WBench1

THIRD DIVISION

[G.R. No. 136303. July 18, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTHONY MELCHOR PALMONES, ANTHONY BALTAZAR PALMONES, accused-appellants.

D E C I S I O N

GONZAGA-REYES, J.:

This is an appeal by accused-appellants Anthony Melchor Palmones and Anthony Baltazar Palmones from the decision[1] of Branch 17 of the Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, convicting them of the crime of murder[2]

The information[3]dated June 4, 1997 charging accused-appellants of the crime of murder reads as follows:

“That in the evening of April 27, 1997 at Barangay Magsaysay, Municipality of Kidapawan, Province of Cotabato, Philippines, the above-named accused, with intent to kill, armed with a gun, did then and there, willfully, conspiring, confederating and mutually helping one another, unlawfully, feloniously and with treachery, attack, assault, and shot the person of SPO2 ASIM MAMANSAL, thereby hitting and inflicting upon the latter gunshot wounds on the vital parts of his body which is the cause of the death thereafter.

CONTRARY TO LAW.”

Both accused were arraigned on July 15, 1997 and both pleaded not guilty to the charge against them. Thereafter, trial on the merits commenced.

The prosecution first presented Sonny Boy Redovan, a 28 year-old farmer who was the nephew of the victim. He testified that at around 10:00 in the evening of April 27, 1997, his mother and elder brother informed him that something had happened to his uncle SP02 Asim Mamansal. They then rushed to the Kidapawan Doctor’s Hospital and proceeded to the emergency room. Upon seeing his uncle, the witness went near him and asked him what had happened to him. His uncle answered that he had been waylaid. The witness then asked the victim who the perpetrators were and the victim answered that it was “Juany and Tony Palmones” which were the nicknames of the two accused-appellants.[4] He claimed that while he was talking with his uncle, there were attendants, nurses, and other bystanders whom he did not know present inside the emergency room. A few minutes after he talked with the victim, a certain Dr. Aguayo arrived and examined the wounds of his uncle. About and hour later, he saw Police Inspector Alexander Tagum arrive and he heard him ask his uncle who had shot him. The witness then heard his uncle positively answer the policeman that his assailants were Juany and Tony Palmones.[5]

On cross-examination, he testified that he was able to talk with his uncle for about one hour and that the most important part of their conversation was the identification of his uncle’s assailants.[6] He stated that it did not occur to his mind to immediately report to the police what his uncle had told him as his mind was troubled at that time. It was only after the burial of his uncle on April 28, 1997 that he told Insp. Tagum that it was Tony and Juany Palmores who had shot his uncle.[7]

The prosecution next presented Dr. Hazel Mark Aguayo who testified that he was the surgeon-on-duty on the day that SP02 Mamansal was shot. He stated that before he operated on the victim, he interviewed Mamansal and one of the questions he asked is whether the victim had known who had shot him. He claimed that Mamansal told him that he did not know who had shot him.[8] He did not pursue this line of questioning further as he was told by a companion of the victim that the area where the victim was shot was dark.[9] He testified that he operated on the victim at around 12:00 in the evening. He operated for around four (4) hours but the victim developed cardio respiratory arrest at around 8:30 the following morning and thereafter, the victim died in the ward.[10]

On cross-examination, he stated that it was Sonny Boy Redovan who was with SP02 Mamansal at the time that he was interviewing the victim and that it was Redovan who told him that the assailant could not be identified because the area where the shooting happened was dark.[11] He likewise claimed that before he arrived at the hospital, a certain Dr. Caridad Jalipa was already attending to the victim and that she told him that the victim remained silent when she asked him about the person who shot him.[12]

The third witness for the prosecution was Police Inspector Alexander Camilon-Tagum. He testified that on the night of April 27, 1997, he was at the Kidapawan, Cotabato Police Outpost. After receiving a radio report, he proceeded to Brgy. Magsaysay, Kidapawan where he discovered that one of his men, SP02 Mamansal, was shot.[13] After conducting an initial investigation of the crime scene, he sent his men towards different directions to look for suspects. He then proceeded to the hospital together with another witness, Alice Villamor. On the way to the hospital, Alice Villamor pointed to a passing motorcycle and told him that it was the motorcycle the assailants were riding. He chased the motorcycle but he was not able to catch up with them as his car ran out of gas.[14] He was able to borrow a motorcycle and he proceeded to chase the other motorcycle again. While riding on the borrowed motorcycle, a certain PO3 Aniceta called him on the radio and told him that the assailants were Juany and Tony Palmones.[15] He and his men proceeded to the residence of the suspects where the brother of the accused-appellants, Triny Palmones, met them. He asked Triny Palmones where his brothers were and the latter responded that he didn’t know. He then asked Triny Palmones whether his brothers owned a motorcycle and the latter admitted that they owned a Kawasaki motorcycle which matched the description of the motorcycle he had been chasing.[16] He then told his men to continue pursuing the assailants and after exhausting all efforts, he proceeded to the Kidapawan Doctor’s Hospital. He confronted the victim in the emergency room and asked him about his assailants. The victim answered that it was Juany and Tony Palmones.[17] At that time, he claimed that Dr. Aguayo and two other medical ladies were inside the room.

