Evidence2008.5thset

SECOND DIVISION [G.R. No. 123912. June 8, 2000] PEOPLE OF THE PHILIPPINES, MONIEVA, accused-apppellant.

plaintiff-appellee,

vs.

LEVY

A letter dated April 23, 1993 was sent to the court a quo by Chona C. Belmonte, MD, of the Department of Health Regional Health Office No. 5, Don Susano J. Rodriguez Memorial Mental Hospital, Cadlan, Pili, Camarines Sur. Some portions of her letter are quoted below: "Dear Sir:

DECISION

"Preliminary examination was conducted on the subject LEVY MONIEVA on April 23, 1993 as per request of your honorable court dated October 1, 1991.

BUENA, J.: Accused-appellant Levy Monieva appeals the decision of the Regional Trial Court at Masbate, Masbate, Branch 47 in Criminal Case No. 6348 entitled "People of the Philippines versus Levy Monieva" convicting him of murder and sentencing him to reclusion perpetua.

"As you can see it took the provincial jail almost 2 years to bring the accused here for examination. "At present, there are no observable psychotic signs and symptoms noted on him. However, we are still conducting psychological testing to further evaluate him. At this point, the patient doesn’t need any form of treatment."

On May 20, 1991, an information was filed against Levy Monieva charging him of murder committed as follows: "That on or about February 10, 1991 in the afternoon thereof, at Sitio Iraya, Barangay Cagay, Municipality of Masbate, Province of Masbate, Philippines and within the jurisdiction of this court, the said accused with intent to kill, evident premeditation, treachery and abuse of superior strength did then and there willfully, unlawfully and feloniously stab and hack several times one Leonardo Dumalag, hitting the latter on the different parts of his body thereby inflicting wounds which directly caused his instantaneous death. "CONTRARY TO LAW." On July 17, 1991, the trial court issued an order referring the accused to the Masbate Provincial Health Office, Masbate, Masbate for mental examination and postponing indefinitely the pre-trial and arraignment of the case until the results of the said examination shall have become available for the consideration of the court. Considering however the refusal of the Masbate Provincial Health Office to conduct a mental examination on the accused there being no physician in that office competent enough to conduct the requested mental examination, the court a quo issued another order on October 1, 1991, referring the accused to the Rodriguez Memorial Mental Hospital, Cadlan, Pili, Camarines Sur for mental examination.

xxx Upon arraignment, accused Levy Monieva, assisted by counsel, pleaded not guilty to the crime charged. The Regional Trial Court thereafter proceeded with the trial. Elvie Mabuti, one of the witnesses for the prosecution, testified that on February 10, 1991 at about 5:30 o’clock in the afternoon while she and her husband Rani Mabuti were inside their house located at Iraya Cagay, Mobo, Masbate, Masbate she saw accused Levy Monieva hack the victim Leonardo Dumalag. She also heard Leonardo Dumalag crying for help while he was running away. The incident happened about 5 meters away from their house. Upon seeing the incident, she and her husband together with their two children jumped from their house and fled to the bushes where they stayed the whole night. At about 10:00 o’clock the following morning, they returned home and found the headless body of the victim. The head was recovered two days later on the land tilled by accused Monieva. Pacita Dumalag, the wife of the victim, testified that on February 10, 1991 at about 7:30 o’clock in the evening she was informed by Barangay Tanod Amador Dalanon and Abner Brioso that her husband was killed by Levy Monieva near the house of their tenant Rani Mabuti at Cagay, Masbate, Masbate. They then went to the place of incident and found the lifeless body of her husband.

She also stated that on February 11, 1991, the police arrested Levy Monieva near his house at Cagay, Masbate, Masbate. The bolo used in killing her husband was recovered from the accused. For the burial of her husband, she spent Eighteen Thousand Pesos (P18,000.00). Dr. Artemio Capellan, the Municipal Health Officer of Masbate, Masbate testified that he conducted a post mortem examination on the body of victim Leonardo Dumalag on February 12, 1991. Based on his examination, the victim sustained four (4) stab wounds, one of which was the most fatal because the head of the victim was almost cut off. The instrument used to kill the victim was a short bladed instrument and it was possible that a bolo was used. The defense presented only one witness, the accused Levy Monieva. He denied the allegations that he killed Leonardo Dumalag. He testified that at the time of the incident he was being attended to by a quack doctor named Fedir Villanueva in his house located at Cagay, Masbate, Masbate as he had a fever and his body was aching. He only learned about the death of Leonardo Dumalag from Barangay Tanod Abner Brioso and Amador Dalanon when he was investigated by the two. On February 11, 1991, he was arrested by the police authorities. On July 10, 1995, a decision was rendered by the trial court convicting the accused and imposing the following penalty: "WHEREFORE, this court finds accused Levy Monieva guilty beyond reasonable doubt of the crime charged and hereby sentences him to reclusion perpetua; orders him to indemnify the heirs of the victim the sum of P50,000.00 without subsidiary imprisonment in case of insolvency; and to pay the cost. "IT IS SO ORDERED." Hence, this appeal where accused-appellant assigns the following errors allegedly committed by the trial court: I THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE OTHERWISE UNCORROBORATED, INCREDIBLE AND FABRICATED TESTIMONY OF PROSECUTION WITNESS ELVIE MABUTI II

THE TRIAL COURT ERRED IN CONVICTING ACCUSEDAPPELLANT LEVY MONIEVA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DEFINED AND PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL CODE, DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE QUALIFYING AGGRAVATING CIRCUMSTANCE CHARGED IN THE INFORMATION. The appeal is meritorious in the sense that the penalty should be lowered. In his brief accused-appellant contends that Elvie Mabuti is an unreliable witness because her testimony is contrary to human experience, incredible, fabricated and wholly concocted. He points to the following incongruities in the said witness’ testimony and rationalizes why he considers them to be such. a) Elvie Mabuti and her family left their house and fled to the bushes that are in an open field and that is where they stayed the whole night. – It is highly incredible and unbelievable that they would leave their house to hide in an open field where they could have easily been caught and attacked. b) Upon their return the following day, February 11, 1991, at about 10:00 o’clock in the morning Elvie Mabuti found the body of the victim near their house. – This does not jibe with the testimony of the victim’s wife, Pacita Dumalag, that upon learning of the death of her husband Leonardo on February 10, 1991 at around 7:30 o’clock in the evening she immediately went to the place of the incident where she found his lifeless body; c) Elvie Mabuti testified that the victim was beheaded and that the head was recovered two days later. – This is false because the post mortem report of Dr. Artemio Capellan stated that the head of the victim was almost cut off but not severed. We find the testimony of Elvie Mabuti credible. She testified in a categorical, straightforward manner – manifestations that a witness is telling the truth. Appellant finds it incredible that Elvie Mabuti and her family opted to flee from their house instead of just staying put.

Elvie Mabuti explains why: "(They) jumped and escaped because (her) husband was afraid." At first blush it confounds the mind why Rani Mabuti, the husband of Elvie, opted to flee the sanctuary of their abode. Was it cowardice or fear for his family’s safety that prompted him to do so? Whatever the reason for their hasty departure was, we deem it inconsequential for the fact remains that they fled when they saw their neighbor Levy Monieva hacking Leonardo Dumalag. As admitted by Monieva himself except for the Mabuti family he had no other neighbor. Considering then that the Mabutis were witness to a crime taking place and perhaps propelled by the belief that they could be killed next Rani Mabuti made the decision to flee. Given the same set of circumstances another person might have had the same or an entirely different reaction. It is not fair to gauge the action of Elvie Mabuti and her family with that of another for it is difficult to ascertain what a person’s reactions would be when a startling or frightening situation suddenly looms before him. It has been held in the case of People vs. Luzorata, "(d)ifferent people act differently to a given stimulus or type of situation, and there is no standard form of behavioral response when one is confronted with a strange or startling or frightful experience." As to the alleged inconsistency between the testimony of Elvie Mabuti and the victim’s wife Pacita Dumalag we find that the time when the body was found is immaterial to appellant’s guilt. Where the inconsistency is not an essential element of murder, such inconsistency is insignificant and cannot have any bearing on the essential fact testified to, that is, the fact of killing. It has been held that inconsistencies and discrepancies in the testimony referring to minor details and not upon the basic aspect of the crime do not impair the witnesses’ credibility. These inconsistencies even tend to strengthen, rather than weaken, the credibility of witnesses as they negate any suspicion of a rehearsed testimony. But even if it were proven that that part of Elvie Mabuti’s testimony was false, this will not cause her entire testimony to be rejected, for

"Even where a witness is found to have deliberately falsified the truth in some particulars, and it was not shown that there was such intended prevarication by complainant in this case, it is not required that the entire testimony be rejected, since such portions thereof deemed worthy of belief may be credited. It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. Finally, appellant was positively and categorically identified by Elvie Mabuti as the person who hacked Leonardo Dumalag. More than anything, this carries a great weight in the determination of whether an accused is guilty or not. Some portions of the testimony of the said witness follow: "COURT "Q On February 10, 1991 at about 5:30 in the afternoon what happened to Leonardo Dumalag? "A He was killed. "ATTY. VILLAMOR "Q By whom? "A Levy Monieva. "Q If this Levy Monieva is in Court, can you identify him? "A Yes, sir. "Q Please point to Levy Monieva. "A (Witness pointed to a man who, when asked of his name, identified himself as Levy Monieva. "Q Now how did Levy Monieva kill Leonardo Dumalag on February 10, 1991? "A He hacked him. "Q How many times did Levy Monieva hack Leonardo Dumalag? "A Many times. "Q Where? "A Parts of his body.

