Philippine Supreme Court Resolutions > Year 2008 > February 2008 Resolutions > [G.R. No. 150404 : February 04, 2008] PEOPLE OF THE PHILIPPINES V. JERRY BALANE :

Quoted hereunder, for your information, is a resolution of this Court dated 04 February 2008:

G.R. No. 150404 (People of the Philippines v. Jerry Balane)

This is an automatic review of the September 18, 2001 Decision^[1] of the Court of Appeals (CA) in CA-G.R. CR No. 24058 entitled People of the Philippines v. Jerry Balane. which affirmed the August 10, 1999 Decision^[1] of the Daet, Camarines Norte Regional Trial Court (RTC), Branch 40 in Criminal Case No. 7257. The RTC found accused-appellant Jerry Balane guilty of murder.

On August 31, 1991, Danny Avendano, Noli dela Pacion, and Noli Saynes attended a dance party in celebration of the fiesta at Barangay Tabas, Paracale, Camarines Norte. Upon reaching the chapel on their way home, Avendaiio suddenly heard three gun shots. Avendano and dela Pacion immediately dropped to the ground. However, Saynes, who was walking about 20 meters ahead of them, was hit. They saw that it was accused-appellant who shot Saynes. They then ran away from the scene, leaving the victim behind.^[3]

Meanwhile, Edwin Asis was with accused-appellant and his other companions at the time of the incident. He joined the group of accused-appellant, Jose Balane, and Wellie Magana in a drinking session during the fiesta. On their way home, when they were in front of the chapel, Asis heard that the group was going to attack somebody. Upon hearing this, he moved away from the group. Thereafter, he heard three gunshots. He later came to know that the victim was Saynes.^[4]

The post mortem examination revealed that the victim was shot once, and stabbed and hacked several times. The cause of death was loss of blood due to massive hemorrhage.^[5]

An Information was filed against accused-appellant and his alleged companions, Tony Sale, Magana, Panyer Doe, and Jose Balane, which reads:

That on or about 5:00 o'clock in the morning of August 31, 1991 at Barangay Tabas, Municipality of Paracale, Province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with intent to kill, treachery and evident premeditation and armed with bolo, have Have llega and Cal. 38 revolver, did then and there willfully, unlawfully and feloniously hack, stab and shoot one Noli Saynes, thereby inflicting upon the latter fatal stab, hack and gunshot wounds in the different parts of his body which were the proximate cause of the death of said Noli Saynes, to the damage and prejudice of the heirs of the victim.^[6]

Trial proceeded only against accused-appellant, Sale, and Magana. The two other accused, Doe and Jose, went into hiding.

Accused-appellant interposed denial and alibi as his defense. He alleged that at the time of the incident, he was at home sleeping. And it was impossible for him to be at the crime scene during the commission of the crime because his house was located at a different barangay.

On August 10, 1999, the RTC rendered a Decision, the dispositive portion of which reads:

IN THE CIRCUMSTANCES, the Court finds the accused Jerry Balane guilty of the crime of Murder beyond reasonable doubt and hereby imposed an [i]ndeterminate [sjentence of [t]welve [y]ears, [f]ive [m]onths and [e]leven days as minimum to [t]wenty [yjears as maximum.

Accordingly, accused Jerry Balane is further condemned to pay the heirs of Noli Saynes the sum of [PhP 50,000] as damages.

For insufficiency of evidence of the prosecution against the accused Jose "Utoy" Balane and Wellie Magana, they are hereby discharged from the Information and this case against them is hereby Dismissed.

SO ORDERED.^[7]

On appeal, the CA, in its September 18, 2001 Decision, disposed of the case as follows:

WHEREFORE, the judgment of conviction is hereby AFFIRMED with MODIFICATION with respect to the penalty imposed. Accused Jerry Balane is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the sum of FIFTY THOUSAND PESOS [PhP 50,000] as death indemnity and FIFTY THOUSAND PESOS [PhP 50,000] as moral damages.^[8]

Due to the penalty imposed, the case was forwarded to this Court for final disposition.^[9] On January 21, 2002, this Court required accused-appellant to submit a supplemental brief, if he so desired. On March 29, 2005, accused-appellant filed a Manifestation stating his willingness to submit the case on the basis of the records already submitted.

In his April 9, 2000 Brief, accused-appellant raised seven errors for the CA's consideration. These issues are now deemed adopted in this present appeal, as follows:

I

The court a quo committed procedural jurisdictional error prejudicial to accused-appellant Jerry Balane. Or otherwise, prosecution's witness Edwin Asis, not being a state witness, should have been convicted as principal by conspiracy or in lesser degree than as principal.^[10]

II

The court a quo erred in finding that there were eye witness/es to the incident.^[11]

III

Even if assuming arguendo, without admitting, that there was an eye witness, not one and no one was able to pinpoint, with particularity to accused-appellant Jerry Balane as the perpetrator. Or, otherwise, evidence that would tend to show that Jerry Balane fired shot/s that hit at victim was mere circumstantial, but no other circumstantial evidence would corroborate the theory that the shot was fired by accused-appellant Jerry Balane (that hit at the victim).^[12]

IV

But, and even if, assuming (without admitting), that accused-appellant Jerry Balane did fire shot/s, and even if, assuming (without conceding), that one or whatever shot/s ever hit the victim, the testimony of the medical officer show that it was not fatal.^[13]

V

Conspiracy was not/never proven; and no proof of conspiracy was shown to link accused-appellant Jerry Balane to those that caused the fatal wounds; hence the criminal responsibility of accused-appellant Jerry Balane, if any, must be particularized and/or individualized.^[14]

VI

Exhibit "4" or the affidavit of retraction of and by prosecution's witness Edwin Asis at least, could and should have cast doubt to his testimony; at most, his testimony could have been simply ignored.^[15]

VII

The court erred in not finding that there is no moral certainty, and that prosecution failed to prove beyond reasonable doubt the (or any) charge/s against accused-appellant Jerry Balane.^[16]

Essentially, accused-appellant questions the credibility of the prosecution witnesses and the sufficiency of the prosecution's evidence.

