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FIRST DIVISION

G.R. No. 124981. July 10, 1998

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FREDERICK VILLAMOR y VILLANUEVA, alias LEKLEK, GEORGE GABATO and DENNIS CUESTA, accused. FREDERICK V. VILLAMOR, Accused-Appellant.

D E C I S I O N

DAVIDE, JR., J.:

This is an appeal from the decision1 of the Regional Trial Court, Seventh Judicial Region, Branch 29, Toledo City, convicting accused-appellant (hereafter VILLAMOR) of murder in Criminal Case No. TCS-2089.

In an information filed on 20 August 1993, VILLAMOR, Eric Cantallejo, George Gabato and Dennis Cuesta were charged with murder, committed as follows:

That at around 10:00 p.m., more or less, of July 24, 1993, at the public plaza of Barangay Don Andres Soriano (DAS), Toledo City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping each other, with intent to kill and acting with treachery, evident premeditation and abuse of superior strength, did then and there wilfully, unlawfully and feloniously shoot REYNOLD D. BROWN with a firearm, thereby hitting said victim on his head and which caused his untimely death.2cräläwvirtualibräry

Upon motion of accused Cantallejo, a reinvestigation was conducted as to his complicity in the crime. Then finding no probable cause against him, the prosecution filed an amended information3 excluding Cantallejo as an accused and successfully moved for dismissal of the case as regards him.4cräläwvirtualibräry

Only VILLAMOR, however, was apprehended, his co-accused Gabato and Cuesta remaining at large. Thus, trial proceeded only against VILLAMOR, who, upon arraignment, entered a plea of not guilty.5cräläwvirtualibräry

The prosecution presented four witnesses, namely: Henry Montebon and Paul Joseph Berador as eyewitnesses; Dr. Crisostomo Abbu, the medico-legal officer; and Raymund Brown, the victims father. On the other hand, the defense presented two witnesses, namely: VILLAMOR and Susana Abarico.

The evidence for the prosecution is summarized by the Solicitor General in the Brief for the Appellee as follows:

Eyewitness Henry Montebon testified that around 10 oclock in the evening of July 24, 1993, he was with his two friends: Jose Navarro and Paul Merador at the town plaza of DAS6 Toledo City. [On] a nearby bench, he noticed the presence of appellant Frederick Villamor and [his] companions. Not long after, he also saw the victim Reynold Brown walking in the plaza. When the victim was about two meters away from the bench where appellant was seated, the latter suddenly stood up and fired at the former. The victim ducked and tried to run, but was again shot by appellant. This time, the victim fell to the ground seemingly lifeless. Montebon and his friends hurriedly gave assistance to the victim and brought him to a nearby hospital. The victim, nonetheless, died (TSN dated May 2, 1994, pp. 2-8).

Paul Joseph Merador corroborated the testimony of Henry Montebon. He positively identified appellant as the person who twice shot the victim when the latter passed by appellants group (TSN dated March 22, 1995, pp. 2-9).

Dr. Crisostomo [Abbu] testified that he [was the] Medico Legal Officer who examined the victims dead body which sustained a fatal gunshot wound on the left parietal area above the left ear. He added that he recovered a thirty-eight (38) caliber slug from the right parietal area. The victims death was caused by shock secondary to cerebral hemorrhage due to gunshot wounds (TSN dated May 4, 1995, pp. 2-7).

Raymund Brown testified that as a consequence of the death of his son Reynold, he incurred the following expenses: P25,000.00 for the funeral as evidenced by an official receipt7 issued by St. Francis Memorial Homes; P6,000.00 for the one-week vigil; P7,500.00 as financial assistance to the police for the arrest of VILLAMOR; and P25,000.00 as attorneys fees to the lawyer who assisted the family in the prosecution of this case.8cräläwvirtualibräry

