermosa P75,000.00 as civil indemnity, P75,000.00 as moral damages, P75,000.00 as exemplary damages, and P58,400.00 as actual damages. All monetary awards are subject to six percent (6%) interest per annum from finality of this Resolution until fully paid.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Laws, as Amended, Other Special Penal Laws, and for Other Purposes, approved on December 13, 1993.
2.People v. Toro, G.R. No. 245922, January 25, 2021.
3. CA rollo, pp. 56-57.
4.Rollo, pp. 9-10.
5. CA rollo, pp. 57-58.
6.Id. at 60.
7.People v. Romero, 459 Phil. 484, 499 (2003).
8. See People v. Aleman, 715 Phil. 107, 123 (2013).
9.People v. Anticamara, 666 Phil. 484, 507 (2011).
10.People v. Bulasag, 582 Phil. 243, 252 (2008).
11. See People v. Soriano, 810 Phil. 239, 251 (2017).
12.People v. Abina, 830 Phil. 352, 361 (2018).
13.People v. Toro, G.R. No. 245922, January 25, 2021.
14. See People v. PO1 De Gracia, 765 Phil. 386, 396 (2015).
15. See People v. Lopez, 371 Phil. 852, 864 (1999).
16. 823 Phil. 738, 750 (2018).
17.People v. Buluran, 382 Phil. 364, 374-375 (2000).
18. 602 Phil. 889, 915 (2009).
19. 783 Phil. 806, 848 (2016).
20. Record, pp. 163-164.