ELEUTERIO COSTELO and ROSENDO CONDE, appellants. ALEX

When appellants raise factual issues, they must use cogent and convincing arguments to show that the trial court erred in appreciating the evidence. Whenever the credibility of witnesses and their testimonies is raised as the core issue, reviewing courts necessarily rely on the assessment thereof by the trial judge. This is because he was in the best position to observe the witnesses firsthand and to note their demeanor, conduct and manner of testifying. Absent any showing that certain facts or circumstances of weight and substance have been overlooked, misapprehended or misapplied, such assessment is binding on appellate courts. Suprema

Eleuterio Costelo and Rosendo Conde appeal the Decision1 [Dated October 1, 1997 and written by Judge Mariano M. Umali, now a justice of the Court of Appeals.] of the Regional Trial Court (RTC) of Pasig City (Branch 160) in Criminal Case No. 107566-H, which convicted them of murder and sentenced them to reclusion perpetua. Juris

4th Assistant Provincial Prosecutor Filipinas Z. Aguilar-Ata filed an Amended2 [The first Information did not include Pablo L. Aninipot among those charged.] Information3 [Records, pp. 32-33; rollo, pp. 6-7.] dated February 15, 1995 charging Appellants Costelo and Conde, as well as one Pablo L. Aninipot, with a crime allegedly committed as follows:

Assisted by Atty. Abner Torres, Appellants Costelo and Conde pleaded not guilty when arraigned on February 21, 1995.6 [Records, p. 17.] Aninipot, the other accused, remained at large. Trial ensued against Costelo and Conde. Thereafter, the lower court rendered its assailed Decision,7 [Records, pp. 257-277; rollo, pp. 27-47.] the dispositive part of which reads: Scjuris

Hence, this appeal.9 [The Notice of Appeal dated December 15, 1997, was erroneously addressed to the Court of Appeals by Atty. Abner M. Torres. Nonetheless, the records were correctly forwarded to this Court by the RTC of Pasig City, Branch 160. Via resolution dated December 14, 1998, this Court accepted the appeal interposed by Conde and Costelo. The case was deemed submitted for resolution on September 1, 1999, when the Court received the Reply Brief of Appellant Conde.]

In the Appellee’s Brief,10 [Consolidated Appellees’ Brief, pp. 9-11; rollo, pp. 175-177. This was signed by Assistant Solicitor General Carlos N. Ortega, Assistant Solicitor General Rodolfo G. Urbiztondo and Solicitor Encebrin E. Javier-Inanuran.] the Office of the Solicitor General narrates the facts, as viewed by the prosecution, in this manner:

In his Brief,13 [Brief for Appellant Rosendo Conde signed by Atty. Abner Torres, p. 5; rollo, p. 111.] Appellant Rosendo Conde alleges lack of participation and summarizes the facts of the case as follows: Newmiso

For his part, Appellant Eleuterio Costelo presents the facts in this wise:

In holding both appellants liable for murder, the court a quo believed the prosecution evidence and considered it "sufficient,"15 [Decision, p. 9; rollo, p. 35.] the testimonies of the principal government witnesses being "categorical[,] direct and highly credible when they identified the culprits and narrated the sequence of events that transpired at the crime scene."16 [Ibid.] It emphasized that these testimonies were consistent in "material and essential aspects."17 [Ibid., p. 16; rollo, p. 42.]

The lower court rejected the claim of appellants that they were merely pacifying Pablo Aninipot, pointing out that neither of them gave any statement to the police investigators. It also ruled that the three accused conspired with one another and that the crime was qualified by alevosia. Sdjad

Appellant Costelo presents the following assignment of errors:

On the other hand, Appellant Conde ascribes to the trial court the following errors:

We deem the following as the issues to be resolved: (1) the credibility of the witnesses; (2) the sufficiency of evidence as to the guilt of appellants, as well as to the existence of conspiracy and the qualifying circumstance of treachery.

The appeals have no merit.

As mentioned by the Office of the Solicitor General in its Brief, "[t]he core issue raised by both appellants x x x is factual and delves on the credibility of the witnesses."20 [Appellee’s Brief, p. 11, rollo, p. 177.] We agree. In People v. Lotoc et al.,21 [GR No. 132166, May 19, 1999, p. 8, per Panganiban, J., citing People v. Oliano, 287 SCRA 158, 169, March 6, 1998. See also People v. Siguin, GR No. 126517, November 24, 1998; People v. Sta. Ana, 291 SCRA 188, June 26, 1998; People v. Gaorana, 289 SCRA 652, April 27, 1998; People v. Bersabe, 289 SCRA 685, April 27, 1998; People v. Tulop, 289 SCRA 316, April 21, 1998; People v. Castillo, 289 SCRA 213, April 20, 1998; People v. Bahatan, 285 SCRA 282, January 28, 1998; People v. Villamor, 284 SCRA 184, January 16, 1998.] we stated: Scedp

