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SECOND DIVISION

G.R. No. 98468 August 17, 1993

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ARMANDO VILLANUEVA and ROGINO VILLANUEVA, ALIAS "DIGOY," accused.

ROGINO VILLANUEVA, alias "DIGOY," accused-appelant.

REGALADO, J.:

In Criminal Case No. 492 of the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61, Armando Villanueva and Rogino Villanueva, alias "Digoy," were charged with murder allegedly committed in this wise -

That on or about the 15th day of November, 1986, in the Municipality of Cauayan, Province of Negros Occidental Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping each other, armed with a homemade shotgun (pugakhang), with intent to kill, with evident premeditation and treachery, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one JOSELITO ITONA y NONATO, thereby inflicting gunshot wounds upon the body of the latter which caused the death of the said victim. ¹

to which indictment the accused pleaded not guilty when arraigned. ²chanrobles virtual law library

After weighing the evidence respectively adduced by the prosecution and the defense, the trial court acquitted accused Armando Villanueva, declaring that "no evidence of conspiracy was sufficiently shown." The court a quo likewise found that no sufficient evidence had been adduced to link accused Armando Villanueva to the treacherous act of his brother, Rogino, considering that the former did nothing except to run away after the latter's commission of the crime. However, accused Rogino Villanueva was found guilty beyond reasonable doubt of the crime of murder, and the fate of both accused was accordingly adjudged as follows:

WHEREFORE, the Court finds the accused Rogino Villanueva GUILTY beyond reasonable doubt of the crime of murder as defined in Art. 248 of the Revised Penal Code with the qualifying circumstances of treachery and use of superior strength, and is sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of the deceased Joselito Itona in the amount of Thirty Thousand Pesos (P30,000.00) without subsidiary imprisonment in case of insolvency and to pay the costs.chanroblesvirtualawlibrarychanrobles virtual law library

The accused Armando Villanueva is ACQUITTED. ³chanrobles virtual law library

From the people's brief, we quote the pertinent operative facts of this case which were established by the prosecution's evidence, cited therein by way of documentation, and which we have verified from the transcripts of the notes of the proceedings:

At around six thirty (6:30) in the evening of November 15, 1986, Venancio Tabobo and Joselito Itona were talking in front of the latter's house at Sitio Mabua, Cauayan, Negros Oriental (tsn, November 5, 1987, pp. 5-6).chanroblesvirtualawlibrarychanrobles virtual law library

At around the same time, the brothers Rogino and Armando Villanueva, who had been drinking tuba at Armando's house since 9:00 A.M. of the same day, were seen by Ismael Banson walking toward the house of Joselito Itona (tsn, December 17, 1987, pp. 3-5, 5-6). At a certain distance from Joselito's house, Armando Villanueva stayed behind while Rogino Villanueva continued walking towards the spot where Joselito Itona and Venancio Tabobo were talking (tsn, December 17, 1987, p. 6).Ismael Banson noticed that Rogino was carrying a "pugakhang" or home-made gun in his armpit (Ibid, p. 7).chanroblesvirtualawlibrarychanrobles virtual law library

Rogino Villanueva suddenly appeared from behind Joselito's house and he shot Joselito once with a homemade shotgun hitting him in the back (tsn, November 6, 1987, pp. 6-8; December 17, 1987, p. 7; April 20, 1988, pp. 8-9). Upon firing the shot, Rogino ran away together with Armando (tsn, November 6, 1987, p. 8). Venancio Tabobo chased Rogino but was not able to catch up with him (Ibid, pp. 18-19). Meanwhile, Ismael Banson approached Joselito, and upon seeing the latter sprawled on the ground with his back covered with blood, Ismael lifted him with the help of Joselito's father (tsn, December 17, 1987, pp. 17-18).chanroblesvirtualawlibrarychanrobles virtual law library

The following day, Dr. Raymundo Guerrero, medical office(r) of Cauayan, Negros Oriental, conducted an examination of the body of Joselito and concluded that the bod(ily) injuries caused by the shotgun bullets were so serious that they cause the immediate death of Joselito (tsn, April 20, 1988, pp. 9-10).chanroblesvirtualawlibrarychanrobles virtual law library

Also the following day, members of the CHDF arrested Armando Villanueva while Rogino was arrested on November 19, 1986. ⁴

The autopsy conducted on the victim showed that the following injuries were sustained by him, viz.:chanrobles virtual law library

SHOTGUN WOUNDS ALL POSTERIOR LEFT THORACIC NON PENETRATING.chanroblesvirtualawlibrarychanrobles virtual law library

1. POE base neck left 5 cm. level 7th spinal column at the middle part non-penetrating.chanroblesvirtualawlibrarychanrobles virtual law library