"Q Where particularly in Cagay did Levy Monieva hack Leonardo Dumalag? "A Near our house. "Q How many meters away from your house? "A About five meters. Appellant denies having committed the crime and interposes the defense of alibi. He contends that he could not have killed the victim because he was sick at the time. It has invariably been held that for an alibi to prosper, it must be sufficiently convincing as to preclude any doubt as to the physical impossibility of the accused-appellant’s being present at the locus criminis or its immediate vicinity at the time of the incident. Appellant Levy Monieva admits that he was being attended by a quack doctor in his house at Cagay, Masbate, Masbate at the time of the incident. The crime occurred a few meters away from the house of his nearest neighbor Rani Mabuti. Monieva was not so far away that he could not have been physically present at the place of the crime, or its immediate vicinity at the time of its commission. Between the positive identification made by Elvie Mabuti and the denial of the appellant, we are more inclined to give weight to the former’s testimony. Moreover, there was no showing that Elvie Mabuti was motivated by any ill-will when she testified against the appellant. We have no reason to believe that she would knowingly put a person behind bars if he was not the one who killed the victim. Positive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.

dead. The record does not disclose this information. What the eyewitness, i.e., Elvie Mabuti saw (appellant chasing and hacking the victim) and heard (the crying of the victim for help) was almost the tail end of the altercation between the appellant and the victim. We do not know what the means of defense available to the offended party was, if there was any, and whether he made use of it from the inception of the altercation. Abuse of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked to defend himself. (Emphasis Ours) Before abuse of superior strength may be appreciated, it must be clearly shown that there was deliberate intent on the part of the malefactor to take advantage thereof. The prosecution is of the opinion that since the appellant was armed with a bolo and was chasing the unarmed victim who was trying to flee, this shows that the latter was powerless to offer resistance thereby admitting his inferiority and the superiority of his assailant. This is mere conjecture on the part of the prosecution. It was not at all apparent that the appellant consciously adopted that particular means, i.e., the use of a bolo, to harm another. The prosecution failed to prove the qualifying circumstance of treachery. Treachery is present when the attack comes without warning, is sudden and unexpected and the unsuspecting victim is not in a position to parry the assault.In the case of People vs. Pena it was held that treachery cannot be presumed; it must be proved by clear and convincing evidence, or as conclusively as the killing itself. The mere fact that the victim was running away from the appellant who was wielding a bolo shows that the victim was aware of the danger to himself, thus negating the suddenness of the attack for which reason treachery cannot be appreciated in this case.

Anent the second assigned error we hold that the trial court erred in convicting the appellant of murder. It was not sufficiently proven that the killing was qualified by the aggravating circumstances of abuse of superior strength, evident premeditation, and treachery.

Neither was evident premeditation proven for there was no showing as to how and when the plan to kill was hatched, or what time had elapsed before it was carried out. Evident premeditation must be clearly proven, established beyond reasonable doubt, and must be based on external acts which are evident, not merely suspected, and which indicate deliberate planning.

We are at a complete loss as to what the sequence of events was from the time Levy Monieva and Leonardo Dumalag met to the time the victim lay

From the above, we hold that there was an absence of qualifying circumstances to justify the conviction of the accused for murder.

IN VIEW WHEREOF, the conviction of appellant Levy Monieva is AFFIRMED, with the modification that he is declared guilty beyond reasonable doubt of the crime of Homicide and not Murder. Thus, appellant is sentenced to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. The monetary award of P50,000.00 as indemnity for the death of the victim is also AFFIRMED. Costs against the appellant. SO ORDERED.

DECISION

“That on or about April 13, 1991, at about 7:45 p.m. more or less, in Barangay Curba, Municipality of Calauan, Province of Laguna, and within the jurisdiction of the Honorable Court, the above-named accused conspiring, confederating, and mutually aiding one another, with treachery and evident premeditation, and with the use of a motor vehicle, at night time, all the accused then being armed and committed in consideration of a price, reward or promise and of superior strength, did then and there willfully, unlawfully, and feloniously shoot with the use of automatic weapons inflicting multiple gunshot wounds upon Nelson Peñalosa and Rickson Peñalosa which caused their instantaneous deaths to the damage and prejudice of their heirs and relatives.

PARDO, J.:

“CONTRARY TO LAW.”

What is before this Court is an appeal from the decision of Regional Trial Court, Branch 160, Pasig City, finding accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito “Ding” Peradillas and Artemio Averion guilty beyond reasonable doubt of murder committed against Nelson Peñalosa and Rickson Peñalosa, and sentencing each of the accused, as follows:

On March 16, 1994, the case was raffled to Branch 34, Regional Trial Court, Calamba, Laguna. On March 17, 1994, the court ordered the arrest of accused Antonio L. Sanchez, Luis Corcolon and Ding Peradillas. On the same date, Artemio Averion voluntarily surrendered to the court, which ordered Averion’s transfer to the provincial jail, Sta. Cruz, Laguna.

“WHEREFORE, foregoing considered, the Court finds the accused Antonio Sanchez, Landrito “Ding” Peradillas, Luis Corcolon, and Artemio Averion GUILTY beyond reasonable doubt of the crime of MURDER punishable under ART. 48 of the Revised Penal Code and hereby sentences each of said accused to suffer the penalty of reclusion perpetua and to pay jointly and severally, the heirs of the victims each the sum of P100,000.00 for the death of Nelson Peñalosa and Rickson Peñalosa, P50,000.00 as actual damages and moral damages of P 50,000.00 and exemplary damages of P30,000.00 and to pay the costs.”

Thereafter, the trial court committed the accused to the custody of proper authorities.

FIRST DIVISION [G.R. No. 131116. August, 27, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO L. SANCHEZ, ARTEMIO AVERION, LANDRITO “DING” PERADILLAS and LUIS CORCOLON, accused. ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants.

“SO ORDERED. “City of Pasig. “December 27, 1996. “(s/t) MARIANO M. UMALI “Judge” On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with the Regional Trial Court, Calamba, Laguna, an information for double murder against accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito “Ding” Peradillas and Artemio Averion, the accusatory portion of which reads:

Upon arraignment on April 10, 1995, all the accused pleaded not guilty. The trial of the case thereby ensued. On December 27, 1996, the trial court convicted all the accused of the complex crime of double murder, as charged, the dispositive portion of which is set out in the opening paragraph of this opinion. On February 27, 1997, all the accused, except Ding Peradillas, were present for the promulgation of the decision. Peradillas was a member of the Philippine National Police and was under the custody of his superiors. The trial court ordered his custodian to explain accused’s nonappearance. On March 14, 1997, P/C Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force Habagat, denied any knowledge of the murder case against Peradillas. Hence, Peradillas was not suspended from the service pending trial. However, at the time that Peradillas was to be presented to the court for the promulgation of the decision, he had disappeared and could not be located by his custodian. The promulgation of the decision as to him was in absentia. Peradillas and Corcolon did not appeal from the decision.

Accused Antonio L. Sanchez and Artemio Averion filed their respective appeals to this Court. The facts are as follows: On April 13, 1991, at around 10:00 in the morning, state witness Vivencio Malabanan, team leader of a group of policemen, went to the Bishop Compound in Calauan, Laguna, as part of the security force of mayor Antonio L. Sanchez. After a while, accused Ding Peradillas arrived and asked for mayor Sanchez. Peradillas informed mayor Sanchez that there would be a birthday party that night at Dr. Virvilio Velecina’s house in Lanot, Calauan, Laguna, near the abode of Peradillas. Peradillas assured mayor Sanchez of Nelson Peñalosa’s presence thereat. Dr. Velecina was a political opponent of mayor Sanchez for the mayoralty seat of Calauan, Laguna. Mayor Sanchez then replied, “Bahala na kayo mga anak. Ayusin lang ninyo ang trabaho,” and left the premises. Peradillas immediately called Corcolon and Averion and relayed the message - “Ayos na ang paguusap at humanap na lang ng sasakyan.” All the accused, including Malabanan, understood it as an order to kill Nelson Peñalosa, one of the political leaders of Dr. Velecina. Afterwards, Peradillas, Corcolon and Averion made arrangements to acquire two-way radios and a vehicle for the operation. At around 2:30 in the afternoon, Malabanan and the three accused went their separate ways and agreed to meet at mayor Sanchez’ house at 6:00 in the evening. Malabanan returned to his detachment area at Dayap, proceeded to the municipal hall, then went home where Peradillas fetched him at 6:00 p.m. They proceeded to mayor Sanchez’ house where they met Averion and Corcolon, with the car and two-way radios. At around 7:00 in the evening, Malabanan and the three accused boarded the car and went to Marpori Poultry Farm in Barangay Lanot, near Dr. Velecina’s house. Peradillas alighted and walked towards his own house, near Dr. Velecina’s house, to check whether Nelson Peñalosa was at the party. Thereafter, using the two-way radio, Peradillas informed the occupants of the car that Nelson Peñalosa’s jeep was leaving the Velecina compound. Accused Averion immediately drove the car to the front of Peradillas’ house and the latter hopped in the car’s back seat. Corcolon sat in the front seat beside him; witness Malabanan sat at the left side of the backseat and Peradillas stayed at the right side of the back seat. The group pursued Peñalosa’s jeep. When the accused’s car was passing

