^{The Facts}

^{Version of the Prosecution} chanrobles virtual law library

In its Brief,[7 the Office of the Solicitor General presents the prosecutions version of the facts as follows: chanrobles virtual law library

At 5:30 AM of December 16, 1987, prosecution witness Lincoln Leyretana was on his way to work on board a passenger jeepney along Dapdap St. corner Aurora Boulevard, Quezon City (p. 4-5, TSN, July 8, 1996). Aside from prosecution witness Lincoln Leyretana, there were thirteen other passengers on board the passenger jeepney (Ibid). chanrobles virtual law library

Suddenly, Luisito Angeles, a passenger of the Jeepney, was shot twice at close range by the person seat[ed] next to the prosecution witness Lincoln Leyretana (ibid). Thereafter, the assailant alighted from the passenger jeepney and shot again the victim twice (p. 7, ibid). Prosecution witness Lincoln Leyretana saw the assailant board another passenger jeepney [in front] of the Aurora Market, Quezon City (p. 8, ibid). Meanwhile, prosecution witness Lincoln Leyretana, together with several other male passengers and the driver, brought Luisito Angeles to the nearest hospital where Luisito Angeles was pronounced dead on arrival (ibid). chanrobles virtual law library

From the hospital, prosecution witness Lincoln Leyretana and several other passengers of the jeepney proceeded to the police station where they gave their sworn statements to the police (ibid). The investigation of the shooting incident was handled by SPO3 Juan Dacillo. On February 6, 1988, prosecution witness Lincoln Leyretana accompanied the group of SPO3 Juan Dacillo to Marikina City where appellant was allegedly seen by another prosecution witness, Carmelita Mendoza (ibid). He saw appellant riding a passenger bus and pinpointed him to the police authorities (ibid). The police officers followed the passenger bus and boarded the same. They apprehended appellant who introduced himself as a police officer. chanrobles virtual law library

[O]n the afternoon of February 8, 19[8]8, appellant escaped. chanrobles virtual law library

On January 5, 1989, an Information charging appellant [with] murder was filed. chanrobles virtual law library

On December 13, 1995, appellant was arrested in Nueva Ecija.

^{Version of the Defense} chanrobles virtual law library

In his Brief,[8 appellant interposes denial and alibi and relates his version of the facts in this wise: chanrobles virtual law library

Appellant categorically and emphatically denied the charge and invoked the defense of alibi, claiming that he was at his place of work in Pasig on the date and time of the incident complained of, x x x work attendance [on which] was confirmed by the defense witness, SPO1 Arsenio Eugenio, and that he [did] not know the person of Luisito Angeles. Appellant likewise proved that Luis Angeles (father of the deceased) and Carmelita Angeles Mendoza (aunt of the deceased) were once in the place of appellants friend, Priscilla De Guzman; that when appellant pacified them while they were arguing about their business, Luis Angeles got mad at him, telling him not to intervene; that at the police station on 6 February 1998, appellant heard Mr. Leyretana saying to SPO3 Dacillo malayo naman sa hitsura doon sa sketch but the latter replied, ituro mo na lang; that appellant left the police station after being pinpointed by Mr. Leyretana because nobody minded him; that appellant was arrested on his birthday, 13 December 1995, at Nueva Ecija; and that when the appellant was in jail, a man took pictures of him many times while Mr. Leyretana and Carmelita Mendoza visited him.

^{Trial Courts Ruling} chanrobles virtual law library

Rejecting appellants defense, the trial court gave full faith and credence to the testimony of the lone eyewitness. It ruled thus: chanrobles virtual law library

This Court finds no substantial imperfection in the testimony of Mr. Leyretana who saw the accused and observed the manner in which he killed the victim who was in a defenseless state on board a passenger jeepney, as well as in the testimony of Carmelita Mendoza whose account of the earlier circumstances involving the accused from 4:00 a.m. of December 16, 1987 until the victim went out of their house proves the act manifestly indicating the determination to make possible the succeeding incident witnessed by Mr. Leyretana. chanrobles virtual law library

