This is an appeal from the decision1 [Per Judge Pedro C. Cacho.] of the Regional Trial Court of Pangasinan (Branch 52), finding accused-appellant guilty of two counts of murder and one count of frustrated murder and ordering him to pay a total of P204,300.00 in damages. Rtcspped

The Information2 [Records, p. 2.] against accused-appellant charged:

The prosecution presented evidence showing the following: At around 6:00 in the evening of November 15, 1991, Mario Seldera, 11, his father Rogelio Seldera, and his cousin Rodolfo Padapat worked in the riceland of a certain Lagula in Barangay Nancalabasaan, Umingan, Pangasinan. It was harvest time and the three were hired to bundle the palay stalks which had been cut. As it was a moonlit night, the three worked in the field until around 9:00 when they started for home taking a trail alongside the Banila river. The trail is about two feet wide only, and so the three walked along the trail single file with Rogelio, being the oldest, leading the way, followed by his son Mario and by Rodolfo who was last. As they reached a sloping portion in the trail, accused-appellant Federico Lopez appeared armed with a shotgun. Accused-appellant had a companion, a dark man. He was unarmed.3 [TSN, pp. 5-8, 10, 18, 20-21, 29, June 2, 1993.] Without uttering a word, accused-appellant fired at the three, who slumped forward, face down. Accused-appellant’s companion went near the bodies of the victims and rolled them over with his foot. Satisfied that the victims were dead, accused-appellant and his companion left.4 [Id., pp. 8-12.] Korte

However, Mario, the youngest in the group, was not killed, although he had been wounded in the back. As soon as accused-appellant and his companion had left, Mario stood up and, crying, he walked to the house of his uncle, Alfredo Padapat, the father of Rodolfo, and reported the matter. He decided not to go home as accused-appellant and his companion went in the direction of their house. Mario’s mother was fetched from their house and told what had happened to Rogelio and Rodolfo. The three then reported the incident to the barangay captain who lost no time in accompanying them to the police in Umingan, Pangasinan.5 [Id., pp. 12-15, 24.]

Mario was investigated by CPL Jose Almerol. Afterwards, he was taken to the Umingan Medicare Hospital where he was treated by Dr. Suller-Santos. The boy suffered three gunshot wounds on the back, right side, each wound measuring about .5 x 1 cm. The wounds were located vertically, the first about three centimeters from the second and the latter about two centimeters from the third.6 [TSN, pp. 3-6, June 17, 1993.] Dr. Santos issued a medical certification (Exh. E) and referred Mario to the Eastern Pangasinan District Hospital for x-ray examination. Sclaw

Mario positively identified accused-appellant as the assailant. He testified that accused-appellant wore a white, long-sleeved shirt, blue jeans and white slippers, while his companion had a black t-shirt, black jeans and brown slippers on.7 [TSN, pp. 7-8, June 2, 1993.] He was able to recognize accused-appellant and notice the type and color of the latter’s clothes and those of the latter’s companions because the moon was brightly shining. He knew accused-appellant very well, because the latter used to frequent their house in Nancalabasaan to play cards with his father. In addition, Mario used to buy cigarettes from accused-appellant’s store. As to the gun used, he stated that it was similar to those used by security guards. When asked whether his father and accused-appellant had a quarrel on November 15, 1991, Mario said he did not know.8 [Id., pp. 3-4, 23-24, 26, 28-29.]

Dr. Thelma C. Busto, the rural health physician of Umingan, Pangasinan, examined the bodies of Rogelio Seldera and Rodolfo Padapat on November 16, 1991.

Dr. Busto described Rogelio’s wounds as follows:9 [Records, p. 12; Exh. D.]

Her post-mortem report on Rodolfo Padapat stated:10 [Id., p. 11; Exh. C.]

