This is an appeal from the decision1 [Penned by Presiding Judge Leonardo B. Cañares.] rendered on November 23, 1995, by the Regional Trial Court of Cebu City, Branch 10, in Criminal Case Nos. CBU-35594 and CBU-35595, which found accused-appellants PO3 Samson Patalinghug, Benito Pasilaban and Ronaldo Gordo, guilty of two counts of murder.

On April 14, 1994, Assistant Provincial Prosecutor Arturo Cabaron filed two informations against appellants. One information charged them with the murder of SPO1 Romeo Labra, thus: miso

The other information charged appellants with the murder of SPO2 Eduardo Mansueto, as follows:

Upon arraignment, appellants, assisted by counsel, entered pleas of "not guilty" to both charges. Thereafter, the two cases were heard jointly. Subsequently, the trial court rendered its verdict finding appellants guilty as charged. The dispositive portion of its decision reads:

The prosecution’s evidence, upon which the finding of guilt beyond reasonable doubt was based, is summarized by the trial court as follows:

Dr. Elma Cirunay, Municipal Health Officer of Madridejos, Cebu went to the residence of Labra and found the slain officer wearing only a pair of short pants lying flat in front of his residence. The doctor conducted post mortem examination on the body of Labra and found the deceased to have suffered eleven (11) gunshots wounds. The medical expert opined that the weapon used could be a high powered firearm because of the severity of all the injuries caused by the bullets on the underlying muscles, bones and blood vessels. She declared that the assailant could have been only two feet in relation to the victim in view of the presence of contusion collar. She also pronounced that that the wounds on the right cheek, on the neck and the one at the level of the fourth rib along the right mid-axillary line could have been inflicted while Labra was standing based on the location, shape and nature of the gunshot wounds. On the other hand, the wound at the level of the right axilla and the wounds on the right iliac region could have been inflicted when the victim was already lying flat on the ground. She concluded that the cause of death of Labra is cardiopulmonary arrest due to severe hemorrhage due to multiple gunshot wounds.6 [TSN, September 19, 1994, pp. 9-22.] Xlaw

After the autopsy on the body of Labra, Dr. Cirunay conducted a post-mortem examination on the body of Mansueto. The doctor found the body of Mansueto to have borne three (3) gunshot wounds. She declared that the weapon used could be a high-powered firearm in view of the severe injuries on the underlying muscles, bones and blood vessels. Based on the nature and direction of the wounds, she opined that gunshot wound No. 2 could have been inflicted while the victim was standing, while gunshot wounds Nos. 1 and 3 could have been dealt with when the victim was already lying prostrate on the ground. Due to the presence of contusion collar on each of the three gunshot wounds, she declared that the assailant could have been only two feet in relation to the victim when all the shots were fired. The medical expert concluded that the cause of death of Mansueto is cardiopulmonary arrest due to severe hemorrhage due to multiple gunshot wounds.7 [Id. at 23-32.] Chief

Upon laboratory examination of the armalite rifle, admittedly the service firearm of Patalinghug, and the caliber 38 revolver, reportedly the service revolver of Mansueto, Police Senior Inspector Myrna P. Areola, Chief of the Chemical Section of the PNP Crime Laboratory, found both firearms positive of gunpowder residue which suggests that the armalite rifle and the revolver had been fired. Chemical analysis on the paraffin casts taken from the left and right hands of Patalinghug yielded positive result for the presence of gunpowder on both hands, indicating that Patalinghug had fired a firearm using both hands.8 [TSN, January 12, 1995, pp. 4-7.]