Accused interposes alibi as a defense which cannot prevail over his positive identification by an eyewitness, Lincoln Leyretana, who has no motive to falsely testify. Moreover, it was not sufficiently established that it was physically impossible for accused to be in the scene of the crime at Aurora Boulevard, Quezon City, at 5:30 a.m., the time complained of. Then, too, it bears noting that while it was the direct testimony of the accused that he was at his place of work in Pasig on December 16, 1987, he also testified on cross examination that he reported for work on December 16, 1987 at 7:00 a.m.

x x x chanrobles virtual law library

Accused seeks to exculpate himself by saying that Police Officer Juan Dacillo prodded Lincoln Leyretana to point to him as the perpetrator of the crime even if his face was different from the cartographic sketch. Accused testified thus: chanrobles virtual law library

Q What happened when Mr. Leyretana arrived at the Quezon City Police Station? chanrobles virtual law library

A I heard what Mr. Leyretana was saying Malayo naman sa hitsura doon sa sketch and Dacillo told him Ituro mo na lang. chanrobles virtual law library

Q Did Leyretana comply? chanrobles virtual law library

A Yes, sir. (TSN, Rafael Torres, May 25, 1998, p. 18) chanrobles virtual law library

No motive was shown by accused why Police Officer Juan Dacillo would prod Mr. Leyretana to point to him as the culprit. Moreover, Mr. Leyretana rebutted the testimony of the accused, as follows: chanrobles virtual law library

Q Mr. witness, accused Rafael Torres testified last May 25, 1998 particularly on page 26 denying the accusation against him, meaning that he was not present when the incident occurred. What can you say to this? chanrobles virtual law library

A That is not true, sir. chanrobles virtual law library

Q What is the truth, Mr. witness? chanrobles virtual law library

A The truth, sir, is that I saw him in the place of the incident [and] that he was the one who shot the victim, sir. chanrobles virtual law library

Q And he also testified last May 25, 1998 on page 18, he stated that when you arrived at the Quezon City Police Station, you uttered the following word, which I quote: Malayo naman sa hitsura doon sa sketch. What can you say to this? chanrobles virtual law library

A This is not also true. (TSN, Lincoln Leyretana, September 8, 1998, pp. 3-4) chanrobles virtual law library

Prior to the identification of the accused at the police line up, Mr. Leyretana pointed to the accused as the person who shot the victim while boarding the jeep on February 6, 1998. Police Officer Juan Dacillo then followed the jeep which accused had boarded. However accused, sensing that he was being followed, transferred to a passenger bus where he was apprehended by the group of Police officer Juan Dacillo. It is not unnatural for an eyewitness of a heinous crime to strive to see the face of the culprit and to observe the manner in which the crime was committed, and thereafter to cooperate with the police authorities for the sole purpose of bringing the culprit to justice.⁹

^{Assignment of Errors} chanrobles virtual law library

Appellant submits that the trial court erred in the following ways: chanrobles virtual law library

I chanrobles virtual law library

The trial court gravely erred: chanrobles virtual law library

a.) In convicting the appellant despite lack of positive identification; chanrobles virtual law library

b.) In failing to give credence to appellants defense of alibi; chanrobles virtual law library

c.) In convicting the appellant despite lack of proof beyond reasonable court; chanrobles virtual law library

d.) In not acquitting the appellant; and chanrobles virtual law library

Assuming arguendo that the killing of the victim may be validly imputed [to] the appellant, the trial court gravely erred: chanrobles virtual law library

a.) In appreciating the qualifying aggravating circumstances of treachery and evident premeditation; chanrobles virtual law library

b.) In awarding the amount of P150,000.00 for actual damages despite lack of proof, and chanrobles virtual law library

c.) In imposing the penalty of reclusion perpetua.[10 chanrobles virtual law library

In the main, the Court will determine the sufficiency of the prosecution evidence regarding the identification of the author of the crime.

^{The Courts Ruling} chanrobles virtual law library

The appeal is not meritorious.

