WBench1

SECOND DIVISION

[G.R. Nos. 132482-83. February 20, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELISEO TIO Y TORCUATO alias "ELISEO TAWANGEN," accused-appellant.

D E C I S I O N

BELLOSILLO, J.:

FOR SHOOTING DOWN his erstwhile business associate with the use of an unlicensed firearm, ELISEO TIO Y TORCUATO was charged with murder and violation of PD 1866 (Illegal Possession of Firearm and Ammunitions).

On 15 January 1998 the trial court convicted Eliseo Tio of the crime of murder qualified by treachery and with the aggravating circumstance of use of unlicensed firearm and sentenced him to reclusion perpetua. He was also ordered to indemnify the heirs of the deceased Albert Lestino P50,000.00 for his death, P350,345.00 for actual damages, P500,000.00 for moral damages, and P11,880,000.00 for the loss of his earning capacity.[1]

On 28 October 1996 at around 8:00 o’clock in the evening Richard Acop and accused Eliseo Tio, both contractors by profession, arrived at the Baguio First Hotel to talk business with fellow contractors. They joined their friends Ramos Guibac, Hilario Tacio and Merino Tande who were drinking and huddled in one corner.

Richard Acop, as principal witness for the prosecution, narrated that he left the group momentarily to make a long distance call to his wife in Hong Kong. It took him about thirty (30) minutes to make the call after which he returned to the Baguio First Hotel to rejoin his group. Not long after, Albert Lestino arrived in the company of Hector Ramirez, Reynaldo Acop, Gundre Eckman and Erickson Felipe. They occupied another table, except Lestino who instead of joining his group proceeded to the table of Richard and company and sat next to accused Tio.

Albert Lestino then asked Richard to buy some drinks but the latter said he had no money. Richard gave in only after Lestino talked to the restaurant manager and guaranteed payment of the bill. The conversations were at most jovial until an argument between Tio and Lestino disrupted the gaiety of the moment. Tio was trying to collect an unpaid debt from Lestino and was incensed by the inability of Lestino to settle his obligation. Tio stood up and strongly tapped the shoulder of Lestino. Richard and Erickson pacified Tio and took him out of the restaurant.

Meantime, Lestino transferred to the other table occupied by Reynaldo Acop, Gundre Eckman and Hector Ramirez. When Tio and Richard returned, Tio joined the table to which Lestino had transferred. Before long, the two (2) were again engaged in a heated conversation. The proverbial cool heads once again intervened and Richard and Reynaldo were able to persuade Tio who was then fuming mad to leave the restaurant for a while. To placate his friend Eliseo Tio, Richard had to tell him that the debt owing him was small and even promised him a share in the project which they would follow up the next day. Tio then went to his car parked outside the restaurant. For his part, Richard entered the comfort room to relieve himself while Reynaldo went back to the restaurant to be with his friends again.

With no one around to thwart his plans, with a gun in hand, Tio hurriedly rushed back to the restaurant. He positioned himself at the right side of Lestino, and from a distance of about two (2) to three (3) meters away, aimed and fired his gun at Lestino who was then sitting complacently with his hands resting on the table. Lestino clutched his breast indicating that he had been hit and tried to stand up. But Tio fired a second shot hitting Lestino again with the bullet piercing his body and causing him to sway, move forward and fall on the ground.

With the exception of Richard, who had just come from the comfort room, Reynaldo and Gundre, everyone scampered for safety. Richard and Reynaldo lunged at Tio and grappled with him for the possession of his gun. Reynaldo held Tio’s shoulder while Richard grasped his hands. With Tio thus immobilized, Gundre wrested the weapon from him. In the confusion that followed, Tio broke loose and escaped.

In the aftermath, Larry Tacio and Richard Acop, who opted to stay behind, found Lestino bleeding profusely and in the throes of death. Tacio beckoned Richard to look for a taxi but the latter returned empty-handed. Police officers responding to the distress call by a restaurant personnel, came and rushed the victim to the nearest hospital. But any attempt to revive him proved futile; he died soon after.