On cross-examination, he testified that he was able to speak with Alice Villamor about the incident but that she told him that she was not able to identify the assailant even though she was right beside the victim because of darkness.[18] He admitted that when he went to the hospital, he was already entertaining the idea that the suspects were Juany and Tony Palmones because of the radio call he received earlier. He likewise admitted that the only question which he asked the victim was “who shot you?” and that he was not able to reduce his findings to writing.[19]

The next witness for the prosecution was Mila Arimao Mamansal, the wife of the victim, who testified mainly on the expenses she incurred because of the death of her husband. She also stated that she was able to talk with witness Sonny Boy Redovan at the hospital but the latter did not tell her anything about the alleged assailants of her husband. It was only on April 29, 1997 that she heard Redovan tell the Chief of Police of Kidapawan that Juany and Tony Palmones were the ones who had shot her husband.[20]

The prosecution next presented Asmyra Mamansal, the daughter of the victim. She testified that on the night of the incident, she was at her aunt’s house where she was informed about the shooting of her father. She immediately proceeded to the hospital where she saw her father lying on a bed calling her name. Her father then told her to take down the name Alice Villamor whom she knew as the name of her father’s mistress.[21] She was able to talk with her father for about thirty minutes.

On cross-examination, she testified that in the course of her conversation with her father, her father did not tell her the reason why he mentioned the name of Alice Villamor nor did he tell her about the persons who had shot him.[22]

The other two witnesses of the prosecution identified the death certificate[23] of SPO2 Mamansal and the extract of the police blotter[24] where the shooting incident was recorded.

For their part, accused-appellants presented ten (10) witnesses to support their case.

The first witness, Alex Siago, a barangay kagawad, testified that he was one of the first persons to go to the victim after the latter was shot.[25] He stated that a certain Patricio Fuertes and Samuel Angelio then brought the victim to the Kidapawan Doctor’s Hospital. Thereafter, another kagawad, a certain Gregorio Lonzaga called up the police to report the incident.[26] A few minutes later, Inspector Tagum arrived and proceeded to make an investigation of the incident. He also claimed that he was the one who lent Insp. Tagum his motorcycle when the latter gave chase to another motorcycle bearing two passengers.[27] Considering that he was only five (5) meters away from the motorcycle when it passed by, he was able to see the faces of the passengers and he was certain that they were not the two accused-appellants.[28]

The next witness, Patricio Fuertes, testified that he was person who brought the victim to the hospital.[29] At the hospital, he saw three policemen, whom he did not recognize, talking with the victim. He was about a meter away from the bed of the victim when he heard a policeman, ask Mamansal whether he had recognized who had shot him. He then heard the victim reply that he did not recognize his assailants.[30] He likewise told the court that while he was bringing the victim to the hospital, he was not able to talk with Mamansal and neither did the victim identify his assailants.[31]

The next witness for the defense was Alicia Villamor, the alleged girlfriend of the victim and his companion at the time he was shot. She testified that in the evening of April 27, 1997, she was in her store together with the victim. At around 10:00 p.m., she closed shop and went home together with Mamansal and her two helpers.[32] While they were already near her house in Magsaysay, someone suddenly shot Mamansal. She was just at the side of Mamansal when the shooting happened but she claimed that she was not able to identify the assailants as it was dark.[33] Patricio Fuertes then brought the victim to the hospital but she did not accompany him as her clothes were stained with blood. After changing her clothes, a group of policemen arrived at the crime scene. After conferring with the policemen, she then rode with Insp. Tagum in going to the hospital.[34] On the way, Insp. Tagum tried to halt a passing motorcycle. When the passengers of the motorcycle kept on going, Insp. Tagum fired warning shots and gave chase but the car they were riding in ran out of gas. He then saw Alex Siago provide Tagum with a motorcycle and again the latter gave chase.[35] She claimed that she was not able to see the persons riding the motorcycle as it was moving quite fast. When she finally arrived at the hospital, she saw that Insp. Tagum was already there. She was then able to talk with the victim who told her that he did not see the person who had shot him.[36]

The next witness, Rommel Arambala, a 27 year old neighbor of Alive Villamor, corroborated the testimonies the three previous witnesses.