Patalinghug admitted in court that he shot and killed Labra and Mansueto, but claimed that he did it in self-defense. He testified as follows: Esmsc

In an attempt to lend some degree of persuasiveness to Patalinghug’s story, Lucresio Honasa was presented as witness for the defense. He testified that on April 11, 1994, about 5:00 o’clock in the afternoon, Labra asked him to give his roosters fighting exercise (pasikad sa manok). He declared that upon his arrival at Labra’s residence, he noticed that Labra changed his clothes and put on a pair of shorts and a shirt. He stated he saw a bulging object at the back of the waist of Labra which he later found to be a firearm. They were about to start the rooster exercise when Patalinghug arrived with an armalite slung on his shoulder and his right hand holding the trigger housing. Patalinghug greeted Labra and immediately asked Labra whether there was a warrant for his arrest. Labra angrily retorted that it’s not just a warrant of arrest but in fact a shot-to-kill order. Suddenly, Labra motioned to pull a gun from his back, but Patalinghug beat him to the draw. Labra was hit on the chest, staggered forward and fell to the ground with his face down. Patalinghug hastily left the scene. Honasa said he was shocked, but after he regained his senses, he went out of the compound and went home. Despite being an incumbent municipal official at that time, he did not report the incident to the authorities. Neither did he inform the family of Labra of what he had witnessed. At the time he took the stand, he was already in jail having been convicted of the crime of falsification of public document.10 [TSN, March 24, 1995, pp. 4-8.] Esmmis

Pasilaban claimed that he had no participation in the commission of the crimes. He took the witness stand and gave his own version of the story as follows: Es-mso

Gordo also maintained his innocence. His account of the incident which substantially jibes with that of Pasilaban reads:

As mentioned earlier Patalinghug readily admitted in court that he shot and killed his fellow police officers Labra and Mansueto, but interposed self-defense. On the other hand, Pasilaban and Gordo claimed that they have no participation in the twin killings.

Pasilaban and Gordo readily filed their notice of appeal which they later withdrew.13 [Records, pp. 193, 196-197.] In lieu thereof, they moved for reconsideration of their conviction which was nonetheless denied by the trial court.14 [Records, pp. 198-204, 232-233.] Expectedly, they sought acquittal by filing jointly their notice of appeal.15 [Rollo, p. 51.] lex

Contrary to the allegation of the Solicitor General in his brief,16 [Id. at 150.] Patalinghug has timely appealed his conviction.17 [Id. at 52.] And such appeal appears to have not been withdrawn as no motion to that effect was filed. We observe, however, that Patalinghug did not file appellant’s brief despite the order from this Court. Accordingly, we shall dispense with that requirement and decide his appeal based on the records of this case. Pasilaban and Gordo filed their briefs as ordered by the Court while the Solicitor General filed appellee’s brief in answer to the briefs of Pasilaban and Gordo.

Attached to the consolidated brief of Pasilaban and Gordo is an affidavit purportedly executed by Patalinghug on May 8, 1996. In the affidavit, Patalinghug manifested that the killing of Labra and Mansueto was his own personal preconceived plan and intention. He even declared that he alone should answer for the crimes committed.18 [Id. at 79-80.] It would seem that the aforecited affidavit of Patalinghug enhances the claim of innocence of Pasilaban and Gordo. Unfortunately, we cannot give credence to such affidavit. The infirmity of an extra-judicial statement is a matter of judicial experience. An extra-judicial statement or affidavit is generally not prepared by the affiant himself but by another who uses his own language in writing the affiant’s statement. Hence, omissions and misunderstandings by the affiant are not infrequent.19 [People v. Reyes, 245 SCRA 785, 794 (1995).] Besides, an affidavit executed after conviction of the accused and while the affiant is in detention, as in this case, is unreliable. The allegations therein, not being testified to in court, are mere hearsay and have no substantial evidentiary value.20 [Osias v. Court of Appeals, 256 SCRA 101, 118 (1996).] We shall therefore resolve the appeal of Pasilaban and Gordo based on the records of the case as well as their briefs but without relying on the aforecited affidavit. Ky-le

In their consolidated appellants’ brief, Pasilaban and Gordo raise the following error:

A similar error is assigned in Pasilaban’s separate brief as follows:

The issue to be resolved insofar as Patalinghug is concerned is whether or not there is clear and convincing evidence to establish self-defense.

