FIRST DIVISION
[ G.R. No. 104663, July 24, 1997 ]PEOPLE v. DAVID SALVATIERRA Y EGUIA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DAVID SALVATIERRA Y EGUIA, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE v. DAVID SALVATIERRA Y EGUIA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DAVID SALVATIERRA Y EGUIA, ACCUSED-APPELLANT.
D E C I S I O N
KAPUNAN, J.:
For the fatal stabbing of Charlie Fernandez y De Guzman, the Regional Trial Court of Manila, Branch XLIX,[1] meted accused David Salvatierra y Eguia the penalty of reclusion perpetua and the payment of the amounts of P30,183.25 as
actual damages and P50,000.00 as indemnity to the heirs of the victim, plus the cost of suit (Criminal Case No. 90-88985).
At around 4:30 in the afternoon of August 17, 1990, Charlie Fernandez, a vendor of "palamig" was walking along M. de la Fuente Street,[2] going towards the direction of Quiapo at the opposite side of the street.[3] Suddenly, three (3) persons met him. One of them was appellant David Salvatierra, who lunged a pointed instrument at Charlie. The latter was able to parry the thrust but appellant swung the instrument anew hitting Charlie at the left breast. Thereafter, all three persons scampered away.[4] Charlie still managed to walk home to tell his father about the incident but suddenly collapsed.[5] He was taken immediately to the hospital where he was operated on.
The assault was witnessed by Milagros Martinez, an ambulant vendor of fish and salted eggs who stopped by to rest at the right side of J. Fajardo St. in Sampaloc, Manila near the Trabajo Market. Milagros told the incident only to her daughter.[6] She did not immediately report the incident to the police authorities because she was afraid.
Charlie's father, Marciano Fernandez, reported the crime to the police at Station No. 4 at about 5:40 that afternoon. Since the victim could not be interviewed as he was then undergoing operation, the police and Marciano Fernandez proceeded to the crime scene to get information about the incident but their effort was fruitless as no one in the area would volunteer to identify the culprits.[7] A relative of the victim informed the police that appellant was one of the suspects in the crime.[8]
The next day or on August 18, 1990, 20-year-old Charlie expired. His death was caused by hemorrhage secondary to the stab wound on the anterior chest wall.[9] The medical report prepared by Dr. Sergio Alteza, Jr., medico-legal officer of the U.S.T. Hospital, showed that Charlie sustained, aside from the stab wound on the chest, another stab wound on the left forearm and an incised wound on the left wrist.[10]
Marciano Fernandez went back to Police Station No. 4 to inform the authorities that his son had died. He was advised to report the matter to the Homicide Section of the Western Police District (WPD).[11] where an "advance information" was prepared indicating that four (4) unidentified persons perpetrated the crime.[12]
On November 15, 1990 at about 4:35 in the afternoon, Police Station No.4 received a complaint that appellant was creating a commotion along Miguelin Street, Sampaloc, Manila. He was thereby taken in custody by Pat. Celso Tan and two other policemen who later found out that appellant was a suspect in the killing of Charlie Fernandez.[13] Later that day, appellant was turned over to the WPD.
Milagros Martinez learned about the apprehension of appellant from her children. Later, she was approached by Marciano Fernandez who persuaded her to testify on what she witnessed on August 17, 1990. Upon being informed that appellant was transferred to the WPD, the two proceeded to said station where Milagros executed a sworn statement implicating appellant to the crime.[14] In a police line-up, Milagros pinpointed appellant as the person who stabbed Charlie. Thereafter, Pat. Amores prepared a booking sheet and arrest order which appellant signed.[15]
On November 19, 1990, appellant was charged with murder in an information which reads as follows:
Apellant put up the defense of alibi alleging that at 4:30 in the afternoon of August 17, 1990, he was having merienda with his wife and children at their home in 459 Miguelin Street, Sampaloc, Manila and could not possibly be near the Trabajo Market.[18]
Appellant further testified that in the afternoon of November 15, 1990, he had an altercation with a woman in their neighborhood who caused his arrest for the crime of malicious mischief. He was detained for a few hours at Police Station No. 4. Later. Police from WPD arrived and picked him up and brought him to the Homicide Section where he was investigated, interrogated and detained for the stabbing of one Charlie Fernandez on August 17, 1990.[19] After two (2) days, he was brought out of his cell where a man and two (2) women were made "to view" him. One of the women was the mother of the victim while the other one was someone he was not acquainted with. The latter was the witness against him who pointed to him as the killer of Charlie in the police line-up.[20] Two days later, he was made to sign a document the contents of which he was not allowed to read. When he insisted on reading the document, his head was hit with a key and he was forced to sign it. The document was the booking and information sheet.[21]
In this appeal, he makes the following assignment of errors:
