This case affirms the constant stance of this Court regarding the ascendancy of an eyewitness account over a bare denial. Such an account gains more credence when, as in the case at bar, the witness is himself a victim.

On the night of March 6, 1987, a police officer who had been pursuing a suspected felon was shot right in front of the heavily guarded Lopa Compound at No. 2300 Robert St., Pasay City. Lt. Franklin Garfin was slain in the shooting incident but his companion, Cpl. Cesar Garcia escaped unharmed. The man they were supposed to arrest, a certain Joseph Williamson Dizon, was also shot and sustained back and arm injuries. Three criminal informations were filed against the man who was allegedly responsible for all of these. Thus, on March 7, 1987, petitioner Cornelio Bautista, the security guard on duty at the Lopa Compound the previous night, was charged with murder, attempted murder and frustrated murder. At the joint trial of these three cases, which were consolidated upon order of the court, the prosecution relied on the eyewitness testimony of Cpl. Garcia, as well as on the physical evidence.

According to Cpl. Garcia, on March 6, 1987, while responding to a report that a "pot session" was in progress at the Pasay Sports Complex, he and several operatives of the Pasay City Police heard somebody shout "hold-up," then saw a man, later identified as Dizon, fleeing from the site. Pat. Isidro Ramasamy and Lt. Garfin ran after Dizon, while Cpl. Garcia commandeered a taxicab to intercept him. Just when they had cornered him at Robert St. near Libertad St., a man holding a shotgun suddenly emerged from the Lopa Compound and aimed his firearm at them. Lt. Garfin immediately informed the man, herein petitioner, that they were policemen, to which petitioner allegedly retorted, "E, ano kung pulis ka!" From a distance of about twenty meters, petitioner fired once and hit Lt. Garfin who fell to the ground. Cpl. Garcia tried to aid his fallen superior but petitioner trained the gun at him and fired two more shots. He managed to duck and hide behind Dizon, using the latter as a shield. Amid the confusion, Dizon was able to escape Cpl. Garcia's clutches and even told petitioner that his captors were holdup men. The taxi driver who had conveyed Cpl. Garcia to, and had lingered at, the crime scene yelled at petitioner, telling him that he was firing at police officers and that the real holdup man was the one beside him. Dizon ran and he, too, was shot by petitioner, hitting him in the back and left arm. The diversion allowed Cpl. Garcia to jump into the taxicab and call for help. When he returned, another police officer, Cpl. Ricardo Santos, was already talking to the men at the Lopa Compound. He immediately pointed to petitioner as the assailant. Petitioner was arrested and his service firearm was confiscated by the apprehending officers. Later, Lt. Garfin was brought to the Manila Sanitarium Hospital where he was pronounced dead on arrival.^[1]

Autopsy conducted by National Bureau of Investigation Medico-Legal Officer Alberto M. Reyes attributed Lt. Garfin's death to severe hemorrhage secondary to shotgun wounds.^[2] Ballisticsexamination by the NBI further showed that the pellets recovered from Lt. Garfin's body matched the markings on the test shells fired from petitioner's shotgun.^[3] The NBI also subjected petitioner, the victim, two other guards at the Lopa Compound, and a civilian agent to paraffin tests, but only petitioner tested positive for nitrates.^[4]

Petitioner denied all the charges against him and claimed that he never left the Lopa Compound during the shooting. He apparently heard somebody being chased outside so, as the guard on duty, he grabbed his shotgun and went to the Vito Cruz side of the compound's fence to investigate, while the other guards, who were also armed, proceeded to the gate facing Robert St. When he heard shots being fired in the direction of his companions, he immediately took cover. Responding policemen arrested him and his fellow guards and confiscated their service firearms. Explaining the positive results of the paraffin test on him, he said that it was because he cleaned all their firearms on March 6, 1987.^[5]

The defense also presented the testimony of another security guard, Anastacio Mangrubang, to corroborate petitioner's tale of innocence.^[6]

After trial on the merits, Judge Sergio I. Amonoy of the Regional Trial Court of Pasay City, Branch 115, rendered judgment, the decretal portion of which reads thus:

"All the premises considered, the Court finds the accused CORNELIO BAUTISTA Y BAGALAYOS guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code absent any modifying circumstance and applying the indeterminate sentence law, penalized (sic) him as principal to suffer the penalty of prision mayor maximum to reclusion temporal medium or 10 years and 1 day to 17 years and 4 months, to reimburse the heirs of Franklin Garfin P25,000.00, (for) funeral expense(s,) and P15,000.00, miscellaneous, (for) for food and drinks during (the) wake, and others, to indemnify them P30,000.00 for his death, and to pay the cost of the proceedings.