Victoria Farms, located about 100 meters from Peñalosa compound, Corcolon ordered Averion to overtake Peñalosa’s jeep. As the car overtook the jeep, Peradillas and Corcolon fired at Peñalosa’s jeep, using M-16 and baby armalite rifles, executed in automatic firing mode. There were three bursts of gunfire. Based on the sketch prepared by Malabanan, illustrating the relative position of their car and Nelson’s jeep at the time of the shooting, the assailants were at the left side of the jeep. Rickson Peñalosa, son of Nelson Peñalosa, fell from the jeep. The jeep, however, continued running in a zigzag position until it overturned in front of Irais Farm. After the shooting, the accused proceeded to the house of mayor Sanchez in Bai, Laguna, and reported to mayor Sanchez that Peñalosa was already dead. Together with his superior SPO4 Lanorio and photographer Romeo Alcantara, policeman Daniel Escares went to the crime scene. There, he saw the body of Nelson Peñalosa slumped at the driver seat of the ownertype jeep. They recovered the body of Rickson Peñalosa slumped on a grassy place not far from where they found Nelson Peñalosa. After all the evidence and photographs were taken, they brought the cadavers to Funeraria Señerez. Daniel Escares submitted his investigation report of the incident to the Provincial Director, Laguna PNP Command. Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan, Laguna, conducted an autopsy on the bodies of Nelson and Rickson Peñalosa. Nelson Peñalosa suffered massive intra-cranial hemorrhage and died of cranial injury due to gunshot wounds. Rickson Peñalosa died of massive intra thoracic hemorrhage due to gunshot wounds. Dr. Escueta, as a defense witness, testified that based on the points of entrance and exit of the wounds sustained by the Peñalosas, it was not possible for the assailants to be at the left side of the victims. It contradicted Malabanan’s testimony that they were at the left side of the victims when the shooting took place. He further stated that based on the wounds inflicted on the victims, the assailants were either in a sitting or squatting position when they shot the victims. Some of the wounds indicated an upward trajectory of the bullets. On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the ballistic tests conducted on the twelve (12) empty shells found at the crime scene and the M-16 baby armalite surrendered by Corcolon. She concluded that the 12 empty shells were fired using three (3) different firearms, one of which was the M-16 baby armalite.

On August 18, 1995, Adelina Peñalosa, common law wife of Nelson Peñalosa and mother of Rickson, testified that the whole family was in mourning and could not eat after what happened. She testified that the family incurred P250,000.00 for funeral expenses, but failed to present the appropriate receipts. She also stated that Nelson Peñalosa was earning one (1) million pesos per annum from his businesses. However, no income tax return or other proofs were shown to substantiate the statement. The accused interposed the defense of alibi and denial. Luis Corcolon stated that he spent the whole day of April 13, 1991, until 8:30 in the evening, supervising the poultry farm of his employers, Edgardo Tanchico and Orlando Dizon. He denied that he was in the company of Averion and Peradillas that day, and that he participated in the Peñalosa killings. He denied that he was ever assigned as a security guard of mayor Sanchez. He claimed that the murder charges were concocted against them for his refusal to testify against mayor Sanchez in the Gomez-Sarmenta case. He alleged that he was maltreated, tortured, electrocuted and forced to implicate mayor Sanchez in the GomezSarmenta rape-slayings. He denied that he owned the M-16 baby armalite used in killing the Peñalosas. Detention prisoner George Medialdea corroborated Corcolon’s statement that they were implicated in the Peñalosa killing for their refusal to testify against mayor Sanchez. He claimed that Malabanan confessed to him that the latter had killed the Peñalosas, but with the aid of CAFGU men and not herein accused. He averred that Corcolon and Averion were wrongfully implicated in the murder charges in deference to the wishes of the investigators. Zoilo Ama, another detention prisoner, claimed that Malabanan confessed that he killed the Peñalosas, but did not mention the involvement of Corcolon, Averion and mayor Sanchez. Accused Artemio Averion, a godson of mayor Sanchez, denied that he was involved in the Peñalosa slayings. On April 13, 1991, he claimed that he was in Lucena City, attending to his ailing father. He stayed there until April 15, 1991. He maintained that he was wrongfully implicated in the Peñalosa killings for his refusal to testify against mayor Sanchez regarding the Gomez-Sarmenta rape-slayings. Malabanan asked for his forgiveness for falsely incriminating them in the Peñalosa case. Jesus Versoza, PNP Officer, Camp Crame, denied the allegations of Medialdea and Averion that they were tortured and forced to testify against mayor Sanchez.

Accused mayor Antonio L. Sanchez stated that on April 12, 1991, he went to Anilao, Batangas, with his family. Around 1:00 in the afternoon of April 13, 1991, his family went to Tagaytay City and stayed overnight at Taal Vista Lodge. Around 10:00 in the morning of April 14, 1991, they went home to Calauan, Laguna. After reaching his abode in Calauan around 12:00 noon, mayor Sanchez learned of the ambush-slayings of the Peñalosas. He immediately ordered an investigation of the case. He denied any involvement in the killing of the victims. The trial court ruled that the prosecution’s evidence clearly and convincingly established the participation of the four (4) accused in killing the Peñalosas. Malabanan gave a sincere, frank and trustworthy account of the circumstances surrounding the killing. Furthermore, the trial court explained the discrepancies between Malabanan’s recollection of how the victims were shot and Dr. Escuesta’s conclusion on what transpired based on the injuries sustained by the victims. The trial court stated that the doctor’s conclusion was based on the assumption that the victims were in a sitting position inside the jeep. However, it was possible that after the first burst of gunfire, the victims were hit and fell. During the second burst of gunfire, the victims were lying down or in a crouching position. Thus, the entry-exit points of the bullets did not entirely correspond to Malabanan’s account, which was based on the assumption that the victims did not change their positions during the shooting incident. The trial court ruled that the accused conspired in committing the crime. Treachery was present, thereby qualifying the crime to murder. It appreciated the aggravating circumstances of evident premeditation, nighttime and use of motor vehicle. The trial court considered the crime as a complex crime of double murder punishable under Article 48 of the Revised Penal Code. However, at the time of the commission of the offense on April 13, 1991, there was a constitutional proscription on the imposition of the death penalty. Thus, each of the accused was sentenced to reclusion perpetua, and to pay damages to the heirs of the victims, as earlier quoted. Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed from the decision to the Supreme Court. In their sole assignment of error, accused mayor Sanchez and Averion contended that the trial court failed to recognize the material

inconsistencies between Malabanan’s testimony and the physical and scientific evidence presented before it. They pointed out the following inconsistencies, to wit: 1. Malabanan testified that a) when they fired at the victims, they were about the same elevation; b) they used two (2) guns in killing the vicitms; c) they were at the left side of the victims when the shooting incident occurred. However, Dr. Escueta’s autopsy report revealed that: 1) the assailants were at a lower elevation; 2) three (3) kinds of guns were used; and 3) based on the injuries, assailants were on the right side of the victims. 2. Malabanan’s affidavit “Exhibit V” made on August 16, 1993, and sworn to on August 17, 1993, bears two (2) signatures of the affiant Malabanan and dated September 15, 1993. However, during cross-examination, Malabanan stated that he executed and signed the affidavit on one occasion only, August 15, 1993. 3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings that Malabanan only responded to the report that Peñalosa had been killed. He averred that contrary to Malabanan’s report, the latter was not at the crime scene. The two accused further averred that the material inconsistencies between Malabanan’s testimony and the autopsy and laboratory findings and conclusions seriously affect his credibility. They stressed that Malabanan has sufficient motive to implicate mayor Sanchez and Corcolon in the Peñalosa killings due to threats of mayor Sanchez. They alleged that although generally alibi is considered a weak defense, there are times when it is worthy of credence, such as in this case. The Solicitor General supports the trial court’s ruling that the prosecution adequately established the guilt of the accused beyond reasonable doubt. Malabanan positively identified the accused as the perpetrators. He testified in a categorical, straightforward, spontaneous and frank manner. The defense failed to satisfactorily show that Malabanan had an ill motive to testify falsely against the accused. The alleged threat to Malabanan’s life was not adequately established or sufficient for him to falsely implicate the accused. As regards the supposed inconsistencies between Malabanan’s account of the event vis á vis the autopsy and ballistic reports, the Solicitor General pointed out that both vehicles were running at the time of the ambush. It was a matter of instinct for the victims to shift positions as they were fired upon. Thus, contrary to Dr.