Aside from Richard Acop, the prosecution also presented five (5) other eyewitnesses: (a) Gundre Eckman who testified that after wresting possession of the weapon, he brought the weapon home, confused as to what to do with it. But the following morning, 29 October 1996, he together with Reynaldo Acop immediately turned over the fatal weapon, its magazine and five (5) live ammos to the Baguio police; (b) Reynaldo Acop, Hilario Tacio, Ramos Guibac and a certain Romulo Antonio, a bystander, all gave substantially identical testimonies and positively identified accused Eliseo Tio y Torcuato alias "Eliseo Tawangen" as the gunwielder in the slaying of Albert Lestino.

Dr. John Tinoyan noted in his autopsy report that Albert Lestino suffered two (2) gunshot wounds - one entering the right chest and exiting at the back, left of his body with the trajectory of the bullet going downward but sideways from the right to the left and the other, hitting the right elbow and fragmenting on impact, with some fragments entering the lungs. According to Dr. Tinoyan, the downward trajectory of the bullet would show that the victim was at a lower elevation while his assailant was at a higher plane.

Ireneo Ordonio, a ballistics expert, averred that the .45-caliber empty shell found at the scene of the crime was fired from the firearm recovered from Tio. In any event, the .45 caliber pistol with Serial No. 2391869 used by Tio turned out to be an unlicensed firearm, and Records from the Firearms and Explosives Unit at Camp Crame showed that Tio was not a registered firearm holder of any kind and caliber.

Norma Lestino, the widow of the victim, testified that her family spent a total of P350,345.00 from 28 October to 4 November 1996 for the wake and funeral of her husband. At the time of his death, Albert was forty-seven (47) years old and was earning about P60,000.00 a month as a contractor.

In his defense, accused Eliseo Tio painted a different picture altogether. He narrated that in the morning of 28 October 1996 he went to Camp Dangwa, particularly to the office of one Col. Martin, to follow up on his friend Lestino’s application for a permit to carry a firearm. At the office, he was told by Col. Martin that the permit was not yet available. Soon after, he proceeded to the Department of Public Works and Highways (DPWH) in Wangal, La Trinidad, Benguet, to attend to other matters. There he met Richard Acop, a fellow contractor. After taking their lunch, the two (2) decided to go up to Baguio City.

Upon request of Richard, the two (2) dropped by his house in Tublay, Benguet, as he (Richard) wanted to get something from there. Tio waited inside the car as Richard went up his house. Upon Richard’s return, Tio noticed a .45-caliber pistol tucked in his waist. When he called Richard’s attention on the matter, the latter nonchalantly quipped: "Kabutbuteng ti panawen tattan” (This is only for our defense as these are dangerous times).[2] Thereafter they proceeded to Baguio and stopped at the Baguio First Restaurant for a drink. While they were drinking, Lestino arrived and joined them. Not long after, another group consisting of Erickson Felipe, Reynaldo Acop, Gundre Eckman and Hector Ramirez also entered the restaurant. The newcomers sat at another table.

Trouble started, according to Tio, when Richard disclosed to Lestino that the licenses for a project in which the two (2) were sharing were not yet available. Lestino irately asked Richard in a loud voice: "Why is it like that?" At this juncture, both Lestino and Richard stood up and a heated exchange followed. Richard then left in a huff through the back door. Thinking that Richard had gone to the comfort room, Tio followed but Richard was nowhere inside. As he was leaving the comfort room, two (2) gunshots were heard, and when he reentered the restaurant, he saw Richard Acop tucking a gun in his waist while Lestino was lying wounded on the floor. Instinctively he exclaimed: "Why, what happened there?"

In reply, Richard said: "You run away with his gun (referring to Lestino)!" But before he could react, Erickson rushed in front of him, grabbed the gun from Richard and fled towards the backdoor. But Tio was quick to grab him saying the gun was Lestino’s. Erickson stopped and obligingly handed Tio the weapon who snatched the gun and held it with outstretched arms. Reynaldo, Gundre and Richard grappled with Tio for the gun. In the scuffle, Tio accidentally squeezed the trigger and the gun went off twice. Finally, Gundre succeeded in wresting the weapon from him. Now frightened, Tio escaped after overhearing that Gundre’s companions were exhorting the latter to shoot him. He sought refuge in the house of his friend Col. Martin who advised him to surrender to the authorities, as he did.