I.-THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ARREST, INVESTIGATION AND DETENTION OF THE ACCUSED-APPELLANT FOR THE OFFENSE CHARGED IN THE INSTANT CASE WAS VIOLATIVE OF HIS CONSTITUTIONAL RIGHTS.[22]
II.-THE COURT A QUO ERRED IN FINDING THAT TREACHERY ATTENDED THE KILLING OF THE DECEASED CHARLIE FERNANDEZ.[23]
III.-THE COURT A QUO GRAVELY ERRED IN ACCEPTING AT FACE VALUE THE VAGUE AND AMBIGUOUS TESTIMONY OF MILAGROS MARTINEZ AND UTILIZING SUCH INCONCLUSIVE TESTIMONY AS THE BASIS FOR CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER.[24]
Anent the first error, appellant claims that his constitutional right against warrantless arrests was violated because "(t)here is nothing on record show that (his) arrest xxx for the minor offense of malicious mischief was effected by virtue of a warrant."[25] Indeed, appellant's arrest on suspicion that he was involved in the killing of Charlie Fernandez was made almost three (3) months after the commission of the crime on August 17, 1990 and only after he had been taken in police custody for a minor offense. As such, because no warrant had been obtained during the 3-month intervening period between the commission of the crime and his apprehension, his arrest would have ordinarily been rendered unconstitutional and illegal inasmuch as even warrantless arrests made within shorter periods like ten (10) days[26] are illegal. The element of immediacy between the time of the commission of the offense and the time of the arrest had not been complied with. It should be stressed that section 5(b) of Rule 113 of the Rules of Court has excluded situations under the old rule which allowed a warrantless arrest provided that the offense "has in fact been committed."[27]
While these arguments may be valid, appellant's claim that the case against him should be dismissed for violation of his constitutional rights, must fail. Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived.[28] This is the first time that appellant is raising this issue as he did not even move for the quashal of the information before the trial court on the ground of illegal arrest.[29] Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial.[30] Verily, the illegal arrest of appellant is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint and where the trial was free from error.[31]
Neither may appellant successfully assert that the case should be dismissed because during custodial investigation and the police line-up he was deprived of his constitutional right to counsel. To bolster his assertion, appellant quotes People v. Campos[32] and People v. Vasquez,[33] where the Court in effect held that during custodial investigation, an accused should be assisted by counsel. Those cases, however, should be distinguished from the case at bar because in the former, the extrajudicial confessions of the accused during custodial investigation were the only bases for conviction, unlike in this case where there are other pieces of evidence by which the culpability of the appellant may be founded.
Moreover, in People v. Lamsing,[34] the Court categorically stated as follows:
What needs scrutiny is the testimony of eyewitness Milagros Martinez. In assailing the testimony of Milagros, appellant points out that it is flawed by inconsistencies on material matters such as while she testified that she did not know the identity of the other assailants, she could delineate appellant's features his curly hair, mustache and piercing ("nanlilisik") eyes.[36]
On the very material point of identification of appellant as the perpetrator of the crime, she testified as follows:
Aside from the said "inconsistency" regarding the identity of the perpetrators of the crime, appellant points to other "inconsistencies" in her testimony such as: (a) she first testified that the three persons "met" the victim in the sense that, as appellant puts it in his brief, "the three (3) persons and the victim were walking towards each other until they met," but later she said that they were only standing on that occasion; (b) she claimed that she "never told anyone" about the incident and yet Marciano Fernandez was able to locate her; (c) although no one knew the identity of the assailant, Milagros went to Police Station No. 4 upon appellant's apprehension, to identify him; (d) Marciano Fernandez asked her to testify on November 16, 1990 and they went to the police the following day; and (e) it was impossible for Milagros to have remembered the features of appellant considering the lapse of time between the commission of the crime and appellant's arrest because, contrary to the trial court's finding, she was not so startled by the incident that she continued vending after its occurrence.[39]
Obviously geared at derailing the eyewitness' credibility, such "inconsistencies, " however, are collateral matters which are too trivial and minor to affect the credibility of Milagros and the evidentiary value of her testimony.[40] Minor discrepancies in the testimony of a witness even enhances her credibility, as these minor discrepancies could also indicate that the response given by the witness was honest and unrehearsed.[41] In fact, when an unlettered person like Milagros testifies, inconsistencies in her testimony may be disregarded without impairing her credibility.
