On appeal is the decision dated August 15, 1995, of the Regional Trial Court, of Cebu City, Branch 18, in Criminal Case No. CBU-31733, finding herein appellant, Raul H. Sesbreño, guilty of the crime of murder and sentencing him to reclusion perpetua, for the death of one Luciano Amparado.

Appellant has been a practicing lawyer for over thirty (30) years. Admitted to the Bar on March 17, 1966,1 [1998 Law List, p. 718.] he has achieved prominence in Cebu. The victim, Luciano Amparado, was a porter of William Lines, Inc., a shipping company also based in Cebu.

On June 9, 1993, the Regional Director of the National Bureau of Investigation (NBI), Region 7, filed a complaint against Sesbreño. Taking into consideration the gravity and other circumstances of the offense, City Prosecutor Jufelinito R. Pareja created a committee of three assistant prosecutors to conduct the preliminary investigation.2 [Records, Vol. I, p.4.] Scedp

On September 2, 1993, the committee charged Sesbreño with murder, allegedly committed as follows:

No bail was recommended. On September 2, 1993, appellant was arrested.

On September 3, 1993, the very day that the case was raffled to the trial court, appellant filed a Motion To Quash Warrant of Arrest And/Or to Grant Bail. The motion was treated as urgent and immediately set for hearing the next day. But the hearing did not push through due to the fact that it was Saturday, and there was no prosecutor available. The hearing on the bail application was then reset to September 6, 1993.4 [Id. at 238.]

Subsequently, the prosecution filed an Opposition to the Urgent Application for Bail. It prayed the accused’s application for bail be denied after a summary hearing; or, alternatively, the application be considered during the regular trial, after the arraignment of the accused. Sccalr

The prosecution presented both testimonial and documentary evidence in connection with the said Opposition. Later, the trial court denied the application for bail in a Resolution dated December 28, 1993. It reads in part:

Before appellant could be arraigned, he dispensed with the services of his counsel.

Upon arraignment, appellant, acting as his own counsel, entered a plea of "not guilty" to the charge in CBU No. 31733 for Murder. Calrsc

Trial on the merits ensued. Pursuant to Sec. 5, Rule 114 of the 1985 Rules on Criminal Procedure, the evidence presented at the bail hearings was automatically reproduced at the trial.

As summarized by the trial court the prosecution’s version of the case is as follows:

The principal defense of the accused is outright denial. He alleged that while he was present at the place and time of the incident in question, it was not he who shot the victim but an unidentified person. His version of the incident was summarized by the trial court as follows: Sppedsc

After the parties had rested their respective case, the trial court rendered the assailed judgment, the dispositive portion of which reads:

Before us, appellant raises now the following assignment of errors: Misact

In addition, appellant also submits the following for consideration of the Court:

Appellant submits that Assigned Errors 3, 4, 5, 8, 11, and 12 may be consolidated and discussed together because the issues all boil down to whether or not the prosecution has sufficiently overcome the constitutional presumption of innocence of the accused.10 [Id. at 537.] Jurissc

We shall now discuss these issues in seriatim.

Article III, Section 14 of the Constitution provides:

Appellant anchors, firstly, his claim that due process was violated because his right to speedy trial was violated. However, the records of this case reveal that bail hearings started on September 27, 1993, and terminated on November 8, 1993. He was arraigned on January 11, 1994. The prosecution presented its first post-bail hearings witness on the same day. The defense presented its first witness on June 7, 1994. The decision of the lower court was promulgated on August 15, 1995. With this chronology, in our view, no undue delay could be imputed, much less persuasively shown, against appellee and the trial court.

Appellant also claims the trial court ignored various Supreme Court Circulars ordering judges to decide cases within ninety days from the inception of trial.11 [Rollo, p. 593.] This is not quite accurate. The ninety-day period applies only after the case is submitted for decision, not from the start of the trial.12 [Article VIII, Sec. 15 (1), (2), Constitution; Circular No. 13, July 2, 1987.]