On his part, VILLAMOR invoked self-defense. He claimed that he knew the victim Reynold as they were neighbors, and knew Reynold to be a violent person, having been involved in several stabbing incidents. In fact, prior to the night of 24 July 1993, VILLAMOR and Reynold figured in three altercations. The first took place on 24 December 1992 in a disco at Sitio Ocyou, Don Andres Soriano, where Reynold suddenly approached VILLAMORs group and angrily asked his friend, Eric Cantallejo, where he came from. VILLAMOR then intervened as Eric was a close friend. For mediating between Reynold and Eric, VILLAMOR allegedly earned Reynolds ire. The second incident occurred the following year at the University of Cebu in Cebu City, where Reynold accosted VILLAMOR because of their previous misunderstanding. The third incident happened during the Sinulog festival in Cebu City in 1993 at the Boulevard Restaurant. Reynold again approached VILLAMORs group and flared up, forcing VILLAMORs group to leave the place. Since then, VILLAMOR would see Reynold every week.9cräläwvirtualibräry

VILLAMOR recounted that on the evening of 24 July 1993, he visited his neighbor, Eric Cantallejo, who invited the former to stroll around the DAS plaza. They were then accompanied by co-accused George Gabato and Danilo Cuesta. At the plaza, while waiting for a bus ride to Cebu City, VILLAMOR noticed the presence of Reynolds friend, Henry Montebon, and another person, at the other side of the plaza. Suddenly, Reynold appeared, armed with a Batangas knife, and headed directly towards VILLAMORs group. The latter scampered away, but Reynold chased and eventually cornered VILLAMOR and Dennis Cuesta, who had no other place to run as Reynolds friends were nearby. Reynold then attacked VILLAMOR and Cuesta and was about to stab them when Cuesta tossed a gun to VILLAMOR, who fired a warning shot. However, Reynold persisted, thus when the two were about a meter away from each other, VILLAMOR pleaded with Reynold not to do whatever he intended to. But, Reynold tried to stab VILLAMOR, who luckily avoided the thrust. Then when Reynold tried to stab VILLAMOR a second time, the latter shot Reynold, hitting his left ear.10cräläwvirtualibräry

The other defense witness, Susana Abarico, testified that she knew both Reynold, who was a regular visitor of her daughter, and VILLAMOR, who was a neighbor. Reynold frequented her neighborhood to ask about VILLAMORs whereabouts. She was aware that the two had a misunderstanding and that sometime in December, Reynold, accompanied by a son of one Montebon, chased VILLAMOR towards the latters house.11cräläwvirtualibräry

In its decision12 of 14 December 1995, the trial court found VILLAMOR guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua. It further ordered him to pay the parents of Reynold Brown the amount of P50,000.00 as indemnity for the latters death, P25,000.00 as funeral expenses, and P10,000.00 as moral damages; and, to pay the costs.

In finding VILLAMOR guilty of murder, the trial court noted:

The prosecution have [sic] clearly and positively established that while the victim passed by the group of the accused, the latter immediately without warning shot the deceased, with the use of a firearm hitting the victim on the head. This was established by the testimony of the prosecution witness and corroborated by the testimony of the doctor on the physical evidence. After he was shot for the first time, the victim ran away and was chased by the accused Frederick Villamor. Thus, it is indubitable that the accused shot the victim who was unarmed at that time.

In rejecting VILLAMORs invocation of self-defense, the trial court held that he failed to prove the element of unlawful aggression on the victims part; and ruled that VILLAMORs allegation that Reynold looked for him on several occasions and in different places only strengthened the finding that VILLAMOR committed the crime with evident premeditation. The trial court likewise noted VILLAMORs failure to show any stab wounds he suffered and the conspicuous absence of the knife allegedly used by Reynold. It then concluded that VILLAMORs claim that Reynold was armed was merely a figment of the formers imagination. Finally, the trial court gave credence to the testimony of the prosecution witnesses as no ill motive could be imputed to them to falsely testify against VILLAMOR.