2. POE left 5 cm. medico-lateral part neck at the vertebral line level 8th cervical spinal column non-penetrating.chanroblesvirtualawlibrarychanrobles virtual law library

3. Scattered 7 bullet wounds penetrating the posterior thoracic wall with POE from the medial part of the scapular area to the lateral area of the scapular bone left 5 cm. level of the 5th, 6th, 7th and 8th thoracic ribs. ⁵chanrobles virtual law library

Appellant Rogino Villanueva interposed the defense of alibi. He claimed that he used to climb coconut trees almost everyday, being a tuba gatherer by occupation. He testified that he was gathering tuba at Cambugsoc, Cauayan, Negros Occidental, two kilometers away from the place of the incident. He further contended that the nature of his work required him to climb the coconut trees from 7:00 A.M. up to around 12:00 noon and, in the afternoon, he again started climbing the coconut trees at 2:00 P.M. up to 6:30 P.M. He had to do this almost everyday, including Sundays, otherwise, his absence of one or more days would cause his tuba to turn sour and it would not be good for drinking. ⁶chanrobles virtual law library

The lower court rejected appellant's defense and opined that "(i)n the present case, no clear, positive and convincing evidence was presented by the defense to show that the accused were not at the scene of the incident when the said incident happened. They relied on their mere assertions that they were somewhere else." It then sustained "the unimpeached testimonies of the two (2) prosecution witnesses that the accused Rogino Villanueva and Armando Villanueva were present at Sitio Mabua, Barangay Poblacion, Cauayan, Negros Occidental, at around 6:30 o'clock in the evening and that while there, the accused Rogino Villanueva treacherously shot Joselito Itona y Nonato at the back with a home-made shotgun (pugakhang) causing his death." ⁷ It accordingly concluded that, from the evidence on record, alevosia and abuse of superior strength were employed in the commission of the crime.chanroblesvirtualawlibrarychanrobles virtual law library

Before us, appellant raises a lone and general assignment of error faulting the lower court's finding that his guilt for the crime of murder had been proved beyond reasonable doubt. ⁸chanrobles virtual law library

Appellant merely reiterated the defense of alibi in his brief, arguing that "it would be impossible for the accused-appellant to be present at Sitio Bonbon at around 6:30 in the evening when the shooting incident happened, when at this point of time, he was about to finish or had just finished gathering his tuba to be delivered to his employer at Cambugsoc, Cauayan, Negros Occidental." ⁹chanrobles virtual law library

After a careful assessment of all the evidence on record, we hold that the foregoing pretensions of appellant do not deserve serious consideration and do not warrant a reversal of the judgment of conviction.chanroblesvirtualawlibrarychanrobles virtual law library

The disposition of his appeal basically hinges on the findings of fact of the court a quo. Corollarily, we have consistently held that the findings of the trial court as to credibility of the witnesses are to be given weight and a high degree of respect by the appellate court. ¹⁰ Unless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case, the appellate court will not disturb the factual findings of the lower
court. ¹¹chanrobles virtual law library

Appellant invokes the discredited defense of alibi. It is his claim that at time the crime was committed, he was gathering tuba in another place two kilometers away from Sitio Mabua, Cauayan, the place where Joselito Itona was killed. To establish alibi as a defense, however, it must be shown that it was impossible for the accused to have been at the place where the crime was committed. ¹² Likewise, the defense of alibi may not be successfully invoked where the identity of the assailant has been established by the witness. ¹³chanrobles virtual law library

Against the foregoing doctrinal criteria, appellant's alibi cannot possibly be given any weight. No clear, positive and convincing evidence was presented to show that appellant was not at the place where the shooting incident happened. The defense merely relied on the denials of appellant without presenting any other evidence to corroborate or subtantiate his disclaimer. Yet, the rule is that no less than the clearest proof is required to establish the defense of alibi. ¹⁴chanrobles virtual law library

Furthermore, the identities of appellant and his co-accused were established beyond question by the prosecution witnesses. As correctly held by the court below, "(a)gainst these denials of the accused were the positive testimonies of the prosecution witnesses Venancio Tabobo and Ismael Banson who identified them with certainty. In fact, prosecution witness Venancio Tabobo chased the accused after one of them fired a shot at Joselito Itona in order to be certain who they really were. (TSN, Page 19, Nov. 6, 1987). Said witness could not have been wrong in identifying both accused since he had known them for a long time. (TSN, pp. 4-5, Nov. 6, 1987). Besides, the victim was shot at close range (TSN, p. 7, Nov. 7, 1989) and the witness was sitting near the victim at the time of the shooting. (TSN, p. 7, Nov. 7, 1987)." ¹⁵chanrobles virtual law library