If the trial appeared lengthy, it was largely due to the number of witnesses presented, 13 for the prosecution and 15 for the defense. Appellant himself took the witness stand a total of 76 times, including 21 times on rebuttal alone. As observed by the trial court:

Whether intentional or not, appellant’s conduct of his own trial contributed to time-consuming tussles in the lower court. How could the accused complain of delays, where he himself caused them?14 [Domingo v. Minister of Defense, 124 SCRA 529 (1983).]

Appellant also alleges that his right to a speedy disposition of his case was violated. He claims that the trial judge gave preference to a civil case, as against his right as a detention prisoner to have his case given preference pursuant to R.A. 6033.15 [Ibid.] This is unfounded, to say the least. The hearing of the civil case ahead of his case happened only once.16 [Rollo, p. 798.]

Appellant likewise claims the trial judge was partial, biased, and prejudiced because he refused to disqualify himself from hearing this case while he inhibited himself from trying its companion case. But as held in Velez v. Court of Appeals, 34 SCRA 109 (1970), mere imputation of partiality or bias is not a ground for inhibition. Xlaw

The grounds for disqualification or inhibition of judges provided for in Section 1, Rule 137, Rules of Court are as follows:

None of the grounds above was cited to support the trial judge’s disqualification. None was applicable to him. Though the Rule provides other just and valid grounds on which a judge may disqualify himself, they are addressed to his sound discretion, and there was no abuse of said discretion. We can only conclude that the trial judge, contrary to appellant’s claim, did not err in refusing to inhibit himself in the case at bar.

That the trial judge opted to believe the prosecution’s evidence rather than that of the defense is not a sign of bias.17 [People v. Tabarno, 242 SCRA 456 (1995).]

Appellant’s assertion that the trial court erred in refusing to agree to re-raffle the case is, in our view, baseless. There is no showing that appellant raised the issue of lack of notice of raffle at the earliest opportunity. The appellant first filed his Motion for Re-Raffle of Case or Transfer of Case to Another Branch of the RTC of Cebu City only on January 25, 1994.18 [Records, Vol. II, p. 673.] It was filed after appellant was already arraigned, and after the prosecution had presented its first witness. In fact, the trial court already issued a Resolution denying his application for bail.19 [Records, Vol. II, p. 577.] Appellant had willingly and actively participated in these proceedings before the trial court.20 [Sanchez v. Court of Appeals, 279 SCRA 647 (1997).] By actively participating thereon, appellant is now deemed estopped from complaining that the proceedings were technically defective for want of a notice of the raffle of his case. To say the least, appellant’s claim comes too late to be of any merit. Sclaw

On the matter of disqualifying private prosecutors, it must be stressed that the interest of the private complainant is limited to the civil aspect of the case.21 [Sese v. Montesa, 87 Phil 245 (1950); Roa v. De la Cruz, 107 Phil. 8 (1960).] Even if the trial court had allowed the presence of private prosecutors, it did not affect the criminal aspect of the case. The records clearly show that the public prosecutor remained in full control during the trial. As provided in Section 5, Rule 110, Rules of Court, the case was prosecuted under the direction and control of the public prosecutor. Nothing on record shows that he lost control and direction of the prosecution of the case just because of the presence of private prosecutors. Scmis

Further, the appellant alleges that certain members of media with whom he had a "long-standing battle, were pressuring the trial court to convict the accused."22 [Rollo, p. 594.] He states that these media men "attended the promulgation of the judgment to insure the success and satisfaction of their desire for revenge against the appellant",23 [Id. at 595.] and that adverse publicity influenced the trial court into convicting the appellant.24 [Ibid.] He now faults the trial court for refusing to declare these journalists in contempt of court.