Escueta’s conclusion, it was not impossible that the victims were hit from the right side of their bodies, even if assailants were physically situated at the victims’ left side. Hence, the apparent inconsistencies do not affect witness Malabanan’s credibility. After a careful scrutiny of the evidence on record, we agree with the trial court that the prosecution adequately established accused’s guilt beyond reasonable doubt. Malabanan gave a detailed account of the planning, preparation and the shooting incident. He narrated the participation of each of the accused, to wit: (1) the order given by mayor Sanchez to execute Peñalosa; (2) Averion’s acquisition of a vehicle and two-way radios to be used for the operation and in driving the car; (3) Peradillas’ act of relaying the information that Nelson Peñalosa’s jeep was leaving the Velecina compound; 4) the way they pursued the victims; and 5) Corcolon and Peradillas’ act of firing and killing the Peñalosas. The accused concentrated mainly on the seeming contradiction between the narration of Malabanan on how the victims were shot, and the physician’s report on the location of injuries sustained by them. However, as the Solicitor General stated, both vehicles were running at the time of the shootout. It was unlikely that the victims drove in a straight line parallel to that of the assailants. In fact, Malabanan testified that while being fired at, Peñalosa’s jeepney was running in zigzag manner. It was a natural reaction for Peñalosa to evade the assailants as much as possible and to try to dodge the bullets. Furthermore, the assailants fired the guns in automatic firing mode. Thus, the bullets burst out in different directions simultaneously. Hence, it was not impossible for the victims to be hit in different parts of the body. “This Court has held time and again that any minor lapses in the testimony of a witness tend to buttress, rather than weaken, his or her credibility, since they show that he or she was neither coached nor were his or her answers contrived. Witnesses are not expected to remember every single detail of an incident with perfect or total recall.” Furthermore, the fact that the trial court relied on the testimony of a single witness does not affect the verdict of conviction. Criminals are convicted, not on the number of witnesses against them, but on the credibility of the testimony of even one witness, who is able to convince the court of the guilt of the accused beyond a shadow of doubt. What witness can be more

credible than someone who was in the planning, preparation and execution of the crime. The inconsistency between the affidavit and testimony of Malabanan is too minor to affect his credibility. At any rate, we have held that affidavits are generally subordinate in importance to open court declarations. Affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him. Accused-appellants raised that Malabanan’s delay in reporting the involvement of the accused in the crime casts doubt on his credibility. However, jurisprudence teaches us that delay in revealing the identity of the perpetrators of a crime does not necessarily impair the credibility of a witness, especially where such witness gives a sufficient explanation for the delay. It was natural for Malabanan to keep silent during that time for, aside from being a co-conspirator, mayor Sanchez was a powerful opponent. Consequently, we find that accused-appellants’ defenses of alibi and denial are bereft of merit. The defenses of alibi and denial are worthless in the face of positive testimony of a witness showing the involvement of each of the accused. However, we disagree with the trial court that the accused committed a single complex crime of double murder. Article 48 of the Revised Penal Code provides that when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the more serious crime in its maximum period shall be imposed. The question is whether the act of shooting the victims using armalites in automatic firing mode constitutes a single act and, thus, the felonies resulting therefrom are considered as complex crimes. We rule in the negative. In People v. Vargas, Jr., we ruled that “several shots from a Thompson submachine, in view of its special mechanism causing several deaths, although caused by a single act of pressing the trigger, are considered several acts. Although each burst of shots was caused by one single act of pressing the trigger of the sub-machinegun, in view of its special mechanism the person firing it has only to keep pressing the trigger of the sub-machinegun, with his finger and it would fire continually. Hence, it is

not the act of pressing the trigger which should be considered as producing the several felonies, but the number of bullets which actually produced them.” In the instant case, Malabanan testified that he heard three bursts of gunfire from the two armalites used by accused Corcolon and Peradillas. Thus, the accused are criminally liable for as many offenses resulting from pressing the trigger of the armalites. Therefore, accused are liable for two counts of murder committed against the victims, Nelson and Rickson Peñalosa, instead of the complex crime of double murder. Evidently, treachery was present in the execution of the crimes. The attack against the victims, who were unarmed, was sudden, catching them unaware and giving them no opportunity to defend themselves. The presence of treachery qualifies the crimes to murder. Conspiracy is likewise adequately established. Notwithstanding the fact that mayor Sanchez was not at the crime scene, we are convinced that he was not only a co-conspirator, he was the mastermind of the ambush slayings or the principal by inducement. Malabanan testified that Nelson Peñalosa was killed upon order of mayor Sanchez. After the commission of the crime, the assailants reported to mayor Sanchez. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that the participants performed specific acts with such closeness and coordination as unmistakably to indicate a common purpose or design in bringing about the death of the victim. Conspiracy renders appellants liable as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one conspirator is the act of all. The trial court properly appreciated the existence of evident premeditation. The prosecution clearly showed the presence of the following requisites: a) the time when the accused determined to commit the crime; b) an act manifestly indicating that the accused had clung to their determination; and c) sufficient lapse of time between such determination and execution to allow them to reflect upon the consequences of their acts. As early as 10:00 in the morning, the accused had conspired to kill Nelson Peñalosa. They even looked for two-way radios and a vehicle to be used for the operation. Indeed, sufficient time had lapsed to allow the accused to reflect upon the consequences of their actions.

Accused specifically used a motor vehicle to execute the crime. Thus, the aggravating circumstance of use of a motor vehicle must be appreciated. However, we cannot appreciate the generic aggravating circumstance of nighttime; while the crime was committed at night, the prosecution failed to show that the malefactors specifically sought this circumstance to facilitate the criminal design. The fact that the crime happened at 7:00 in the evening does not indicate that accused made use of the darkness to conceal the crime and their identities. At the time of the commission of the crime on April 13, 1991, the penalty for murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death. Considering the presence of aggravating circumstances, the accused should be sentenced to the death penalty for each murder. However, in view of the constitutional proscription of the death penalty at that time, each of the accused is sentenced to two (2) penalties of reclusion perpetua. Regarding the civil liability of the accused, the trial court ordered the accused to pay the heirs of Nelson and Rickson Peñalosa each, the sum of P100,000.00, P50,000.00 as actual damages, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, and to pay the costs. The P50,000.00 award as actual damages should be deemed as indemnity for the untimely demise of the victims. We have held that only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victims may be allowed. No proof was presented to sustain the award of actual damages. Similarly, we can not award damages for loss of earning capacity. All that was presented in evidence was the testimony of the common law wife, Adelina Peñalosa, that Nelson earned P1,000,000.00 a year. We have held that “for lost income due to death, there must be unbiased proof of the deceased’s average income. Self-serving, hence unreliable statement, is not enough.” Considering the attendance of aggravating circumstances, we sustain the award of exemplary damages of P30,000.00, per victim, in accordance with Article 2230 of the Civil Code. As regards moral damages, we affirm the P50,000.00 awarded to the heirs of Rickson Peñalosa. His mother, Adelina Peñalosa, testified to the suffering caused by his death. We also sustain the award of moral damages to the heirs of Nelson Peñalosa. His common law wife testified to the mental

anguish suffered by the family due to Nelson’s death. Under Article 2206 of the Civil Code, the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. However, the common law wife is not entitled to share in the award of moral damages. WHEREFORE, the Court MODIFIES the decision of the Regional Trial Court, Branch 160, Pasig City, and finds accused-appellants Antonio L. Sanchez and Artemio Averion guilty beyond reasonable doubt of two (2) counts of murder, and sentences each of them to suffer two (2) penalties of reclusion perpetua, and each to pay jointly and severally the respective heirs of victims Nelson and Rickson Peñalosa, as follows: 1) Indemnity for death 2) Moral damages 3) Exemplary damages Total

-

P 50,000.00 50,000.00

-

30,000.00 P130,000.00

With costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

FIRST DIVISION [G.R. No. 126028. March 14, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EXPEDITO ALFON, accused-appellant. DECISION AZCUNA, J.: Expedito Alfon appeals the December 18, 1995 decision of the Regional Trial Court (RTC) of San Jose, Camarines Sur (Branch 30) in Criminal Case No. T-1249, finding him guilty of murder as follows: WHEREFORE, the accused Expedito Alfon is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua, with the accessory penalties inherent thereto, to indemnify the heirs of the late Tomas Alferez, through the latter’s brother Rodolfo Alferez the sum of Fifty Thousand Pesos (P50,000.00) [as civil indemnity, and] the sum of Twenty Four Thousand Two Hundred Twenty Pesos (P24,220.00) as actual damages, both [in] Philippine Currency, and to pay the costs. On April 30, 1993, appellant was charged under an information which states: That on or about 2:00 o’clock in the afternoon of February 18, 1993 at Barangay Oring, Municipality of Caramoan, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill, with treachery and evident premeditation while armed with a fan knife (balisong biente nueve) without any warning whatsoever did, then and there willfully, unlawfully, and feloniously attack, assault and stab the victim Tomas S. Alferez hitting the latter twice on his chest and other parts of the body thereby inflicting stab wounds which directly caused his instantaneous death on February 18, 1993 as evidenced by the attached Autopsy Report marked as Annex “A” and death certificate marked as Annex “A-1” hereof. That as a consequence of the unlawful acts of the above-named accused, the heirs of the late Tomas S. Alferez have suffered damages. ACTS CONTRARY TO LAW.