Appellant claims that the trial court erred in finding him guilty of murder. On the basis of the facts and evidence of record, this Court, like the court below, rules that the killing was attended by treachery, hence the crime committed was definitely murder.chanroblesvirtualawlibrarychanrobles virtual law library

It is true that for treachery to be appreciated, there must be proof that at time of the attack, the victim was not in a position to defend himself and that the offender consciously and deliberately adopted the particular means, method or form of attack which he employed to ensure the accomplishment of his purpose with impunity. ¹⁶chanrobles virtual law library

In the case at bar, the killing was clearly committed in a treacherous manner. The victim, Joselito Itona, was completely taken by surprise. Appellant, armed with a homemade shotgun, came from behind the house of Joselito and, at close range, suddenly shot the victim at the back causing his instantaneous death.chanroblesvirtualawlibrarychanrobles virtual law library

There is treachery when a victim is attacked by an accused without warning and with his back turned to his assailant, or when the attack is sudden and unexpected and without the slightest provocation on the part of the victim, or is sudden and unexpected that the victim was unable to defend himself, thus insuring the execution of the criminal act without risk to the assailant. ¹⁷chanrobles virtual law library

However, the lower court erred in appreciating the aggravating circumstance of abuse of superior strength. As held in a long line of cases up to the present, ¹⁸ the circumstance of abuse of superior strength is properly deemed absorbed by the qualifying circumstance of treachery. This error of the trial court, however, will not affect the penalty imposed by it on appellant since, in the absence of any modifying circumstance, the penalty for murder is reclusion perpetua.chanroblesvirtualawlibrarychanrobles virtual law library

Finally, appellant argues that the reported act of prosecution witness Venancio Tabobo after the shooting incident contradicts normal human behavior. According to appellant, "common sense will dictate that the first tendency of a man who heard a shooting near to him is to cover himself or to run away from the scene of shooting but not chase the shooter." ¹⁹chanrobles virtual law library

The said contention is utterly devoid of merit. We have ruled in a number of cases ²⁰ that there is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience. Verily, it is even preposterous to say that anyone can determine exactly how a person will or should react to a given situation. The testimony of said prosecution eyewitness is evidently neither improbable nor incredible.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the decision appealed from is AFFIRMED, with the modification that the indemnity to the heirs of the victim, Joselito Itona y Nonato, is hereby increased to P50,000.00 in line with the present case law thereon.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Narvasa, C.J., Padilla, Nocon and Puno, JJ., concur.

Endnotes:

1 Original Record, 1.chanrobles virtual law library

2 Ibid, 85.chanrobles virtual law library

3 Ibid, 170; penned by Judge Rodolfo S. Layumas.chanrobles virtual law library

4 Brief for the Plaintiff-Appellee, 2-3; Rollo, 63-64.chanrobles virtual law library

5 TSN, April 20, 1988, 8; Exh. "A".chanrobles virtual law library

6 Brief for Accused-Appellant, 3-4; Rollo, 35-36.chanrobles virtual law library

7 Original Record, 167-168.chanrobles virtual law library

8 Brief for Accused-Appellant, 1; Rollo, 33.chanrobles virtual law library

9 Ibid., 4; id., 36.chanrobles virtual law library

10 People vs. Toribio, 198 SCRA 529 (1991).chanrobles virtual law library

11 People vs. De la Torre, 198 SCRA 663 (1991).chanrobles virtual law library

12 People vs. Perante, Jr., 143 SCRA 56 (1986); People vs. Abigan, et al., 144 SCRA 130 (1986); People vs. Coronado, et al., 145 SCRA 250 (1986).chanrobles virtual law library

13 People vs. Monteverde, 142 SCRA 668 (1986); People vs. Adones, et al., 144 SCRA 364 (1986).chanrobles virtual law library

14 People vs. Peralta, 193 SCRA 9 (1991).chanrobles virtual law library

15 Original Record, 167-168.chanrobles virtual law library

16 People vs. Espera, 175 SCRA 728 (1989).chanrobles virtual law library

17 People vs. Cuyo, et al., 196 SCRA 447 (1991); People vs. Lubreo, et al., 200 SCRA 11 (1991).chanrobles virtual law library

18 People vs. Bueza, 188 SCRA 683 (1990); People vs. Espiritu, et al., 191 SCRA 503 (1990); People vs. Tasarra, et al., 192 SCRA 266 (1990); People vs. Dominguez, et al., G.R. No. 100199, January 18, 1993.chanrobles virtual law library

19 Brief for Accused-Appellant, 6; Rollo, 38.chanrobles virtual law library

20 People vs. Lagota, et al., 194 SCRA 92 (1991); People vs. Flores, et al., supra; People vs. Raptus, 198 SCRA 425 (1991).