According to Dr. Busto’s reports, the cause of death of the victims was cerebral hemorrhage and cardiorespiratory arrest secondary to gunshot wounds. Testifying, she said that the gunshot wounds were alike in size and nature. Although she could not tell the type of firearm used nor determine the trajectory of the wounds, she said the wounds could have been caused by a shotgun.11 [TSN, pp. 8-11, June 14, 1993.] Sclex

Leonida Seldera, widow of the deceased Rogelio, and Alfredo Padapat, father of Rodolfo, testified on the civil aspect of the case. The prosecution was precluded from inquiring from these witnesses about events which transpired in the evening of November 15, 1991 because they were present during the testimony in-chief of Mario Seldera. The defense counsel moved for their exclusion but the prosecution manifested that they would only testify with regard to the civil aspect of the case.

Accused-appellant’s defense was alibi. He claimed that at around 5:00 in the afternoon of November 15, 1991, he was in the house of his uncle, Asterio Sonaco, in Caurdanetaan, another barangay of Umingan in Pangasinan, about three kilometers from Nancalabasaan. He had a round of drinks with four friends12 [Virgilio Dela Cruz, Ernesto Benitez, Bonifacio Valdez, and Rodrigo "Thunder/ Amboy" Lopez.] over a dish of dog meat. At 11:00 that night, the party broke up and accused-appellant went home. He claimed that it was dark that night and that during the party, they used a lamp for illumination.13 [TSN, pp. 5-8, March 23, 1994.]

Accused-appellant stated that he has no previous quarrel with the two deceased nor with Mario Seldera. Nor had he been to the house of Rogelio Seldera. As to the clothes he wore on the night of November 15, 1991, he claimed he had a pair of maong pants and a t-shirt on, though he could not remember the color of the latter.14 [TSN, pp. 2-5, April 21, 1994.] xlaw

On cross-examination, accused-appellant admitted that he was known as "Amboy" Lopez and that although a barriomate, Rodrigo Lopez, was also called "Amboy," the latter was known more as "Thunder" Lopez. He also said that he had a farm in Nancalabasaan but he allegedly had not gone to the barangay proper as he only pass by the eastern part thereof.15 [Id., pp. 8, 19.]

In his counter-affidavit,16 [For the preliminary investigation.] accused-appellant did not mention anything about cooking dog meat during the party in Asterio Sonaco’s house on November 15, 1991 and that he went home at 8:00 in the evening. Accused-appellant gave no explanation why in his testimony in court he said he went home at 11:00 in the evening and that they killed a dog and made its meat into a dish.17 [TSN, pp. 16-18, 21-23, April 21, 1994.]

The defense presented Daniel Fortunato and Mario Sonaco to corroborate accused-appellant’s testimony on the events which transpired in the evening of November 15, 1991. Daniel Fortunato testified that he is a barangay councilman of Caurdanetaan, Umingan, Pangasinan. He claimed that from 4:00 in the afternoon to 11:00 in the evening of November 15, 1991, he was with accused-appellant in a party where there were about thirteen18 [He was only able to name Ernesto Benitez, Bonifacio Valdez, Virgilio dela Cruz, Mario and Pedro Sonaco and a certain Gacutan.] other people, drinking gin and eating cooked dog meat. Fortunato said he and Mario Sonaco helped accused-appellant home as the latter was too drunk. Accused-appellant was allegedly received by his wife.19 [TSN, pp. 18-20, 33, Sept. 31, 1993.] xsc

On cross-examination Fortunato admitted that he was not always watching accused-appellant during the party and that it was possible that the latter may have slipped out. With regard to the distance of Caurdanetaan to the Banila river, where the incident happened, Fortunato estimated it to be about 1 1/2 kilometers, which can be covered in 20 minutes by walking and in about 11 minutes by running. Fortunato testified that accused-appellant had the same height and body build as Rodrigo "Thunder" Lopez although the latter was darker.20 [Id., pp. 17, 27-28.]