As regards Pasilaban and Gordo, the issue for resolution is whether or not there is clear and convincing evidence to prove conspiracy among the accused-appellants in the commission of the crimes. Ky-calr

Anent Patalinghug’s claim of self-defense, we reiterate the time-honored doctrine that although it is a cardinal principle in criminal law that the prosecution has the burden of proving the guilt of the accused, the rule is reversed where the accused admits committing the crime but interposes self-defense to escape culpability. In the latter case, the burden is shifted to the accused who must prove clearly and convincingly the following elements of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.23 [People v. Magallanes, 275 SCRA 222, 228 (1997).] Calr-ky

Unlawful aggression is an essential and indispensable requisite of self-defense. For unlawful aggression to be appreciated, there must be an actual, sudden and unexpected attack on the life or limb of a person or an imminent danger thereof, and not merely a threatening or intimidating attitude. There must be a real danger to the life or personal safety of the person claiming self-defense.24 [People v. Baniel, 275 SCRA 472, 480 (1997).]

As regards SPO1 Labra, Patalinghug argues that he was justified in shooting the former as he was merely defending himself from Labra’s unlawful and unprovoked aggression. He claims that when he was approaching Labra to inquire regarding the warrant of arrest, Labra angrily retorted that what was issued was in fact a shoot to kill order and immediately motioned to draw a firearm from the back of his waist. However, the prosecution evidence belies Patalinghug’s assertion. It turns out that Labra was unarmed.

In the matter of credibility of witnesses, it is doctrinally settled that factual findings of the trial court should be respected because the trial judge is in a better position to pass judgment on the veracity of witnesses having had the opportunity to personally hear them, observe their deportment and manner of testifying, and detect if they were telling the truth.25 [People v. Apongan, 270 SCRA 713, 729 (1997).] Thus, we agree with the disquisition of the court a quo in not giving evidentiary weight to the testimony of Lucresio Honasa. Verily, Honasa’s long silence about the incident without justifiable explanation eroded the credibility of his claim. Me-sm

Like the trial court, we too cannot subscribe to Patalinghug’s version that Labra was the unlawful aggressor. The first thing which erodes the credibility of Patalinghug’s testimony is his declaration that Labra was wearing a pair of short pants and a white tee shirt. This does not jibe with the testimony of the witnesses of the prosecution. On this point, Roberto Dominici testified that Labra had only a pair of short pants and no clothing in his upper torso when Patalinghug approached him (Labra). This was corroborated in substance by the testimony of Marcela Codova. Furthermore, Dr. Cirunay stated in her post mortem examination report as well as in her testimony that she found the slain policeman lying flat in front of his house clad only in a pair of short pants. Jjjä uris

Next, Patalinghug would have us believe that Labra had a gun tucked at the back of his waist. This we also find not credible. As the trial court noted, Dominici and Cordova could have noticed the firearm had there been any on the person of Labra as the latter had no clothing in his upper body. Besides, Patalinghug himself admitted that shortly before he shot Labra, he did not see the firearm of the latter and it was only after Labra fell prostrate on the ground that he allegedly saw a pistol at the back of the victim. Another point which negates the claim that Labra had a firearm is the failure of Patalinghug to recover the same as what he did concerning the revolver of Mansueto, his other victim. Indeed Patalinghug, being a peace officer, should have preserved the weapon as required by law. He could not, because there was none. S-l-x

At any rate, even assuming that Labra had a firearm then, it appears on record that Labra did not manifest any aggressive act which may have imperiled the life and limb of Patalinghug. It is axiomatic that mere thrusting of one’s hand into his pocket as if for the purpose of drawing a weapon is not unlawful aggression.26 [People v. Calantoc, 55 SCRA 458, 461 (1974).] Even the cocking of a rifle without aiming the firearm at any particular target is not sufficient to conclude that one’s life was in imminent danger.27 [Alameda v. Court of Appeals, 269 SCRA 643, 650 (1997).] Hence, a threat even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression.28 [Supra, note 26.]