However, the court’s refusal to find said media practitioners in contempt is not a reversible error that would warrant the acquittal of the accused. It was entirely within the discretion of the trial court to determine whether or not the media personnel concerned were guilty of contempt. Besides, a thorough review of the records yields no sufficient basis to show that pervasive publicity unduly influenced the court’s judgment. Before we could conclude that appellant was prejudiced by hostile media, he must first show substantial proof, not merely cast suspicions. There must be a showing that adverse publicity indeed influenced the court’s decision, as held in Webb v. De Leon, 247 SCRA 653 (1995) and People v. Teehankee, 249 SCRA 54 (1995).

Absent a persuasive showing by the appellant that publicity prejudicial to his case was responsible for his conviction by the trial judge, we cannot accept his bare claim that his conviction ought to be reversed on that ground. Spped

Relatedly, on the second issue, it must be pointed out that appellant has been a practicing lawyer of long standing. Initially, he was assisted by counsel of his choice in this case. But he later terminated the services of his counsel due to disagreements. He then took full control of his defense.

As manifested in his motion regarding the Order dated December 28, 1993 (Bail Application), he asked the trial court to:

Before his arraignment on January 11, 1994, the trial court asked clarification from appellant, to wit:

Despite admonitions of the trial court, he persisted in his decision to try his own case. The record shows appellant, acting as his own counsel, filed the notice of appeal. To allege now that his right to be assisted by counsel was violated is to bend the truth too far. In Gamboa v. Cruz,29 [162 SCRA 642 (1988).] we held that the substantial and constitutional right of the accused to counsel is not violated where he was represented by a member of the Bar. Appellant chose to be represented in this case by a prominent and competent member of the Bar, namely himself, even if there were other available counsel like Atty. Crisologo Monteclar. Appellant is now estopped from claiming that the trial court violated his right to be represented by counsel of his own choice. Note that he also brushed aside the court’s offer of assistance by another counsel, a PAO lawyer. He declared there was no need therefor.

The essential requirements of due process in this jurisdiction are well established, viz: Manikx

In People v. Castillo, et al. 76 Phil. 72, 87, we ruled that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly process of law, and only punished after inquiry and investigation, upon notice to him, with opportunity to be heard, and a judgment awarded within the authority of the constitutional law, then he has had a due process. Maniks

Applying the aforementioned test to the circumstances of the instant case, the Court finds no breach of appellant’s fundamental rights, including his right to due process and to counsel, which would justify reversal of the assailed decision.

On the crucial third issue, we must inquire now whether the prosecution has overcome the presumption of innocence in favor of the accused. Otherwise stated, is the evidence presented by the prosecution sufficient to prove his guilt beyond reasonable doubt?

The victim’s companion, Christopher Yapchangco, as witness for the prosecution, testified under oath as follows:

x x x

x x x

x x x

x x x

While appellant argues that Yapchangco admitted that he never saw who fired the gun shots, because he was busy running and did not look back, on record is Yapchangco’s declaration that there was no person other than appellant who fired a firearm. As held in People v. Salveron,37 [228 SCRA 92 (1993).] if an eyewitness saw the accused with a rifle, seconds after the gunshot and after the victim fell to the ground, the reasonable conclusion thereon is that the appellant killed the victim.

Another eyewitness, Rizaldy Rabanes, also identified appellant as the one who fired at Amparado and Yapchangco:

x x x

Further, prosecution witness Edwin Parune testified that he and his companion, Demeter Encina, saw Amparado totter, after being shot, towards the bougainvillea plant at the side of Almaciga Street. There Amparado eventually fell on the ground, face upward. Parune also declared he and Encina saw appellant in the middle of the street, carrying a long firearm while going towards the gate of his house. They saw Yapchangco approach the fallen Amparado and lift him. Parune and Encina then helped Yapchangco bring Amparado to the hospital where he died.40 [TSN, Vol. II, October 15, 1993, pp. 22-24.]