In support of Tio’s claim, Lea Cruz narrated that at around 9:00 in the evening of 28 October 1996 while she and her live-in partner were dining inside the Baguio First Restaurant, she noticed two (2) men arguing loudly in another table. She described one of them as tall and thin, and the other, as short and stout. According to Lea, the stout man drew a gun but the thin one deftly grabbed it from the stout man. Without his gun, the stout man sat down while the thin man, now in possession of the weapon, remained standing. Despite the intervention of cooler heads, the thin man shot the stout man twice. When brought to the City Jail several days after, Lea positively asserted that Tio who was then in detention was not the man who fired the fatal shots on the night of the incident.[3]

The trial court dismissed as a fabrication and a concoction the story of accused Eliseo Tio and gave unqualified credence to the testimonies of the prosecution witnesses. In its opinion, the eyewitness accounts were not tainted by any material contradictions nor by any serious flaws. Their declarations impressed the lower court as the truth because of their consistency in the essentials of the shooting incident. In contrast, accused Tio could only offer denials at the same time admitting that on that occasion he was holding a gun that fired twice.[4]

Accused-appellant in this appeal bewails the failure of the trial court to appreciate in his favor evidence showing with manifest clarity the fact that somebody else squeezed the trigger of the gun that fired the fatal shot. First, he points to the bullet (Exh. "T") allegedly recovered from the crime scene which, according to the ballistics report, was not fired from the .45 caliber gun with Serial No. 2391869. He seems to be suggesting that the unexplained presence of an "alien" bullet shows that another .45 caliber gun other than the gun with Serial No. 2391869 was fired on the day of the incident. Second, the fact that Gundre Eckman, instead of waiting for the responding police to surrender the gun he recovered from accused-appellant, fled after the shooting and, worse, brought the murder weapon home with him to cover up the real killer, his cousin Richard Acop.

This nitpicking does not sit well with this Court. We subscribe to the view of the trial court that the records do not satisfactorily explain the presence of the .45 caliber slug (Exh. "T") not fired from the murder weapon. On the matter -

However, his ballistic report included also a finding on an alleged caliber .45 slug (Exhibit T) as not being fired from the said caliber 45 (Exhibit P). How this came about that a caliber 45 slug (Exhibit T) was allegedly recovered from the crime scene is not disclosed by the record as none of the prosecution witnesses and the defense witnesses ever testified recovering a caliber 45 slug (Exhibit T) was never explained. It seems it was inserted among the items sent for ballistics examination. What definitely were recovered were a caliber 45 empty shell. (Exhibit S) by police officer Filog and the caliber 45 pistol (Exhibit P) wrested by Gundre Eckman from the accused Tio x x x x

Be that as it may, ballistics expert Ireneo Ordiano of the NBI was careful to say that he does not know actually whether the caliber 45 slug was actually recovered from the crime scene x x x All he can say was that it was submitted to him for ballistics examination to determine whether it was fired from the 45 caliber pistol.[5]

The allegation by accused-appellant that Gundre Eckman failed to surrender the murder weapon immediately after the incident to tamper with vital evidence and cover up the tracks of his cousin Richard Acop is specious. It is a futile and pathetic effort on the part of accused-appellant to mislead and emasculate the damning prosecution evidence. In contrast, we discern no falsity in Gundre Eckman’s explanation that he took the murder weapon home for no other reason than to ensure the integrity of a vital evidence. Granting that Eckman’s behavior was irrational in view of the proximity of the police station to his residence, we are not disposed to ascribe ill motive on his part for different people react differently to a given situation or type of situation, and there is no standard form of human behavioral response where one is confronted with a strange or frightful experience.[6]

Accused-appellant also contends that the relationship of the eyewitnesses to Richard Acop (Gundre Eckman, Reynaldo Acop, Erickson Felipe and Richard Acop are cousins) and their failure to report the matter to the police immediately are reasons enough to cast their testimonies with the umbrage of untruth.

We do not agree. Relationship per se does not give rise to a presumption of bias or ulterior motive, nor does it ipso facto impair the credibility or tarnish the testimony of the witnesses.[7] The eyewitnesses were not shown to have any ill feeling or resentment against accused-appellant as to prevaricate and impute upon him a heinous crime. Besides, how do we account for Romulo Antonio, a mere chance witness, who not only fingerpointed Tio as the assailant but whose account of the incident dovetailed with those of the other eyewitnesses as to the manner and time of the killing?