The assertions of appellants are insufficient to convince us otherwise. Prosecution Eyewitness Nestor Cendaña’s testimony clearly establishes their participation and, consequently, their culpability in the gruesome murder of a defenseless 45-year-old woman, as the following shows: Calrsc

x x x x x x x x x

x x x x x x x x x

x x x x x x x x x

Absent any showing of ill motive on the witness’ part, we sustain the lower court in giving Cendaña full faith and credence.23 [See People v. Realin, GR No. 126051, January 21, 1999.] Notably, his testimony is corroborated by 12-year-old Danilo Gianan, who testified thus: Misä act

x x x x x x x x x

x x x x x x x x x

x x x x x x x x x"24 [TSN, December 12, 1995, pp. 5-9.]

Moreover, Cendaña’s version is supported by the physical evidence.25 [Medico-Legal Report, Records, Vol. 1, pp. 121-123; cf. TSN, August 7, 1995, pp. 8-12.] His testimony that the victim was stabbed "[m]ore than fifteen (15) times"26 [TSN, May 4, 1995, p. 18.] conforms with the autopsy report that the latter suffered 18 stab wounds.27 [TSN, August 7, 1995, p. 8.] As the solicitor general notes,28 [Consolidated Appellees’ Brief, p. 17; rollo, p. 183.] the detailed testimony of a witness in murder or homicide cases acquires greater weight and credibility if it corresponds with the autopsy report.29 [See People v. De Guia, 280 SCRA 141, October 2, 1997; citing People v. Molina, 213 SCRA 52, August 28, 1992.] Jurisä sc

Appellant Conde argues that there were inconsistencies in the testimonies of the prosecution witnesses. He specifically points out that he was not mentioned as one of the perpetrators in Elsa Gianan’s Sworn Statement, supplemental Sworn Statement or direct testimony.30 [Appellant Conde’s Brief, pp. 7-10; rollo, pp. 113-116.] He was supposedly implicated only in her rebuttal testimony which, he argues, was just an afterthought. Likewise, he harps on the fact that neither the Sworn Statement nor the Supplemental Sworn Statement of Danilo Gianan implicated him.31 [The pertinent portions of Danilo Gianan’s supplemental Sworn Statement reads:

"T - Ngayon sabihin mo sa akin kung sino ang nasaksihan mo o ang iyong nakita na pumaslang o pumatay sa Ate Remy?
S - Ang nakita ko pong sumaksak ay si PABLO ANINIPOT at ang humahawak kay Ate Remy habang sinasaksak ay si ELEUTERIO COSTELO po.
x x x x x x x x x" (Records, p. 5, Vol.1)] Lastly, he argues that the prosecution witnesses contradicted one another. Scä juris

These arguments are not convincing. We do not share Conde’s view that Elsa Gianan’s entire testimony was untrue. The inconsistency between her rebuttal testimony on the one hand, and her direct testimony as well as Sworn Statements on the other is no reason to disregard her story. Falsus in unos, falsus in omnibus is not a strict legal maxim in our jurisprudence.32 [People v. Sala, GR Nos. 76340-41, July 28, 1999.] It is neither a categorical test of credibility nor a positive rule of universal application. Therefore, it should not be applied to portions of the testimony corroborated by other pieces of evidence.33 [See People v. Bibat, 290 SCRA 27, May 13, 1998.]

While we accept the direct testimony of Elsa that Pablo Aninipot stabbed the victim who was prevented by Costelo from escaping,34 [TSN, March 16, 1995, pp. 11-17.] we cannot accord credence to her rebuttal testimony that she also saw Conde stab the deceased. In fact, she did not say so in her direct testimony, because she did not witness it. She was inside her house when the incident began, and she went out only upon hearing Remy Quiño calling her. It should be noted that according to Danilo and Nestor, it was Conde who first attacked the victim. Thus, we deem Elsa’s account deficient rather than entirely false. Be that as it may, it should be stressed that Conde’s conviction rests not upon her testimony, but upon those of Danilo Gianan and Nestor Cendaña, both of whom witnessed the event in its entirety. Jurisä

On the other hand, Danilo Gianan’s failure to implicate Conde in his Sworn Statement is not enough reason to disregard his testimony altogether. Our jurisprudence is unequivocal in saying that the testimony of a witness prevails over an affidavit.35 [People v. Maldo, GR No. 131347, May 19, 1999. See also People v. Oliva, 282 SCRA 470, December 5, 1997; People v. Jamiro, 279 SCRA 290, September 18, 1997; People v. Marollano 274 SCRA 84, July 24, 1997.] "The general rule has always been that discrepancies between the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him because ‘affidavits, being taken ex parte are almost always incomplete and often inaccurate x x x.’"36 [People v. Jaberto, GR No. 128147, May 12, 1999, p. 9, per Panganiban, J.; citing People v. Calegan, 233 SCRA 537, June 30, 1994 and People v. Villanueva, 215 SCRA 22, October 21, 1992.] SupÓ rema