With such wealth of details, we cannot fault the trial court for giving credence to the testimony of the prosecution’s witnesses. Moreover, we must concede that generally, the trial judge is in a better position to decide on questions of credibility of witnesses and materiality of the evidence presented.41 [People v. Castillo, 273 SCRA 22 (1997).] Findings of the trial judge who had the fullest opportunity to observe the demeanor of the witnesses and to assess their credibility are entitled to the highest degree of respect.42 [People v. Nuestro, 240 SCRA 221 (1995); People v. Ganido, 240 SCRA 254 (1995).] Factual findings of the trial court, if adequately supported by the records of the case, will generally not be disturbed by the appellate courts on appeal.43 [People v. Cascalla, 240 SCRA 482 (1995).] We see no reason now to depart from this rule. The voluminous records of this case support the factual findings of the trial court. On these findings we must now rely, unless it could be shown that the trial judge overlooked or ignored material facts on record that would contradict these findings, or change the resulting conclusions. Suprema

The defense failed, in our view, to refute the positive identification made by the prosecution witnesses who tagged the appellant as the one who shot the victim. These eyewitnesses’ declarations are positive testimonial evidence. The appellant’s denial that he was the gunman is negative testimony.44 [People v. Ondalok and Mahinay, 272 SCRA 631 (1997).] The positive, forthright declarations of eyewitnesses certainly outweigh the negative, self-serving denial of the accused.45 [People v. Gondora, 333 Phil. 246 (1996).] While appellant claims somebody else shot the victim dead, appellant did not, as he could not, identify this purported gunman up to now. Surely he could not expect us to believe his claim of a gunslinger emerging from the shadows to slay the victim, without more credible proof thereon. Juris

Appellant harps on what he perceives to be inconsistencies of the witnesses’ testimony. However, they are inconsistencies on negligible details that do not destroy the credibility and veracity of the testimony offered. No improper motive appears to vitiate the sworn statement of the witnesses. Variations in the declarations of witnesses respecting incidental matters do not detract from the weight of testimony in its entirety as to material and important facts.46 [People v. De Gracia, 264 SCRA 200 (1996).] Nor do minor inconsistencies preclude the positive identification of the accused.47 [Sumalping v. Court of Appeals, 335 Phil. 1218 (1997).] Minor inconsistencies in the testimonies of witnesses strengthen, rather than weaken, the credibility of the witnesses, as it clearly shows that the testimonies offered are neither rehearsed nor coached.48 [People v. Ondalok, supra.]

But in regard to the lethal weapon used in the commission of the offense, there is no justifiable reason, in our view, for doubt or dispute. The firearm used was a .22 caliber rifle, registered in the name of appellant. Sdaad

Noteworthy is the testimony of the NBI ballistician on record. He found that the shell marked exhibit "ES-1" and the test shell marked "TS-2" possessed sufficient identical markings to show both were fired from one and the same firearm;49 [TSN, Vol. III, October 21, 1993, p. 21] that the size, shape, and location of the firing pin marks on the two shells were the same;50 [TSN, Vol. III, October 22, 1993, p. 2.] and that evidence shell "ES-1" and another test shell marked "TS-3" were fired from one and the same firearm.51 [Ibid.] The prosecution amply showed that the test shells "TS-2" and "TS-3" were test-fired from a .22 caliber rifle owned by appellant. He himself had submitted both the rifle and test bullets for re-registration during a re-registration of firearms campaign conducted by the police, with test-firing done on March 22, 1990.52 [TSN, Vol. I, October 7, 1994, pp. 4-6.]