Now, with regard to the killing of SPO2 Mansueto. The record reveals that after killing Labra, Patalinghug proceeded to the municipal hall allegedly to surrender himself to the authorities. Patalinghug gave the following version of what transpired thereat:

The abovequoted testimony of Patalinghug contradicts that of Mansueto’s daughter. Iris Mansueto who witnessed the startling incident testified for the prosecution as follows:

Who should be believed, the prosecution or the defense witnesses? We reiterate the settled tenet that the trial court’s assessment on this matter is entitled to respect, for the reason that the trial court has the advantage of observing the demeanor of the witnesses as they testify.31 [Amper v. Sandiganbayan, 279 SCRA 434, 441 (1997).] Furthermore, the weight of the testimony of the witnesses is not impaired or in anyway affected by their relationship to the victim, as in this case of Mansueto, when there is no showing of improper motive on the part of the witnesses.32 [People v. Carpio, 282 SCRA 23, 33 (1997).] Sc

As in the Labra case, the court a quo found the prosecution version more credible than that of the defense. Having reviewed the evidence of this case, we find nothing on record that would indicate material inconsistencies or even improbabilities in the testimony of the prosecution witness. Accordingly, the lower court correctly rejected Patalinghug’s assertion that Mansueto fired at him first but missed. The truth is that upon arrival at the municipal hall, Patalinghug accosted Mansueto and then at close range shot the latter. Clearly, Mansueto had no inkling that his fellow policeman will harm him as Patalinghug even managed to greet and smile at him. Mansueto could not have started the shooting as he would not haved risked the lives of his two daughters who were beside him. In fact, one of Mansueto’s daughters, Iris, was injured by splinters. Scmis

Another factor which militates against appellant’s claim of self-defense is the nature and number of wounds suffered by Labra and Mansueto. As examined by Dr. Cirunay, Labra’s body sustained eleven (11) gunshot wounds while Mansueto’s body bore three (3) gunshot wounds. It is an oft-repeated rule that the presence of a large number of wounds on the part of the victim negates self-defense and instead indicates a determined effort to kill the victim.33 [People v. Deopante, 263 SCRA 691, 707 (1996).]

Absent unlawful aggression that can be attributed to the victims, it is unnecessary to determine the remaining requisites of self-defense. Inevitably, Patalinghug’s invocation of self-defense must fail.

Further, we agree with the trial court’s finding that treachery attended the killing of Labra and Mansueto. The essence of treachery is that the attack comes without warning and in a swift, deliberate and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.34 [People vs. Zamora, 278 SCRA 60, 62 (1997).] x-sc

Clearly, the encounter between Patalinghug and Labra was not by chance. Appellant especially sought Labra in the latter’s residence. When he approached Labra, appellant’s fully loaded armalite rifle was already cocked. In such mode, the firearm was ready to set a volley of fire upon release of the safety lock and squeeze of the trigger. The two policemen even talked briefly. For sure, the unarmed Labra had no premonition of the danger that lurked ahead. Suddenly, Patalinghug successively shot Labra, hitting the latter on the left side of his body and on his face. Labra was again shot on his face while already slumped on the ground. Finally, Patalinghug mercilessly riddled the fallen Labra with armalite fire when the latter was already lying prostrate on the ground. Under the circumstances, Labra could not have the ghost of a chance to defend himself or retreat.

