Accused-appellant Judy Matore y Guevarra was charged with murder in an information^[1] which reads:

That on or about December 13, 1994, at Sitio Ambulong, Limon Sur, Municipality of Looc, Province of Romblon, and within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot one RICHARD SAMINADO with a firearm, with which said accused was then conveniently provided, thereby inflicting mortal wounds upon said Richard Saminado which caused his immediate death.

At 5:00 in the afternoon of December 13, 1994, prosecution witness Jimmy Gregorio was on his way to work as security guard at VILCO Construction in Sitio Ambulong, Looc, Romblon, when his tricycle had a flat tire in front of accused-appellant's house. While he was inflating his tire, he saw accused-appellant hiding behind a coconut tree holding a long firearm. In the meantime, the victim, Richard Saminado, was standing in front of the house of his brother Johnny Saminado, which was across accused-appellant's house. Then, accused-appellant shouted, "Richard, halika na, magpatayan tayo." Fearful of being involved and realizing the danger in the situation, Jimmy pushed his tricycle despite the flat tire. When he reached a certain distance, he heard two successive shots coming from accused-appellant's direction. Looking back, Jimmy saw accused-appellant letting loose a third shot towards the direction of Johnny's house. After inflating the tricycle's tire, he proceeded to report for duty at the VILCO Construction.

While Johnny was inside his house, he heard somebody shout, "Richard, lumabas ka diyan, magpatayan tayo." He also heard three successive gunshots. Johnny went out to investigate, and saw the bloodied Richard at the door, who told him that accused-appellant shot him. Johnny informed the barangay captain that Richard was shot. The barangay captain, in turn, informed the police.

Policemen took pictures of Richard's cadaver before it was brought to Dr. Leticia Formilleza's residence in Looc, Romblon for autopsy in the evening of December 13, 1994. Dr. Formilleza found two gunshot wounds on Richard's body. She concluded that the cause of Richard's death was shock due to massive internal bleeding due to penetrating gunshot wound with injuries to the major blood vessel of the heart and lungs.^[2]

Isabelita Saminado testified that she incurred expenses for the wake and interment of Richard amounting to P40,250.00.

Accused-appellant denies the killing and interposes the defense of alibi. He maintains that he only left his work as caretaker of the Municipal Cemetery at around 5:00 in the afternoon and dropped by the Municipal Hall before he went home. At 6:30 in the evening of that day, he was informed that Richard was at his mother's house brandishing a gun and creating trouble. He asked his daughter to report the matter to the police while he rested and ate dinner. He, then, proceeded to his mother's house at about 8:00 in the evening. When he learned that the policemen were at Johnny's house, he went there together with Elenita where he found Richard already dead. He was never investigated by the police. The following day, Johnny asked for his help in securing a lot inside the Municipal Cemetery for Richard's burial. He ascribed ill motives to Johnny and Jimmy. According to him, Johnny believes that accused-appellant was the bodyguard of one Harrieto Pastor who was an enemy of their father due to a land dispute. He also insists that Jimmy testified falsely against him because Isabelita gave him a tricycle and P3,000.00 monthly allowance.

Elenita Matore testified that while gathering firewood, she saw Richard Saminado together with Johnny and Isabelita in a tricycle parked in front of Johnny's house. Richard and Johnny were arguing with each other. Johnny told Richard to hide his gun. She then saw Richard and Isabelita grappling for the possession of the gun. After a while, she heard accused-appellant's mother shout, "Tabang, tabang."^[3] She also saw Richard pointing a gun in the direction of the house of accused-appellant's father shouting, "Crisostomo, lumabas ka diyan, papatayin ko kayong lahat." When the policemen arrived at 8:30 in the evening, she asked them to arrest Richard. The policemen informed her that they could not do so as Richard was already dead.

Another defense witness, Eugenio Guevarra, testified that he saw prosecution witness Jimmy at the latter's place of work at 4:45 in the afternoon of December 13, 1994 until 6:00 o'clock in the morning of December 14, 1994.

The trial court gave credence to the prosecution's evidence and rendered a decision,^[4] the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, this Court finds accused Judy Matore y Guevarra GUILTY beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act 7659 and hereby sentences him to suffer the penalty of Reclusion Perpetua.

Accused is further ordered to indemnify the heirs of the victim Richard Saminado the sum of TWENTY ONE THOUSAND TWO HUNDRED FIFTY (P21,250.00) PESOS as actual damages and ONE HUNDRED THOUSAND (P100,000.00) PESOS as compensatory and moral damages.