Mario Sonaco, for his part, claimed that there were less than ten21 [He was only able to name Daniel Fortunato, Gacutan, Ansel and Asterio Sonaco, Bonifacio Valdez, Ernesto Benitez and Rodrigo Lopez.] people present in the house of his brother, Asterio Sonaco, in the evening of November 15, 1991. However, he corroborated Fortunato’s testimony that he and Fortunato took accused-appellant home at 11:00 o’clock that night because the latter was drunk.22 [TSN, pp. 3-6, Aug. 15, 1993.]

On cross-examination, Sonaco admitted that accused-appellant is his nephew.23 [The father of accused-appellant is his first cousin.] He estimated that accused-appellant’s house was less than two kilometers from the Banila river. He reiterated that by taking the barangay road, the distance could be covered in 30 minutes on foot but if one runs or uses the shorter route through the ricefields, the travel time would be less.24 [TSN, pp. 12-13, Aug. 15, 1993.] Sc

The defense also presented Juanito Costales, barangay captain of Caurdanetaan, who testified that around 12:00 midnight of November 15, 1991, three policemen went to his house to inform him that accused-appellant was a suspect in a killing in the neighboring barangay of Nancalabasaan. He said he accompanied the authorities to accused-appellant’s house and that when the latter came out, he smelled of liquor. When asked by the policemen where he had been, accused-appellant allegedly answered he had been to a drinking party held that afternoon. Apparently finding nothing unusual, Costales and the policemen left.25 [TSN, pp. 3-6, Nov. 23, 1993.]

Costales corroborated Mario Sonaco’s testimony that accused-appellant’s house is less than two kilometers from the scene of the crime. When asked about the condition of the night on November 15, 1991, he stated that it was so dark that the policemen had to use flashlights.26 [Id., pp. 4 and 6.]

Corroborating accused-appellant’s claim that it was pitch dark on the evening of November 15, 1991, Lorna Gonzales, a resident of Barangay Nancalabasaan, whose house is about 100 meters from the Seldera household, testified that at around 9:00 in the evening of that day, she heard some wailing and weeping in the house of the Selderas, and that she and her husband learned that Rogelio Seldera had died. However, they did not go out of their house because it was allegedly very dark, and she was afraid that her husband might be implicated in the killing. On cross-examination, Gonzales disclosed that her house is surrounded by big camachile trees. When asked whether these could obstruct the light from the moon, she only said: "It [was] dark, sir."27 [TSN, pp. 3-5, 10, Aug. 31, 1993.] Scmis

On January 20, 1995, the trial court rendered judgment, the dispositive portion of which reads:28 [Rollo, p. 44; Decision, p. 21 (emphasis added)]

In this appeal, accused-appellant alleges that:29 [Id., p. 76; Appellant’s Brief, p. 4.]

First. Accused-appellant questions the credibility of Mario Seldera. It is unbelievable, he contends, that this witness observed even minute details, such as the length and color of the shirts worn by accused-appellant and his companion, the color of their slippers, and the type of firearm used by accused-appellant, considering that the shooting took place suddenly and unexpectedly.30 [Ibid.] Misspped

The contention has no merit. As the Solicitor General points out, Mario Seldera went through a harrowing experience. In fact, he suffered three gunshot wounds and was given up for dead by the assailant. The memory of the massacre was etched deeply in his memory. As this Court has many times held, the natural reaction of victims of criminal violence is to strive to notice the appearance of their assailants and observe the manner the crime was committed.31 [People v. Gomez, 251 SCRA 455 (1995); People v. Teehankee, Jr., 249 SCRA 54 (1995); People v. Salazar, 248 SCRA 460 (1995); People v. Apawan, 235 SCRA 355 (1994); People v. Dolar, 231 SCRA 414 (1994)]

Indeed, Mario’s statement that accused-appellant used a shotgun in shooting him and his companions on November 15, 1991 is confirmed by the fact that the wounds suffered by the victims were similar to those caused by a shotgun fired at close range. Rogelio Seldera, who was less than three meters away from accused-appellant, had his head practically blown off. On his neck and chest were nine wounds, probably caused by pellets from the blast. Mario, who was behind his father, sustained three vertical, relatively small wounds on the right side of his back. The wound on Rodolfo’s head, on the other hand, although without an exit, is similar in size to that suffered by Rogelio Seldera on the head.