In like manner, Patalinghug rushed to the municipal hall in search of Mansueto in the pretext of surrendering himself. Having been greeted and smiled at by the appellant, Mansueto did not have a hint of Patalinghug’s evil design. Patalinghug’s shooting was successive and totally unexpected, thus, depriving Mansueto the opportunity to defend himself. In fact, Patalinghug still shot Mansueto twice while the latter was already lying helpless on the ground. xl-aw

Now, regarding co-appellants Pasilaban and Gordo. As earlier mentioned the two insist on their innocence. They dispute the finding of the trial court that they conspired with Patalinghug in perpetrating the crimes. They contend that conspiracy was not established by clear and convincing evidence.

Conspiracy is deemed to arise when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.35 [Revised Penal Code Article 8.] Although it is not required that there be an agreement for an appreciable period prior to the occurrence, it must be shown that at the time of the commission of the offense, the accused and co-accused had the same purpose and were united in its execution.36 [People v. Hubilla, Jr., 252 SCRA 471, 480 (1996).] Conspiracy, to be the basis for a conviction, should be proved as clearly and convincingly as the commission of the crime itself. No less than proof beyond reasonable doubt is required. It is also essential that a conscious design to commit an offense must be established. Conspiracy is not the product of negligence but intention on the part of the cohorts.37 [People v. Gomez, 270 SCRA 432, 443 (1997).] Sc-lex

In the case at bar, the trial court found co-appellants Pasilaban and Gordo to have conspired with Patalinghug in killing Labra and Mansueto. It deduced appellants conspiratorial participation in the crimes from the following facts: (1) the three accused were together before Patalinghug assaulted Labra; (2) they used Pasilaban’s motorcycle as get-away vehicle; (3) during the attack on Labra, Pasilaban and Gordo stood as lookouts outside Labra’s residence; (4) after shooting Labra, they proceeded together to the municipal hall to effect the killing of Mansueto; and (5) Pasilaban and Gordo witnessed the shooting of Mansueto and left the scene of the crime only after Patalinghug went inside the municipal building.38 [Rollo, p. 130.] Scl-aw

Given the foregoing circumstances, however, we are now constrained to sustain the claim of the two appellants that the evidence failed to meet the quantum of proof required by law to establish conspiracy. There is no evidence at all showing that Pasilaban and Gordo agreed with Patalinghug to kill Labra and Mansueto, nor that they even acted in a manner showing commonality of design and purpose together with Patalinghug. Without evidence as to how these co-appellants participated in the perpetration of the crime, conspiracy cannot be attributed against them. Evidence of intentional participation is indispensable, as the two appellants’ mere presence at the crime scene cannot be considered proof of conspiracy.39 [People v. Ragon, 282 SCRA 90, 101 (1997).] Missc

It is true that the two co-appellants were together with Patalinghug just prior to the attack on Labra. However, where the co-appellants have satisfactorily explained their presence with the perpetrator of the crime they cannot be tagged as co-conspirators.40 [Vol. I R. Aquino and C. Griño-Aquino, The Revised Penal Code, p. 531 (1997).] As in this case, Pasilaban and Gordo were going to the poblacion to buy cement. They were on board the motorcycle driven by Pasilaban. On their way, Patalinghug flagged them down and requested to ride with them to the municipal hall as he was reporting for duty. They acceded to Patalinghug’s request but told him that first they would have to pass by the vulcanizing shop. Patalinghug agreed as he was seeing Labra who lived beside the said shop. Obviously, being on the same vehicle may indeed elicit suspicion on the real nature of their intention. But a perceived intimacy among friends does not give much significance to the existence of criminal conspiracy.41 [People v. Berroya, 283 SCRA 111, 129 (1997).] Besides, the mere fact that the co-appellants were found in the company of the perpetrator of the crime at a certain time and at a certain place is not sufficient proof that these two were co-authors or accomplices in the crimes committed.42 [Supra, note 40, p. 533.]

