THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. DOMINADOR ASPIRAS alias "BOY", accused-appellant.HATOL

This is an appeal from the decision1 [Records, pp. 139-175.] dated April 24, 1995 of the Regional Trial Court of Urdaneta, Pangasinan, Branch 47 in Criminal Case No. U-6553, convicting accused-appellant Dominador Aspiras of the crime of MURDER qualified by treachery, and sentencing him to suffer the penalty of reclusion perpetua with all its accessory penalties, to pay the heirs of the victim P50,000.00 for indemnity; P50,000.00 for moral and exemplary damages; P82,250.00 for actual damages; P1,421,200.00 for expected or future income; and to pay the costs.

At the time of the incident, appellant Dominador Aspiras was a Police Officer 3 (PO3), assigned at Pilar Village Detachment in Las Piñas, Metro Manila. The victim, Renato Lumague, was a crusher general supervisor of the Northern Cement Corporation and a supporter of NPC-KBL political party.

As gleaned from the records, the pertinent facts are as follows:

In the evening of April 6, 1992, the NPC-KBL party held a political rally at the plaza of Bonapal, Bobonan, Pozorrubio, Pangasinan. The candidates for mayor and vice mayor, Artemio R. Saldivar and Felimon Reyes, respectively, were present together with the eight candidates for councilors, as well as Victor Juguilon,2 [Sometimes spelled as Juguillon and Joguilon.] Juanito Caballero, and Renato Lumague,3 [Sometimes spelled as Lomague.] who were supporters of the party. About 100 to 200 people attended the rally. Between ten and eleven o’clock in the evening, Renato Lumague, was on stage, delivering a speech. Suddenly, a man appeared in front of Renato Lumague and shot him three times. He died instantly.

On April 9, 1992, Gilda Lumague, the widow of the victim, filed a complaint with the Philippine National Police of Pozorrubio Pangasinan, against appellant Dominador Aspiras for the death of her husband. Juanito Caballero executed an affidavit to support the complaint.

In an information dated August 11,1992, Assistant Provincial Prosecutor Emiliano M. Matro accused Dominado Aspiras alias "Boy" of the crime of murder, committed as follows:

On arraignment, accused pleaded not guilty. Trial then ensued.

At the hearing of the case, the prosecution presented Juanito Caballero and Victor Juguilon, the two eyewitnesses; Dr. Francisco Llamas, the medico-legal who conducted the autopsy; Casiano Cabalan, the Personnel Manager of the Northern Cement Corporation; and Geraldine Lumague, the victim’s daughter who testified in place of her mother.

Juanito Caballero and Victor Joguilon, who were both spectators and seated near the stage, stated that they witnessed the shooting incident. They categorically identified the appellant who shot the victim, Renato Lomague, who was three (3) meters away. The accused went directly infront of the stage where the victim was speaking and pulled the trigger. The accused after shooting the victim placed his gun on his waist, raised both his hands to the people and left the place. The victim was brought to the hospital but died. The police arrived later on and conducted investigation of the incident.

To rebut the version of the prosecution, appellant presented his evidence, which included his own testimony and those of Gabriel Viernes, Gavino Sababan Jr., Segundino Palisoc, Maj. Lazaro Lim, and Josephine Terry.

Appellant testified that during the whole day of April 6, 1992, he was on tour of duty with SPO2 Gavino Sababan, Jr., and PO2 Esteban Liu as team leader and driver, respectively, at Las Piñas, Metro Manila. He claimed that, with the other members of the crew in Mobile Car 962, he usually stood-by at the Shell Station, in Almanza, Las Piñas, Metro Manila, which is considered a "choke point". Here the police usually stood-by for police visibility. At 8:00 o’clock in the morning of April 6, they arrived from their detachment, about one (1) kilometer away from the "choke point", and they proceeded to the Shell Station to start their tour of duty. At 12:00 noon, they took their lunch at the detachment, then they returned to their "choke point" assignment where they stood-by up to midnight.

Their activities on that particular date, April 6, were recorded on a Record Book marked as Exh. "5". The activities of the appellant on April 5 and 7, 1992 were also recorded on said book. Appellant filled up the entries in the logbook but it was signed by the team leader, SPO2 Gavino Sababan. These were facts corroborated by Gavino Sababan, SPO3 Segundino Palisoc and Chief Inspector Major Lazaro Lim, all members of the PNP, Las Piñas Police Station, Las Piñas, Metro Manila.