Upon his arraignment on July 28, 1993, appellant, assisted by his counsel de oficio, pleaded not guilty. After trial, the court a quo rendered the assailed decision. The prosecution presented four witnesses: Vicente Eusebio, Manuel Rayoso, Dr. Minerva Aguirre, and Rodolfo Alferez. Their testimonies are summarized below. Vicente Eusebio testified that on February 18, 1993, he was smoking cigarettes in front of the house of Purificacion Reazon at Barangay Oring, Caramoan, Camarines Sur. At around 2:00 p.m., he saw the victim walking from the opposite direction being followed by herein appellant Expedito Alfon. As soon as the victim and appellant were about six meters away from him, appellant came from behind the unsuspecting victim, and suddenly stabbed the latter twice with a knife known as balisong 29. The victim was hit on the left portion of his ribs and on the right side of his chest. As he fell on the ground face down, appellant ran away towards the seashore. Eusebio shouted for help, and immediately, Manuel Rayoso, Jesus Arranza, and Agripino Lazado responded. They carried the victim to a motorboat and brought him to a doctor in Poblacion, Caramoan. Unfortunately, Tomas Alferez did not survive. Manuel Rayoso, the second eyewitness, testified that on February 18, 1993, at around 2:00 p.m., while walking near the house of Purificacion Reazon, he saw the victim walking from the opposite direction being followed by the appellant. Shortly thereafter, when the victim and appellant were six meters away from him, he witnessed the appellant suddenly hold the victim’s shoulder and stab the latter with a balisong at the lower left side of his chest. Appellant then ran away towards the seashore. Dr. Minerva Aguirre, Municipal Health Officer of Caramoan who conducted the autopsy of the victim’s body, testified on her post mortem findings. As indicated in the autopsy report, she verified that the victim sustained two stab wounds: one on the right lower part of the victim’s nipple, and the other on the left lower part of the chest, which she found to be the more fatal. She also found an incised wound on the dorsal part of the victim’s right index finger. She stated that a sharp-bladed instrument could have caused the wounds. The cause of death, as declared in said autopsy report, is profuse hemorrhage secondary to stab wound. Rodolfo Alferez, the victim’s brother, testified to prove the civil liability of appellant. He stated that he spent a total of P24,220.00 for the funeral and

burial expenses, as itemized in the list of expenses he submitted as evidence.

evidence of the prosecution sufficient to prove appellant’s guilt beyond reasonable doubt, and in rejecting the version of the defense.

Appellant Expedito Alfon, on the other hand, interposed the defense of denial. He narrated that in the afternoon of February 18, 1993, he was on his way home from his sister’s house. While walking along Sampaguita Street, the victim and his brother Rodolfo Alferez waylaid him. Rodolfo punched appellant on his left eye and later brought out a knife. Appellant ran away and the victim chased him. A fistfight then ensued between appellant and the victim. Rodolfo soon after caught up with them and tried to stab appellant with a knife. Appellant evaded the thrust and Rodolfo hit Tomas instead. Appellant then ran away and later learned that Tomas had died.

Appellant contends that the trial court erred in giving credence to the eyewitnesses’ testimonies, which he insinuates to be incredible and unreliable.

The trial court concluded that the eyewitnesses’ testimonies convincingly established that appellant had killed the victim with treachery. It, however, ruled out the aggravating circumstance of evident premeditation for lack of proof. It rejected the denial and version of the appellant due to the lack of supporting evidence. Hence, this appeal. In his Brief, appellant submits for our consideration the following errors allegedly committed by the trial court: I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONIES OF THE PROSECUTION WITNESSES. II. THE TRIAL COURT ERRED IN HOLDING THAT THE KILLING OF TOMAS S. ALFEREZ WAS QUALIFIED BY TREACHERY. III. THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OF ACCUSED-APPELLANT THAT IT WAS RODOLFO ALFEREZ WHO ACTUALLY STABBED HIS BROTHER TOMAS S. ALFEREZ.

As his first point, he asserts that considering the circumstances of the stabbing incident as narrated by the prosecution and the location of the injuries, an attack from behind is hardly believable. He avers that assuming that he was indeed following the victim prior to the attack, it could have been easier and more convenient for him to stab the victim’s back. However, as it now appears, the injuries are all found on the front of the victim. He thus argues that in the ordinary course of things, the attack was more likely frontal, contradictory to the testimonies of the prosecution. This Court is not convinced. The two eyewitnesses testified that appellant came from behind before stabbing the victim since the former was following the latter prior to the sudden attack. Eusebio’s detailed account of the manner of assault explains why the injuries are on the front of the victim, despite the assailant having come from behind: xxx xxx

xxx

Q: You said a while ago that you saw the accused following the victim, Tomas Alferez [b]efore [he] was stabbed twice. Would you go down the witness stand and demonstrate to us how Expedito Alfon approached Tomas Al[f]erez and stabbed him?

IV.THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

A: Expedito Alfon went towards the right side of Tomas Alferez coming from behind and suddenly stabbed Tomas Alferez using his right hand in an embracing position with his left hand on the victim’s left shoulder [and] with his right hand striking the victim [with] a swinging motion hitting the victim’s left lower rib. The second strike hit the victim on the right portion of his body.

V. THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT LIABLE FOR ACTUAL DAMAGES IN THE AMOUNT OF P24,220.00.

(STENOGRAPHER’S NOTE: The witness demonstrated the act by using the Interpreter as medium.)

Under the first, third and fourth assigned errors, this Court is called upon to determine whether or not the trial court was correct in finding the

Though not as specific, the testimony of the second eyewitness, Rayoso, is corroborative on the aforesaid manner of attack:

xxx xxx

xxx

Q: And when you saw this Expedito Alfon, the accused [whom] you pointed a while ago[,] following this Tomas Alferez , what happened next? A: He [held] the shoulder and stabbed him. Q: From behind? A: From behind. Q: As you said from behind, Tomas Alferez was stabbed. Was he hit when stabbed by Expedito Alfon? A: Yes sir. Q: Where? A: (Witness pointed to the lower left side of the chest/breast.) Unrefuted on cross, these testimonies on the manner of attack sufficiently establish beyond reasonable doubt that the assailant came from behind, held the shoulder of the victim with one hand, and in a sudden and swift manner, stabbed the front of the victim with the other hand. The argument that it could have been more convenient for appellant, who was behind the victim, to stab at the back cannot prevail over the testimonies of the eyewitnesses. Furthermore, the manner as testified to is the more plausible one, as it shows that the assailant aimed to stab the front of the victim while holding the latter’s shoulder from behind, to ensure the execution of the act and the instant death of the victim. The evidence is indisputable that one of the injuries inflicted on the victim was so severe that death most likely occurred in not more than five minutes. As his second point, appellant seeks to inject reasonable doubt on the ground of the alleged conflicting evidence of the prosecution on the number of stabbing blows executed by the assailant. Witness Eusebio testified that the victim was stabbed twice, while in the narration of witness Rayoso, it appears that the victim was stabbed only once. Dr. Aguirre, on the other hand, opined in her testimony that the assailant most likely threw three stabbing blows. The argument fails. First, with regard to the inconsistencies in the eyewitnesses’ testimonies, this Court holds that these are insufficient to affect the essential veracity of their testimonies. It is settled that conflict in testimonies of witnesses in describing details of an event may be due to

differences in observations and memory which do not necessarily imply falsehood on their part. Inconsistencies on minor details do not impair the credibility of the witnesses where there is consistency in relating the principal occurrence and positive identification of the assailant. In the present case, though the two eyewitnesses differed as to the number of stabbing blows, they were unwavering and consistent in declaring that they witnessed no less than the appellant stabbing the victim at the chest with the use of a balisong. Second, as regards the doctor’s testimony, this Court notes that her opinion that the assailant most likely threw three stabbing blows was only surmised from her finding of three injuries. Such finding does not discount the possibility that the third wound on the victim’s finger could have been caused in the victim’s attempt to parry the appellant’s knife. Given these, therefore, the alleged discrepancy fails to render the eyewitnesses’ testimonies unreliable and incredible. As this Court has consistently held, inconsistencies on minor details reinforce rather than weaken credibility. Against the evidence presented by the prosecution, which the trial court found sufficient and convincing, appellant interposes denial as his defense. He begrudges the trial court for not appreciating his defense that it was Rodolfo Alferez who stabbed the victim. This Court agrees with the trial court’s observation that the version of the appellant is doubtful. First, the two disinterested eyewitnesses both testified that Rodolfo was not at the scene during the incident. This point in said testimonies was confirmed by Rodolfo himself, and was not challenged by the defense. Second, appellant’s version evidently conflicts with the physical evidence showing that the victim suffered three injuries. Assuming that Rodolfo indeed hit the victim by mistake, the two other wounds remain unexplained. Third, appellant failed to present evidence on any ill-motive Rodolfo and Tomas Alferez would have against appellant. The fact that that there was no bad blood between the families of the brothers and appellant was even stipulated by the parties. Fourth, and more importantly, appellant failed to present any independent evidence other than his own denial to bolster his claim. It is doctrinal that to merit credibility, denial must be buttressed by strong evidence of non-culpability. If unsubstantiated by clear and convincing evidence, it is negative and self-serving, deserving no greater value than the testimony of credible witnesses who testify on affirmative matters. In the case at bar, appellant miserably failed to overcome the eyewitnesses’ testimonies, which positively identified him as the perpetrator of the crime.