Likewise, the fact that co-appellants Pasilaban and Gordo left the vulcanizing shop together with Patalinghug and proceeded to the municipal hall using the same motorcycle is inadequate proof that they participated as co-conspirators in killing Labra and Mansueto. The fact that the accused left together, without more, cannot instantly support a finding of conspiracy. Certainly, conspiracy transcends companionship.43 [Supra, note 37.] The duo testified that after shooting Labra, Patalinghug rushed to Pasilaban and told the latter that he had an "encounter" with Labra. He aimed his armalite rifle at Pasilaban and asked the latter to proceed to the municipal hall so that he could surrender. At this juncture, Pasilaban summoned Gordo to board the motorbike also. The three left the scene of the crime not aware that Patalinghug had shot Labra, having mistaken the gunfires they heard as warning shots. Rtc-spped

We cannot also agree with the trial court’s observation that Pasilaban and Gordo served as look-outs during the killing of Labra. Indeed, the two stayed within the vicinity of the vulcanizing shop just beside Labra’s compound. But, Pasilaban remained there waiting for Dominici to return so that he could ask permission to use the air pump. On the other hand, Gordo was there to relieve himself nearby. Neither could we accept the proposition that the motorcycle was a get-away vehicle. Dominici testified that the motorcycle’s engine was not on when he returned back to the shop. To facilitate a quick escape, its motor should not have been switched-off.

Next, the trial court mistakenly imputed criminal design on Pasilaban and Gordo when they witnessed the shooting of Mansueto and left only after Patalinghug went inside the municipal building. Again, their presence at the crime scene and their subsequent flight therefrom are not indicative of their participation in the crime in the absence of proof that they know Patalinghug’s criminal design. Sd-aad-sc

The existence of conspiracy not having been proven satisfactorily, Pasilaban and Gordo cannot be held criminally liable for the killing of Labra and Mansueto without a shadow of doubt.

Finally, noteworthy is the observation of the court a quo on the possible motive of Patalinghug in perpetrating the crimes. The trial court pointed out the incident on Maundy Thursday (March 31, 1994) in which Patalinghug had an altercation with his superior SPO4 Ygot and his fellow policemen Labra and Mansueto in connection with the arrest of illegal gamblers. On such occasion, Patalinghug challenged Ygot to a fight which the latter just ignored. On his part, Patalinghug apologized to Ygot for his sudden outburst of temper but later on he fired his service armalite rifle. This incident generated the filing by Ygot of a complaint with the PNP regional office for attempted murder and grave misconduct. In view of the complaint, Patalinghug was ordered via a radio message to report on April 12, 1994, to the regional inspectorate office. He was supposed to bring with him his service armalite rifle and revolver for deposit. The trial court opined that the regional office directive had terribly shaken Patalinghug’s moral fiber that he decided to seek those who may have something to do with the complaint. Man-ikan

While it is not necessary to inquire into appellant Patalinghug’s motive for doing a criminal act, especially where he admits his transgression, it is important to know the reason for the commission of the crime if only to gain judicial perspective of the case.44 [Supra, note 40, pp. 48, 50.] Apparently, Patalinghug’s motive for killing Labra and Mansueto is revenge. But assuming that Patalinghug harbored ill feeling towards his fellow policemen on the belief that they were responsible for the complaint against him, there is nothing to show that co-appellants Pasilaban and Gordo had any reason for killing the deceased. At least, no such reason has surfaced on record to stifle our serious doubt that co-appellants Pasilaban and Gordo conspired with Patalinghug in perpetrating the crimes charged.

WHEREFORE, Benito Pasilaban and Ronaldo Gordo are hereby ACQUITTED and ordered RELEASED immediately, unless they are being detained from some other legal cause. The assailed Decision is AFFIRMED insofar as it convicted accused PO3 Samson Patalinghug for two crimes of murder and sentenced him to reclusion perpetua. Accordingly, he alone is ORDERED also to indemnify the heirs of the deceased victims in the amounts therein stated, and to pay the costs.

Bellosillo (Chairman), Mendoza, Buena, and De Leon Jr., JJ., concur.