It is argued that Mario could not have recognized accused-appellant because it was very dark on the night of November 15, 1991.32 [Rollo, p. 76-A; Accused-appellant’s Brief, p. 5.] This is not true. According to the Philippine Atmospheric Geophysical and Astronomical Services Administration, there was 60% illumination from the moon over Umingan, Pangasinan at 9:00 in the evening of November 15, 1991. In People v. Pueblas,33 [127 SCRA 746 (1984)] we held that a moon disc 62% full provides sufficient illumination in sustaining the identification of the accused and convicting him of murder. In other cases, we held that the illumination from the moon34 [People v. Oliano, 287 SCRA 158 (1998) citing People v. Gamboa, 145 SCRA 289 (1986); See also People v. Villaruel, 261 SCRA 386 (1996)] and even from the stars35 [People v. Vacal, 27 SCRA 24 (1969)] is fair and sufficient to identify perpetrators of crimes. Spped

The Solicitor General observes that Mario had been walking under the light of the moon for sometime before the incident so that his eyes had sufficiently adjusted to the natural illumination, so as to enable him in identifying the accused-appellant.36 [Rollo, pp. 105-106; Appellee’s Brief, pp. 7-8.] Indeed, if accused-appellant recognized his intended victims, there is no reason why the survivor from the ambush could not have also recognized him.

In the alternative, it is contended that even if there was fair illumination from the moon on the night in question, nonetheless Mario Seldera could have mistaken accused-appellant for Rodrigo "Thunder" Lopez.37 [Id., p. 76-A, Accused-appellant’s Brief, p. 5.] Jospped

Again the contention is without merit. Rodrigo "Thunder" Lopez may also be called "Amboy" Lopez in the barangay, but it was not by name that Mario made his identification. In fact, Rodrigo "Thunder" Lopez was not even a suspect in the ambush of Mario and the latter’s companions. As already stated, Mario identified accused-appellant based on this witness’ knowledge of accused-appellant. The latter was a frequent visitor in their house and this witness used to buy from accused-appellant’s store. Moreover, Rodrigo Lopez is darker and shorter than accused-appellant.

Indeed, Mario Seldera was very positive that it was accused-appellant who shot them. He identified accused-appellant as their assailant upon reaching Alfredo Padapat’s house. He again pointed to accused-appellant as the person who shot them when his mother arrived and again when they reported the incident to the police that same night. The rule is that identification of the accused, when there is no improper motive for making it, should be given full faith and credence. In the case at bar, no reason has been shown why Mario should falsely implicate accused-appellant.

Second. It is claimed that accused-appellant was in his uncle’s house in Caurdanetaan at the time of the incident. The defense of alibi will be sustained where the evidence of the prosecution is weak.38 [People v. Dela Cruz, 279 SCRA 245 (1997); People v. Manambit, 271 SCRA 344 (1997)] However, accused-appellant himself said that Caurdanetaan is just three kilometers from Nancalabasaan. On the other hand, his witnesses39 [Mario Sonaco and Juanito Costales.] themselves testified that accused-appellant’s house is less than two kilometers from the scene of the crime and that the distance could be negotiated in 30 minutes by foot and even less if one runs. For alibi to prosper, accused-appellant must show that it was physically impossible for him to be at the scene of the crime at the time of its commission.40 [People v. Tabarangao, G.R. Nos. 116535-36, February 25, 1999; People v. Quinao, 269 SCRA 495 (1997)] Thus, assuming that he was indeed at the party in Asterio Sonaco’s house, he could have easily slipped out of the party, come back to the group, and then be at home in time for the police to find him there. Sppedjo

Moreover, as already stated, accused-appellant was positively identified by Mario as the triggerman. It is settled that the defense of alibi cannot prevail over positive identification of the accused by an eyewitness who has no improper motive to falsely testify.41 [People v. Piandiong, 268 SCRA 555 (1997)] The Court finds no reason to doubt the veracity of Mario’s testimony who was only 11 when he witnessed the gruesome killing of his father and cousin and barely 13 when he took the stand. He could possibly have no other motive but to tell the truth about what he had observed.