In this appeal VILLAMOR contends that:

The prosecution was not able to prove the guilt of the accused beyond reasonable doubt for the crime of murder due to the following grounds, to wit:

1. THE EVIDENCE ADDUCED BY THE STATE IS INSUFFICIENT TO PROVE THE CRIME OF MURDER.

2. THE TESTIMONY OF THE PROSECUTIONS WITNESSES ARE BIASED AND INCREDIBLE, CONSIDERING THAT IT ALL CAME FROM THE [SIC] REYNOLD BROWNS CLOSE FRIENDS OR ASSOCIATES.

3. THE HONORABLE COURT ERRED IN NOT APPRECIATING THE TESTIMONY OF [VILLAMORS] AND HIS WITNESS WHICH CLEARLY SHOWED THAT THE LATE REYNOLD BROWN WAS THE AGGRESSOR AND THAT [VILLAMOR] WAS MERELY DEFENDING HIMSELF FROM A GREATER HARM POSED BY THE AGGRESSIONS OF REYNOLD BROWN.

VILLAMOR argues that there was provocation on the part of Reynold Brown since he and his group were already at the plaza prior to VILLAMORs arrival and that it was Reynold who approached VILLAMORs group. VILLAMOR likewise assails the credibility of the prosecutions witnesses and questions their impartiality, it having been established that said witnesses were close friends of Reynold. Moreover, VILLAMOR faults the prosecution for not presenting any police officer who responded and immediately proceeded to the scene of the incident.

VILLAMOR further stresses that the trial court should have accorded greater weight to his evidence that Reynold was the aggressor who posed a threat to VILLAMORs life. To this end, Susana Abarico confirmed that Reynold had been inquiring about VILLAMORs whereabouts and had gone out of his way and as far as Cebu City to finish off VILLAMOR.

Finally, VILLAMOR questions the trial courts appreciation of treachery, maintaining that he initially fired a warning shot and Reynold was hit only with the second shot. Since Reynold was thus forewarned, there was no treachery. Consequently, the crime committed, if any, was only homicide and not murder.

On the other hand, the State, in the Appelles Brief filed by the Office of the Solicitor General, debunked VILLAMORs arguments. It contends that having invoked self-defense, the burden of evidence shifted to VILLAMOR, and it was thus incumbent upon him to prove, relying on the strength of his evidence and not the weakness of the prosecutions evidence, the presence of all the elements of self-defense, which he failed to do. Clearly, there was no unlawful aggression on the part of Reynold Brown; neither was there a reasonable necessity of the means employed to prevent or repel any attack, nor lack of provocation on the part of VILLAMOR.

The State maintains that assuming VILLAMOR acted in self-defense, it was improbable for him not to have presented any eyewitness other than himself, considering that several people were present during the incident. It was also undisputed that the interval between the two shots was five seconds, which was not a sufficient time for Reynold to have escaped from VILLAMOR after the alleged warning shot. That Reynold ignored the warning shot, as claimed by VILLAMOR, did not by itself mean that he was determined to kill VILLAMOR. The State then emphasizes the fact that VILLAMOR failed to present in evidence the Batangas knife and any medical certificate showing his stab wounds.

The State likewise asserts that the witnesses for the prosecution were more credible. The fact the eyewitnesses for the prosecution were close friends of the victim did not per se impair their credibility, especially where no motive could be attributed to them to testify against VILLAMOR other than the desire to punish the perpetrator of the crime. Besides, the general rule is that the factual findings of the trial court should not be disturbed where the evidence supported such findings.

The State, citing People v. Villanueva,13 finally maintains that the killing of Reynold Brown was committed with treachery since the attack against Reynold was sudden and without warning and with his back turned to VILLAMOR.

We affirm VILLAMORs conviction.

At bottom, VILLAMORs grievances deal with issues of fact, which, in turn, hinge upon the credibility of the witnesses. Well-settled is the rule that generally, the factual findings of the trial court will not be disturbed since it is in a better position to appreciate the conflicting testimonies of the witnesses, having observed their deportment and manner of testifying.14 VILLAMOR fails to convince us that the trial court overlooked certain facts which, if considered, might result in his acquittal.