The appeal has no merit.

Apparently, the issues raised by accused-appellant involve the trial court's factual findings. It is a settled doctrine that the trial court's assessment on the credibility of the witnesses and the probative weight of their testimonies are binding on the appellate court. An exception to this rule is when the trial court ignored, misconstrued, or misinterpreted facts and circumstances, which, if considered, would alter the outcome of the case.^[17] The exception does not apply to this case.

Accused-appellant faults the prosecution witnesses for failing to actually see him shoot the victim. He maintains that their testimonies were uncorroborated by any other credible evidence. Plaintiff-appellee People of the Philippines, on the other hand, alleges that it was not necessary for the witnesses to have actually seen accused-appellant pull the trigger. The fact that he was the only person with the gun at the time of the incident necessarily leads to the reasonable conclusion that he was the assailant.

We agree with plaintiff-appellee. Prosecution witness Avendano was with the victim when the latter was attacked. Although Avendano did not actually see accused-appellant pull the trigger, he saw that accussed-appellant was the only one who was holding a gun just after the shot was made. Hence, it is a fair and reasonable conclusion that accused-appellant, to the exclusion of all others, was the one who fired at the victim. Moreover, absent any showing that Avendano had an ill-motive to falsely testify against accused-appellant, there is no reason to doubt his testimony.

Also, the trial court cannot be faulted for disregarding the retraction of prosecution witness Asis' Sinumpaang Salaysay, which was used as basis to file the Information against accused-appellant. Affidavits of desistance are treated with reservation because these are easily procured through intimidation, threat, or a promise of reward.^[18] Notably in this case, Asis withdrew his retraction on the witness stand and explained that he was merely coerced by accused-appellant's mother to retract his affidavit. And amidst grueling cross examination, he remained firm in implicating accused-appellant to the crime.

Thus, the prosecution had successfully shown accused-appellant's participation in the crime. As correctly observed by the CA, the positive testimony of the prosecution witnesses cannot prosper over the unsupported alibi of accused-appellant. In dismissing accused-appellant's defense, the CA explained:

Accused-appellant never showed that it was physically impossible for him to have been at the scene of the crime at the time of its commission. In fact, the two barangays were only [six] kilometers away from each other. As testified to by Trinidad de Leon, it only takes an hour to travel from Tabas to Matango on board a motorized vehicle. Even the accused-appellant's brother Jose "Utoy" Balane confirmed that the distance may be covered in less than an hour if the traveler walked fast enough. Accused-appellant allegedly arrived at his house in Matango at 4:00 in the morning. The slaying took place at the chapel along the road going to Tabas at 5:00 in the morning. Nobody corroborated the fact that he slept until 6:30 in the morning. It was therefore not impossible for the accused-appellant to have been at the scene of the crime at the time of its commission.^[19]

Likewise, the prosecution had successfully shown that the killing was qualified by treachery. In order to establish treachery, the following requisites must concur: (1) the employment of means of execution that gives the person attacked no opportunity to retaliate; and (2) that said means of execution were deliberately or consciously adopted by the assailant.^[20] In this case, accused-appellant shot the unsuspecting victim without any warning. Thereafter, accused-appellant's companions repeatedly hacked and stabbed the already injured victim. The means employed by the culprits assured the successful execution of the crime and ensured their safety from any retaliation from the victim.

WHEREFORE, we AFFIRM the September 18, 2001 Decision in CA-G.R. CRNo. 24058, finding accused-appellant guilty beyond reasonable doubt of the crime of murder. No costs.

SO ORDERED.

Endnotes:

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^[1] CA rollo, pp. 88-103. Penned by Associate Justice Eliezer Delos Santos and concurred in by Associate Justices Godardo Jacinto and Bernardo Abesamis.

^[2] Id. at 10-27. Penned by Judge Honesto Morales.

^[3] Id. at 89.

^[4] Id. at 90.

^[5] Id.

^[6] Id. at 9.

^[7] Id. at 27.

^[8] Id. at 102.

^[9] 2000 RULES ON CRIMINAL PROCEDURE, Rule 124, Sec. 13.

^[10] CA Rollo,p.45.

^[11] Id.

^[12] Id. at 47.

^[13] Id.

^[14] Id. at 48.

^[15] Id. at 49.

^[16] Id.

^[17] Velasco v. People, G.R. No. 166479, February 28, 2006, 483 SCRA 649, 662.

^[18] People v. Gavino, OR. No. 142749, March 18, 2003, 399 SCRA 285, 294.

^[19] CA rollo, pp. 98-99.

^[20] People v. Alajay, G.R. Nos. 133796-97, August 12, 2003, 408 SCRA 629, 636.