Hence, the instant appeal. Accused-appellant asserts that Jimmy Gregorio could not have been present when accused-appellant shot Richard. Accused-appellant points out that in his direct examination Jimmy testified that he looked back after hearing three successive shots.^[5] When the trial court asked clarificatory questions after his cross-examination, Jimmy was confronted with his statement in his affidavit wherein he stated, thus:

T: Ano ang iyong nasaksihan na may kaugnayan sa pagkabaril at pagkamatay ni RICHARD SAMINADO?

S: Ako po noong petsa December 13, 1994 humigit kumulang mag-aala-sais ng hapon samantalang minamaneho ko and aking tricycle ay naramdaman ko na ako ay na-plat-an ng goma sa tapat ng bahay ng tatay ni JUDY MATORE sa Sitio Ambulong, Limon-Sur, Looc, Romblon. Samantalang ako ay nagbubomba ng aking plat na goma ay napansin ko itong si JUDY MATORE na nagkukubli sa puno ng niyog na may hawak na baril na mahaba na di magazine.

T: Ano ang ginawa mo noong makita mo itong si Judy Matore na nagkukubli sa puno ng niyog na may hawak na baril?

S: Ang ginawa ko po ay itinulak ko iyong tricycle na papalayo para hindi ako madamay kung sino man and kanyang inaabangan.

T: Ano pa ang sumunod na pangyayari kung mayroon man?

S: Dahil tapos na po ang aking pagbobomba ng goma ako po ay umalis na doon sa lugar na iyon at saka baka ako ay madamay pa.

T: Nalaman mo ba kung mayroon taong nabaril doon sa lugar na pinagkakitaan mo kay JUDY MATORE noong makarinig ka ng tatlong sunod-sunod na putok?

S: Naibalita po lamang sa akin nitong si JOHNNY SAMINADO noong gabi ring iyon samantalang ako ay naka-duty sa Vilco Construction doon din sa Brgy. Limon-Sur, Looc, Romblon. Naibalita po sa akin na ang kanyang kapatid na si RICHARD ay nabaril doon sa tapat ng bahay ng tatay ni JUDY MATORE noong mga bandang humigit kumulang sa alas-sais ng hapon ng December 13, 1994.^[6] (Italics supplied)

The trial court's interpretation of Jimmy's statement in his affidavit, on the one hand, and his testimony during direct examination, on the other hand, seems contradictory. Nonetheless, the contradiction is more apparent than real. In fact, this point was clarified during the trial court's questioning during rebuttal, thus:

Court:

Q: Mr. Gregorio you stated during your direct examination on February 25, 1997 that they knew, meaning the heirs of the deceased, that you were a witness to the alleged shooting incident by the accused because Johnny Saminado saw you there, is that correct?

A: Yes, your honor.

Q: Did you see Richard Saminado prior to the shooting incident?

A: Yes, your honor.

Q: And you also saw the accused Judy Matore?

A: When Judy Matore was shouting, your honor.

Q: Before he shouted, you did not see him?

A: I did not notice him when he was not yet shouting.

Q: So you only noticed him when you heard "Richard, lumabas ka diyan, magpatayan tayo"?

A: Yes, your honor.

Q: And that was the time you moved your tricycle to another area?

A: He already shot Richard Saminado when I moved my tricycle.
Court:

Q: But you did not leave the area?

A: After the shooting your honor I saw the one who shot returned and that was the time I moved from the place.

Q: So you saw that it was Richard Saminado who was shot by Judy Matore?

A: Yes, your honor.

Q: And yet when you testified also on February 25, 1997, when you were asked the question by this Court "How did you come to know the death of Richard Saminado?" your answer was "When they brought the cadaver to the doctor for autopsy they passed my post and I asked them what was that and they told me it was Richard Saminado shot by Judy Matore"?

A: No, your honor, after they have gone from the doctor that was the time they passed my post and asked them what was that and that was the time I know Richard Saminado was already dead.

Q: So when you saw Judy Matore shooting Richard Saminado you never knew that Richard Saminado was hit, is that your contention now?

