This is an appeal from the Decision of the RTC of Malabon, Metro Manila, Branch 170 convicting accused Nestor Molina of the crime of murder qualified by treachery.1 [The case is Crim. Case No. 15597 MN. The judge is Hon. Benjamin T. Antonio.]

The Information2 [The prosecution moved to amend the Information naming Angelito Barcelenio and Noel Barcelenio as the John Does. The motion was, however, denied by the trial judge as the prosecution at that time had already started presenting its evidence.] against Molina states:

Molina pled not guilty and underwent trial. The prosecution relied heavily on the eyewitness account of Ernesto Mandia, a pedicab driver who plies the route of Bayan Malabon and Sipac, Navotas. He testified that on October 11, 1994 at about 4:40 A.M., he parked his pedicab at the corner of Baradero and M. Naval Street, Navotas. He was resting while waiting for passengers. He then noticed Molina, alias "Etoy" with two companions. He was talking with one while the other stood across the street.

At 5:20 A.M., a passenger jeepney driven by Herminio Jorge came from the direction of Manila. It was flagged down by Molina's companion and it stopped at the corner of Baradero Street. Molina with a gun in his hand, and one of his companions approached Jorge. Molina went to the right side of the driver's seat while the other positioned himself on the left side. From a distance of an arm's length, Molina fired four (4) times at Jorge who was sitting at the driver's seat. Thereafter, they walked away casually from the scene of the crime.4 [TSN, July 10, 1995, pp. 2-3.]

Jorge died immediately. The autopsy conducted by Dr. Florante F. Baltazar revealed that Jorge sustained eight (8) external injuries - four (4) gunshot wounds, two (2) abrasions and two (2) lacerations. He also suffered from some fractures.5 [TSN, November 14, 1995,p.6.] The shooting was investigated by SPO4 Jose Andrade.

The amount of fifteen thousand pesos (P15,000.00) was spent for the funeral of Jorge. The family likewise spent for the food during the wake and for a band.6 [TSN, August 15, 1995, p. 18.] Miso

The accused-appellant proffered the defense of alibi. He said that as of August 17, 1994, his family transferred residence from Dulong Tangos, Navotas to Sta. Lucia, San Miguel, Bulacan. They lived in the house of Ricardo Sioson, his father-in-law. He admitted that he knew Jorge as they were previous neighbors. He was unaware of any reason why the family of Jorge charged him with the crime at bar.7 [TSN, Jan. 16, 1996, pp. 2-4.]

Accused-appellant's wife Luzviminda and his father-in-law corroborated his alibi. Both testified that he was in their house in San Miguel, Bulacan on the day and time of the shooting of Jorge.

As aforestated, the trial court convicted the accused-appellant. He was sentenced to suffer the penalty of reclusion perpetua together with all its accessory penalties. He was also ordered to indemnify the heirs of Jorge the amounts of fifteen thousand (P15,000.00) as actual damages, fifty thousand pesos (P50,000.00) as civil indemnity and the cost of suit.

In this appeal, accused-appellant contends:

We find no merit in the appeal. Maniâ kx

First. Accused-appellant was positively identified by Mandia. There is no reason to disbelieve the testimony of Mandia. He witnessed the incident from a distance of two arm's length. He has known the accused-appellant some seven to eight months before the incident. Like Mandia, accused-appellant also drove a tricycle.8 [TSN, July 17, 1995, p. 13.]

The attempt of accused-appellant to impute ill-motive against Mandia is futile. He urges us to deduce this ill-motive from the fact that Mandia denied that accused-appellant's picture was shown to him for identification. This little detail hardly matters. As discussed above, Mandia could not have erred in identifying accused-appellant as they knew each other. The records also belie accused-appellant's claim. Contrary to his allegation, Mandia admitted that the brother of Jorge showed appellant's picture to him.9 [Ibid., p. 16.] Neither can ill-motive be deduced from the failure of Mandia to report the crime immediately to the authorities. Mandia satisfactorily explained the 26-day delay. He said that he was "stunned" by the incident and was still fearful when he reported to the police authorities.10 [Ibid., p. 19.] There is another reason why Mandia’s testimony is credible. His eyewitness account is corroborated by the autopsy report.11 [Records p. 136.] As observed by the trial court: Ncmâ

This is not all. Accused-appellant's alibi cannot prosper for he failed to demonstrate the physical impossibility for him to be at the situs of the crime. As pointed out by the trial court, Navotas to San Miguel Bulacan can be negotiated in two to three hours by public utility vehicle.

Second. We find the penalty imposed on accused-appellant in accord with law.

The commission of the crime was attended by treachery. There is treachery when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to ensure its execution without risk to himself arising from the defense which the offended party might make.13 [Revised Penal Code, Article 14 (16)] For treachery to be appreciated, two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) that said means of execution be deliberately and consciously adopted.14 [People vs. Porras, 255 SCRA 514 (1996)]

Both conditions are present in this case. The victim was shot while still seated on the driver's seat. The shooting was sudden. The accused-appellant was about an arm's length away when he shot the victim. Settled is the rule that the suddenness of the attack without the slightest provocation on the part of the victim who was unarmed and had nary an opportunity to repeal the aggression or defend himself, ineluctably qualifies the killing with alevosia.15 [People vs. Crisostomo, 293 SCRA 65 (1998), citing People vs. Apongan, 270 SCRA 713 (1997)] 9/21/99 4:36 PM

Evident premeditation can not however be appreciated since the prosecution failed to establish that the appellant killed the victim pursuant to a preconceived plan. Nevertheless, the crime committed is still murder qualified by treachery.

All considered, the prosecution has proved the guilt of appellant beyond reasonable doubt. Murder is defined and punished under Article 248 of the Revised Penal Code which prescribes the penalty of reclusion perpetua to death. Since neither mitigating nor aggravating circumstances are present in the commission of the crime, the lesser penalty of reclusion perpetua should be applied.

IN VIEW WHEREOF, the Decision of the trial court is affirmed in toto. Cost against the accused-appellant.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur. 9/21/99 4:36 PM