The evidence actually shows that Milagros Martinez, an ambulant fish vendor who finished only grade 3, was witness to the crime. She never told anybody about what she saw except to her daughter.
How she was tracked down by Marciano Fernandez to testify intrigues appellant indeed. But this was a marketplace where people were at least familiar to each other since they were selling their wares regularly in said place and where word got around easily. It was, therefore, not highly improbable that word spread around pointing to Martinez as a possible witness.
Martinez did not report the crime to the police immediately because she was afraid. Appellant was a known tough guy in the area. He was a member of the "Bahala Na Gang" and said to belong to a family of killers.[42]
The trial court correctly observed that witnesses to a horrendous crime do not involve themselves by reporting the commission of such crimes because of the attendant and consequent peril to their lives and those of their loved ones. Unless the victims are relatives or close friends of such witnesses, the latter ordinarily keep mum about such incidents and attend to their usual business[43] just as what Milagros exactly did in this case.
In crimes such as this, the police, as part of their investigatory work certainly had leads and knew more or less who the suspects were. All what was necessary was a credible witness to confirm their suspicions. Thus, when appellant was arrested, Milagros Martinez was persuaded by Marciano Fernandez to confirm if appellant was indeed the killer.
Only sufficient proof of a sinister motive could have discredited Milagros as a credible eyewitness. This the defense failed to provide. Its insinuations that Marciano Fernandez colluded with Milagros to pin down appellant as the killer of Charlie is bereft of factual foundation and, therefore, they serve no purpose. Having failed to prove such ill motive certainly demolished appellant's protestations on the credibility of the prosecution's sole eyewitness. Her testimony is thus entitled to full faith and credit[44] more so because Milagros was even presented by the defense as a hostile witness to prove that she "was not around during the incident.[45] Unfortunately, aside from a repetition of her story for the prosecution, the defense elicited no more than the added information that she did not inform the parents of the victim on what she saw because she and her children were afraid of the accused who belonged to a "family of killers."[46]
Contrary to appellant's claim, treachery attended the killing of Charlie Fernandez. Appellant's claim that there was no treachery because two of the three assailants "did nothing" and that "the stabbing of the victim could probably be attributed to a whim or impulse and not a planned and deliberate act"[47] is too preposterous for comfort. Treachery is present when the offender adopts means, methods or forms in the execution of a felony, which insure its commission without risk to himself arising from the defense which the offended party might make.[48]
The prosecution proved beyond reasonable doubt that all these elements were present in the case at bar. They were sufficiently proven by the testimony of Milagros Martinez whose credibility the defense failed to destroy. Appellants and his two (2) companions suddenly appeared, surrounded the victim and appellant stabbed him at least two times. The victim was unarmed. He did not provoked nor attack the assailants. He was alone walking on a street with people around. He had no inkling whatsoever that an assailant and his cohorts were lurking and about to assault him.
The fact that the victim and the malefactors were facing each other during the assault does not negate the presence of treachery. Even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed.[49] Neither may the presence of "defense wounds" on the body of the victim rule out treachery, Charlie's act of parrying with his bare hands the first thrust inflicted by appellant was an instinctive reaction to an attack. After all, the law recognizes man's natural instinct to protect himself from impending danger.[50]
The trial court correctly disregarded appellant's alibi. It is elementary that for alibi to prosper, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable.[51] Even if the testimony of appellant's wife that the distance between the crime scene and their house was about twenty minutes' walk away, still, it was not impossible for appellant to be in the crime scene and return home for merienda not only by walking but by means of transportation like pedicabs and jeepneys which abounded in the area.[52]
The killing of Charlie Fernandez, being qualified by treachery, constituted murder as defined and penalized by Article 248 of the Revised Penal Code punishable by reclusion perpetua in the absence of any aggravating or mitigating circumstances.[53] The proper imposable penalty being an indivisible one, appellant shall not benefit from the provisions of the Indeterminate Sentence Law.[54]
The trial court also correctly imposed actual damages of P30,183.25, which amount was duly proven[55] and not contested by the defense, apart from the civil indemnity of P50,000.00.
WHEREFORE, the decision of the trial court convicting appellant David Salvatierra of the crime of murder for the killing of Charlie Fernandez is hereby AFFIRMED in toto. Cost de oficio.
SO ORDERED.
Padilla, Bellosillo, and Vitug, JJ., concur.
Hermosisima, Jr., J., on leave.
[1] Presided by Judge Romeo J. Callejo.
[2] Id., at 16.
[3] Id., at 32.