In view of the foregoing, this Court concurs with the trial court in attributing full faith and credence to the testimonies of the disinterested eyewitnesses and in disregarding the denial of appellant. As between categorical testimonies that ring of truth on one hand, and a bare denial on the other, the former must prevail. The rule is settled that the trial court’s evaluation of the credibility of witnesses will not be disturbed by this Court on appeal, absent any arbitrariness or oversight of facts and circumstances of weight and substance. In this case, this Court finds no reason to reverse the findings of the court a quo. In his second assigned error, appellant avers that the killing could not have been attended by treachery considering that the wounds were inflicted on the front of the victim. As discussed earlier, he seeks to cast doubt on the prosecution’s averment that the attack came from behind, arguing that the attack could be more likely frontal. The essence of treachery is the unexpected and sudden attack on the victim which renders the latter unable and unprepared to defend himself by reason of the suddenness and severity of the attack. This criterion applies, whether the attack is frontal or from behind. Even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it. The fact that the location of the fatal stab wound is in front does not in itself negate treachery. In the case at bar, it was established that appellant came from behind, went towards the right of the victim, and suddenly stabbed the victim’s chest while holding the latter’s left shoulder. Evidence shows that, first, at the time of attack, the victim was not in a position to defend himself, as he was unarmed and totally unsuspecting when appellant suddenly held and stabbed him; and second, appellant consciously and deliberately adopted the particular means of attack, as he was seen surreptitiously following the victim with a balisong tucked under his waist. Clearly therefore, treachery attended the crime. Finally, as to the civil liability imposed by the trial court, some modifications are in order. The trial court erred in awarding actual damages in the amount of P24,220. To recover actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, on the basis of competent proof and the best evidence obtainable. The prosecution in this case merely presented the testimony of the victim’s heir, and a list of funeral and burial expenses made by the same witness without producing any receipt or other evidence to support

the claim. There was thus no sufficient proof to sustain the trial court’s award of actual damages. Be that as it may, considering that it cannot be denied that the heirs suffered some pecuniary loss though the exact amount cannot be proved with certainty, an award of P25,000 by way of temperate damages is appropriate. In addition to this, this Court likewise grants the amount of P25,000 as exemplary damages given the presence of the qualifying circumstance of treachery. The civil indemnity for the victim in the amount of P50,000 is sustained. All things considered, this Court is convinced that appellant Expedito Alfon is guilty of murder. Given that the crime was committed prior to the effectivity of the New Death Penalty Law (Republic Act No. 7659), the appropriate penalty under Article 248 of the Revised Penal Code prior to its amendment is reclusion temporal in its maximum period to death. Inasmuch as there is neither mitigating nor aggravating circumstance, the penalty of reclusion perpetua imposed by the trial court is correct. WHEREFORE, the decision of the court a quo is AFFIRMED with the MODIFICATION that in addition to the civil indemnity of P50,000, appellant is further ordered to pay the heirs of the victim P25,000 as temperate damages and P25,000 as exemplary damages. The award of actual damages is deleted. Costs de oficio. SO ORDERED.

EN BANC [G.R. Nos. 126147/ 143925-26*. January 28, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO LAWA, accused-appellant. DECISION PER CURIAM: For our automatic review is the judgment of conviction dated March 22, 1996 rendered by the Regional Trial Court of Sultan Kudarat (Branch 19) finding appellant Leoncio Lawa guilty of the crimes of Murder as charged in Criminal Cases Nos. 2210 and 2211 and of Attempted Murder as charged in Criminal Case No. 2212. Appellant was meted out the penalty of Death in Criminal Cases Nos. 2210 and 2211; and imprisonment ranging from four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, in Criminal Case No. 2212. Three (3) separate Informations were filed against appellant, alleging the commission of the crimes as follows: CRIMINAL CASE NO. 2210 “That in the evening of April 27, 1994, at Barangay Purikay, Municipality of Lebak, Province of Sultan Kudarat, Philippines, and within the jurisdiction of this Honorable Court, the said accused, in company with alias INTAW, alias ARAFAT and BUCOY OSONG who are at large and whose cases are still pending preliminary investigation before the 1st Municipal Circuit Trial Court of Lebak-Kalamansig, Sultan Kudarat, armed with firearms, conspiring, confederating and mutually aiding one another, with intent to kill, with evident premeditation and treachery, did then and there, willfully, unlawfully and feloniously, attack, assault and indiscriminately fire at the house of Roger Gregorio where he and his family were asleep at the time, thereby inflicting gunshot wounds upon LOLITA GREGORIO which directly cause (sic) her death. “CONTRARY TO LAW, particularly Article 248 of the Revised Penal Code of the Philippines.” CRIMINAL CASE NO. 2211

“That in the evening of April 27, 1994, at Barangay Purikay, Municipality of Lebak, Province of Sultan Kudarat, Philippines, and within the jurisdiction of this Honorable Court, the said accused, in company with alias INTAW, alias ARAFAT and BUCOY OSONG who are at large and whose cases are still pending preliminary investigation before the 1st Municipal Circuit Trial Court of Lebak-Kalamansig, Sultan Kudarat, armed with firearms, conspiring, confederating and mutually aiding one another, with intent to kill, with evident premeditation and treachery, did then and there, willfully, unlawfully and feloniously, attack, assault and indiscriminately fire at the house of Roger Gregorio where he and his family were asleep at the time, thereby inflicting gunshot wounds upon CULAN GREGORIO which directly cause (sic) her death. “CONTRARY TO LAW, particularly Article 248 of the Revised Penal Code of the Philippines.” CRIMINAL CASE NO. 2212 “That in the evening of April 27, 1994, at Barangay Purikay, Municipality of Lebak, Province of Sultan Kudarat, Philippines, and within the jurisdiction of this Honorable Court, the said accused, in company with alias INTAW, alias ARAFAT and BUCOY OSONG who are at large and whose cases are still pending preliminary investigation before the 1st Municipal Circuit Trial Court of Lebak-Kalamansig, Sultan Kudarat, armed with firearms, conspiring, confederating and mutually aiding one another, with intent to kill, with evident premeditation and treachery, did then and there, willfully, unlawfully and feloniously, attack, assault and indiscriminately fire at the house of Roger Gregorio where he and his family were asleep at the time, thereby inflicting gunshot wounds upon ELVIE GREGORIO, thus performing all the acts of execution of which should have produced the crime of murder as a consequence thereof but which nevertheless did not produce it by reasons or causes independent of the will of the accused, that is, by the time (sic) and able medical assistance rendered to said Elvie Gregorio which prevented her death. “CONTRARY TO LAW, particularly Article 248 in relation to Article 6 of the Revised Penal Code of the Philippines, September 21, 1994.” Appellant, assisted by counsel, pleaded “not guilty” to all three (3) charges. Joint trial ensued. The lone eyewitness for the prosecution, 10-year old Elvie Gregorio, testified on the events of the crimes as she saw them, thus: At around

11:30 in the evening of April 27, 1994, she was inside their house with her parents, Roger and Lolita Gregorio, and younger sister, Culan Gregorio,** when there was a burst of gunfire. She immediately stood up, peeped outside, and saw four people. She was able to identify one of them, herein appellant Leoncio Lawa, as he is her uncle. Her mother and sister immediately died from gunshot wounds while she sustained gunshot injuries on the forehead. On cross-examination, Elvie testified that: at the time of the incident, they were all sleeping beside each other inside their house when she was awakened by the gunfire; she stood up and peeped through a 3-inch diameter hole on their wall and saw her uncle at about 2-arms length away, holding a firearm and firing in their direction; she saw her sister Culan wounded and tried to wake her up but to no avail; she also saw her father crouching behind a sack of corns. Upon query of the trial court, Elvie answered that she was able to recognize her uncle despite the lack of lighting outside their house because of the moonlight. Roger Gregorio testified that: on the night of April 27, 1994, while he was sleeping with his family, his house was fired upon resulting in the death of his wife and daughter; he reported the incident to the barangay captain on the same day; some months before the incident, he had a misunderstanding with appellant, the husband of his older sister, over a parcel of land they were tilling; he was proposing that they cultivate the land alternately but appellant told him that there will be “bloodshed” if he plows the land; said misunderstanding, has already been settled; he left Tapudi and transferred to Purikay a year before the shooting incident because of his dispute with appellant. Roger likewise testified on his suffering, the damages and expenses he incurred because of the death of his wife and daughter. On cross-examination, Roger stated that: when he heard the gunfire, he sought cover and crouched; he did not call out to his wife and daughters nor did he see the triggermen; after the gunfire, he opened the door and turned his wife’s face which he saw was wounded; when he was going out, Elvie shouted to him, “tay do not go down since there were still persons”, but he still went down; he did not see anybody outside the house; he reported the incident to the barangay captain “the following day”.

