G.R. No. 147315. January 13, 2003
PEOPLE OF THE PHILIPPINES, appellee, vs. TOMAS VISPERAS JR. alias BOY SAKSAK; JACINTO CRUZ alias BOY LAGARE (acquitted); and AVELINO CABLAYAN alias WILLY (acquitted), accused,
TOMAS VISPERAS JR. alias BOY SAKSAK, Appellant.
D E C I S I O N
Once again, we rule that the credible and positive testimony of a single eyewitness is sufficient to sustain a conviction. Where the guilt of the accused is firmly established by the lone eyewitness unwavering and unequivocal testimony that positively identifies him as the assailant, the defense of denial and alibi must inevitably collapse. Without any proven qualifying circumstance, however, the killing constitutes homicide only, not murder.
Tomas Visperas Jr. appeals the December 15, 2000 Decision1 of the Regional Trial Court (RTC) of Dagupan City (Branch 42) in Criminal Case No. 99-03076-D, finding him guilty of murder as follows:
WHEREFORE, premises considered, accused AVELINO CABLAYAN alias
Willy and JACINTO CRUZ alias Boy Lagare are hereby acquitted of the offense
Accused TOMAS VISPERAS, JR.
alias Boy Saksak, on the other hand, is hereby found guilty beyond reasonable
doubt of the offense charged, which is MURDER as defined by Article 248 of the
Revised Penal Code and penalized by RA No. 7659, otherwise known as the Heinous
Crime Law, and there being no aggravating and mitigating circumstance to be
considered, he is hereby sentenced to suffer the penalty of RECLUSION
In addition, he is to
indemnify the death of Tito de Guzman in the amount
In the Information dated September 2, 1999, appellant, together with Jacinto Cruz and Avelino Cablayan, was charged in these words:
That on or about June 23, 1999 at around 10:45 oclock in the evening at [B]arangay Embarcadero, [M]unicipality of Mangaldan, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an unlicensed gun, with intent to kill, with treachery and evident premeditation and taking advantage of nighttime, conspiring, confederating and mutually helping each other, did then and there, willfully, unlawfully and feloniously attack and shot TITO DE GUZMAN y PIDLAOAN causing his death shortly thereafter due to CARDIORESPIRATORY ARREST SECONDARY TO MASSIVE BRAIN INJURY DUE TO GUNSHOT WOUND, as per Certificate of Death issued by Dra. Ophelia Rivera, Rural Health Officer I, RHU, Mangaldan, Pangasinan, to the damage and prejudice of the legal heirs of said deceased TITO DE GUZMAN y PIDLAOAN and other consequential damages relative thereto.3cräläwvirtualibräry
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows:
On June 23, 1999, around 10:45 oclock in the evening, Elmadona de Guzman was in the kitchen of their house in [B]arangay Emba[r]cadero, Mangaldan, Pangasinan, waiting for her husband to enter their abode. As she was thirsty, she went to a table in the kitchen on which a pitcher of glass water was. She was drinking water when she heard gunbursts. Shocked, she was temporarily immobilized, but after a few seconds, she moved towards the eastern window of the kitchen and peeped outside to where the sound of the gunbursts came from. With the outside illumined by the light from her mothers house which was near their house, she saw accused Jacinto Cruz alias Boy Lagare holding a long gun, with its nozzle still smoking, pointed at the bloodied and falling body of her husband. Appellant Tomas Visperas ran towards the falling body of her husband and shot him at close range, on the forehead. Accused Avelino Cablayan alias Willy then touched the victims body, apparently to see if he was dead and said lets go.
Jojit Cruz, her cousin, who was then heading towards his house, also heard gunbursts and ran towards the victims house. When he got there, he saw the victim sprawled and bloodied on the ground of their backyard. He shouted calling for Elmadona to come down as her husband was shot dead. Crouching in the kitchen window, shocked, she went down and saw her husbands lifeless body lying on the ground. Together with Jojit Cruz, Ullyses Fernandez (her brother-in-law), Boyet Frialde, and Boyet Fernandez, she brought her husband to the Dagupan Centrum Hospital where he was pronounced dead on arrival. They then brought the dead body to Funeraria Aguila where Dr. Ophelia Rivera conducted the autopsy. Thereafter, they brought him to the house of his parents in Bolingit, San Carlos City for the wake and burial. The following morning, on June 24, 1999, Elmadona reported the shooting of her husband to police officer Bingo de Asis, in the Mangaldan Police Station.
