PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PACIFICO BARELLANO @ "Junior," accused-appellant. ULANDU

Epifanio Cabales and his friends Simplicio Garong, Benjamin Alico and Jose Dayola were drinking tuba in the evening of August 14, 1993 at the side of the auditorium in the middle of Barangay Tigbao, Matalom, Leyte when he was approached from behind and shot at the right side of the head with a .38 (paltik) revolver. He fell down on the ground face up. As he lay thus, his assailant fired a second shot which hit him at the right side of his upper lip. Thereafter, the malefactor walked away and then fired a third shot in the air.

For the fatal shooting of Epifanio Cabales, accused Pacifico Barellano @ "Junior" was indicted for Murder in an Information1 [Record, p. 15; Rollo, p. 7.] alleging –

Upon arraignment, accused, assisted by counsel, pleaded not guilty to the crime charged.2 [Record, p. 19.] The case then proceeded to trial after which the court a quo rendered judgment,3 [Ibid., p. 220.] the dispositive portion of which reads:

Dissatisfied, accused interposed this appeal alleging that –

The prosecution’s version of the incident is summed thus by the Solicitor General in the People’s brief:5 [Rollo, pp. 89; 93-94.] xä law

Accused-appellant had a different story to tell. He testified that he is the common law husband of Catalina Lucido who lives in Barangay Tigbao, Matalom, Leyte.10 [TSN, 24 October 1994, pp. 10-12.] He met Catalina in Cebu City where the latter lived from 1982 to June 1993 and has three (3) children by her.11 [Ibid., p. 11.] Catalina returned to Barangay Tigbao, Matalom, Leyte in 1993.12 [Id.] Desirous of seeing his in-laws, he went for the first time to Barangay Tigbao, Matalom, Leyte sometime in November 1992, however, staying there for only one night.13 [Id., pp. 11-13; 5 December 1994, pp. 3-4.] He denied being at the scene of the crime at the time of its commission. He also denied having met Epifanio Cabales, Felicidad Cabales, Fernando Amoto, Felix Timkang, Simplicio Garong or Benjamin Alico on that fateful day.14 [TSN, 24 October 1994, p. 17; 5 December 1994, p. 7.] He testified that at around 2:00 o’clock in the afternoon of August 14, 1993, he was at the house of his parents-in-law.15 [TSN 24 October 1994, p. 16; 5 December 1994, p. 7.] Together with Guillermo Lucido, his father-in-law, and several companions, they went to Barangay Tigbao, Matalom, Leyte, because it was market day and they went there to bet on the cockfights.16 [TSN 24 October 1994, p. 16.] They left Tigbao at around 5:30 p.m. and went home to Sitio Victory, Barangay Tigbao, Matalom, Leyte, where they bought some drinks and had a drinking spree while the others played pool on a billiard table which was at the side of the house of accused-appellant’s father-in-law.17 [Ibid., pp. 17-18.] They started drinking at about 6:00 p.m. and ended at around 1:00 a.m. the next day.18 [Id., pp. 18-19.] Accused-appellant got so drunk that he fell asleep on a bench near the place where he and his companions were drinking and woke up later at past 6:00 a.m.19 [Id., p. 19.] After waking up, he went to the house where his wife was living and stayed at Sitio Victory for the entire day of August 15, 1993.20 [Id., p. 20.] On August 16, 1993, he went together with his father-in-law to Matalom, Leyte because the latter was summoned by the police and investigated on who shot "Anciong" Cabales.21 [Id., pp. 20-21.]

Accused-appellant’s defense is alibi. In insisting on his innocence, he claims that: 1.] the testimony of prosecution witness Felix Timkang which is the only one material from among the testimonial evidence presented, is not corroborated by any witness; 2.] the autopsy report which is a machine copy of the original should not be admitted in evidence despite the admission of said document by accused-appellant’s counsel during trial; 3.] Jose Dayola was not presented as a witness, neither did he execute an affidavit regarding the shooting incident; and 4.] the trial court dwelt on the weakness of accused-appellant’s defense rather than on the weakness of the prosecution evidence. MisÓ sc

No rule in criminal jurisprudence is more settled than that alibi is the weakest of all defenses and should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime.22 [People v. Jimmy Mijano y Tamora, G.R. No. 129112, 23 July 1999, citing People v. Sancholes, 271 SCRA 527 (1997)] In other words, alibi can not prevail over the positive identification of the accused by the prosecution witnesses23 [People v. Nomer Velasco y Pangilinan, G.R. No. 125016, 28 May 1999, citing Arceno v. People, 256 SCRA 569 (1996)] as in this case.