The testimonies of Henry Montebon and Paul Joseph Berador were not only forthright and consistent, but likewise more in accord with human experience. The close friendship they shared with the victim did not by itself give rise to the presumption of ulterior motive nor did it taint their credibility. Other than such relationship, VILLAMOR failed to impute any ill motive for these two witnesses to testify falsely against him, thus, it is reasonable to presume that it was only their desire to seek justice for the death of their friend which compelled them to testify before the court.15 They could not have accomplished that objective nor rest with a clear conscience were they to implicate an innocent person in the commission of so grave a crime. Verily, if an accused had really nothing to do with a crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely testify against him.16cräläwvirtualibräry

Indeed, a careful review of the record reveals that VILLAMOR did not act in self-defense when he killed Reynold Brown. Where self-defense is invoked in an accusation for homicide or murder, an accused admits that he killed the victim and the burden of the evidence is then shifted to the accused.17 It was, therefore, incumbent upon VILLAMOR to establish by clear and convincing evidence that he acted in defense of himself, and in so doing, must rely on the strength of his own evidence and not on the weakness of that of the prosecution.18cräläwvirtualibräry

The three elements of self-defense are: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.19cräläwvirtualibräry

Even taking VILLAMORs version of the events at face value, specifically, that Reynold approached VILLAMOR with a knife, the same is unable to support a finding of unlawful aggression on the victims part. Unlawful aggression presupposes an actual, sudden and unexpected attack or an imminent danger thereof, and not merely a threatening or intimidating attitude.20 Here, aside from VILLAMORs uncorroborated and self-serving claims, the record is bereft of any evidence of unlawful aggression on the part of the victim. For one, the locus criminis was a public place where people congregated, came and went about freely. Thus would it seem nearly bizarre that the victim openly and menacingly brandished a knife while approaching VILLAMOR. More importantly, other than his self-serving allegation, VILLAMOR was not able to prove that the victim was actually armed with a Batangas knife and attempted to stab VILLAMOR that fateful night. The witnesses for the prosecution denied having seen any knife and, indeed, none was retrieved from the scene of the crime. They likewise refuted VILLAMORs claim that the victim attempted to harm the former. Without a doubt, VILLAMORs narration of events did not show any real danger to his life. Hence, the absence of unlawful aggression bars VILLAMOR from claiming self-defense.21cräläwvirtualibräry

What likewise does not bode well for VILLAMOR is his claim that the gun was merely thrown to him by his companion Dennis Cuesta when they were allegedly cornered by the victim. Plainly, this was incredible and contrary to human experience and the ordinary course of events. Since Dennis too was allegedly under attack by the victim, both instinct and reason would have dictated that he keep the gun to himself and not throw it to VILLAMOR.

On the other hand, VILLAMORs victim, Reynold Brown, was unarmed and defenseless, innocently on his way to meet his friends in the plaza. There was no provocation on his part immediately prior to or at the time of the incident; certainly, Reynold was unaware of what was to transpire, otherwise, he would have avoided passing nearby the bench where VILLAMOR and his friends gathered around.

Oddly, VILLAMOR admitted he was not alone that night, thus it would have been to his benefit that he presented any of his companions to corroborate his testimony. However, two of his companions are his co-accused who have remained at large; while as regards Eric Cantallejo who was dropped from the information as an accused, why he was not presented as an eyewitness raises suspicion and casts doubt on VILLAMORs credibility. Moreover, his claim that the prosecution failed to present any policeman who responded to the incident as a witness should not be taken against the prosecution. If such testimony would have benefited VILLAMOR, then he should have made the effort to produce said witness.

VILLAMOR, moreover, admitted during cross examination that immediately after the incident, he fled from and never returned to Don Andres Soriano, except only upon his arrest four months later in Carmen, Cebu.22 As he offered no explanation for such conduct, the same constituted flight, which is competent to evince his guilt.23cräläwvirtualibräry

As to the last issue, we uphold the trial courts finding that Reynold Brown was killed with treachery, thus qualifying the crime to murder. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might take.24 The prosecutions evidence clearly established that the manner by which VILLAMOR twice fired the gun at the victim was sudden and unexpected, as testified to by Henry Montebon thus:

Q Where was this Frederick Villamor situated at the time that he shot Reynold Brown?