According to appellant, one week after April 6, 1992, he learned that he was a suspect when he read about it in a tabloid newspaper. Appellant was called by his superior regarding the incident and was directed to submit an affidavit. On June 20, 1992, he was arrested and incarcerated at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila. On September 5,1992, he filed his bailbond and was then released.

Witness Juanito Caballero, according to appellant, had a motive to implicate him in the crimes as they had a fistfight the first week of January 1991, in Pangasinan over some parcels of land owned by Engracio Aspiras and Brigida Aspiras. Said parcels were transferred by Caballero in his name. But appellant and the other relatives contested the transfer made by Caballero.5 [Id at 481-482.]

On April 24, 1995, the trial court promulgated its decision, disposing as follows:

Hence this appeal, wherein appellant avers that the trial court erred:

Primarily, appellant questions the credibility of the witnesses. Appellant alleges that the prosecution was not able to show beyond reasonable doubt that he committed the crime of murder because the judge merely based his finding of guilt on the testimony of the two eyewitnesses, whose testimony the judge did not hear or whose demeanor he did not observe. We find this proposition unacceptable. Judge Joven F. Costales, who took over the case from Judge Romulo E. Abalos had the full record before him, including the transcript of stenographic notes, which he studied. The efficacy of a decision is not necessarily impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial.10 [People vs. Sandiangabay, 220 SCRA 551.]

Here we take particular note of the fact that prosecution witnesses Juanito Caballero and Victor Joquilon testified that they personally saw the person who shot the victim they identified the appellant as that triggerman. Thus we find in the transcript of stenographic notes the following testimonies:

Worth stressing, it has been established at the trial that the two eyewitnesses were familiar with the appellant. Juanito Caballero knew him for the former grew up with the latter’s family.11 [TSN, March 4,1993, p. 5.] Victor Juguillon also knew him well, for Victor used to visit the barrio where appellant lived, while the latter frequently visited the town proper where Victor resided.12 [TSN, November 16, 1993, p. 11.] Furthermore, Victor’s cousin was married to one of the Aspirases.13 [Ibid.] During the actual shooting incident, both eyewitnesses were seated at the eastern side of the stage, where they had a good view of the people in the basketball court.14 [TSN, March 4,1993, p. 14; TSN, November 18,1993, p. 16.] They were only about 3 to 5 meters away from the assailant,15 [TSN, March 4,1993, p. 15; November 16,1993, p. 13.] and could easily see the assailant’s face. Lastly, there were seven to eight electric bulbs illuminating the meeting area.16 [TSN, November 18,1993, p. 19.] With the use of a sketch, marked as Exhibit "1" for the defense, Victor showed that there was one bulb at the middle of the stage, one at the center of the basketball court, and "others from the center connecting the bulb."17 [TSN, November 18,1993, pp. 20-21.] With this illumination, considering where the victim and the assailant were, Victor and Juanito could clearly see appellant’s face.

The autopsy conducted by Dr. Llamas, the medico-legal officer, corroborated the testimony of the two eyewitnesses. Dr. Llamas said that there were three bullets that entered the body of the victim.18 [TSN, February 9,1994, p. 22.] This supports the testimony of Juanito and Victor that they heard three gun reports.19 [TSN March 4,1993, p. 10; Nov. 16,1993, p. 12.]

Dr. Llamas described the wounds of the victim and calculated the approximate position of the assailant. Gunshot wound no. 1 showed that the victim was hit at the abdomen and the assailant was in front of the former;20 [TSN Feb. 9,1994, p. 22.] and that it was possible the bullet split into two, one imbeded the vertebra bone and the other exited in wound no. 6. Gunshot wound no. 2, showed that the bullet entered the arm and exited in the armpit, which caused wound no. 3.21 [Id at 23.] Wound no. 4, was the entrance of a bullet which exited in the right shoulder, producing wound no. 7.22 [Id at 24.] Wound no. 5 exited in wound no. 8 at the chest, right level of the 6th rib along the mid axillary line.23 [Id at 25.] Wounds no. 2, 4 and 5, showed the assailant was at the left side of the victim.24 [Id at 24-25.] These findings are in harmony with the testimony of the two eyewitnesses that assailant was in front of the victim when the former shot the latter;25 [TSN, November 16, 1993, p. 13.] that the victim rolled down after the first shot towards the western portion of the stage;26 [Records, p. 289.] and that before assailant fired the third shot, he took one step forward.27 [TSN, November 16, 1993, p. 12.]