Assuming arguendo that prosecution witness Felix Timkang’s testimony is indeed uncorroborated, the alleged singularity of his testimonial declarations does not make them any less credible. The Court has consistently stated, time and again, that the testimony of a single witness, if positive and credible, will suffice to sustain a judgment of conviction even in a charge for murder.24 [People v. Erick Macahia, et al., G.R. No. 130931, 19 May 1999, citing People v. Batidor, G.R. No. 126027, 18 February 1999; People v. Navarro, G.R. No. 129566, 7 October 1998; People v. Daranan, G.R. No. 126046, 7 August 1998, 294 SCRA 27; People v. Tulop, et al., 289 SCRA 316 (1998); People v. Obello, 284 SCRA 79 (1998); People v. Salcedo, 273 SCRA 473 (1997)] As aptly stated in People v. Romeo Hillado25 [G.R. No. 122838, 24 May 1999.] Scä

It needs be stressed in this regard that Timkang is no ordinary witness testifying on circumstantial matters. He is an eyewitness who positively identified accused-appellant as the malefactor who shot Epifanio Cabales twice:

x x x.....x x x.....x x x

x x x.....x x x.....x x x

Timkang, whose highest educational attainment is Grade 3, could understand neither English nor Cebuano and only speaks the Matalomon dialect,31 [TSN, 25 May 1994, pp. 15-16.] remained consistent particularly in stressing the proximity between him and accused-appellant when the latter shot the victim, despite being intensely grilled by the trial court itself, viz:

x x x.....x x x.....x x x

x x x.....x x x.....x x x

Contrary, however, to the claim of accused-appellant, Felix Timkang’s account was corroborated by Benjamin Alico who was also drinking tuba with Timkang, Simplicio Garong, Jose Dayola and the victim at the time the latter was shot. He testified thus on direct examination:

Alico remained steadfast and unwavering on cross-examination despite persistent efforts by defense counsel to throw him off track: SupÓ rema

To reiterate, accused-appellant’s defense of alibi is the weakest of all defenses for it is easy to contrive and difficult to prove.35 [People v. Godofredo Marfil, 30 April 1999, p. 5, citing People v. Realin, G.R. No. 126051, 21 January 1999, p. 13.] A positive identification of the accused made by an eyewitness prevails over such a defense.36 [People v. Pepito Tejero y Caranzo, et al., G.R. No. 128892, 21 June 1999, p. 15, citing People v. Nialda, 289 SCRA 521 (1998)] In this case, not one, but two eyewitnesses identified accused-appellant as the assailant of the victim.

Furthermore, it is not enough to prove that herein accused-appellant Barellano was somewhere else when the crime was committed. It must likewise be shown that he was so far away as to make it impossible for him to have been physically present at the locus criminis or its immediate vicinity at the time of its commission.37 [People v. Mariano Verde, G.R. No. 119077, 10 February 1999, citing People v. Anonuevo, 262 SCRA 22 (1996) and People v. Supremeo, 244 SCRA 548 (1995)] In other words, it is elementary that for alibi to prosper, the requirements of time and place must be strictly met.38 [People v. Fuertes, G.R. No. 126285, 29 September 1998, 296 SCRA 602, citing People v. Tazo, 260 SCRA 816 (1996)] This means that the accused must not only prove his presence at another place at the time of the commission of the offense but he must also demonstrate that it would be physically impossible for him to be at the scene of the crime at that time.39 [People v. Fuertes, supra, citing People v. Alcantara, 254 SCRA 384 (1996)] Ncmâ

Accused-appellant’s alibi does not preclude his presence at the locus criminis. Indeed, there has been no showing that it was physically impossible for accused-appellant to have been at the scene of the crime at the time of its commission. On the contrary, accused-appellant himself admitted that Sitio Victory where he allegedly was at the time of the incident is just one (1) kilometer away from Barangay Tigbao and the latter could be reached by walking.40 [TSN, 5 December 1994, pp. 10, 12.] Sitio Victory and Barangay Tigbao was also connected by a road which can be negotiated by jeeps and motorcycles.41 [Ibid., pp. 13-15.] Suffice it to state in this regard that these circumstances, in fact, serve to underscore the possibility of accused-appellant’s presence rather than his absence at the scene of the crime.