For the trial court, and we agree, eyewitness accounts of the six (6) prosecution witnesses not only reinforced and corroborated each other but were also confirmed by the physical evidence. Their testimonies indisputably indicated that they were present during the incident and saw accused-appellant aim and pump two (2) fatal bullets into the victim at close range. Well settled is the doctrine that on the issue of the credibility of the witnesses, appellate courts will not generally disturb the findings of the trial courts.

Accused-appellant could only offer in his defense denials and a story worthy of a master fibber. His version of the incident was effectively demolished when the trial court surgically dissected his story and brought out the stench of his untruth. Thus, says the trial court: (a) It is hard to believe that Tio, after hearing shots coming from inside the restaurant while he was outside, would still enter the restaurant; (b) It is incredible that Erickson Felipe who was told by Richard to run away with the gun would actually stop to show it to Tio with open palms as if offering to give it just because the latter had asked to be shown the gun; (c) The claim by accused-appellant that after he grabbed the gun from the open palms of Erickson Felipe, he held his gun outstretched, pointing it to no one in particular and it was then that Richard and his cohorts grappled with him for the possession of the weapon is not worthy of belief; (d) It is incredible that had Richard been the assailant all the six (6) eyewitnesses would not testify that he was the culprit; and, (e) Had Richard been in fact the culprit, human experience would dictate that he flee the scene of the crime and not linger around, and worse, go to the police station or bring the victim to the hospital.[8]

The trial court correctly appreciated treachery. It was ineluctably shown that accused-appellant, with a gun in hand, suddenly and unexpectedly rushed into the restaurant from the outside and fired at the defenseless and unarmed victim while his hands were resting on the table.

In two (2) separate Informations, accused-appellant was charged with murder and use of unlicensed firearm. Pursuant however to the amendment to the second paragraph of Sec. 1 of P.D. 1866 by RA 8294, the use of unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance. As such, the illegal possession of unlicensed firearm is not separately punished.[9]

On the civil liability, accused-appellant must indemnify the heirs of the deceased P50,000.00 for his death. The moral damages of P500,000.00 may be reduced to P50,000.00 for being excessive.

The award of P350,345.00 as actual damages should be disallowed since no substantiating evidence was presented other than the bare assertion by the widow of Albert Lestino that her family incurred funeral and burial expenses.

At the time of his death, Albert Lestino was forty-seven (47) years old and earning P60,000.00 as a contractor or about P720,000.00 a year. In conformity with the formula laid down in Villarey Transit v. CA,[10] and Davila v. PAL,[11] the loss of earning capacity is computed thus -

Net Earning = Life x Gross Annual - Necessary

Capacity Expectancy Income Living Expenses

= 2 (80 - 47) x (P720,000.00 - P360,000.00)

= 22 (reduced to 13) x P360,000.00

= P4,680,000.00

Following the above formula, the life expectancy of the deceased Engr. Albert Lestino is twenty-two (22) years. Considering however the vagaries of the construction business where the award of projects and profits are not always guaranteed but are mostly dependent on a number of variables, e.g., competition, economic and political climate, and the like, we can only envisage the deceased to be playing actively in the construction business for another thirteen (13) years, i.e., until he reaches the age of sixty (60), assuming he does not incur losses. This being so, his life expectancy must be reduced from thirty-three (33) years per trial court’s computation, to thirteen (13) years. Thus, the amount of P11,880,000.00 arrived at by the trial court (computed as follows: 33 x P360,000.00) as net earning loss must be reduced to P4,680,000.00 (multiplying 13 years by P360,000.00).

Under Art. 248 of The Revised Penal Code, the penalty for murder is reclusion perpetua to death. The heinous crime of murder, being aggravated by use of unlicensed firearm and mitigated by voluntary surrender which offsets the aggravating circumstance, the lesser penalty shall be imposed.

WHEREFORE, the Decision of the Regional Trial Court of Baguio City finding accused-appellant Eliseo Tio y Torcuato guilty of Murder and sentencing him to reclusion perpetua and to pay the heirs of the deceased P50,000.00 as civil indemnity is AFFIRMED with the MODIFICATION that the amount of P500,000.00 for moral damages is reduced to P50,000.00 and the sum of P11,880,000.00 as net income loss is likewise reduced to P4,680,000.00. The amount of P350,345.00 awarded by the trial court for actual damages is deleted. Costs against accused-appellant.

SO ORDERED.

Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.