Accused-appellant’s alibi is not only weak; it is also filled with inconsistencies. He said in his counter-affidavit that he went home at 8:00 in the evening of November 15, 1991, a full hour before the shooting occurred but, in his testimony in court, he said he went home at 11:00 in the evening. His witnesses, Daniel Fortunato and Mario Sonaco, said there were at least ten persons in the party at the house of Asterio Sonaco on November 15, 1991, but accused-appellant stated that there were only five.

The Court is convinced that it was accused-appellant who shot Mario Seldera, Rogelio Seldera, and Rodolfo Padapat on November 15, 1991. It is immaterial that there is no proof of motive for the attack because this becomes significant only where the identity of the assailant is in serious doubt.42 [People v. Dayson, 242 SCRA 124 (1995)] But in this case, the accused has been positively identified. Miso

Third. The Information is formally defective as it charged more the one offense in violation of Rule 110, §13 of the Revised Rules of Court. However, because of his failure to file a motion to quash, accused-appellant is deemed to have waived objection based on the ground of duplicity.43 [Rule 117, §8.] The dispositive portion of the trial court’s decision finds accused-appellant guilty of "Double Murder with Frustrated Murder," but sentences him for two separate counts of murder and one count of frustrated homicide. We hold that accused-appellant was guilty of two counts of murder and one count of attempted murder. Under Art. 48 of the Revised Penal Code, a complex crime is committed only "when a single act constitutes two or more grave or less grave felonies." As the victims in this case were successively shot by accused-appellant with a shotgun, each shot necessarily constitutes one act. Accused-appellant should thus be held liable for three separate crimes.

The lower court correctly appreciated treachery as having qualified the killings of Rogelio Seldera and Rodolfo Padapat. The essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation on the part of the victim.44 [People v. Oliano, supra; People v. Cogonon, 262 SCRA 693 (1996)] Here, it was clearly established that the victims, when shot, were unarmed and were peacefully walking along a trail when accused-appellant suddenly opened fire on them. The swiftness of the shooting left them helpless to put up any form of defense.

The lower court however erred in convicting accused-appellant of frustrated homicide for the injuries inflicted on Mario Seldera. Although it correctly appreciated the intent to kill, which can be inferred from the weapon used, the proximity of the assailants and the location of the injuries, it should have appreciated treachery in the attack. Treachery attended the shooting not only of Rogelio Seldera and Rodolfo Padapat but also of Mario Seldera. Nexold

But, with respect to Mario Seldera, the crime was not frustrated, but only attempted murder. This is the gist of our rulings in several cases.45 [People v. Balderas, 276 SCRA 970 (1997) citing People v. Maguikay, 237 SCRA 587 (1994) and People v. Tiu, 216 SCRA 140 (1992); People v. Cogonon, supra; People v. Gonzales, 99 SCRA 697 (1980); People v. Angeles, 92 SCRA 432 (1979); People v. Moreno, 85 SCRA 649 (1978)] For the injuries sustained by Mario Seldera were not life threatening. Dr. Santos, the attending physician, certified that Mario’s injuries would heal in seven days.46 [Records, p. 13; Exh. E.] In fact, he was not confined at the hospital. He was referred to the Eastern Pangasinan District Hospital only for x-ray examination of his injuries. There is no evidence that he was given further medical attention by this hospital other than what Dr. Santos had requested.