Article 248 of the Revised Penal Code, before its amendment by Republic Act No. 7659 on December 31, 1993 provides that:

Treachery is alleged in the information filed against accused-appellant. 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 insure its execution without risk to himself arising from the defense which the offended party might make.42 [Article 14, par. 16, Revised Penal Code.] The essence of treachery is a swift and unexpected attack on the unarmed victim without the slightest provocation on the part of the victim.43 [People v. Romeo Belaro, G.R. No. 99869, 26 May 1999, citing People v. Lascota, 275 SCRA 591 (1997); People v. Quinao, 269 SCRA 495 (1997); and People v. Ombrog, 268 SCRA 93 (1997)] Thus, this Court ruled that even a frontal attack can be treacherous when it is sudden and the victim is unarmed.44 [People v. Chavez, 278 SCRA 230 (1997); People v. Dansal, 275 SCRA 549 (1997); People v. Tampon, 258 SCRA 115 (1996)] Treachery may also be appreciated even when the victim is warned of the danger to his person if the execution of the attack made it impossible for the victim to defend himself or to retaliate.45 [People v. Landicho, 258 SCRA 1 (1996)] For treachery to be a qualifying circumstance, it must be shown that: 1.) the malefactor employed means of execution that affords the person attacked no opportunity to defend himself or to retaliate; and 2.) such means of execution was deliberately or consciously adopted.46 [People v. Hipolito Bermudez, et al., G.R. No. 129033, 25 June 1999, p. 11, citing People v. Cabodoc, 283 SCRA 187 (1996); People v. Hubilla, 252 SCRA 471 (1996); and People v. Landicho, supra.] Jjä lex

In the case at bar, there is no question that treachery qualified the crime to murder because when herein accused-appellant Barellano stealthily approached the unarmed victim from the back, the latter did not have any inkling whatsoever of the impending danger that lurked behind him and was rendered totally defenseless against his assailant when accused-appellant shot him in the head from behind. This attack by herein accused-appellant came without warning and without the slightest provocation on the part of the victim. It also was deliberate and unexpected, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape. Given the foregoing circumstances, this Court is convinced of the treacherous nature of the assault.47 [See People v. Turingan, 282 SCRA 424 (1997); People v. Jagolingay, 280 SCRA 768 (1997); People v. Agunias, 279 SCRA 52 (1997); People v. Zamora, 278 SCRA 60 (1997); People v. Lascota, supra.] This Court has held that when the assailant consciously employed means of execution that gave the person attacked no opportunity to defend himself, much less retaliate, which tended directly and specially to insure the plan to kill the victim,48 [People v. Freddie Balisoro, G.R. No. 124980, 12 May 1999, citing People v. Cayabyab, 274 SCRA 387 (1997); People v. Serzo, Jr., 274 SCRA 553 (1997); People v. Baydo, 273 SCRA 526 (1997); and People v. Israel, 272 SCRA 95 (1997)] the crime is qualified to murder. Oldmisâ o

However, it is unnecessary to consider the presence of evident premeditation although this has likewise been alleged in the information, for the trial court itself did not consider this circumstance. In any event, for evident premeditation to be appreciated, there must be proof, as clear as the evidence of the crime itself, of the following elements thereof, to wit: 1.] the time when the accused decided to commit the crime; 2.] an overt act manifestly indicating that he has clung to his determination; and 3.] sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequence of his act.49 [People v. Rodrigo Maldo, et al., G.R. No. 131347, 19 May 1999, citing People v. Castillo, 289 SCRA 213 (1998); People v. Albao, 287 SCRA 129 (1998); People v. Sumalpong, 284 SCRA 464 (1998); People v. Quinao, supra; People v. Pedro Academia, Jr. y Baldado @ "Jun," G.R. No. 129251, 18 May 1999, pp. 6-7, citing People v. Baydo, supra.]

The records are bereft of evidence of any of the above requisites of evident premeditation. There is absolutely no proof of the time accused-appellant decided to commit the crime. Neither is there any showing how the accused-appellant Pacifico Barellano planned the killing of the victim, Epifanio Cabales. Nor is there any showing how much time elapsed before executing his plan. Absent all these, evident premeditation can not be appreciated.50 [People v. Bahenting, G.R. No. 127659, 24 February 1999.]

The argument that the xerox copy of the autopsy report should not be admitted in evidence inspite of his counsel’s admission of its authenticity will not extricate accused-appellant from his predicament. Even assuming ex gratia argumenti that the document is indeed inadmissible in evidence and is not given any evidentiary weight, still it would not alter the judgment of conviction because accused-appellant was found guilty primarily on the basis of the testimonies of the eyewitnesses who positively identified him as the perpetrator of the crime. The fact of death was sufficiently established through the credible and straightforward testimonies of these eyewitnesses who saw the victim die as a result of the gunshot wounds inflicted by accused-appellant. Manikanä

At any rate, it is a trifle too late at this time for accused-appellant to raise the question of the autopsy report’s supposed lack of evidentiary value because he never objected to its admissibility when it was offered in evidence and was, in fact, admitted to be genuine by his counsel during trial. The rule is that evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment. Particularly instructive on this point is Quebral v. Court of Appeals,51 [252 SCRA 353 (1996)] where the Court said that:

Accused-appellant can not likewise seek refuge behind the claim that the failure of the prosecution to present Jose Dayola as a witness raises the presumption that if produced his testimony would not be favorable to the prosecution, As pointed out by the Court in the recent case of People v. Jose Silvestre y Cruz :53 [G.R. No. 127573, 12 May 1999, p. 20.]