Around past 10:50 in the evening of June 23, 1999, Ferdinand Bingo Zamora de Asis, received an information through radio that there was a shooting incident in the place of the victim Tito de Guzman in [B]arangay Embarcadero, Mangaldan, Pangasinan. His team composed of SPO2 Malanum, SPO1 Socao, SPO1 Aqui, Jr., SPO1 Garcia, and himself proceeded to the crime scene. When they got there, there were many people gathered around the area that they had to secure it to preserve the physical evidence. They found out from the crowd that the victim [had already been] brought to the hospital. Within the area where the body was found, they found an empty shell of a .30 caliber bullet. One (1) meter away from where the empty bullet was, they found blood stains. About seven (7) meters away from the blood stains was a concrete fence, and on its side facing the blood stain was a shallow hole apparently caused by a bullet. Near the blood stains, they found an empty pot, caldero, and in it were pieces of meat, bits of flesh torn from the victims body when he was shot.
Dr. Ophelia T. Rivera conducted the autopsy of the victim.
x x x
She emphasized that the head wound caused the instantaneous death of the victim due to cardiorespiratory arrest secondary to massive brain injury.6 (Citations omitted)
Version of the Defense
For his part, appellant states his version of the antecedents in the following manner:
At about 10:45 oclock in the evening of June 23, 1999, at Barangay Embarcadero, Municipality of Mangaldan, Province of Pangasinan, Tito de Guzman was shot while walking along the pathway in an open parcel of land leading to his home. According to the Post-mortem Report, x x x, he sustained through and through wounds just about or below his armpit and on his forehead which caused his death due to cardio-respiratory arrest secondary to massive brain injury.
The prosecution presented as its first witness the widow, Elmadona de Guzman, as an eyewitness. x x x.
x x x
The prosecution next presented Dr. Ophelia Rivera, Municipal Health Officer. In her direct examination, she was merely made to identify her Post-Mortem Report x x x.
x x x
The third and last witness for the prosecution is PO2 Ferdinand Zamora de Asis, Police Investigator, Mangaldan Police Station. The only significant testimony of PO2 de Asis are his findings that
(1) one (1) empty shell bearing caliber .30 at the base thereof, which he assumed belonged to a .30 caliber carbine
(2) blood stains about one (1) meter away from, and west of, the empty shell.
(3) A shallow hole caused by a bullet on the concrete fence of Mrs. Columbres, about seven (7) meters from, and east of, the blood stain.
All the accused, namely: TOMAS VISPERAS, Jr., JACINTO CRUZ AND AVELINO CABLAYAN interposed their separate and individual defense of alibi.
On the basis of the alibi of Jacinto Cruz x x x and the alibi of Avelino Cablayan, both accused were acquitted of the charge against the three (3) accused of conspiring, confederating and mutually helping each other, did then and there attack and shot TITO DE GUZMAN Y PIDLAOAN causing his death shortly thereafter due to cardio-respiratory arrest secondary to massive brain injury due to gunshot wound.
On the other hand, accused-appellant Tomas Visperas, Jr. was convicted of the crime charged.7 (Citations omitted)
Ruling of the Trial Court
The RTC found Prosecution Witness Elmadona de Guzmans positive identification of appellant as one of the gunmen to be sufficient and convincing. It likewise upheld the investigation conducted by PO2 Ferdinand de Asis, which had affirmed the participation of appellant in the killing. Further, the trial court ruled that the defense of alibi lacked credibility, because it was not impossible for appellant to have been at the crime scene on that fateful night. It also found it odd that he did not even attend the wake and the burial of the victim who, he claimed, was his compadre and friend.
Hence, this appeal.8
In his Brief, appellant raises for our consideration the RTCs alleged errors:
The trial court erred in convicting the accused appellant Tomas Visperas, Jr. on the basis of the testimony of the widow, Elmadona de Guzman.
The trial court erred [in] relying on the hearsay testimony of police officer De Asis x x x [regarding] an allege[d] statement of unidentified persons who were not called to the witness stand.
The trial court erred in theorizing that a bullet fired from a 30-caliber x x x handgun, after plowing through the ground, ricocheted and hit the forehead of the victim while falling down[.]
The trial court erred in theorizing that the place where the empty 30-caliber cartridge was found is also the place where the gunman stood, hence the absence of tat[t]ooing on the forehead of the victim.
The trial court erred in not acquitting the accused-appellant Tomas Visperas, Jr.9cräläwvirtualibräry
In the main, the Court is called upon to determine whether the testimony of Elmadona de Guzman was credible and sufficient to convict appellant of murder. We will likewise ascertain whether the physical evidence lends credence to her account, and whether the trial court erred in accepting hearsay evidence.
The Courts Ruling
The appeal is partly meritorious. Appellant is guilty of homicide, not murder.
