This is a petition for review on certiorari of the decision1 [Per Justice Godardo A. Jacinto and concurred in by Justices Ricardo J. Francisco and Ramon A. Barcelona.] of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00.

The information against petitioner alleged ¾

The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.2 [TSN pp. 4-8, May 28, 1990.]

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.3 [Id., pp. 9-10.] Jalbuena replied: "Wala kang pakialam, because this is my job."4 [Id., p. 10.] Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.5 [Id., pp. 10-11.] When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.6 [Id., p. 11.]

Jalbuena and his companions went to the police station to report the matter. Three of the policemen on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Añonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.7 [Id., pp. 11-14.] Jksm

Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes.8 [Id., p. 15.] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: "Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?"9 [Id., pp. 16-17.] Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said, "Ano, uutasin na kita?"10 [Id., p. 20.]

At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan, pumarito kami para magpa-blotter, I am here to mediate."11 [Id., p. 23.] Petitioner Navarro replied: "Walang press, press, mag-sampu pa kayo."12 [Ibid.] He then turned to Sgt. Añonuevo and told him to make of record the behavior of Jalbuena and Lingan.13 [Id., p. 24.]

This angered Lingan, who said: "O, di ilagay mo diyan."14 [Ibid.] Petitioner Navarro retorted: "Talagang ilalagay ko."15 [Id., p. 25.] The two then had a heated exchange.16 [Ibid.] Finally, Lingan said: "Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo."17 [Id., p. 26.] Petitioner Navarro replied: "Ah, ganoon?"18 [Ibid.]

As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.19 [Id., pp. 26-32.] Esmmis

Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike Lingan ang naghamon."20 [Id., p. 32.] He said to Sgt. Añonuevo: "Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon."21 [Id., p. 34.] He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter.22 [Id., pp. 34-35.] Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.23 [Id., pp. 35-37.]

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy Casañada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.24 [Id., pp. 45-53.]

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased.25 [TSN, pp. 8-11, June 26, 1990.] The following is an excerpt from the tape recording:

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete.26 [TSN, pp. 5-6, Sept. 16, 1991.]

In giving credence to the evidence for the prosecution, the trial court stated:

The Court of Appeals affirmed:

Hence, this appeal. Petitioner Navarro contends:

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.27 [See People v. Mandal, 188 SCRA 526 (1990)] Trial courts, which have the opportunity to observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence.28 [People v. Padilla, G.R. No. 126124, January 20, 1999.] In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena.

Indeed, Jalbuena’s testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides:

Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29 [Ramirez v. Court of Appeals, 248 SCRA 590 (1995)] Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Sclaw

Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the conversation; (2) that the tape played in court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.30 [United States v. Jones, 730 F. 2d. 593 (1984)] In the instant case, Jalbuena testified that he personally made the voice recording;31 [TSN, pp. 8-22.] that the tape played in court was the one he recorded;32 [Id., pp. 11-13.] and that the speakers on the tape were petitioner Navarro and Lingan.33 [Id., p. 11.] A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a medical certificate,34 [Records, p. 56.] dated February 5, 1990, containing the following findings: Calrky

The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist.

Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone.36 [Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.] The provocation must be sufficient and should immediately precede the act.37 [People v. Paga, 79 SCRA 570 (1977)] To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.38 [People v. Nabora, 73 Phil. 434 (1941)] And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused.39 [Supra, note 35.] Xlaw

In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,40 [64 SCRA 659 (1975)] we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.41 [REVISED PENAL CODE, Art. 4.] In People v. Castro,42 [117 SCRA 1014 (1982)] the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide. Oldmiso

However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions.43 [People v. Regala, 113 SCRA 613 (1982)]

The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstance, the penalty should be fixed in its minimum period.44 [REVISED PENAL CODE, Art. 64.] Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.45 [Act No. 4103, §1.]

The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with current jurisprudence.46 [E.g., Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.]

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum.

SO ORDERED. Manikx

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