The defense also called the two accused-appellants to support their defense of alibi.

Accused-appellant Anthony Melchor Palmones testified that at the time of the incident, he was in his house in Kisulan, Sultan Kudarat, having a drinking session with friends. He estimated that Kisulan, Sultan Kudarat was at least two hours away from the scene of the crime.[37] Their group started drinking at around 8:00 in the evening and they only finished drinking at around 11:00 p.m. By 11:30, their group had already dispersed.[38] He admitted knowing the victim as a policeman in Kidapawan but he denied having a quarrel or a grudge against him.[39]

The testimony of accused-appellant Anthony Melchor Palmones was corroborated by witnesses SPO1 Ramil Bahian and Jolito Silva.

For his part, accused-appellant Anthony Baltazar Palmones claimed that at the time of the shooting of Mamansal, he was at his house in Datu Piang St., Kidapawan, Cotabato, having a drink with a few friends. He stated that on the day of the incident, at around 5:00 p.m. of April 27, 1997, he was resting inside his home as he had just come from work. While in his house, Rodolfo Barrientos arrived to borrow some money from him.[40] After giving him the money, the accused asked Rodolfo Barrientos to stay for dinner and to have some drinks. While they were drinking “tuba,” Jerry Barrientos arrived and joined them. They only stopped drinking at around 11:00 p.m.[41] The accused likewise testified that he only knew the victim’s surname and that he did not have any quarrel with or grudge against the victim in the past.[42]

On cross-examination, he denied that he drove a motorcycle to work. He admitted however, that during the drinking spree, he went out of his house to buy “tuba” from a nearby store.[43] On re-direct, he stated that the store was only 10 to 15 meters away from his home and that he was only gone for 2 to 5 minutes.[44]

Accused-appellant Anthony Baltazar Palmones’s testimony was corroborated by Rodolfo Barrientos and Jerry Barrientos who both claimed that they were drinking with accused-appellant at the latter’s home at the time of the incident.

On May 8, 1998, the trial court rendered its questioned decision finding accused-appellants guilty of the crime of murder. The dispositive portion of the decision reads, as follows:

“WHEREFORE, prescinding (sic) from the foregoing facts and considerations, the Court finds both accused Anthony Melchor Palmones and Anthony Baltazar Palmones guilty beyond reasonable doubt, as principal of the crime of Murder, hereby sentenced (sic) both accused each to suffer the penalty of Reclusion Perpetua and to indemnify the heirs of Asim Mamansal, the sum of P50,000.00 and to pay the costs.”

Accused-appellants filed a Motion for Reconsideration[45] of this decision but the trial court, in an Order dated 26 October 1998[46], denied the same for lack of merit. Hence, this appeal where accused-appellants raise the following assignment of errors:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

II.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANTS BASED ON THE WEAKNESS OF THEIR DEFENSE.

III.

THE FACTS, AS ESTABLISHED BY ALL THE EVIDENCE PRESENTED DO NOT SUPPORT THE LOWER COURT’S FINDING OF GUILT.

IV.

THE COURT A QUO COMMITTED A PALPABLE ERROR AND HAD DEMONSTRATED CLEAR BIAS AND PREJUDICE IN FAVOR OF THE PROSECUTION AND AGAINST THE ACCUSED.

THE COURT A QUO ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF SONNY BOY REDOVAN AND INSPECTOR ALEXANDER TAGUM.

VI.

THE COURT A QUO ERRED IN FINDING THAT THE VICTIM, ASIM MAMANSAL WAS ABLE TO IDENTIFY HIS ASSAILANTS BEFORE HE DIED.

VII.

THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL AS AN EXCEPTION TO THE HEARSAY RULE.

VIII.

THE COURT A QUO ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF ASIM MAMANSAL AS PART OF THE RES GESTAE RULE.