Sufficiency of Prosecution Evidence
This Court is convinced that through the staunch, positive and credible testimony of Elmadona, the prosecution was able to prove the guilt of appellant. Despite the grueling cross-examination, she testified repeatedly and unwaveringly that he had indeed shot her husband at close range. Specifically, she narrated that after her husband had faced a hail of bullets from a rifle, appellant approached him and shot him on the forehead.10 Her testimony was corroborated by the Post-mortem Report of Dr. Ophelia T. Rivera, the medicolegal officer who had conducted the autopsy. According to the Report, the victim sustained three gunshot wounds, of which the head wound was the fatal one. The Report reads as follows:
x x x
3. Point of entry: Gunshot wound, 1.2 [cm] x 1.2 cm, stellate in shape, edges inverted, frontal area, left Point of Exit: Gunshot wound, 5 cm x 1.5 cm, irregular in shape, edges everted, occipital area, Right, with brain eviscerating from the wound.
Depressed fracture of the skull, frontal area, left Comminuted fracture of the skull.
CAUSE OF DEATH;
CARDIORESPIRATORY ARREST SECONDARY TO MASSIVE BRAIN INJURY DUE TO GUNSHOT WOUND.11cräläwvirtualibräry
Well-settled is the rule that the testimony of a single eyewitness, if credible and positive, is sufficient to support a conviction, even in a charge of murder.12 The trial courts evaluation of the credibility of witnesses will not be disturbed by this Court on appeal, absent any arbitrariness or oversight of facts or circumstances of weight and substance.13 After thoroughly reviewing the records of the case, we find no cogent reason to reverse the findings of the trial court, which believed in Elmadonas testimony.
Appellant also asks how, on the basis of her testimony, the RTC could convict him but acquit his co-accused. Appellant berates the court a quo for giving credence to the testimony in order to convict him, while at the same time discounting it to acquit his co-accused.
It is a well-entrenched rule that the accused are convicted on the strength of the evidence presented against them. Their conviction may or may not be dependent on evidence proffered against their co-accused. In the present case, the conviction of appellant did not rest upon exactly the same evidence used to acquit his two co-accused; thus, the latters acquittal should not necessarily benefit him. We will discuss the damning evidence against him later.
Denial and Alibi
Against Elmadona de Guzmans straightforward, convincing and credible eyewitness account, appellant interposes the defense of denial and alibi. He disowns participation in the crime, claiming to have been with his uncle during its occurrence and to have headed straight home to his wife thereafter.
To merit credibility, denial must be buttressed by strong evidence of non-culpability.14 Unable to show such evidence, herein appellant fails to overcome Elmadonas testimony, which positively identified him as one of the perpetrators of the crime.
As for his alibi, he should have proven that it was physically impossible for him to have been at the scene of the crime when it was committed.15 By physical impossibility we refer to the distance and the facility of access between the situs criminis16 and the place where he says he was when the crime was committed.
Appellant argues that he was drinking gin with his uncle in Barangay Apaya when the killing occurred. However, the former himself testified that Barangay Apaya was only 14 kilometers away from Barangay Embarcadero, where the victims house was located.17 As correctly observed by the trial court, he could have readily reached Embarcadero on his uncles motorcycle.18cräläwvirtualibräry
Further, for the Court to give credence to the alibi of appellant, he must provide clear and credible evidence that he was in another place at the time the crime was perpetrated.19 However, no witnesses -- other than his wife, Lyra Visperas; and his uncle, Jose Bronuela Jr. -- were presented to support his alibi. Jose testified that he had been at home drinking with appellant between 6:30 p.m. and 10:30 p.m.,20 while Lyra testified that appellant had come home around 11:00 p.m. on June 23, 1999.21cräläwvirtualibräry
Alibi is the weakest of all defenses, as it is easy to contrive and difficult to disprove. Thus, it is viewed with caution especially when, as in the instant case, it is corroborated only by relatives of appellant.22 Truly unconvincing is his alibi, which is supported only by his and his relatives testimonies, not by more credible witnesses.23
Appellant maintains that several inconsistencies in the testimony of Elmadona diminishes her credibility. She testified to having been immobilized by fear when she first heard the gunfire. He contends that she could not have peeped through the window and witnessed the succeeding events, as she later said in court, if she had indeed been paralyzed by fear.24cräläwvirtualibräry
Such seeming inconsistency, which at first glance may raise doubts on the truthfulness of her statements, was satisfactorily explained. A review of her testimony shows that while she froze in fear, she was still able to look out through the window[25 without being seen from the outside. Appellants assertion that she could not have done so is purely argumentative and speculative. It collapses in the face of her repeated and consistent testimony, first during direct and later during cross-examination, that she actually witnessed the shooting.26
Appellant insinuates that Elmadona was ill-motivated in accusing him of killing her husband. Appellants allegation, however, is unsubstantiated. As the widow of the victim, she was the most aggrieved party. Her motive -- to put his killers behind bars -- cannot be considered improper.27 We have held that it is unnatural for an aggrieved relative who earnestly seeks justice to falsely accuse someone other than the actual culprit.28 Thus, since no improper motive on her part has been shown, the sound conclusion is that no such motive existed. Her testimony is worthy of full faith and credence.29
Appellant contends that the RTC improperly accepted hearsay evidence when it convicted him. This evidence pertains to the interviews PO2 de Asis elicited from persons near the crime scene who declared appellant as one of the gunmen.30cräläwvirtualibräry
We agree. The interviews are hearsay and thus lack probative value, because the persons interviewed by PO2 de Asis were never presented in court.31 It is of no moment that no timely objection was raised during the trial in the face of such evidence.32 A conviction can never be rooted thereon, because it is not grounded on the personal knowledge of the witness, but on the knowledge of some other person who was not cross-examined on the witness stand.33 Thus, the court a quo erred when it used the interviews conducted by PO2 de Asis.
