FIRST DIVISION
[ G.R. No. 130963, November 27, 2001 ]PEOPLE v. MARIANO PASCUA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIANO PASCUA, JR. @ "PEDRO" & JOHN DOES, ACCUSED.
MARIANO PASCUA, JR. @ "PEDRO", ACCUSED-APPELLANT.
DECISION
PEOPLE v. MARIANO PASCUA +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIANO PASCUA, JR. @ "PEDRO" & JOHN DOES, ACCUSED.
MARIANO PASCUA, JR. @ "PEDRO", ACCUSED-APPELLANT.
DECISION
PUNO, J.:
This is an appeal from a decision of the Regional Trial Court of Cabarroguis, Quirino, Branch 32, dated April 28, 1997, in Criminal Case No. 993, finding accused-appellant Mariano Pascua, Jr. guilty beyond reasonable doubt of murder and sentencing him to
suffer the penalty of reclusion perpetua with all the accessory penalties inherent thereto, to indemnify the heirs of the victim the amount of P120,000.00 as and for actual and moral damages, and to pay the costs without subsidiary imprisonment in case of
insolvency.[1]
In an Information dated November 27, 1992, accused-appellant Mariano Pascua, Jr. alias "Pedro", together with four John Does, was charged of Murder, committed as follows:
Upon entering the house, Sanita was surprised to see three other armed men pointing their guns at her two children. One of them, whose face was covered with a bonnet, spoke and Sanita was startled when she heard the voice because it sounded familiar. For a moment, Sanita surreptitiously stared at the man with the bonnet and she became apprehensive when she recognized him to be herein accused-appellant because of the eyes, eyelids, nose, mouth, and beard which were not covered. She knows accused-appellant well because they have been neighbors ever since he was a child. Sanita also knows accused-appellant as the person who threw a hand grenade at Ernesto during a barangay meeting. However, she pretended not to recognize accused-appellant.
The man who approached Sanita in the yard told her that they want to get the .38 caliber gun of Ernesto. When she told him that she did not know anything about it, herein accused-appellant got angry, insisted that Ernesto had a gun and forced her to bring it out. At this point, two of the Quiming children, Aileen and Elizabeth, arrived from the prayer meeting. The two were almost near the fence of the house when they heard somebody whistle from behind. When they looked back, a man poked a gun at them and ordered them to go inside the house and keep quiet. Aileen recognized accused-appellant though he was wearing a bonnet since his face was not totally covered. She has known accused-appellant from childhood and the latter's house is only 300 meters away from them. Not long after, her brother Jonathan followed and was likewise forced into the house by one of the armed men.
Knowing that her husband Ernesto would not be far behind, Sanita stood up and peeped through the jalousy of the window. They were still being heavily guarded by the four men inside the house. It was then that she saw Ernesto walking towards the house, around ten meters away from where she was standing. A man coming from the waiting shed located along the road going to their house followed Ernesto and suddenly shot him on the right arm. Ernesto fell to the ground facing downward. Upon seeing this, accused-appellant and his three companions immediately ran outside. One of them shot Ernesto a second time. Accused-appellant fired the third shot that hit Ernesto on the head. Ernesto's shoulder shook and then his body turned limp. Sanita was so stunned that she kept jumping helplessly. The five malefactors hurriedly ran away. Thereafter, Sanita and her children rushed to Ernesto but he was no longer moving. They brought him to the Quirino Provincial Hospital where he was declared dead on arrival.
A few hours after the incident, several barangay officials and members of the PNP went to the house of Sanita to investigate. When asked if she knew the identity of the assailants, she said "nobody had killed my husband except the one who threw a hand grenade at my husband." It was on November 26, 1992 that she gave her sworn statement[3] to the police and disclosed the name and identity of accused-appellant as one of the assailants. According to Sanita, she was afraid that accused-appellant might escape and hide if she immediately revealed his name before a formal investigation could be conducted. On November 27, 1992, Aileen and Elizabeth executed their joint affidavit.[4]
According to Sanita, during a meeting of barangay officials on August 30, 1992, Ernesto, a barangay captain, and accused-appellant, a barangay councilman, had a misunderstanding and the latter threw a hand grenade at the former. When the hand grenade did not explode, accused-appellant tried to shoot Ernesto twice inside the latter's yard but failed. Sanita was present when the first shooting incident happened.