In this particular case, Danilo Gianan positively pointed to Appellants Costelo and Conde, together with Pablo Aninipot, as the perpetrators. Unlike his mother, the young boy was able to observe the entire incident, because he was outside their house playing with his younger brother.37 [TSN, December 12, 1995, pp. 17 & 19.] Thus, Danilo was clear during direct and unwavering during cross-examination. We find no reason to differ with the trial court’s appreciation of his testimony.

We cannot accept Appellant Conde’s argument that Elena Gianan’s testimony contradicted that of Nestor Cendaña. Again, we stress that her testimony was incomplete but not entirely contrived. Moreover, such insufficiency did not contradict the credibility of Nestor or his narration of the incident. On the contrary, it showed that the latter’s account was the entire truth. Elsa’s version was in fact in harmony with the accounts of Cendaña and Danilo Gianan, both of whom had witnessed the entire event. Furthermore, we emphasize that both the Sworn Statement of Cendaña38 [Nestor Cendaña’s Sworn Statement narrates the events thus:
"Ganito po ang aking nasaksihan, si Ate Remy ay palabas galing sa bakuran nina Ate Liza, at pa[g]kadating sa bakuran sa tapat nina Conde ay biglang dinakma ni CONDE si Ate Remy, at habang hinahawakan ay kitang kita ko na sinasakal at sina[sa]ksak sa bunganga at sa bandang likuran ng katawan at sa pakakataon na iyon po ay medyo naka-igtad si Ate Remy sa [pagkakahawak] ni Conde at napunta sa kinaroroonan ni Costelo, at biglang itinulak naman ni Costelo si Ate Remy patago papunta sa tapat ni Ate Liza, at pagkatapos ay biglang sum[u]lpot si Pablo Aninipot at ang ginawa ay hin[a]wakan ang kuwelyo ng damit ni Ate Remy at pagkatapos ay sinaksak ng maraming beses na kitang kita rin ni Ate Liza at dalawang bata, na binabato ng dalawang bata ng bao ng niyog si Pablo Aninipot at si Costelo, dahil sa naawa sila sa biktima po." (Sworn Statement of Nestor Cendaña, January 3, 1995; records, p. 6, Vol. 1.)] and his testimony39 [Supra.] before the lower court were in complete congruence. Sdaad

The foregoing facts clearly show that Aninipot, Costelo and Conde killed Remedios Quiño by inflicting upon her eighteen stab wounds.

Appellant Conde contends that the prosecution’s evidence is insufficient to establish his guilt or the qualifying circumstance of treachery beyond reasonable doubt. On the other hand, Costelo asserts that conspiracy was not proven.

Conde argues that the evidence gathered by the prosecution is confusing inasmuch as it admits of two conclusions40 [Appellant Conde’s Brief, pp. 20-23; rollo, pp. 126-129.] as to the identity of the perpetrator. We disagree. As emphasized above, several eyewitnesses pointed to Costelo, Conde and Aninipot as the culprits. Nestor Cendaña saw Conde choke and stab the victim in the mouth and at the back. The autopsy performed on her revealed that her face and back indeed bore stab wounds. When asked who the perpetrators were, Cendaña gave definite answers:

x x x x x x x x x

x x x x x x x x x"41 [TSN, May 4, 1995, pp. 7, 20-21.] (emphasis ours)

His testimony was completely corroborated by that of Danilo Gianan. When asked why he knew Conde, the boy replied: "He was also a neighbor, sir."42 [TSN, December 12, p. 7.]

There is therefore no doubt and no "confusion" as to the identity of the perpetrators.

Appellant Costelo, for his part, argues that there was no conspiracy, as "there was no testimony that there was prior agreement or collective purpose [preceding] the killing of Remedios Quiño."43 [Appellant Costelo’s Brief, p. 14; rollo, p. 72.] We are not persuaded. In People v. Maldo,44 [Supra.] we stated: NcmmisÓ

In this case, conspiracy was shown because Appellant Conde grabbed the victim and stabbed her while Appellant Costelo impeded her escape and shoved her towards Pablo Aninipot, who in turn straddled her on the ground and stabbed her. Conde, Costelo and Aninipot’s prior act of waiting for the victim outside her house affirms the existence of conspiracy, for it speaks of a common design and purpose. Nestor Cendaña testified thus:

It is worth emphasizing here that Appellant Costelo himself in his narration of facts admits that he held the victim while she was being attacked.46 [Appellant Costelo’s Brief, p. 4; rollo, p. 62.] In his Brief,47 [Ibid., p. 9; rollo, p. 67.] he states: Oldmisâ o

Even the utterances of Costelo during the incident do not help his cause. That he told Elsa and Danilo Gianan not to interfere was established.48 [TSN, December 12, 1995, pp. 24, 36, 38.] In fact, while preventing the victim from escaping, he asked her derisively, "Saan ka pupunta?"49 [Ibid., p. 43.] All these facts support the lower court’s finding of conspiracy. Manikanä

Appellant Conde asserts that treachery was not adequately proven in this case. He contends that the evidence for the prosecution tends to establish that the weapon used was only a pair of scissors, and that the crime was committed in an area "teeming with people where houses are very near each other and where help and rescue can easily be available."50 [Appellant Conde’s Brief, p. 27; rollo, p. 133.] Thus, he argues further that the prosecution failed to prove that the offender employed means, methods or forms in the execution of the crime, tending directly and especially to ensure its execution without risk to the offender arising from the defense that the offended party might make.51 [Ibid., p. 26; rollo, p. 132.] Maniksâ

This argument divulges appellant’s failure to comprehend fully the concept of alevosia. That the locus criminis was a heavily populated area where others could thus intervene is not significant at all. For treachery to be considered a qualifying circumstance, two conditions must be satisfied: (a) the malefactor employed such means, method or manner of execution as to ensure safety from the defensive or retaliatory acts of the victim; and (b) the said means, method or manner of execution was deliberately adopted. The essence of treachery is that the attack is deliberate and without warning -- done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape.52 [People v. De la Cruz, 291 SCRA 164, 184-185, June 26, 1998, per Panganiban, J.]

The defense or retaliation contemplated here must come from the victim, not from anyone else. Treachery was irrefutably indicated in the method by which the three assailants waited for the victim to pass by before suddenly attacking her and preventing her escape. At any rate, no help was forthcoming, precisely because Costelo made sure that escape was impossible, and that anyone inclined to lend assistance was intimidated. Hence, treachery was correctly appreciated by the lower court. Maniâ kx

Appellant Conde argues that his failure to leave the premises immediately after the crime was committed is a strong indication of his innocence. This is incorrect.53 See People v. Palma, GR Nos. 130206-08, June 17, 1999; and People v. Almacin, GR No. 113253, February 19, 1999.53 Considering our jurisprudence and all the pieces of evidence against Appellant Conde, non-flight is not a conclusive proof of innocence and is thus not enough to exculpate him. Nexâ old

We affirm the award of P50,000 as indemnity ex delicto.54 [See People v. Quitlong, 292 SCRA 360, July 10, 1993; People v. Lagarteja, 291 SCRA 142, June 22, 1998; People v. Marollano, 276 SCRA 84, July 24, 1998; and People v. Caballes, 274 SCRA 83, June 19, 1997.] The solicitor general’s recommendation to increase the amount to P75,000, based on People v. Victor,55 292 SCRA 186, July 9, 1998.55 is not well-taken. People v. Victor increased the award of indemnity in rape cases that are effectively qualified by any of the circumstances which, under the present amended law, calls for the death penalty.56 [People v. Lotoc et al., GR No. 132166, May 19, 1999.] Clearly, it is inapplicable in the present controversy.

Nonetheless, we increase the award of actual damages from P9,000 to P17,000 to include the amounts paid for the grave, tombstone and church services. These expenses were supported by appropriate receipts presented during trial and submitted as evidence.57 [Records, p. 132, Vol. 1.] Miso

One last point. In his Brief,58 [Appellant Conde’s Brief, p. 5; rollo, p. 111.] Appellant Conde alluded to the warrantless arrest that he had been subjected to. However, he failed to move to quash the Information on this ground. Instead, he elected to go to trial. Hence, he is deemed to have waived his right to question the irregularity of his arrest. In People v. Silvano,59 [GR No. 127356, p. 14, June 29, 1999, per curiam. See also People v. Barrientos, 285 SCRA 221, January 28, 1998.] we held:

Be that as it may, the Court takes this opportunity to remind law enforcers once again to observe the constitutional rights of indicted persons. Had the appellants not waived their illegal arrest, they could have been acquitted, and the People and the victim would have been denied justice, all because law enforcement agents failed to follow proper procedure.60 [Cf. People v. Muleta, GR No. 130189, June 25, 1999.]

WHEREFORE, the appeals of Eleuterio Costelo and Rosendo Conde are hereby DENIED and the Decision of the Regional Trial Court is AFFIRMED, with the MODIFICATION that the award of actual damages is INCREASED to P17,000. Costs against appellants.

Melo, (Chairman), Vitug, Purisima, and Gonzaga_Reyes, JJ., concur.