[4] Id., at 11-12.
[5] Id., at 13.
[6] Id., at 39.
[7] Id., at 21-22.
[8] Id., at 24.
[9] Exhibit "F."
[10] Exhibit "E."
[11] TSN, January 23, 1991, pp. 19-23.
[12] Exhibit "G."
[13] TSN, January 21, 1991, p. 19.
[14] Exhibit "A."
[15] Exhibit "B."
[16] Rollo, p. 4.
[17] Record, p. 4.
[18] TSN, March 13, 1991, p. 17.
[19] Id., at 5-6.
[20] Id., at 8-10.
[21] Id, at 11-12.
[22] Appellant's Brief, p. 13.
[23] Id., at 17.
[24] Id., at 20.
[25] Id., at 13.
[26] People v. Manzano, 248 SCRA 239, 245 (1995).
[27] People v. Monda, Jr., 228 SCRA 115, 127 (1993).
[28] People v. Codilla, 224 SCRA 104, 117 (1993).
[29] People v. Samson, 244 SCRA 146, 150 (1995).
[30] People v. Macam 238 SCRA 306, 315 (1994).
[31] People v. De Guzman, 224 SCRA 93, 100 (1993).
[32] 202 SCRA 387 (1991).
[33] 196 SCRA 564 (1991).
[34] 248 SCRA 471, 480 (1995).
[35] This overturns the holding of the Court in People v. Macam (supra) that any identification of an uncounselled accused made in a police line-up at the start of the custodial investigation is inadmissible in evidence.
[36] Appellant's Brief, pp. 21-22.
[37] TSN, February 6, 1991, pp. 16-20.
[38] Id., at 46-47.
[39] Appellant's Brief, pp. 21-24.
[40] People v. Hacbang, 164 SCRA 441,447 (1988); People v. Tonhawan, 166 SCRA 638, 645 (1988).
[41] People v. Montante, 192 SCRA 483 (1990).
[42] TSN, March 13, 1991, p.9.
[43] Rollo, p. 17.
[44] People v. Soto, 163 SCRA 602, 606 (1988).
[45] People v. Prado, 254 SCRA 531, 538 (1996).
[46] TSN, March 13, 1991, p. 9.
[47] TSN, March 13, 1991, p. 4.
[48] Appellant's Brief, p. 9.
[49] People v. Parangan, 231 SCRA 682, 691 (1994).
[50] People v. Abrenica, 252 SCRA 54, 62 (1996) citing People v. Abapo, 239 SCRA 469 (1994).
[51] People v. Nuestro, 240 SCRA 221,229 (1995).
[52] People v. Tanote, 238 SCRA 443, 455 (1994).
[53] TSN, February 6, 1991, pp. 35-37.
[54] Art. 64 (1), Revised Penal Code.
[55] Serrano v. Court of Appeals, 247 SCRA 203, 211 (1995).
At around 4:30 in the afternoon of August 17, 1990, Charlie Fernandez, a vendor of "palamig" was walking along M. de la Fuente Street,[2] going towards the direction of Quiapo at the opposite side of the street.[3] Suddenly, three (3) persons met him. One of them was appellant David Salvatierra, who lunged a pointed instrument at Charlie. The latter was able to parry the thrust but appellant swung the instrument anew hitting Charlie at the left breast. Thereafter, all three persons scampered away.[4] Charlie still managed to walk home to tell his father about the incident but suddenly collapsed.[5] He was taken immediately to the hospital where he was operated on.
The assault was witnessed by Milagros Martinez, an ambulant vendor of fish and salted eggs who stopped by to rest at the right side of J. Fajardo St. in Sampaloc, Manila near the Trabajo Market. Milagros told the incident only to her daughter.[6] She did not immediately report the incident to the police authorities because she was afraid.
Charlie's father, Marciano Fernandez, reported the crime to the police at Station No. 4 at about 5:40 that afternoon. Since the victim could not be interviewed as he was then undergoing operation, the police and Marciano Fernandez proceeded to the crime scene to get information about the incident but their effort was fruitless as no one in the area would volunteer to identify the culprits.[7] A relative of the victim informed the police that appellant was one of the suspects in the crime.[8]
The next day or on August 18, 1990, 20-year-old Charlie expired. His death was caused by hemorrhage secondary to the stab wound on the anterior chest wall.[9] The medical report prepared by Dr. Sergio Alteza, Jr., medico-legal officer of the U.S.T. Hospital, showed that Charlie sustained, aside from the stab wound on the chest, another stab wound on the left forearm and an incised wound on the left wrist.[10]
Marciano Fernandez went back to Police Station No. 4 to inform the authorities that his son had died. He was advised to report the matter to the Homicide Section of the Western Police District (WPD).[11] where an "advance information" was prepared indicating that four (4) unidentified persons perpetrated the crime.[12]
On November 15, 1990 at about 4:35 in the afternoon, Police Station No.4 received a complaint that appellant was creating a commotion along Miguelin Street, Sampaloc, Manila. He was thereby taken in custody by Pat. Celso Tan and two other policemen who later found out that appellant was a suspect in the killing of Charlie Fernandez.[13] Later that day, appellant was turned over to the WPD.