Upon clarificatory questions propounded by the trial court, Roger explained that when he reported the incident to the barangay captain “that same evening”, right after the shooting, he was not able to name the perpetrators because when Elvie shouted to him not to go down, she did not mention who were the persons outside their house and it was only “the following day” when she told him the identity of one of the assailants. Next to testify was Dr. Johnny Tan, Municipal Health Officer of Lebak, who told the court that he examined the cadavers of Lolita and Culan Gregorio in the morning of April 29, 1994, and concluded that the causes of death of both were the gunshot wounds they each sustained on their heads. Said shots were fired at a distance of not “less than one (1) meter” since there was no powder burn. On cross-examination, Dr. Tan stated that the victims could have been standing, lying or sitting down when hit by the bullets, and that at the time he examined them, they have been dead for more than twenty-four hours but not more than three days. SPO2 Romeo Blase testified: After receiving a report of a “massacre”, he conducted a spot investigation on the crime scene in the morning of April 28, 1994 and found two dead victims and one injured. After confirming the identity of the assailant as appellant Leoncio Lawa, he proceeded to the next barangay to apprehend the suspect with the assistance of the barangay captain. He brought appellant to the police station for interrogation. Appellant denied any involvement in the crime. Upon cross-examination, SPO2 Blase further testified that he learned of the incident for the first time on the evening of April 27, 1994 from the barangay captain of Purikay, Lebak, Sultan Kudarat; and that he found out the identity of the assailant from surviving witness Elvie Gregorio. For the defense, Petra Lawa, wife of appellant, was first to testify. Petra confirmed that her brother, Roger Gregorio, had a misunderstanding with appellant over a parcel of land and that said dispute had already been settled. She also testified that her husband was home on April 27, 1994 although she cannot specifically tell the time when appellant was allegedly home. The next defense witness was Sergio Lausog, a farmer who works on a land owned by one Philip Eleazar located in Bgy. Tapudi. He testified that: the land he works on is located inside a coconut plantation where appellant also works as a gatherer; appellant is his brother-in-law, having

married his younger sister; they are neighbors; he knows Roger Gregorio who used to reside in Bgy. Tapudi; and, Roger had a misunderstanding with appellant over a parcel of land because Roger wanted to recover the land from appellant. Further, according to Lausog: On the night of April 27, 1994, he was inside his house when he heard gunshots. He went out and called out to appellant whose house is located 7 meters away from his, who told him, “x x x go back to sleep and be ready and if something will happened (sic), you must vacate your place.” The next day, he saw appellant gathering coconuts, and it was only later on that he learned that appellant was arrested. He visited appellant at the Lebak municipal hall and while he was surprised with appellant’s arrest, he did not tell the police that he saw appellant on the evening of April 27, 1994. Finally, appellant testified in his own behalf. He admitted that he had a misunderstanding with his brother-in-law Roger Gregorio over a piece of land owned by Philip Eleazar. However, said misunderstanding had already been settled between them before the barangay captain, and at the time of the incident, Roger’s younger brother is cultivating the property subject of the dispute. Appellant also stated that the Muslims were hunting Roger because he killed one of them at the market place in Tapudi. Appellant denied any participation in the crimes charged claiming that he was home at the time of the shooting; that he was merely awakened by Sergio Lausog who told him of the gunshots being heard; that the next day, he was arrested and placed in jail without him knowing the reason for his arrest. Thereafter, the trial court rendered its judgment of conviction, the dispositive portion of which reads: “Accordingly, however, unpleasant, even painful is the compliance with its duty to apply the penalty provided by law, the Court hereby sentences: IN CRIMINAL CASE NO. 2210 (a)- the accused, Leoncio Lawa, to suffer the extreme penalty of DEATH; (b)-the accused, Leoncio Lawa, to indemnify the heirs of the deceased victim, Lolita Gregorio, the amount of TWENTY THOUSAND (P20,000.00) PESOS, as moral damages; the amount of TEN THOUSAND (P 10,000.00) PESOS, as exemplary damages; and the amount of FIFTY THOUSAND (P50,000.00) PESOS, as indemnity to death.

IN CRIMINAL CASE NO. 2211 (a)- the accused, Leoncio Lawa, to suffer the extreme penalty of DEATH; (b)- the accused, Leoncio Lawa, to indemnify the heirs of the deceased victim, Colan Gregorio, the amount of TWENTY THOUSAND (P20,000.00) PESOS, as moral damages; the amount of TEN THOUSAND (P 10,000.00) PESOS, as exemplary damages; and the amount of FIFTY THOUSAND (P50,000.00) PESOS, as indemnity to death. IN CRIMINAL CASE NO. 2212 (a)-the accused, Leoncio Lawa, after applying the Indeterminate Sentence Law, to suffer the indeterminate penalty of imprisonment, ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional, as minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor, as maximum. The Court further sentences the accused, Leoncio Lawa, in Criminal Cases Nos. 2210 and 2211, to indemnify the heirs of the deceased victims, Lolita and Colan Gregorio, in the total amount of SIX THOUSAND (P6,000.00) PESOS, as actual damages incurred by way of miscellaneous expenses during the wake and burial of the said deceased victims; and to pay the costs of suit in the above-entitled cases. Being a detention prisoner, the accused, Leoncio Lawa, in Criminal Case No. 2212, is entitled to full credit of the entire period of his preventive imprisonment in accordance with Article 29 of the Revised Penal code, as amended by R.A. No. 6127, provided he had agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, with only four-fifths (4/5) thereof. “IT IS SO ORDERED. Given this 22nd day of March, 1996, at Isulan, Sultan Kudarat, Philippines.” The trial court relied principally on the testimony of eyewitness Elvie Gregorio identifying appellant as one of the assailants, ruling that the defense failed to rebut the identification made by Elvie and impeach her credibility. In his Appeal Brief, appellant contends that the trial court erred: “1. IN RELYING TOO MUCH TOO MUCH (sic) ON THE TESTIMONY OF EL VIE GREGORIO WHICH TESTIMONY IS INCREDIBLE AND INCONSISTENT.

2. IN FAILING TO TAKE NOTICE OF THE INCONSISTENCIES OF THE TESTIMONIES OF THE TWO WITNESSES OF THE PROSECUTION.

court, she declared that she was sleeping before she peeped and that she was awakened by the gunfire.

3. IN FAILING TO GIVE CREDENCE TO THE TESTIMONY OF THE WIFE OF THE ACCUSED WHO IS SISTER-IN-LAW OF THE DECEASED LOLITA GREGORIO AND THE AUNT OF THE DECEASED COLAN GREGORIO.

We find such alleged inconsistency more apparent than real. Appellant conveniently overlooked Elvie’s categorical narration during direct examination, viz.:

4. IN FAILING TO CONSIDER THE FACT THAT THE PROSECUTION WITNESSES HAVE ILL MOTIVE TO TESTIFY AGAINST THE ACCUSED.”

“Q:- At around 11:30 in the evening, of April 27, when you were in your house together with your parents and sister, do you remember of anything unusual incident (sic) that happened in your house?

Appellant assails the credibility of Elvie Gregorio arguing that she answered the questions in a “very stiff and mechanical manner” and that her testimony suffers from inconsistencies and flaws showing that she was a coached witness. It is settled that the determination of the competence and credibility of a child as a witness rests primarily with the trial judge as he had the opportunity to see the demeanor of the witness, his apparent intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities cannot be conveyed by the record of the case, the trial judge’s evaluation will not be disturbed on review, unless it is clear from the record that his judgment is erroneous. In the case at bar, we find no cogent reason to disturb the trial court’s assessment of the credibility of Elvie as a witness. Appellant makes much ado about the manner in which Elvie testified. A judicious review of Elvie’s testimony does not reveal anything unusual in the way she testified. She simply answered the questions propounded to her by the public prosecutor. The fact that her responses were direct, positive and categorical does not mean that she answered in a “very stiff and mechanical manner”. On the contrary, such testimony bears the earmarks of credibility. Ample margin of error and understanding is accorded to young witnesses who, much more than adults, would naturally be gripped with tension due to the novelty of the experience of testifying before a court. Moreover, the alleged inconsistency pointed out by appellant in Elvie’s testimony does not affect her credibility. Appellant insists that Elvie gave conflicting answers as to whether she was already peeping through the wall before the spate of gunfire because when she was asked during crossexamination: “(B)efore you heard the gunburst what are you doing at the time?”, she replied, “I peeped, sir”; and, upon questioning by the trial

A:- Yes, sir. Q:- What was that all about? A:- Gunburst, sir. Q:- How many gunburst did you hear? A:- Many, sir. Q:- And when you heard this gunburst, what did you do? A:- I stood up, sir. Q:- And what did you do after standing up? A:- I peeped, sir.” and a portion of her response to the clarificatory questions of the court and the succeeding questions of counsel for appellant on crossexamination, to wit: “COURT: Q:- Before you peep where did you come from? A:- I was sleeping, your Honor. Q:- You mean you were awakened? A:- Yes, your Honor. Q:- Why were you awakened? A:- I heard gunburst, your Honor. COURT: Continue. “ATTY. ARMADA:

Q:- When you were sleeping who were besides (sic) you when you were sleeping?