^{Main Issue}

^{Identification of the Culprit} chanrobles virtual law library

Appellant asserts that the prosecutions lone eyewitness made not only a hazy identification of the suspect but also a highly contradictory testimony.[11 The former firmly assails the highly suggestive identification procedure during which the latter pinpointed him to the police.

^{Identification Made During the Incident} chanrobles virtual law library

Generally, the Supreme Court accords great respect to the factual conclusions of trial courts, because they had the opportunity to observe the witnesses demeanor.[12 However, the rule does not apply here because one judge heard the testimony of the eyewitness and another[13 penned the assailed Decision.[14 Hence, the Court scrutinized the testimonies of the witnesses, but found no reason to reverse or modify the trial courts factual findings. chanrobles virtual law library

The evidence on record shows that Lincoln Leyretana, the lone prosecution eyewitness, was able to identify appellant because the former had seen the latter during the incident. Leyretana testified in this wise:[15 chanrobles virtual law library

Q Will you kindly tell the Court, Mr. Witness, what was that unusual incident that happened? chanrobles virtual law library

A I witnessed a gunshooting, sir. chanrobles virtual law library

Q Will you kindly tell the Court, Mr. Witness, what was that shooting incident which you witnessed? chanrobles virtual law library

A I boarded a passenger jeep and I was sitting two (2) seats away from the back of the driver. I noticed the uneasiness of the person beside me and that time I was also uneasy because I was wearing a fatigue also. chanrobles virtual law library

Q What was that shooting incident which you have just stated before this Court? chanrobles virtual law library

A When we came out [of] a street near St. Joseph church, there was a man who alighted from the jeep. Then passing at the back of the jeep, this man suddenly pulled his gun and shot a certain man who [was] the victim in this case. chanrobles virtual law library

Q How many shots did you hear when this man who was seated beside you shot at the victim by the name of Luisito Angeles? chanrobles virtual law library

A Before he was able to alight, he was able to sh[o]ot the victim two (2) times, sir. chanrobles virtual law library

Q Were there other shots that were made after than shooting incident? chanrobles virtual law library

A After the first two (2) shots, I thought the suspect [would] run, but instead he again went around the jeep and looked around and when he was immediately [in front of] the victim, he again [shot] him twice. chanrobles virtual law library

Even before the shooting, Leyretana had already noticed appellant seated next to him, acting uneasily. A few minutes later, while alighting from the vehicle, appellant shot the victim. Once outside, the former turned around and shot the latter two more times. At that moment, appellant was directly facing not only the victim inside the jeepney, but also the other passengers. Hence, although there was commotion at the time, appellants image was etched in the memory of the eyewitness. chanrobles virtual law library

Appellants contention that it was still dark at the time is not convincing. It was established that there was sufficient illumination coming from a light inside the jeepney.[16 Just as unacceptable is the challenge to the reliability of the identification made by Leyretana, whose description of the court interpreter would allegedly fit a lot of other individuals. We need only to stress that the eyewitness, even under grueling cross-examination, did not waver in asserting that appellant was the culprit. chanrobles virtual law library

Furthermore, we reject the argument that there was serious doubt on the testimony of Leyretana because he had not immediately volunteered information to the police.[17 Witnesses are commonly reluctant to involve themselves in criminal actions, and the Court has held that this reluctance is insufficient to affect their credibility.[18 chanrobles virtual law library

Appellant also cited other inconsistencies in the testimony of Leyretana. These, however, pertained to minor and insignificant details, which did not materially affect the substance of his testimony that he had seen appellant shoot the victim.