Milagros Martinez learned about the apprehension of appellant from her children. Later, she was approached by Marciano Fernandez who persuaded her to testify on what she witnessed on August 17, 1990. Upon being informed that appellant was transferred to the WPD, the two proceeded to said station where Milagros executed a sworn statement implicating appellant to the crime.[14] In a police line-up, Milagros pinpointed appellant as the person who stabbed Charlie. Thereafter, Pat. Amores prepared a booking sheet and arrest order which appellant signed.[15]
On November 19, 1990, appellant was charged with murder in an information which reads as follows:
That on or about August 17, 1990 in the City of Manila, Philippines, the said accused, conspiring and confederating with three others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one CHARLIE FERNANDEZ Y DE GUZMAN, by then and there stabbing the latter twice with a bladed weapon on the chest, thereby inflicting upon him mortal stab wounds which were direct and immediate cause of his death thereafter.At his arraignment, appellant pleaded not guilty to the crime charged.[17]
Contrary to law.[16]
Apellant put up the defense of alibi alleging that at 4:30 in the afternoon of August 17, 1990, he was having merienda with his wife and children at their home in 459 Miguelin Street, Sampaloc, Manila and could not possibly be near the Trabajo Market.[18]
Appellant further testified that in the afternoon of November 15, 1990, he had an altercation with a woman in their neighborhood who caused his arrest for the crime of malicious mischief. He was detained for a few hours at Police Station No. 4. Later. Police from WPD arrived and picked him up and brought him to the Homicide Section where he was investigated, interrogated and detained for the stabbing of one Charlie Fernandez on August 17, 1990.[19] After two (2) days, he was brought out of his cell where a man and two (2) women were made "to view" him. One of the women was the mother of the victim while the other one was someone he was not acquainted with. The latter was the witness against him who pointed to him as the killer of Charlie in the police line-up.[20] Two days later, he was made to sign a document the contents of which he was not allowed to read. When he insisted on reading the document, his head was hit with a key and he was forced to sign it. The document was the booking and information sheet.[21]
In this appeal, he makes the following assignment of errors:
I.-THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ARREST, INVESTIGATION AND DETENTION OF THE ACCUSED-APPELLANT FOR THE OFFENSE CHARGED IN THE INSTANT CASE WAS VIOLATIVE OF HIS CONSTITUTIONAL RIGHTS.[22]
II.-THE COURT A QUO ERRED IN FINDING THAT TREACHERY ATTENDED THE KILLING OF THE DECEASED CHARLIE FERNANDEZ.[23]
III.-THE COURT A QUO GRAVELY ERRED IN ACCEPTING AT FACE VALUE THE VAGUE AND AMBIGUOUS TESTIMONY OF MILAGROS MARTINEZ AND UTILIZING SUCH INCONCLUSIVE TESTIMONY AS THE BASIS FOR CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER.[24]
Anent the first error, appellant claims that his constitutional right against warrantless arrests was violated because "(t)here is nothing on record show that (his) arrest xxx for the minor offense of malicious mischief was effected by virtue of a warrant."[25] Indeed, appellant's arrest on suspicion that he was involved in the killing of Charlie Fernandez was made almost three (3) months after the commission of the crime on August 17, 1990 and only after he had been taken in police custody for a minor offense. As such, because no warrant had been obtained during the 3-month intervening period between the commission of the crime and his apprehension, his arrest would have ordinarily been rendered unconstitutional and illegal inasmuch as even warrantless arrests made within shorter periods like ten (10) days[26] are illegal. The element of immediacy between the time of the commission of the offense and the time of the arrest had not been complied with. It should be stressed that section 5(b) of Rule 113 of the Rules of Court has excluded situations under the old rule which allowed a warrantless arrest provided that the offense "has in fact been committed."[27]
While these arguments may be valid, appellant's claim that the case against him should be dismissed for violation of his constitutional rights, must fail. Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived.[28] This is the first time that appellant is raising this issue as he did not even move for the quashal of the information before the trial court on the ground of illegal arrest.[29] Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial.[30] Verily, the illegal arrest of appellant is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint and where the trial was free from error.[31]
Neither may appellant successfully assert that the case should be dismissed because during custodial investigation and the police line-up he was deprived of his constitutional right to counsel. To bolster his assertion, appellant quotes People v. Campos[32] and People v. Vasquez,[33] where the Court in effect held that during custodial investigation, an accused should be assisted by counsel. Those cases, however, should be distinguished from the case at bar because in the former, the extrajudicial confessions of the accused during custodial investigation were the only bases for conviction, unlike in this case where there are other pieces of evidence by which the culpability of the appellant may be founded.