A He was with his friends near the gate of the plaza drinking.

Q Do you know the friends of the accused Frederick Villamor whom he was drinking with?

A Yes, sir.

Q Who were they?

A There were Dennis Cuesta, George Gabato, and a certain Inday Cantalejo.

ATTY. VILLORDON

Your Honor, please, I would like to manifest that it took the witness thirty (30) seconds he had a hard time remembering the names.

COURT

How far were they from where you were?

A From her [sic] to that wall is about ten (10) meters.

ATTY. GONZALES

Q Now where did this Reynold Brown where did he come from?

ATTY. VILLORDON

No basis.

ATTY. GONZALES

There was already a statement that Reynold Brown was shot inside the plaza, so where did this Reynold Brown come from?

ATTY. VILLORDON

No basis.

COURT

At the time when you said the accused was drinking with his friends near the gate where was Reynold Brown?

ATTY. GONZALES

There was a statement that he saw Reynold Brown being shot by Frederick Villamor.

COURT

You ask the witness at the time they were drinking where was Brown?

ATTY. GONZALES

I adopt the question of the Court.

A I saw that he was walking towards us.

Q Where was he walking and where did he come from when you first saw him?

A He came from the road behind me. He went inside.

Q And then where did he go?

A He was walking towards us.

Q Was he able to reach you?

A No, sir.

Q Why?

A Because he was shot b[y] Frederick Villamor.

Q How many times did this Frederick Villamor shoot Reynold Brown?

COURT

While he was walking where was the accused when he was walking towards you?

A The accused was seat[ed] on the bench. Actually Frederick Villamor was not seating [sic] on the bench he was seating [sic] near the plants while his friends were seating [sic] on the bench.

Q And this Brown passed by the place where the accused was seating [sic]?

A Yes, sir.

Q How far was he?

A Just very near to where the accused was seating [sic].

Q What happened when Reynold Brown passed by?

A When Reynold Brown passed by the place where the accused was the accused immediately pulled his firearm and stood up and shot Reynold Brown.

Q How many times?

A Two times.

Q Was Brown hit?

A At the first shot he was not hit but at the second shot he was already hit.

Q Where was he hit?

A On the head.

Q How far was the accused to Brown at the time he shot Brown?

A At the first shot from here to that lawyer which is about two (2) meters.

Q Do you mean to say the accused followed Brown?

A At [the] first shot when Brown was not hit Villamor followed Brown and shot him again.

Q At the first shot what was the position of the accused?

A He was facing the victim.

Q How did Brown reacted [sic]?

A He immediately ducked and he went under the railings.

Q Did he not run?

A He acted to run.

x x x

Q The second time he was shot how far was the accused to [sic] the victim?

A The distance between the hand of the accused to the head of the victim is about one-half (1/2) meter.

COURT

Proceed.

Q After shooting Reynold Brown for the second time what did the accused do?

A They [sic] ran together with his friends.

Q These friends you are referring to [are] George Gabato, Dennis Cuesta and Inday Cantalejo?

A Yes, sir.

Q By the way, what did these friends of the accused Frederick Villamor what were they doing when this accused shot the victim?

A They stood up and somebody shouted shot [sic] him more.25cräläwvirtualibräry

This was corroborated by the other eyewitness, Paul Joseph Berador.