Fourth. Certain modification should also be made with respect to the award of damages. The lower court awarded P50,000.00 for compensatory damages and P30,000.00 for moral damages to each set of heirs of Rogelio Seldera and Rodolfo Padapat in addition to the P14,000.00 actual damages to be divided among them. The P50,000.00 should be treated as civil indemnity, which under prevailing jurisprudence,47 [People v. Piamonte, G.R. No. 91999, February 25, 1999; People v. Panida, G.R. Nos. 127125 & 138952, July 6, 1999.] is fixed at P50,000.00, to be awarded without need of further proof other than the death of the victim. Further, in accordance with our rulings in other cases,48 [People v. Panida, supra; People v. Viovicente, 286 SCRA 1 (1998)] the amount of moral damages should be increased to P50,000.00. Manikx

With regard to the amount of actual damages, Leonida Seldera and Alfredo Padapat testified that they could not present any receipt for their funeral expenses because the funeral agency refused to issue one in view of an unpaid balance. They have likewise allegedly lost the receipts for their joint expenses for the wake. Under the Civil Code (Art. 2199), a party is entitled to compensation only for such pecuniary loss suffered by him as he has duly proved. However, under Art. 2224, temperate damages may be recovered if it is shown that such party suffered some pecuniary loss but the amount thereof cannot, from the nature of the case, be proved with certainty.49 [See People v. Oliano, supra.; Necesito v. Paras, 104 Phil. 75 (1958)] As the heirs of the two victims clearly incurred funeral expenses, an award of P5,000.00 for each set of heirs by way of temperate damages should be awarded, to be divided equally by the heirs of Seldera and Padapat.

For the injuries sustained by Mario Seldera, the court a quo awarded P10,000.00 moral damages, P20,000.00 exemplary damages and P300.00 actual damages for medical expenses. The first item should be disallowed for lack of evidence to support it. The second item should likewise be deleted as under Art. 2230 of the Civil Code, exemplary damages are awarded when the crime is committed with one or more aggravating circumstances. There was no aggravating circumstance in this case other than the qualifying circumstance of treachery. As to the actual damages of P300.00, as the prosecution failed to present any documentary proof for such, its award is improper. However, the amount of P200.00 as temperate damages may be made in its place. Maniks

Actual damages representing unearned income of Rogelio Seldera and Alfredo Padapat should also be awarded. Leonida Seldera testified that her husband was 43 years old when he was killed and that he earned P13,000.00 a year as a farmer.50 [TSN, p. 9, June 13, 1993.] On the other hand, Alfredo Padapat testified that his son, Rodolfo, was then 25 years old when he died and that he was earning P5,000.00 a year also as a farmhand.51 [TSN, p. 17, June 3, 1993.] The formula for the computation of unearned income is:52 [People v. Panida, supra, citing People v. Gutierrez, G.R. No. 116281, Feb. 8, 1999.]

Life expectancy is determined in accordance with the formula ¾53 [Villa-Rey Transit, Inc., v. CA, 31 SCRA 511 (1970)]

Accordingly, Rogelio Seldera’s unearned income is:

Rodolfo Padapat’s unearned income is:

WHEREFORE, the decision of the Regional Trial Court of Pangasinan (Branch 52) is AFFIRMED with the following modifications:

1. For the death of Rogelio Seldera, accused-appellant is found guilty of murder and is sentenced to reclusion perpetua and to pay the heirs of the deceased Rogelio Seldera the amount of P50,000.00 as indemnity, P50,000.00 as moral damages, P5,000.00 as temperate damages, and P160,355.00 as unearned income.

2. For the death of Rodolfo Padapat, accused-appellant is found guilty of murder and is sentenced to reclusion perpetua and to pay the heirs of the deceased Rodolfo Padapat the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P5,000.00 as temperate damages, and P91,675.00 as unearned income.

3. For the injuries of Mario Seldera, accused-appellant is found guilty of attempted murder and is sentenced to 4 years and 2 months of prision correccional, as minimum, to 10 years of prision mayor, as maximum, and to pay Mario Seldera P200.00 as temperate damages.

Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.