^{Suggestive Identification Procedure} chanrobles virtual law library

Due process demands that the procedure for the identification of criminal suspects be free from impermissible suggestion.¹⁹ Indeed, the corruption of out-of-court identification contaminates the integrity of in-court identification during the trial.²⁰ chanrobles virtual law library

Appellant contends that there was suggested identification, because at the precinct where [Leyretanas] statement was taken, he was told by Pfc. Dacillo that the suspect was already apprehended and that he [would] be asked to identify him.[21 Appellant implicitly argues that Leyretana would not have pinpointed the former, had the latter not been told that the suspect had already been apprehended. chanrobles virtual law library

Appellants argument is not supported by the records. True, policemen fetched Leyretana from his house, so that he could confirm the identity of the culprit. However, we find nothing in the acts of the law enforcers that would constitute any impermissible suggestion. They did not coach or suggest to Leyretana to point to appellant. The witness did so on his own. In fact, the policemen took him to a busy intersection where he pointed to appellant, who was about to board a bus. Indeed, appellant was not presented alone to Leyretana. This was clear from the latters testimony, which we quote:²² chanrobles virtual law library

A I was brought to Marikina and when they reached a place where the suspect was supposed to hang around, I pointed to him even without alighting from the jeep and so he was pursued by the policemen and apprehended inside the bus. chanrobles virtual law library

ATTY. JUMAMIL: chanrobles virtual law library

Q So, you were inside a jeep when you pointed to the suspect, is that correct? chanrobles virtual law library

A It was a private vehicle, sir. chanrobles virtual law library

Q Whose car was it, if you know? chanrobles virtual law library

A If I am not mistaken, it belongs to the lawyer. chanrobles virtual law library

Q You were told, were you told by Pfc. Dacillo that that is the suspect, is that him?chanrobles virtual law library

A No, sir.chanrobles virtual law library

Q You were told, were you told by the lawyer of the victims family that that is the suspect, is that him?chanrobles virtual law library

A No, sir. (Italics supplied.) chanrobles virtual law library

Leyretanas account was corroborated by Pfc. Juan A. Dacillo, who testified thus:[23 chanrobles virtual law library

Q Will you please tell the Court the circumstances as to how this identification made by the witness Lincoln Leyretana [of] the accused happened? chanrobles virtual law library

A We went there early in the morning between 5:30 or 6:00 a.m. We positioned ourselves in a far distance near that corner where passengers usually board a passing jeepney or a passing bus. The witness is with us in the car waiting for the suspect or the male person that may take a ride on that corner. The event happened so fast that Sir, sir, yong sumasakay, yon yon. x x x. (sic) chanrobles virtual law library

Q Who made such pronouncements (referring to the quoted statement, earlier quoted statement)? chanrobles virtual law library

A Leyretana, Your Honor. chanrobles virtual law library

Leyretana repeated his earlier assertions after the policemen included appellant in a lineup. Clearly, there was no impermissible suggestion from the law enforcers. chanrobles virtual law library

Significantly, it was not shown that there was any undue motive on the part of the police officers to incriminate appellant, who was also a policeman. Absent such showing, they are presumed to have performed their duties regularly.²⁴ chanrobles virtual law library

The present case should be distinguished from Natividad v. Court of Appeals,[25 in which the witnesses were fetched by police officers and brought to the place where the accused was apprehended. The Court narrated the factual antecedents as follows: chanrobles virtual law library

The record shows that on January 25, 1972, three police officers fetched Primavera, Galvadores and Soliman in a jeep and they proceeded to the office of the Allied Brokerage Corporation. Primavera, et al. and a police officer stayed behind in the jeep and the two police officers looked for Natividad inside the Allied Brokerage Corporation office in order to invite him for interrogation at the MMP Headquarters. Outside said office, one of the police officers threatened Natividad, for he desisted fromining them while Primavera, et al. watched from inside the jeep. Thereafter, they all proceeded together to the MMP Headquarters where the police officers directed Natividad toin a line-up of ten (10) men. Then, the police officers called the two women (Primavera and Galvadores) and the man (Soliman) and asked them to make the identification. It can thus be readily seen that at the premises of the Allied Brokerage Corporation office, the police officers literally paraded Natividad before Primavera et al. whom they purposely fetched from the Manila Christian Guesthome to see Natividad. (Emphasis supplied) chanrobles virtual law library

In Natividad, there was impermissible suggestion because the policemen let the witness know from the start who their suspect was. In the present case, while the police already had a suspect, they did not reveal his identity to Leyretana. In fact, it was the witness himself who pointed out the culprit to them.