A: Yes, your honor.^[7]

After having clarified Jimmy's statement in his affidavit, the trial court became even more convinced after finding that:

x x x [t]here is neither principle nor logic on why he would testify falsely against the accused Judy Matore. It took him more than a month before he decided to come forward with what he knew. And understandably so as there is always the inherent fear of reprisal. This does not diminish his credibility as a witness. Delay of a witness in revealing to the authorities what he knows about a crime does not render his testimony false, for the delay may be explained by the natural reticence of most people and their abhorrence to get involved in a criminal case (citation omitted). Once the decision was made, however, he severed all ties he may have had with his community as he sought protection under the Witness Protection Program. He abandoned his friends, relatives and even his twin jobs as tricycle driver and security guard to testify against Judy Matore. This Court is not convinced that the witness made such a great sacrifice for the price of a tricycle and P3,000.00 as claimed by the defense just to testify falsely against the accused. As he later opined, he was already the owner of a tricycle before the killing and that the P3,000.00 he was receiving came from the funds of the Witness Protection Program. Standing alone, Jimmy Gregorio's testimony is sufficient to produce a conviction beyond reasonable doubt as it appears to be trustworthy and reliable.

This Court is bound by the trial court's assessment of Jimmy's credibility. Long settled is the rule that the assessment of the credibility of a witness falls primarily within the province of the trial judge. He is in a better position to determine whether a witness is telling the truth or merely narrating a concocted tale. He could weigh conflicting testimonies because he heard the witnesses themselves, observed their deportment and manner of testifying, and had full access to the vital aids of determining truth or falsehood, such as the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. Unless the trial judge plainly overlooked certain facts, the substance and value of which, if considered, might affect the result of the case, his assessment on credibility must be respected.^[8]

Besides, accused-appellant could only offer a defense of denial and alibi. Denial is intrinsically a weak defense. To merit credibility, it must be supported by strong evidence of nonculpability. To be sure, it is negative, self-serving evidence that cannot be given evidentiary weight greater than that of credible witnesses who testify on affirmative matters. Time-tested is the rule that between the positive assertions of prosecution witnesses and the negative averments of the accused, the former indisputably deserve more credence and evidentiary weight. Accordingly, the categorical statements of the prosecution witnesses must, perforce, prevail over the bare denials by the accused. Where there is positive identification of the accused as the perpetrators of the crime, their denial and alibi cannot be sustained.^[9]

Alibi is a defense that can easily be fabricated. To serve as basis for acquittal, it must be established with clear and convincing evidence. For it to prosper, the accused must prove not only that they were absent from the scene of the crime at the time of its commission, but also that it was physically impossible for them to have been present then.^[10]

In this case, accused-appellant was not able to prove that it was physically impossible for him to be at the scene of the crime. He insists that at the time of the shooting incident, he was in his house on the other side of the town proper of Looc, Romblon. Nevertheless, it appears that his house is only a few kilometers away from the scene of the crime. The trial court even concluded that if accused-appellant left his place of work at 5:00 o'clock in the afternoon and reached the Municipal Hall at 5:10 in the afternoon before going home, he would still have had ample opportunity to be at the scene of the crime.^[11]

However, we do not agree with the trial court's conclusion that the killing was qualified by treachery. The trial court concluded that the killing of the unarmed and unsuspecting victim with a deadly weapon was sudden and unexpected. Based on Jimmy's account, he saw accused-appellant, who was hiding behind a coconut tree holding a long firearm, shout, "Richard, halika na magpatayan tayo" and fired three successive shots.

We are not persuaded. There is treachery when the offender commits any of the crimes against persons by employing means, methods, or forms of attack that tend directly and specially to insure the execution of the crime without risk arising from the defense that the offended party might make. For treachery to exist, two essential elements must concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and (b) the said means of execution was deliberately or consciously adopted.^[12] The essence of treachery is that the attack comes without warning and in a swift, deliberate and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape.^[13] Treachery cannot be established where no particulars are known regarding the manner in which the aggression was carried out, or how it began or developed.^[14] Treachery cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as the killing itself.^[15]

The prosecution failed to prove the presence of treachery as convincingly and conclusively as the killing. Although Richard was unarmed, the trial court only presumed that he was also caught by surprise or that the shooting was sudden and unexpected thereby affording Richard no opportunity to defend himself, retaliate or escape. Indeed, prior to the shooting he shouted "Richard, halika na magpatayan tayo."

