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[ G.R. No. 138668. July 12, 1999]

PEDRO KISWA vs. PEOPLE OF THE PHILIPPINES.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 12, 1999.

G.R. No. 138668 (Pedro Kiswa vs. People of the Philippines.)

This is a petition for review on certiorari of the decision of the Court of Appeals finding petitioner Pedro Kiswa guilty of robbery and carnapping and sentencing him accordingly. Prosecution witness Jesus Balangue was the driver of a taxicab owned and operated by Cecilia Salazar. At about 1:00 in the morning of March 14, 19994, four (4) persons hailed his taxicab near Trading Pot at Poblacion, Labor arbiter Trinidad, Benguet. On the way to Shilan, he got a good look at the passenger who sat him on the front passenger seat. He also saw the face of the passenger sitting at the back near the right door. The passenger had a moustache and was wearing a baseball cap with its visor raised. However, he did not recognize the two other passenger at the back who also wore baseball caps with visors pulled down thus, partly covering their faces.

At Shilan, the passengers ordered Balangue at gunpoint to proceed to a driveway about ten (10) meters from the edge of the Halsema Highway. Two of his passengers then forced him out of the taxicab while the two others remained inside. He was boxed and pistol-whipped. Both of his hands and feet were tied and his mouth was covered with a piece of cloth. Three of the men took him to a spot about five (5) meters from the taxicab where they divested him of his earnings in the amount of P950.00 and his wristwatch worth P950.00. Then they drove away in the taxicab towards Acop.

Balangue reported the incident to the taxi operator, Cecilia Salzar nd the police at La Trinidad and Baguio City. The taxicab was never recovered except for its four (4) doors which were found by the police. But Balangue later saw petitioner Pedro Kiswa at the Baguio City Jail. He identified petitioner as one of the four who had robbed him and taken his taxicab. Petitioner was accordingly charged and convicted by the trial court of robbery and carnapping. On appeal to the Court of Appeals, petitioner's conviction was affirmed. Hence, this petition for review on certiorari.

Petitioner assails the factual findings of the trial court and the appellate court that he was properly identified by witness Balangue as one of the four men who committed the robbery and carnapping on March 14, 1994. Petitioner faults both courts for dismissing his denial and alibi.

In appeals by certiorari under Rule 45, �1, only questions of law may be raised (Sarao v. Court of Appeals, 278 SCRA 247 (1997)). Findings of fact of the Court of Appeals are deemed conclusive unless it overlooked questions of substance which, if true, would require a reversal of the appealed decision. In this case, petitioner seeks a reevaluation of the evidence presented during the trial and a review of the factual findings that petitioner was one of the four carnappers. Indeed, the petition in this case merely reiterates arguments already resolved by the Court of Appeals. What petitioner actually seeks is a reexamination of the evidence which cannot be done in view of the limited scope of review under Rule 45 and the absence of clear showing that the appellate court overlooked questions of substance.

Be that as it may, petitioner's contentions are devoid of merit.

First, petitioner argues that the only facial mark which enabled prosecution witness Balague to identify him as one of the carnappers was his alleged moustache. He claims that he did not have a moustache as shown by the two (2) pictures allegedly taken at a graduation party of his friend, Aurora Cabongtan, held a few hours before the commission of the crimes. As the two courts below correctly ruled, however, the pictures were not identified during the trial by the photographer who took the same or by any competent witness who could testify as to the circumstances of their production and their accuracy in portraying the scene depicted n the said pictures (Sison v. People, 250, SCRA 58 (1995)) Nor was there any showing that the pictures had not been altered. Moreover, even if petitioner did not have a moustache on the day in question, it does not necessarily follow that he could not have worn an artificial moustache in order to conceal his identity.

Second, petitioner insists that it was unlikely for Balangue to have recognized him as one of the carnappers from the taxicab's rear view mirror considering the size of the mirror which measured 3x8 inches only; the absence of light inside the taxicab; and the fact that the view from the driver's seat of petitioner sitting at the back was obstructed by the backrest of the front passenger seat. Balangue did not say, however, that he saw petitioner through the rear view mirror alone. He had other means of seeing him. As has been observed, the natural reaction of victims of criminal violence is to strive to see the face of their assailants (People v. Avillano, 269 SCRA 553 (1997)). Balangue clearly stated in his testimony that although there was no light inside his taxicab, the headlights of oncoming vehicles provided sufficient illumination for him to see petitioner (TSN, November 15, 1994, pp. 28-29 as quoted on pp. 8-9, Petition) and that the backrest of the front passenger seat did not obstruct his view of petitioner who was sitting at the back of the taxicab (TSN, November 23, 1994, pp. 5-6, as quoted on p. 14, CA Decision). The fact that he was not able to recognize the two other carnappers does not belie the fact that he recognized petitioner. As explained by Balangue, he failed to recognize the two because "the brims of their hats were pulled down to cover their faces" while the "brim of petitioner's hat was pulled upward" thus revealing his face (Petition, pp. 14-18-5).

Third, petitioner likewise insists that at the time of the commissions of the crimes, he was asleep at the house of Aurora Cabongtan located at Lubas, Labor arbiter Trinidad, he being drunken after attending Aurora's graduation party. The Court of Appeals correctly dismissed petitioner's alibi because it is uncorroborated and it does not rule out the physical impossibility of his presence at the Trading Post at Poblacion, Labor arbiter Trinidad, Benguet at around 1:00 in the morning of March 14, 1994. As defense witness Aurora Cabongtan testified, the Trading Post at Poblacion, Labor arbiter Trinidad is only about two and a half (2 �) kilometers away from Lubas which can be reached by foot in, more or less, an hour (TSN, May 29, 1995, pp. 15-16 as quoted on p. 16. Court of Appeals Decision).

WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed a reversible error.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court

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