For insufficiency of the evidence the Court acquits the accused of the charges of Frustrated Murder (2 counts).

SO ORDERED."

Aggrieved by his conviction for murder, petitioner elevated his case to the Court of Appeals, which affirmed the same with modification in its assailed decision promulgated on April 5, 1995. Thus:

"WHEREFORE, in view of the foregoing, the decision appealed herefrom is hereby AFFIRMED subject to the sole modification that the P25,000.00, P15,000.00 and P30,000.00 damages awarded to the heirs of the deceased are all hereby deleted.

SO ORDERED."

Petitioner's motion for reconsideration of said decision was denied by the appellate court in its Resolution of August 22, 1995.

He is now before this Court still proclaiming his innocence and insisting that the trial court's factual findings were contrary to the People's evidence. He also claims that the affidavit of desistance of Lt. Garfin's widow should have been considered in his favor.

The petition must be denied.

Before proceeding any further, the Court reiterates its deference to the factual findings of the trial court, especially when, as in this case, there appears no cogent reason why its conclusions should not be upheld.

Petitioner maintains that he never went out of the Lopa Compound on the night in question. Yet, he did not offer any reason why, among the guards in the compound, he was the one resolutely pinpointed by Cpl. Garcia as the man who shot them and killed Lt. Garfin. The fact that Cpl. Garcia changed his statement when he was recalled to the witness stand does not affect the credibility of his earlier assertions,^[7] considering that he positively identified petitioner as the culprit in no less than three occasions.^[8] "Positive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which if not substantiated by clear and convincing evidence are negative and self-serving evidence undeserving of weight in law."^[9] Neither did he convincingly explain why he was the only one who tested positive for nitrates. His excuse - that he cleaned their firearms that day - is too much of a coincidence to be believed. Moreover, he had absolutely no answer for the State's evidence matching the deformed shotgun pellets recovered from Lt. Garfin's body to his service firearm.

The failure of the prosecution to present other witnesses is not fatal to the People's case. Cpl. Garcia's testimony sufficiently enlightened the court on the circumstances surrounding the death of Lt. Garfin. The physical evidence corroborated the material points of his eyewitness account; hence, no other proof was necessary to convince the court that petitioner, indeed, committed the crime of which he was charged. Certainly, the prosecution cannot be faulted for not presenting more witnesses; criminals are convicted, not on the number of witnesses against them, but on the credibility of the testimony of even one witness who is able to convince the court of the guilt of the accused beyond a shadow of a doubt; in other words, not quantitatively but qualitatively. It has the freedom of strategy and exclusive choice of witnesses, whose testimony may either be relevant or merely corroborative. Its failure to present witnesses whom the defense believes should be questioned in court is no failure at all but a matter of prosecutorial discretion.

Petitioner further claims that the charges against him should have been dropped when, on March 16, 1989, Lt. Garfin's widow executed an affidavit of desistance, withdrawing "all proceedings had and all documentary evidence presented by the private prosecution." This likewise deserves scant consideration. It must be remembered that murder is a public crime, a crime committed as much on the victim as on the State. Although a private prosecutor is at times allowed by the fiscal or public prosecutor to handle a trial, it must not be forgotten that the latter retains control of the criminal proceedings.

In the case at bar, nothing on record asserts that the public prosecutor assented to the withdrawal by the private offended party. Mrs. Garfin's desistance did not extinguish the crime imputed to petitioner, for this is not one of the accepted modes of stifling criminal liability enumerated in Article 89 of the Revised Penal Code.^[10] If at all, such desistance had the effect of, to use respondent court's language, "voluntarily releasing" petitioner from the civil liability arising from his commission of the crime.

The Court is convinced that petitioner was correctly convicted of the crime of murder. As alleged in the information, the shooting of Lt. Garfin was attended by treachery, for, without any provocation on his part, he was suddenly shot while in the lawful performance of his official duties. The attack came even when he had already identified himself as a police officer. Lt. Garfin absolutely had no opportunity to put up a defense against petitioner, and the physical evidence shows that only the latter's firearm was discharged. At no time was petitioner's life ever put in peril. As we held in Dinglasan, "(a)n unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack constitutes alevosia, and the fact that the attack was frontal does not preclude the presence of treachery."^[11]

WHEREFORE, the instant petition for review is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CR No. 08780 dated April 5, 1995, as well as its resolution dated August 22, 1995, are hereby AFFIRMED with the modification that the P30,000.00 indemnity imposed by the lower court for the death of the victim, as well as the cost of the proceedings, are restored.

SO ORDERED.

Narvasa, C.J. (Chairman), Kapunan, andPurisima, JJ., concur.

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