The ballistician’s testimony refutes appellant’s claim that there was no conclusive finding on the firearm used in the shooting of the victim, since there were no sufficient congruent striations on the evidence and test bullets. Appellant argues that there were no sufficient markings which could lead to a positive conclusion that the evidence and test bullets were fired from one and the same firearm.53 [Rollo, pp. 454-455.] This argument, however, is rebutted by the ballistician, who pointed out that the slug was copper-coated and this coating material could be easily removed.54 [TSN, Vol. III, October 21, 1994, pp. 12-14.] Even a mere scratch of a fingernail could remove the coating, and make comparison of striations for identification purposes difficult, if not impossible. Appellant, however, could not deny the ballistician’s conclusive findings as to the similarity of resultant markings in the evidence and test shells submitted to the trial court. Scsä daad

Thus, both testimonial and real evidence presented by the prosecution lead us to the firm conclusion that the presumption of appellant’s innocence has been overcome and his guilt established beyond reasonable doubt. He is criminally responsible for the killing of the victim, Luciano Amparado.

However, we now come to the next inquiry in regard to the third issue. Was the killing murder as found by the trial court, or homicide as averred by the Solicitor General? According to him, the trial court erred in finding the appellant guilty of murder, because the prosecution failed to prove the qualifying circumstances of evident premeditation and treachery. On these matters, we find both the appellant’s and the Solicitor General’s submission meritorious. Ncmâ

Circumstances specifying or qualifying an offense, or aggravating the penalty therefor must be proved as conclusively as the act itself.55 [People v. Derilo, 271 SCRA 633 (1997).] Evident premeditation is appreciated where the execution of a criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent.56 [People v. Sol, 272 SCRA 392 (1997).] The requisites of evident premeditation are:

Here, these requisites were not met. There was no evidence presented as to the date and time when appellant planned to kill the victim and his companion, Yapchangco. Even if the time when the appellant had planned such killing could be determined, there is no showing that from such time up to the time when the victim and Yapchangco passed appellant’s house in the wee hours of the morning of June 3, 1993, sufficient time had elapsed to allow appellant to reflect on his plan and persist in carrying it out. We cannot, based on the prosecution’s evidence, sustain the finding of evident premeditation absent a conclusive showing of the constitutive elements of this vital circumstance qualifying the offense of murder.

Neither can we sustain the findings of the trial court with respect to the presence of treachery. Treachery is present when the offender employs means, methods, or forms which tend to directly and specially insure the execution of the crime, without risk to himself arising from the defense which the offended party might make.58 [People v. Cortes, 280 SCRA 295 (1998).] The essence of treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby, ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim.59 [People v. Vermudez, G.R. No. 119464, January 28, 1999, p. 6.] Scncä m

To be appreciated, treachery requires proof of the following:

In this case, the prosecution failed to prove that the means of attack used by the appellant were deliberately adopted by him to kill the victim. Yapchangco’s testimony shows that he and the victim just happened to pass by the house of appellant at a time when the latter was in his balcony. There is no showing that appellant knew or expected that the victim and Yapchangco would pass by his house at that time. Oldmisâ o

In the absence of the qualifying circumstances of evident premeditation and treachery, the crime committed is not murder but only homicide.

We now come to the last issue concerning penalty. Reclusion perpetua is appropriately imposed if the conviction is for murder, but not for homicide. Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is only reclusion temporal. Manikanä

As there are neither aggravating nor mitigating circumstances found by the trial court or shown after a review of the records, the penalty in this case shall be fixed in its medium period of reclusion temporal, which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further, applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor as a minimum to reclusion temporal in its medium period as the maximum. The range of prision mayor is from 6 years and 1 day to 12 years. The span of reclusion temporal, medium, is from 14 years, 8 months, and 1 day to 17 years and 4 months.

WHEREFORE, the assailed decision of the Regional Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU-31733 is hereby MODIFIED. Appellant Raul H. Sesbreño is hereby found GUILTY of HOMICIDE and hereby sentenced to suffer a prison term of 9 years and 1 day of prision mayor, as a minimum, to 16 years and 4 months of reclusion temporal, as a maximum, with accessory penalties provided by law, to indemnify the heirs of the deceased Luciano Amparado in the amount of P50,000.00, and to pay the costs.

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