Indeed, VILLAMORs attack on the unarmed victim was sudden, unprovoked and unexpected. It was done in a manner which directly and specially insured the execution of the act without any risk to VILLAMOR arising from the defense which the victim may have made. Treachery was thus present in the instant case, which qualified the crime to murder.26cräläwvirtualibräry

We disagree, however, with the observation of the trial court that the past encounters between the victim and VILLAMOR established evident premeditation on the part of the latter. Three requisites must be duly proved before evident premeditation may be appreciated, namely: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused clung to his determination; and (3) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.27 Evident premeditation is based on overt acts and must be evident, not merely suspected, indicating deliberate planning. There must be a demonstration, by untoward acts, of a criminal intent that is notorious and manifest.28 As no proof thereof was offered in this case, the above conclusion of the trial court was clearly based on speculation.

WHEREFORE, the appealed decision of 14 December 1995 of the Regional Trial Court, Seventh Judicial Region, Branch 29, Toledo City, in Criminal Case No. TCS-2089 finding accused-appellant FREDERICK VILLAMOR y VILLANUEVA guilty beyond reasonable doubt as a principal in the crime of murder under Article 248 of the Revised Penal Code and sentencing him to suffer the penalty of reclusion perpetua and to pay the parents Reynold Brown the sums of P50,000.00 as indemnity for his death, P25,000.00 as funeral expenses and P10,000.00 as moral damages and to pay the costs is hereby AFFIRMEDin toto.

Costs against accused-appellant.

SO ORDERED.

Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.

Endnotes:


1 Original Record (OR), Criminal Case No. TCS-2089, 203-208. Rollo, 22-27. Per Executive Judge Gualberto P. Delgado.

2 Rollo, 4.

3 OR, 41-42.

4 Id., 43.

5 Id., 55.

6 Acronym for barangay Don Andres Soriano.

7 Exhibit E, OR, 180.

8 TSN, 4 May 1995, 10-12.

9 TSN, 1 September 1995, 2-5.

10 TSN, 1 September 1995, 5-8.

11 TSN, 12 October 1995, 2-4.

12 Supra note 1.

13 225 SCRA 353 [1993].

14 People v. Simon, 209 SCRA 148, 156 [1992]; People v. Gornes, 230 SCRA 270, 275; People v. De Leon, 245 SCRA 538, 545 [1995].

15 People v. Viente, 225 SCRA 361, 368-369 [1993]; People v. Silvestre, 244 SCRA 479, 490 [1995]; People v. De Leon, 248 SCRA 609, 622-623 [1995].

16 People v. Enciso, 223 SCRA 675, 686 [1993].

17 People v. Gomez, 235 SCRA 444, 451 [1994]; People v. Hubilla, Jr., 252 SCRA 471, 479 [1996]; People v. Galas, 262 SCRA 381, 402 [1996].

18 People v. Ybeas, 213 SCRA 793, 801 [1992]; People v. Rivero, 242 SCRA 354, 358 [1995]; People v. Gutual, 254 SCRA 37, 45-46 [1996].

19 Article 11, Revised Penal Code; People v. Gomez, supra note 17 at 451; People v. Camahalan, 241 SCRA 558, 569 [1995]; People v. Hubilla, Jr., supra note 17 at 479; People v. Galas, supra note 17 at 403 [1996].

20 People v. Bayocot, 174 SCRA 285, 292 [1989]; People v. Boniao, 217 SCRA 653, 667 [1993].

21 People v. Silvestre, supra note 15 at 491.

22 TSN, 1 September 1995, 16.

23 People v. Alvero, Jr., 224 SCRA 16, 33 [1993]; People v. Aliviado, 247 SCRA 300, 310 [1995]; People v. Villegas, 262 SCRA 314, 323 [1996].

24 Article 14(16), Revised Penal Code.

25 TSN, 2 May 1994, 4-7.

26 People v. Kempis, 221 SCRA 628, 645-646 [1993]; People v. Villegas, supra note 23 at 323; People v. Cabodoc, 263 SCRA 187, 203 [1996].

27 People v. Narit, 197 SCRA 334, 349 [1991]; People v. Barba, 203 SCRA 436, 458 [1991]; People v. Buka, 205 SCRA 567, 587 [1992]; People v. Boniao, supra note 20 at 672.

28 People v. Narit, supra note 27 at 350.




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