Furthermore, it must be pointed out that Dayola’s testimony would merely be corroborative of that of the two eyewitnesses. Suffice it to state in this regard that the adverse evidentiary presumption invoked by accused-appellant does not apply when testimony of the witness not produced would only be corroborative.56 [People v. Castaneda, 252 SCRA 247 (1996)] In other words, no prejudicial inference can arise against a party who fails to call a witness where the only object of presenting him would be to produce corroborative or cumulative evidence.57 [People v. Paule, 261 SCRA 649 (1996)] Acctä mis

All told, the issues raised herein boil down to the primordial question of credibility. As is so oftenly repeated by this Court, the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and to assess their credibility by the various indicia available but not reflected on the record. The demeanor of the person on the stand can draw the line between fact and fancy. The forthright answer or the hesitant pause, the quivering voice or the angry tone, the flustered look or the sincere gaze, the modest blush or the guilty blanch, these can reveal if the witness is telling the truth or lying through his teeth.58 [People v. Mayor Antonio L. Sanchez, et al., G.R. Nos. 121039-45, 25 January 1999; People v. Leonardo Bihison y Silencio, et al., G.R. No. 132024, 17 June 1999, p. 20.]

Time tested is the rule that the trial judge’s assessment of the credibility of witnesses and their testimonies is not disturbed on appeal in the absence of any clear showing that some facts or circumstances of weight or substance, which would have affected the result of the case, have been overlooked, misunderstood or misapplied. In his appeal, accused-appellant has not given this Court sufficient reasons to deviate from this doctrine.

At the time of the commission of the crime, the penalty for Murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death. It must be pointed out in this regard that even if the killing was attended by treachery thus qualifying it to murder, the imposition of death is not automatic. It is an elementary rule in criminal law that where two indivisible penalties are prescribed for an offense and there is neither mitigating nor aggravating circumstances in the commission of the crime, the lesser penalty shall be applied.59 [People v. Gilbert Basao y Maca and Pepe Iligan y Salahay, G.R. No. 128286, 20 July 1999, pp. 39-40; People v. Hilario Rebamontan @ Ayong, G.R. No. 125318, 13 April 1999, p. 17.] Thus, Article 63 of the Revised Penal Code provides, inter alia, that: Misä act

x x x.....x x x.....x x x

Thus, in the absence of any mitigating or aggravating circumstance, the penalty was correctly imposed in its medium period, which is reclusion perpetua.60 [People v. Rodrigo Agsunod, Jr. y Bibay, G.R. No. 118331, 3 May 1999, p. 17, citing Article 64 Revised Penal Code.] Sppedscâ

The sum of P50,000.00 awarded by the court a quo as civil indemnity ex delicto, without further need of proof of damage, is proper as it follows prevailing jurisprudence and is in line with the policy of the Court.61 [People v. Virgilio Borreros, G.R. No. 125185, 5 May 1999, citing People v. Espanola, 271 SCRA 689 (1997); People v. Gregorio, 255 SCRA 380 (1996), citing People v. Sison, 189 SCRA 643 (1990); People v. Solis, 291 SCRA 529 (1998)] With regard to actual damages, the trial court found that the wife of the victim spent P2,800.00 for the embalming of the victim’s corpse and P3,500.00 for the wake.62 [RTC Decision, p. 5; Rollo, p. 62.] Since accused-appellant does not question this finding of the trial court, he is liable to private complainants in the said amount as actual damages. 63 [Dionisia Artajos v. Court of Appeals and People of the Philippines, G.R. No. 131113, 21 April 1999, p. 11.]

This Court, however, can not sustain the award of moral damages in the absence of sufficient evidence to support it.64 [People v. Antonio v. Eribal, G.R. No. 127662, 25 March 1999, p. 10.] It is elementary that for moral damages to be properly adjudicated in criminal offenses resulting in physical injuries, there must be a factual basis for the award thereof.65 [People v. Loreto Noay, G.R. No. 122102, 25 September 1998, 296 SCRA 292, citing People v. Alas, 274 SCRA 310 (1997)]

WHEREFORE, with the sole modification that the award of Fifty Thousand (P50,000.00) Pesos by way of moral damages be DELETED, the Decision appealed from is AFFIRMED in all respects.