Moreover, in People v. Lamsing,[34] the Court categorically stated as follows:
Finally, although it is not assigned as error, accused-appellant complains that he was made to join a police lineup where he was identified by three persons, including Elizabeth De los Santos, without the assistance of counsel. It was settled in Gamboa v. Cruz (G.R. No. 56291, June 27, 1988, 162 SCRA 642, 651), however, that the right to counsel guaranteed in Art. III, Section 12(1) of the Constitution does not extend to police lineups because they are not part of custodial investigations. The reason for this is that at that point, the process has not yet shifted from the investigatory to the accusatory. The accused's right to counsel attaches only from the time that adversary judicial proceedings are taken against him.[35] (Italization supplied.)In the same vein, appellant may not validly claim that dismissal of the case against him should be a matter of course because he signed the booking and information sheet without the assistance of counsel. Granting that affixing the signature of an accused is covered by the constitutional mandate requiring assistance of counsel to an accused during custodial investigation, this piece of evidence may be disregarded without the least diluting the prosecution's case against appellant. The booking and information sheet is not the only incriminatory evidence against appellant.
What needs scrutiny is the testimony of eyewitness Milagros Martinez. In assailing the testimony of Milagros, appellant points out that it is flawed by inconsistencies on material matters such as while she testified that she did not know the identity of the other assailants, she could delineate appellant's features his curly hair, mustache and piercing ("nanlilisik") eyes.[36]
On the very material point of identification of appellant as the perpetrator of the crime, she testified as follows:
FISCAL PERALTA:Even on cross-examination, she remained steadfast on the issue of identification of appellant. Thus:
Did you come to know the name of that person whom you said (was) the victim of that stabbing?
WITNESS:
A certain Charlie, sir.
FISCAL PERALTA:
What about that person whom you identified a while ago as the one who stabbed the victim Charlie? When did you come to know the name David Salvatierra?
WITNESS:
When I went to the Homicide Section and there was a police lineup made by the police officers there consisting of eight (8) persons and I was made to point to that person who stabbed the victim and I pointed to that person, sir.
FISCAL PERALTA:
Could you recall, Madam Witness, when was that police lineup conducted?
WITNESS:
November 17, 1990, sir.
FISCAL PERALTA:
Now, the incident happened on August 17, 1990. Why is it that it was only November 17, 1990, that you identified the assailant David Salvatierra?
WITNESS:
Because he was not yet arrested and I was also afraid, sir.
xxx
FISCAL PERALTA:
Now, that person whom you said you saw stabbed the victim together with two (2) other companions and the person whom you pointed to in the police lineup conducted by the police on November 17, 1990, if you see him again, can you still identify him?
WITNESS:
Yes, sir.
FISCAL PERALTA:
Will you please look around the courtroom and point to him?
COURT:
Fiscal, what are you asking this witness?
FISCAL PERALTA:
The one who was pointed to by the witness in the police station during the police lineup because she already identified the accused as the one who stabbed, Your Honor.
FISCAL PERALTA:
(to the Witness)
Will you please point to him?
WITNESS:
That person, sir.
INTERPRETER:
Witness pointed to a persons (sic) who, when asked, stated his name as David Salvatierra.[37]
ATTY. CORTES:From this testimony, it is clear that although Milagros did not know appellant's name, she remembered his features and recognize him as the perpetrator of the crime. Indeed, she could not have failed to identify him because she was only eight (8) meters away when the assault occurred. Visibility was not a problem because while there were some pedestrians in the area, traffic light was light and could not have obstructed Milagros' view. Furthermore, it was 4:30 in the afternoon when the day was still bright.
What pecularities (sic) did these companions of Salvatierra have that could possibly help you identify them when you see them again?
WITNESS:
When those persons will be showed (sic) to me, I could remember their faces, sir. I just do not know how to describe their appearances but whenever they will be showed (sic) to me, I could possibly identify them, because of my low educational attainment.