Dr. Llamas said that he could not determine whether the assailant fired the gun at close range because of the absence of powder burns. However, he estimated the distance between the assailant and the victim to be more than 30 inches.28 [TSN, February 9, 1994, p. 25.] This concurs with the testimony of Juanito and Victor that appellant was more or less three meters away from the victim when the former shot the latter.29 [TSN, March 4, 1993, p. 15; November 16, 1993, p. 12.]

Appellant’s alibi was that on April 6, 1992, between 10 and 11 p.m., he was at Almanza Shell station, Pilar Village, Las Piñas performing his duty as police officer.30 [TSN, March 1, 1995, p. 40.] To support this, he submitted the police logbook as Exhibit "5" to show his whereabouts and activities on the said date. Further, he presented his fellow police officers to corroborate his testimony.

Alibi may be appreciated if the following requisites are present: a) proof of his presence at another place at the time of the perpetration of the offense, and b) impossibility for him to be at the scene of the crime.31 [People vs. Saban and Saban, GR No. 110559, November 24, 1999.] But the inconsistencies between the entries in the logbook and the testimony of the four police officers, cast doubt on appellant’s alibi. First, SPO3 Palisoc and Major Lim testified that on April 6,1992, between 10 and 11 p.m., they conducted an inspection to check on the police personnel manning the Almanza choke point.32 [TSN, February 7, 1995, p. 51.] This was not in the logbook. Palisoc claimed that this was entered in the journal;33 [Id at 57.] however, defense did not care to present the journal in court. Secondly, Palisoc testified that it was standard operating procedure for the mobile crew to make periodic calls to inform the base of their whereabouts. If they don’t call after thirty minutes, Palisoc would make the call himself.34 [Id at 48.] No such calls were entered in the logbook. Thirdly, Palisoc also testified that on the evening of April 6, at 7 p.m., the members of Pilar Detachment, including appellant had dinner with Barangay Councilman Arthur Tanjuanco.35 [Id at 55.] However this was not entered in the logbook. If it were true that they had dinner, this would have appeared in the logbook, like when the crew had lunch.36 [TSN, March 1, 1995, p. 44.] Instead, we only found the following:

When asked to explain the above, appellant said that at 4 o’clock in the afternoon, they were at Fort Bonifacio to gas up. Then, from 5 o’clock up to 12 midnight, they were on stand-by at Almanza Shell. As correctly observed by the trial court, the logbook lacked the important details to bolster the alibi.

Most of Palisoc’s testimony was based on what was entered in the logbook by appellant.38 [TSN, February 7,1995, p. 47.] It was not based on Palisoc’s personal knowledge of the activities of the mobile crew on April 6,1992.

In People vs. Domenden, 6 SCRA 343, we observed that because of the close relationship and camaraderie that developed among the accused and his witnesses as members of the same police force, the latter could not be expected to testify truthfully.

In our view, appellant failed to prove convincingly that he was at the Almanza "choke point" at Las Pinas, Metro Manila, on the night of April 6,1992. Note that it was not physically impossible for him to be at the scene of the crime, especially since Pozorrubio, Pangasinan, is only 4 hours away from Manila. Pertinently, in People vs. Mallari, G.R. No. 104891, 311 Phil. 133 (1995), this Court did not appreciate the defense of alibi where the killing took place in Olongapo City, though the accused was allegedly in Baguio City.

Appellant questions the credibility and impartiality of the two eyewitnesses: First, he avers prosecution eyewitness Juanito Caballero was biased because bad blood existed between them. Second, he claims Juanito and Victor had conflicting testimonies on the demeanor of the assailant when leaving the scene of the crime. Third, he posits it was unbelievable that Juanito and Victor only stayed in their benches and did not seek any cover or protection despite their proximate location from the assailant. Last, he states it was improbable that no policeman arrived after the incident.

Indeed, as testified to by appellant and corroborated by Josephine Terry, a defense witness, on January 1991, appellant and Juanito Caballero had a fist fight over a piece of land. In that fight appellant had outboxed and mauled the latter.39 [TSN, March 20, 1995, pp. 14-17.] But in People vs. Sadiangabay, 220 SCRA 551 (1993), we held that the credibility of a witness could not be affected by an alleged grudge where said witness was not discredited on cross-examination. In this case, appellant failed to touch upon the alleged grudge, during the cross-examination of Juanito Caballero. The matter was only mentioned by Dominador and Josephine during their direct examination.