^{Right to Counsel During Police Lineup} chanrobles virtual law library

Appellant also argues that the identification made by Leyretana during the police lineup was inadmissible, because the former was not assisted by counsel at the time.[26 chanrobles virtual law library

The argument contradicts settled jurisprudence. The Court has held that the assistance of counsel is not essential during a police lineup. Thus, the Court ruled in People v. Pavillare:²⁷ chanrobles virtual law library

x x x. The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an in-court identification.

^{Appellants Flight} chanrobles virtual law library

Further militating against the cause of appellant was his flight. The records show that he escaped from the police station after his arrest. He explained that [w]hen nobody minded me, I already left the place.[28 At the time, he already knew that he would be charged. Instead of defending his innocence, he escaped from the law, even if it meant being AWOL from his post as a policeman. Clearly, his flight evinced his guilt.

^{Collateral Issues}

^{Appellants Alibi} chanrobles virtual law library

Appellant insists that he was in his office in Pasig City when the crime was committed. This argument scarcely deserves consideration. The well-settled rule is that alibi is a weak defense, which cannot prevail over the positive identification of the accused by a credible witness,[29 as in this case.

^{Treachery and Evident Premeditation} chanrobles virtual law library

We agree with the trial court that the killing was qualified by treachery. This qualifying circumstance is appreciated when the attack was executed in such a manner as to ensure the offenders safety from any defense or retaliatory act of the offended party.[30 In the present case, appellant shot the unsuspecting victim point-blank inside the jeepney. Not content, once outside, the former shot the latter two more times. chanrobles virtual law library

We disagree with the ruling, however, that evident premeditation was present. The prosecution failed to establish the following elements of this aggravating circumstance: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused clung to that determination, and (c) a lapse of time between the determination and the execution sufficient to allow the accused to reflect upon the consequences of the act.[31 That appellant had been seen near the victims house a few minutes before the shooting did not by itself establish evident premeditation.

^{Proper Penalty And Civil Liabilities} chanrobles virtual law library

Be that as it may, the trial court correctly sentenced appellant to reclusion perpetua. When the crime was committed in 1987, the penalty for murder was reclusion temporal, in its maximum term, to death. There being no aggravating or mitigating circumstance, the penalty should be imposed in its medium term, which is reclusion perpetua.³² chanrobles virtual law library

The trial court correctly awarded the amount of P50,000 as indemnity ex delicto. Pursuant to current jurisprudence,[33 this is awarded without need of proof other than the commission of the crime. We also sustain the awards of P95,500 as actual damages and P20,000 as moral damages, for these were supported by evidence. chanrobles virtual law library

We disagree, however, with the award of P150,000 for loss of earning capacity. The amount of indemnity for such loss is based on the income at the time of death and the probable life expectancy of the victim. It should also be stressed that this indemnity refers to the victims total earnings minus the necessary living expenses. In computing this award, the Court has used the following formula: chanrobles virtual law library

2/3 x (80 - age of the victim at the time of death) x (reasonable portion of the annual net income which would have been received as support by the heirs)³⁴ chanrobles virtual law library

In the present case, it was shown that the victim, a mechanical engineer, was 35 years old and earning P20,000 a month (or an annual income of P240,000) when he was killed. Under the circumstances, we believe that the amount of necessary living expenses should be fixed at P10,000 a month. Applying the above formula, the indemnity in the present case should be computed as follows: chanrobles virtual law library

= 2/3 x (80 35) x (P240,000 P120,000) chanrobles virtual law library

= 2/3 x 45 x P120,000 chanrobles virtual law library

= P3,600,000. chanrobles virtual law library

WHEREFORE, the appeal is hereby DENIED and the assailed Decision AFFIRMED, with the sole modification that the heirs of the victim are awarded P3,600,000 as indemnity for the lost earnings of the deceased, in addition to the other amounts awarded by the trial court. Costs against appellant. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Melo, (Chairman), Vitug, and Gonzaga-Reyes, JJ., concur.