We note that Jimmy did not see the actual shooting of Richard as he was preoccupied with inflating his tire. He also testified that it was only after hearing three successive shots that he looked back towards the direction of accused-appellant.^[16] Immediately after the shooting, Jimmy never knew if Richard was hit.^[17] He only confirmed that Richard was dead when the cadaver was brought back after the autopsy. Also, the evidence shows that the fatal wound sustained by Richard was in front, particularly on the chest.^[18] If at all, this tends to show that Richard was forewarned or aware at that time that accused-appellant wanted to kill him.^[19] Treachery cannot be appreciated absent any particulars as to the manner by which the aggression was commenced or how the act that resulted in the death of the victim unfolded. It is not sufficient that the means employed by the malefactor brought the desired result. The prosecution must prove that the appellant deliberately and consciously adopted such means, method or manner of attack as would deprive the victim of an opportunity for self-defense or retaliation.^[20] One cannot substitute mere suppositions for a hiatus in the prosecution's evidence. Since the prosecution witness failed to see how the attack had been initiated on the victim, the qualifying circumstance of treachery cannot be applied.^[21]

Without the qualifying circumstance of treachery having been proved beyond reasonable doubt, the killing can only be considered as homicide. The penalty for homicide is reclusion temporal. There being no aggravating nor mitigating circumstance, and applying the Indeterminate Sentence Law, the minimum term of the penalty imposable on accused-appellant is within the range of prision mayor in any of its periods, or from six (6) years and one (1) day to twelve (12) years, and the maximum within the range of reclusion temporal in its medium period, or from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

The trial court awarded actual damages amounting to P21,250.00. However, only the amount of P13,250.00 representing funeral, cemetery and burial expenses were duly receipted in the list of expenses presented.^[22] The list of expenses cannot replace receipts when they should have been issued as a matter of course in business transactions. It is necessary for a party seeking the award of actual damages to produce competent proof or the best evidence obtainable to justify such award. Only substantiated and proven expenses, or those that appear to have been genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the Court. It will not rely merely on suppositions and conjectures.^[23] Thus, the amount of actual damages is reduced to P13,250.00.

The trial court also awarded indemnity amounting to P100,000.00 and denominated it as compensatory and moral damages. This award should be reduced to P50,000.00 in line with prevailing jurisprudence.^[24] This is different and apart from moral damages and is awarded for the death of the victim while moral damages is awarded taking into consideration the pain and anguish of the victim's family brought about by his death.^[25] The award of P50,000.00 as moral damages is proper and reasonable under current case law.^[26]

WHEREFORE, based on the foregoing, the decision of the Regional Trial Court of Calamba, Laguna, Branch 34, is MODIFIED. Accused-appellant Judy Matore y Guevarra is found guilty beyond reasonable doubt of homicide for the death of Richard Saminado. He is sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years of reclusion temporal, as maximum. The award of actual damages is reduced to P13,250.00 and the award of civil indemnity is likewise reduced to P50,000.00. Accused-appellant is further ordered to pay moral damages amounting to P50,000.00. Costs against accused-appellant.

SO ORDERED.

Vitug, and Austria-Martinez, JJ., concur. Davide, Jr., C.J., (Chairman), on official leave.

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^[1] Records, p. 1.
^[2] Records, p. 118.
^[3] Translated as "Lie down, lie down."
^[4] Penned by Judge Antonio M. Eugenio Jr. of the Regional Trial Court of Calamba, Laguna, Branch 34.
^[5] TSN, February 25, 1997, p. 14.
^[6] Exhibit "A", Records, p. 5.
^[7] TSN, September 30, 1997, pp. 3-4.
^[8] People v. Orpilla, G.R. No. 118073, January 25, 2002.
^[9] People v. Beruega, G.R. No. 142931, April 11, 2002.
^[10] Ibid.
^[11] Decision, Records, p. 764.
^[12] People v. Discalsota, G.R. No. 136892, April 11, 2002.
^[13] People v. Aranjuez, 285 SCRA 466 1998.
^[14] People v. Zeta, G.R. Nos. 140901-02, May 9, 2002.
^[15] People v. Discalsota, supra.
^[16] TSN, February 25, 1997, p. 14.
^[17] TSN, September 30, 1997, pp. 3-4.
^[18] TSN, May 26, 1996, p. 5.
^[19] TSN, September 30, 1997, pp. 8-9.
^[20] People v. Gaviola, 327 SCRA 580 2000.
^[21] People v. Ayupan, G.R. No. 140550, February 13, 2002.
^[22] Exhibits "G", "H" & "I", Records, pp. 429-434.
^[23] People v. Bonifacio, G.R. No. 133799, February 5, 2002.
^[24] Pople v. Samson, G.R. No. 124666, February 15, 2002.
^[25] People v. Villamor, G.R. Nos. 140407-08, January 15, 2002.
^[26] People v. Bonifacio, supra.