A:- Leoncio Lawa.

A:- Colan, sir.

Q:- If you are asked to identify Leoncio Lawa will you be able to identify him?

Q:- And where was your father and your mother at the time?

A:- Yes, sir.

A:- They were sleeping together, sir.

Q:- Will you please look around the courtroom and please point to Leoncio Lawa if he is in court?

Q:- Your sister, your mother and your father and you were sleeping in one room? A:- Yes, sir.

A:- He is there, sir. (Witness pointed to the second person when asked his name he stood up and said his name is LEONCIO LAWA.)

Q:- You mentioned that when you heard a gunburst you stood up, is that correct?

Q:- Why do you know that it was Leoncio Lawa when you peeped outside? A:- He is my uncle.

A:- Yes, sir.

Q:- Why do you say that Leoncio Lawa is your uncle?

Q:- When you stood up were you already hit at the forehead when you stood up?

A:- The husband of my aunt, sir.”

A:- Yes, sir. “xxx xxx xxx ATTY. ARMADA: Q:- And when you stood up were there still gunburst? A:- Yes, sir.” Clearly therefrom, Elvie, who was sleeping, heard gunfire shots. It was then that she stood up, peeped outside, and saw four people, one of whom was appellant. Thus, there is nothing inconsistent or contradictory with her testimony. Moreover, the alleged inconsistency, if any, is far too minor and trivial to denigrate Elvie’s credibility. What is important is that she positively identified appellant who is her uncle as one of the perpetrators. She positively declared on the witness stand: “Q:- And what have you seen (sic) outside when you peeped? A:- Four persons, sir. “Q:- Do you know who were those persons whom you have seen outside? A:- I only know one of the persons (sic), sir. Q:- What is the name of that person whom you said you know?

Appellant further contends that Elvie’s testimony contradicted that of her father’s, Roger Gregorio. In particular, appellant cites Elvie’s statement that during the gunfire, her father called out to her and told her that he will go to the barangay captain, while Roger stated during crossexamination that he did not call out to his family at that time. Again, appellant opted to disregard Elvie’s response to the question of the trial court -- that his father called out her name after the gunfire -- thus showing that Roger, indeed, did not call out to his family during the gunfire but it was only afterwards that he did so. Appellant also focused on Elvie’s statement that her father told her that he was going to the barangay captain that same night, while Roger stated that he went there the next day. The alleged inconsistencies or contradictions between their statements refer only to minor and collateral details which do not damage their credibility or the integrity of their testimonies. As held in People v. Mercado: “A witness’ testimony may likewise contradict that of another witness. As long as the contradiction involves minor details and collateral matters, the credibility of both witnesses will not be deemed impaired. After all, no two witnesses could testify on a matter from the same point of view or perception. The recollection of different witnesses with respect to the time, place, and other circumstances of a criminal event would naturally differ in various details. Absolute uniformity in every detail of testimonies cannot be expected of witnesses who by nature react differently to what they see

and hear depending upon their situation and state of mind. On the contrary, if witnesses should agree on every detail of a transaction that occupied a considerable space of time and should undertake to tell all that occurred in precisely the same order, each giving the same incidents as the others in precisely the same words, that fact should make their testimonies suspect.”

“Q:- What was the participation of your husband to the killing of wife and daughter of Roger Gregorio?

Furthermore, we noted from a perusal of the transcript of stenographic notes that the incident took place at 11:30 in the evening of April 27, 1994; that Roger immediately went to the house of the barangay captain who contacted the police; and he left at 3:00 in the morning. Evidently, Roger had interchangeably referred to the same time as the “following day” or “same evening” which is not difficult to understand considering that the subject incident happened at 11:30 in the evening of April 27, 1994, after which he went to the house of the barängay captain and remained there until 3:00 in the morning which is already April 28, 1994 but still dark and which may have been reasonably confused as still “evening” by Roger.

Consequently, the alibi of appellant fails.

Nonetheless, the testimony of Roger Gregorio regarding the incident may even be dispensed with as it serves only to corroborate that of Elvie’s whose testimony, standing alone, is sufficient to support the conviction of appellant as she was the one who actually identified appellant as one of the assailants. Appellant also reproves the trial court for disregarding the testimony of his wife exculpating him from the incident. His wife backed up his alibi, testifying that appellant was at home at the time of the incident. Alibi is an inherently weak defense, and should be rejected when the identity of the accused is sufficiently and positively established by the prosecution. Eyewitness Elvie Gregorio had categorically identified appellant as one of the assailants. To overcome the prosecution’s evidence, the defense must successfully prove the element of physical impossibility of appellant’s presence at the crime scene at the time of the perpetration of the offense. In the present case, appellant not only failed to prove that it was physically impossible for him to be present at the scene of the crime on the night the Gregorio family was attacked; but also, his wife’s declaration cannot be given credence as she was not able to state categorically the particular time when appellant was supposedly at home, viz.:

A:- None, sir, because we were in house (sic) at that time. Q:- What particular time are you referring to that you were in your house? A:- I do not know, sir.” Appellant imputes ill motive on Roger Gregorio’s part in testifying against him, i.e., their dispute over the parcel of land owned by Philip Eleazar which both Roger and appellant wanted to cultivate. In order that the testimony of a witness may be considered biased, the presence of personal motive on his part to testify in favor of the victim and against the accused should be supported by satisfactory proof. In the case at bar, the allegation that there was animosity between Roger and appellant is not sufficient proof of motive or bias. As admitted by both Roger and appellant, their disagreement over the property had already been previously settled before the barangay captain. Moreover, if, indeed, Roger had any motive at all to testify falsely against appellant, Roger could just have easily identified appellant as one of the perpetrators of the subject crimes and not involve his young daughter. He did not have to drag his daughter into the mess and subject her to the ordeal of a court trial if her testimony were not true. It is unnatural for the relatives of the victim/s who seek justice to commit an injustice by imputing the crime to innocent persons and not those who were actually responsible therefor. In addition, Roger and Elvie Gregorio’s relationship to the victims do not automatically affect the veracity of their testimonies or their credibility. More significantly, motive is not essential when the accused has been positively identified by a competent witness, as in the case at bar. Finally, the fact that it took Roger Gregorio some time to report the identity of one of the assailants does not make his testimony not credible. Roger Gregorio reported the incident to the barangay captain immediately right after the gunfires. At that time, however, he did not know yet the identity of the gunmen as Elvie informed him thereof only the day after. Obviously, he could not have told the barangay captain that appellant was one of the assailants because he did not yet know the same at the time he reported the incident. There is no rule that a witness should immediately name the suspect in a crime.

All told, we find no reversible error in the trial court’s judgment of conviction and in the imposition of the corresponding penalty of DEATH on accused-appellant in Criminal Cases Nos. 2210 and 2211, and imprisonment from four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum in Criminal Case No. 2212. In Criminal Cases Nos. 2210-2211, the trial court correctly imposed the penalty of death on appellant. Article 248 of the Revised Penal Code, as amended by Section 6 of Republic Act No. 7659 provides: “ART. 248. Murder. - Any person who, not falling within the provision s 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 or superior strength, with the aid of armed men, or employing means to weaken the defense or of means of persons to insure or afford impunity. xxx

xxx

xxx

5.

With evident premeditation.”

The prosecution was able to prove beyond reasonable doubt the presence of treachery and evident premeditation, thus qualifying the killing of Lolita and Colan Gregorio as murder. Considering, the presence of the aggravating circumstance of dwelling, the imposable penalty is death, pursuant to Article 63 of the Revised Penal Code. Three members of the Court maintain their position that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional; however, they submit to the ruling of the Court, by majority vote, that the law is constitutional and that the death penalty should be imposed accordingly. In Criminal Case No. 2212, the trial court correctly found that appellant should only be liable for attempted murder as the wound inflicted on Elvie Gregorio was not fatal. Article 250 of the Revised Penal Code provides for a penalty two degrees lower than that imposed for the consummated crime of murder, which is prision mayor, the range of which is six (6) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law and considering the presence of dwelling as aggravating circumstance, it shall be imposed in its maximum period which ranges from ten (10) years and one (1) day to twelve (12) years; while the

minimum period shall be taken from the penalty next lower in degree, or prision correccional which ranges from six (6) months and one (1) day to six (6) years. Hence, the trial court did not commit an error in imposing the aforementioned penalty on appellant. WHEREFORE, the Judgment dated March 22, 1996 rendered by the Regional Trial Court of Sultan Kudarat (Branch XIX) in Criminal Cases Nos. 2210, 2211, and 2212 is hereby AFFIRMED in toto. Upon the finality of this Decision, and pursuant to Art. 83 of The Revised Penal Code, as amended by Sec. 25 of R.A. No. 7659, let the records of the said cases be immediately forwarded to the President of the Philippines for the exercise at her discretion of her power to pardon appellant Leoncio Lawa. SO ORDERED.