ATTY. CORTES:
Not even their noses, you could not describe?
WITNESS:
I could not tell you, sir, but I fully remember him.
INTERPRETER:
Witness is pointing to the Accused.
WITNESS: (continuing)
Because he has a moustache and he has a curly hair and at that time, sir, his eyes were fiercing (sic) 'nanlilisik.' [38]
Aside from the said "inconsistency" regarding the identity of the perpetrators of the crime, appellant points to other "inconsistencies" in her testimony such as: (a) she first testified that the three persons "met" the victim in the sense that, as appellant puts it in his brief, "the three (3) persons and the victim were walking towards each other until they met," but later she said that they were only standing on that occasion; (b) she claimed that she "never told anyone" about the incident and yet Marciano Fernandez was able to locate her; (c) although no one knew the identity of the assailant, Milagros went to Police Station No. 4 upon appellant's apprehension, to identify him; (d) Marciano Fernandez asked her to testify on November 16, 1990 and they went to the police the following day; and (e) it was impossible for Milagros to have remembered the features of appellant considering the lapse of time between the commission of the crime and appellant's arrest because, contrary to the trial court's finding, she was not so startled by the incident that she continued vending after its occurrence.[39]
Obviously geared at derailing the eyewitness' credibility, such "inconsistencies, " however, are collateral matters which are too trivial and minor to affect the credibility of Milagros and the evidentiary value of her testimony.[40] Minor discrepancies in the testimony of a witness even enhances her credibility, as these minor discrepancies could also indicate that the response given by the witness was honest and unrehearsed.[41] In fact, when an unlettered person like Milagros testifies, inconsistencies in her testimony may be disregarded without impairing her credibility.
The evidence actually shows that Milagros Martinez, an ambulant fish vendor who finished only grade 3, was witness to the crime. She never told anybody about what she saw except to her daughter.
How she was tracked down by Marciano Fernandez to testify intrigues appellant indeed. But this was a marketplace where people were at least familiar to each other since they were selling their wares regularly in said place and where word got around easily. It was, therefore, not highly improbable that word spread around pointing to Martinez as a possible witness.
Martinez did not report the crime to the police immediately because she was afraid. Appellant was a known tough guy in the area. He was a member of the "Bahala Na Gang" and said to belong to a family of killers.[42]
The trial court correctly observed that witnesses to a horrendous crime do not involve themselves by reporting the commission of such crimes because of the attendant and consequent peril to their lives and those of their loved ones. Unless the victims are relatives or close friends of such witnesses, the latter ordinarily keep mum about such incidents and attend to their usual business[43] just as what Milagros exactly did in this case.
In crimes such as this, the police, as part of their investigatory work certainly had leads and knew more or less who the suspects were. All what was necessary was a credible witness to confirm their suspicions. Thus, when appellant was arrested, Milagros Martinez was persuaded by Marciano Fernandez to confirm if appellant was indeed the killer.
Only sufficient proof of a sinister motive could have discredited Milagros as a credible eyewitness. This the defense failed to provide. Its insinuations that Marciano Fernandez colluded with Milagros to pin down appellant as the killer of Charlie is bereft of factual foundation and, therefore, they serve no purpose. Having failed to prove such ill motive certainly demolished appellant's protestations on the credibility of the prosecution's sole eyewitness. Her testimony is thus entitled to full faith and credit[44] more so because Milagros was even presented by the defense as a hostile witness to prove that she "was not around during the incident.[45] Unfortunately, aside from a repetition of her story for the prosecution, the defense elicited no more than the added information that she did not inform the parents of the victim on what she saw because she and her children were afraid of the accused who belonged to a "family of killers."[46]
Contrary to appellant's claim, treachery attended the killing of Charlie Fernandez. Appellant's claim that there was no treachery because two of the three assailants "did nothing" and that "the stabbing of the victim could probably be attributed to a whim or impulse and not a planned and deliberate act"[47] is too preposterous for comfort. Treachery is present when the offender adopts means, methods or forms in the execution of a felony, which insure its commission without risk to himself arising from the defense which the offended party might make.[48]
The prosecution proved beyond reasonable doubt that all these elements were present in the case at bar. They were sufficiently proven by the testimony of Milagros Martinez whose credibility the defense failed to destroy. Appellants and his two (2) companions suddenly appeared, surrounded the victim and appellant stabbed him at least two times. The victim was unarmed. He did not provoked nor attack the assailants. He was alone walking on a street with people around. He had no inkling whatsoever that an assailant and his cohorts were lurking and about to assault him.