The Office of the Solicitor General (“OSG”), for its part, filed a Manifestation in Lieu of Brief[47] where it recommended that the accused-appellants be acquitted of the crime charged against them. In this Manifestation, the OSG reasoned that the identity of the assailants was not sufficiently established by the evidence of the prosecution and that the trial court erred in admitting the alleged dying declaration of the victim as an exception to the hearsay rule.

From the records of the case, the conviction of the two accused-appellants was based largely on the alleged dying declaration of the victim made to two witnesses of the prosecution and the apparent weakness of their defense of alibi. It behooves us therefore to determine the admissibility of the alleged oral dying declaration of the deceased Asim Mamanal as testified to by prosecution witnesses Sonny Boy Redovan and Police Investigator Alexander Tagum.

As a rule, a dying declaration is hearsay, and is inadmissible as evidence.[48] This is pursuant to Rule 130, section 30 of the Rules of Court which states:

Sec. 30. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to those facts which he knows of his own knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.

There are several exceptions however to the rule of inadmissibility of hearsay evidence, the first one of which is the admissibility of dying declarations given under the circumstances specified in Section 31, Rule 130 of the Rules of Court, to wit:

Sec. 31. Dying declaration. – The declaration of a dying person, made under a consciousness of an impending death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death

As such, the requirements for the admissibility of an ante mortem statement are: (a) it must concern the crime and the surrounding circumstances of the declarant’s death; (b) at the time it was made, the declarant was under a consciousness of impending death; (c) the declarant was competent as a witness; and (d) the declaration was offered in a criminal case for murder, murder or parricide win which the decedent was the victim.[49]

As testified to by prosecution witness Sonny Boy Redovan, the supposed dying declaration of the victim was made as follows:

PROS. DE GUZMAN:

Q: Did you reach the Kidapawan Doctor’s Hospital, Inc.?

A: Yes, sir.

Q: What did you discover?

A: Upon arrival, I immediately proceeded to the emergency room.

Q: What did you do in the emergency room?

A: I saw my uncle there lying.

Q: Are you referring to SPO2 Asim Mamansal?

A: Yes, sir.

Q: What did you do after that?

A: Upon seeing his condition I went near him and whispered “Ano ba ang nangyari sa yo?” meaning “What happened to you?”

Q: What was the answer, if any?

A: His answer (sic) that he was waylaid.

Q: What else did he tell you?

A: I was worried after saying those words, I asked him who are the perpetrators.

Q: What was the answer?

A: And he said “It’s Juany and Tony Palmones.”

Q: When those words uttered to you (sic) where there other persons inside the room?

A: Attendants, nurses, “ususero,” I do not know the others.[50]

In a similar vein, Police Investigator Alexander Tagum likewise testified that the victim named the two accused as his assailants prior to the victim’s death. Thus:

Q: What did you do at the Kidapawan Doctor’s Hospital?

A: I immediately went to the room wherein SPO1 Mamansal was lying.

Q: What did you do while you were inside the room where SPO1 Mamansal was lying?

A: I immediately confronted him sir and immediately asked the question: Who shot you?

Q: What was the answer?

A: SPO1 Mamansal answered sir, it is Juany and Tony Palmones.

XXX

Q: Can you remember who were your companions (sic) inside the room where SPO2 Mamansal was lying?

A: I noticed two (2) ladies medical orderly (sic) and Dr. Aguayo.[51]

In cases where an alleged dying declaration is sought to be admitted, it must be proven that that the declaration was made “under a consciousness of impending death” which means simply that the declarant is fully aware that he is dying or going to die from his wounds or injuries soon or imminently, or shall have a complete conviction that death is at hand, or there must be “a settled hopeless expectation.”[52]

In the instant case, it was not established by the prosecution that the statements of the declarant concerning the cause and surrounding circumstances of his death were made under the consciousness of impending death. No proof to this effect was ever presented by the prosecution. It was not shown whether Sonny Boy Redovan or Inspector Alexander Tagum ever asked the victim whether he believed that he was going to die out of his injuries or any other similar question. Sonny Boy Redovan claimed that he was able to talk with the victim for around an hour but the only thing he revealed of their conversation was the alleged identification of the victim of his two assailants.[53] For his part, Inspector Tagum admitted that the only question he asked of the victim was if the victim knew who had shot him.[54]

While it is true that the law does not require that the declarant explicitly state his perception that he has given up the hope of life[55], the circumstances surrounding his declaration must justify the conclusion that he was conscious of his impending death.[56] In the instant case, it was not proven that the victim was ever aware of the seriousness of his condition. As testified to by Dr. Mark Aguayo, the vital signs of the victim, prior to his operation, were quite stable.[57] Moreover, from the time the victim was brought to the hospital at 10:30 p.m. until his operation at 12:00 midnight, he was still able to talk intelligently with at least four (4) other persons on various matters. The fact that his vital signs were strong and that he still had strength to converse with these four (4) witnesses belie the conclusion that the victim was under the consciousness of death by reason of the gravity of his wounds.