Appellant also suggests that Juanito Caballero’s testimony conflicts with that of Victor Juguillon. Juanito testified that the assailant walked calmly,40 [TSN, March 4, 1993, p. 21.] while Victor said that the assailant walked fast.41 [TSN, February 4, 1994, p. 16.] But this inconsistency is on minor and insignificant point. Sometimes such minor inconsistencies even enhance the veracity of the testimony of a witness as they erase any suspicion of a rehearsed declaration.42 [People vs. Sioc and Gonzales, GR No. 66508, November 24, 1999.]

Likewise appellant suggests that the testimony of the eyewitnesses that they only stayed in their benches and did not seek any cover or protection, diminishes their reliability. However, different people react differently to a given type of situation and there is no standard form of behavioral response when one is confronted with a startling, strange or frightful experience.43 [Id. at 7-8.] It is true that most of the people at the political rally scampered away when they heard the gunshots, but it was also true that others, like Juanito Caballero and Victor Juguillon,44 [TSN, December 12, 1994, p. 20.] did not run away.

Again, appellant suggests that policemen did not arrive at the scene of the crime. But Juanito Caballero testified that policemen stationed at Pozorrubio, Pangasinan, responded to his report by going to Plaza Bonapal45 [TSN, March 4, 1993, pp. 18-19.] and conducted their investigation. Thus, all told, we cannot agree with appellant’s claim that the testimony of prosecution witnesses lacked credibility so that he should be acquitted. On the contrary, the wealth of details in their testimony convince us that the appellant is the perpetrator of the crime charged.

Lastly, we now focus on the award of civil indemnity and other damages in favor of the heirs of the deceased, as follows:

Note that with regard to actual damages, only actual expenses duly supported by receipts may be granted.46 [People vs. Manlapaz y Marimla, GR No. 121483, October 26,1999.] Among the actual expenses allegedly incurred by the family of the victim, only those for funeral expenses (P17,000.00), materials for gravestone (P1,308.00) and the funeral mass (P250.00) were supported by receipts. Further, it was shown that the funeral expenses were shouldered by Northern Cement Corporation.47 [TSN, February 10, 1994, p. 11.] Consequently, the award to the heirs concerning actual expenses must be limited only to those they incurred for gravestone and mass services, amounting to P1,558.00.

As to the computation of expected or future income by multiplying the years for which the victim could have worked with his employer were it not for his death (11 years) by his annual gross earnings, we find that the correct formula for computing the loss of earning capacity is follows: 2/3 x (80 - age of victim at the time of death) x (reasonable portion of the annual net income which would have been received as support by heirs).48 [People vs. Cawaling, 293 SCRA 267.] The age of the victim at the time of his death was 48.49 [RTC records, p. 6.] He was receiving a monthly salary of P7,610.00, and yearly benefits in the amount of P38,000.00.50 [TSN.] Hence, his annual gross income is P129,320.00. Net income is 50% of the gross annual income, in the absence of proof showing the deceased’s living expenses.51 [People vs. Gutierrez, Jr., 302 SCRA 643, 667, February 8,1999.] Hence, we find that:

The award of P1,421,200 should therefore be reduced to P1,379,197.80 only.

Although appellant did not raise the qualifying circumstance of treachery as an issue, we find it proper to mention at this point that the trial court did not err when it ruled that such circumstance attended the killing of Renato Lumague. As shown above, appellant shot the victim while delivering a speech during a political rally. The act was so swift that the victim did not have the opportunity to defend himself. Such swift and unexpected attack on an unarmed victim, without the slightest provocation on the part of the latter,52 [Delfin Abalos vs. Court of Appeals, RTC-Br. 38, Lingayen, Pangasinan, and People of the Philippines, GR No. 125434, December 22, 1999, p.10.] is the essence of treachery.

WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court of Urdaneta, Pangasinan, Branch 47, in Criminal Case No. U-6553, finding accused-appellant Dominador Aspiras GUILTY beyond reasonable doubt of the crime of MURDER qualified by treachery, and sentencing him to suffer the penalty of reclusion perpetua with all its accessory penalties, is AFFIRMED. The award for damages which should be paid by appellant to the heirs of the victim is MODIFIED as follows:

Costs against appellant.

SO ORDERED. 6/21/00 1:41 PM

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