The fact that the victim and the malefactors were facing each other during the assault does not negate the presence of treachery. Even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed.[49] Neither may the presence of "defense wounds" on the body of the victim rule out treachery, Charlie's act of parrying with his bare hands the first thrust inflicted by appellant was an instinctive reaction to an attack. After all, the law recognizes man's natural instinct to protect himself from impending danger.[50]
The trial court correctly disregarded appellant's alibi. It is elementary that for alibi to prosper, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable.[51] Even if the testimony of appellant's wife that the distance between the crime scene and their house was about twenty minutes' walk away, still, it was not impossible for appellant to be in the crime scene and return home for merienda not only by walking but by means of transportation like pedicabs and jeepneys which abounded in the area.[52]
The killing of Charlie Fernandez, being qualified by treachery, constituted murder as defined and penalized by Article 248 of the Revised Penal Code punishable by reclusion perpetua in the absence of any aggravating or mitigating circumstances.[53] The proper imposable penalty being an indivisible one, appellant shall not benefit from the provisions of the Indeterminate Sentence Law.[54]
The trial court also correctly imposed actual damages of P30,183.25, which amount was duly proven[55] and not contested by the defense, apart from the civil indemnity of P50,000.00.
WHEREFORE, the decision of the trial court convicting appellant David Salvatierra of the crime of murder for the killing of Charlie Fernandez is hereby AFFIRMED in toto. Cost de oficio.
SO ORDERED.
Padilla, Bellosillo, and Vitug, JJ., concur.
Hermosisima, Jr., J., on leave.
[1] Presided by Judge Romeo J. Callejo.
[2] Id., at 16.
[3] Id., at 32.
[4] Id., at 11-12.
[5] Id., at 13.
[6] Id., at 39.
[7] Id., at 21-22.
[8] Id., at 24.
[9] Exhibit "F."
[10] Exhibit "E."
[11] TSN, January 23, 1991, pp. 19-23.
[12] Exhibit "G."
[13] TSN, January 21, 1991, p. 19.
[14] Exhibit "A."
[15] Exhibit "B."
[16] Rollo, p. 4.
[17] Record, p. 4.
[18] TSN, March 13, 1991, p. 17.
[19] Id., at 5-6.
[20] Id., at 8-10.
[21] Id, at 11-12.
[22] Appellant's Brief, p. 13.
[23] Id., at 17.
[24] Id., at 20.
[25] Id., at 13.
[26] People v. Manzano, 248 SCRA 239, 245 (1995).
[27] People v. Monda, Jr., 228 SCRA 115, 127 (1993).
[28] People v. Codilla, 224 SCRA 104, 117 (1993).
[29] People v. Samson, 244 SCRA 146, 150 (1995).
[30] People v. Macam 238 SCRA 306, 315 (1994).
[31] People v. De Guzman, 224 SCRA 93, 100 (1993).
[32] 202 SCRA 387 (1991).
[33] 196 SCRA 564 (1991).
[34] 248 SCRA 471, 480 (1995).
[35] This overturns the holding of the Court in People v. Macam (supra) that any identification of an uncounselled accused made in a police line-up at the start of the custodial investigation is inadmissible in evidence.
[36] Appellant's Brief, pp. 21-22.
[37] TSN, February 6, 1991, pp. 16-20.
[38] Id., at 46-47.
[39] Appellant's Brief, pp. 21-24.
[40] People v. Hacbang, 164 SCRA 441,447 (1988); People v. Tonhawan, 166 SCRA 638, 645 (1988).
[41] People v. Montante, 192 SCRA 483 (1990).
[42] TSN, March 13, 1991, p.9.
[43] Rollo, p. 17.
[44] People v. Soto, 163 SCRA 602, 606 (1988).
[45] People v. Prado, 254 SCRA 531, 538 (1996).
[46] TSN, March 13, 1991, p. 9.
[47] TSN, March 13, 1991, p. 4.
[48] Appellant's Brief, p. 9.
[49] People v. Parangan, 231 SCRA 682, 691 (1994).
[50] People v. Abrenica, 252 SCRA 54, 62 (1996) citing People v. Abapo, 239 SCRA 469 (1994).
[51] People v. Nuestro, 240 SCRA 221,229 (1995).
[52] People v. Tanote, 238 SCRA 443, 455 (1994).
[53] TSN, February 6, 1991, pp. 35-37.
[54] Art. 64 (1), Revised Penal Code.
[55] Serrano v. Court of Appeals, 247 SCRA 203, 211 (1995).