Nonetheless, we emphasize that appellants guilt was proven by Elmadonas testimony, which was in turn buttressed by the physical evidence.
At this point, it is worthwhile to discuss the lower courts assessment of the physical evidence. First, the RTC theorized that because the bloodstains of the victim were one meter away from the recovered shell, he had been at the same distance away from one of the gunmen. Second, no tattooing appeared on the head wound of the victim, because he was about a meter away from the assailant; not less than three feet, which is the distance at which tattooing appears.34 Third, the slug recovered from his head was deformed, because it had merely ricocheted after hitting the ground.
Appellant avers that the above theory is erroneous. First, he says that tattooing should still have surrounded the head wound, because the assailant -- firing his gun a meter away -- would have extended his arm. Thus, the distance between the gun and the victim would have been less than three feet. Second, no deformed bullet or slug, which had purportedly hit the head of the victim, was ever introduced in evidence. He
We clarify. First, we sustain the contention of appellant that no deformed bullet or slug was presented in evidence. Neither was there any extracted from the head or body of the victim, the ground, or the wall behind him. The trial court may have been confused with the testimony of the expert witness, Dr. Bu Castro, who had testified that a deformed high velocity object could have caused the head injury.[35 Established from the evidence were merely soil disturbance and a hole in the wall behind the victim, both allegedly caused by bullets. However, we cannot sustain the theory of the defense that a .30 caliber bullet hit him on the head, because no bullet was ever recovered either from his body or from the crime scene. Thus, the kind of bullet that hit him cannot possibly be established.
Second, it is true that the policemen recovered from the ground -- one meter away from the victims bloodstains -- not a bullet but a .30 caliber empty shell or bullet casing,36 which was the only one recovered from the crime scene.37 As testified to by SPO2 de Asis, the shell had been fired from a .30 caliber carbine and not from a pistol.38 Later on, however, he clarified that the shell had been found about four meters away from the bloodstains of the victim.39 This fact indicates that the carbine may have been fired about four meters, not one meter, away from the latter.
Third, at a distance of four meters, tattooing would not characterize a victims wounds. Accordingly, the absence of tattooing from the head wound did not contradict the testimony of Elmadona. After all, the distance between the victim and appellant when the latter fired his gun was not specified by her.
The theories of appellant and the court a quo may not be clear as to some of the circumstances surrounding the killing. We are certain, however, that the victim had been shot on the head, and that appellant was positively identified as the culprit who had fired the fatal shot at close range. These facts remain steadfast and are not by any means diminished by the differing theories discussed.
We note that the trial courts assailed Decision failed to pronounce which circumstance, among those alleged in the Information, qualified the killing to murder. More important, the prosecution failed to prove any such circumstance.
It is well-settled that a qualifying circumstance must be proven with equal certainty and clearness as the crime itself.40 There being no proven qualifying circumstance, appellant should have been convicted of homicide only, not murder.
The penalty for homicide under Article 247 of the Revised Penal Code is reclusion temporal. Because no aggravating or mitigating circumstances were proven, the appropriate penalty is reclusion temporal in its medium period.41 Appellant is likewise entitled to the benefits of the Indeterminate Sentence Law.
Hereby sustained are the amounts of
Finally, the heirs of the victim are entitled to
WHEREFORE, the appealed Decision is hereby MODIFIED.
Appellant is CONVICTED of
homicide and SENTENCED to an
indeterminate penalty of eight years of prision
mayor medium, as minimum; to fourteen years and eight months of reclusion temporal medium, as
The award for civil damages is
hereby MODIFIED to
Puno, (Chairman), Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.
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