Neither may the alleged statements attributed to the victim be admissible as part of the res gestae. Res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of a crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.[58]

In order to admit statements as evidence part of the res gestae, the element of spontaneity is critical. The following factors have generally been considered in determining whether statements offered in evidence as part of the res gestae have been made spontaneously: (1) the time that lapsed between the occurrence of the act or transaction and the making of the statement; (2) the place where the statement was made; (3) the condition of the declarant when he made the statement; (4) the presence or absence of intervening events between the occurrence and the statement relative thereto; and (5) the nature and circumstances of the statement itself.[59]

Tested against these factors to test the spontaneity of the statements attributed to the victim, we rule that these statements fail to qualify as part of the res gestae. When Mamansal allegedly uttered the statements attributed to him, an appreciable amount of time had already elapsed from the time that he was shot as the victim was shot at around 10:00 p.m. but he only uttered the statements attributed to him about 30 minutes to an hour later. Moreover, he allegedly made these statements not at the scene of the crime but at the hospital where he was brought for treatment. Likewise, the trip from the scene of the crime to the hospital constituted an intervening event that could have afforded the victim opportunity for deliberation. These circumstances, taken together, indubitably show that the statements allegedly uttered by Mamansal lack the requisite spontaneity in order for these to be admitted as part of the res gestae.

Finally, after a thorough reading of the testimonies presented by both sides, it is even doubtful that the victim ever uttered these alleged ante mortem statements in the first place. We note that the testimonies of Sonny Boy Redovan and Investigator Alexander Tagum are contradicted not only by the witnesses for the defense but also by the prosecution’s own witnesses.

Dr. Mark Aguayo, the doctor who performed the operation on the victim and who is an impartial and disinterested witness, categorically stated that the victim told him that he did not recognize those who had shot him.[60] He likewise testified that witness Sonny Boy Redovan told him in the emergency room that the victim was not able to recognize his assailants because of darkness.[61] Similarly, the wife and the daughter of Asim Mamansal, who were also able to talk with the victim prior to his death, likewise denied that the victim ever told them the identity of his assailants. We fail to see why the victim should choose to tell some people the identity of his assailants and deny his knowledge of the same to others.

With respect to the witnesses for the defense, Alex Siago and Patricio Fuertes, who were both present at the site of the shooting immediately after the incident, testified that they did not hear the victim identify his assailants. Patricio Fuertes even stated that at the hospital, he heard Mamansal tell the police officers present that he did not recognize those who had shot him. Most importantly, Alice Villamor, who was the lover of the victim and who was with him during the shooting, categorically stated that it was not possible to recognize the assailants as the area where the shooting happened was dark. Moreover, she was able to talk with Mamansal at the hospital where he told her that he did not see the persons who had shot him. This testimony of Villamor is quite significant and we fail to see why the trial court failed to consider the same in its decision. Alice Villamor, as the lover of the victim, had no motive to lie for the defense and had all the reason to speak the truth in order to seek justice for the death of her lover.

As previously stated, the trial court based its judgment of conviction on the alleged ante mortem statements of the victim and the apparent weakness of the defense put up by the two accused-appellants. As it now stands however, the weakness of the alibi of the two accused-appellants cannot be held against them in view of the absence of a clear and positive identification of them as the perpetrators of the crime. And while their alibi may not have been proven so satisfactorily as to leave no room for doubt, such an infirmity can not strengthen the weakness of the prosecution’s evidence, the reason being that in a criminal prosecution, the State must rely on the strength of its own evidence and not on the weakness of the defense.[62]

WHEREFORE, premises considered, the judgment dated 8 May 1998 of Branch 17 of the Regional Trial Court of Kidapawan, Cotabato is hereby REVERSED and SET ASIDE. Accused-appellants Anthony Melchor Palmones and Anthony Baltazar Palmones are ACQUITTED and ordered RELEASED from confinement unless they are being held for some other legal grounds.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.