Three days after the death of Ernesto, accused-appellant and his family left their house at Doña Imelda, Diffun and moved to Ricarte Norte, Diffun. Sanita testified that she spent P20,000.00 for the burial of Ernesto.
Prosecution witness Leslie Chambers-Maalat, a forensic chemist at the PNP Crime Laboratory Service in Camp Crame, Quezon City, testified that as per her Chemistry Report No. C-436-92 dated May 20, 1992,[5] the paraffin casts taken from both hands of accused-appellant gave positive result to the tests for gunpowder nitrates because a blue reaction was produced. She concluded that accused-appellant fired a gun. She said that matches, cigarettes and fertilizers can also test positive for nitrate and produce a blue reaction just like gun powder nitrate. However, she explained that matches and cigarettes produce positive result for nitrate only which is different from gunpowder nitrate. Also, the blue reaction produced from nitrate contained in the former does not have dots and tails whereas the blue reaction produced by gunpowder nitrate has dots and tails.
The autopsy examination conducted by Dra. Mary Jean Baguioen, Medical Officer III at the Quirino Provincial Hospital, showed the following postmortem findings as contained in Autopsy Report No. 92-06-35-99:[6]
The defense relied mainly on denial and alibi.
Accused-appellant testified that in the afternoon of November 14, 1992, he went to Barangay Sta. Cruz, Benito Soliven, Isabela with his wife and two children to attend the wedding of the daughter of his cousin, Ernesto Aquino. He drove his tricycle from the town proper of Diffun to Barangay Sta. Cruz. It was almost dusk when they reached the place. On their way to the house of his cousin, he saw Barangay Captain Sabino Carlos and invited the latter to the pre-nuptial party that night. Accused-appellant parked his tricycle at the house of Kagawad Abraham Martin. There he saw Barangay Secretary Francisco Viernes and several others in a drinking session. The group invited accused-appellant for a drink to which he obliged. Shortly thereafter, they all proceeded to the house of Ernesto Aquino where the pre-nuptial party was being held. The group of accused-appellant drank at the party until 9:00 p.m. They had to stop when trouble erupted from a group of guests who were also drinking. Accused-appellant decided to go upstairs and sleep.
The next day, November 15, 1992, the wedding ceremony was held which ended at around 12 o'clock in the afternoon. Thereafter, accused-appellant and his family left for Diffun town. They passed by Santiago City to have the tricycle painted with the names of their children. Since it was raining and the road going to their house was not passable because it was muddy and slippery, they proceeded to Ricarte Norte and spent the night at the house of accused-appellant's uncle, Fred Antonino. That night, accused-appellant was informed by his uncle about the killing of Barangay Captain Ernesto Quiming.
The following day, November 16, 1992, accused-appellant left in the morning to ply his tricycle from Ricarte to Diffun. He was at the parking area in Diffun when two policemen approached him and invited him to the police station for questioning. At the police headquarters, the Station Commander asked him if he already knew what happened to Ernesto and he answered that his Uncle Fred told him about it the night before. Accused-appellant was informed that he is a suspect in the killing because he was the person last known to have a grudge against the victim. He was then brought to the Crime Laboratory Service in Cauayan, Isabela to undergo paraffin test. That night, accused-appellant slept at Ricarte Norte and only his wife and children went home. Since then, accused-appellant has never returned to Doña Imelda, Diffun.
Accused-appellant admitted that during a barangay meeting sometime in August 1992, he had a misunderstanding with Barangay Captain Ernesto Quiming because the latter wanted to remove him as barangay councilman. He felt embarrassed and humiliated before the barangay officials and so he went home. But he went back to settle the matter with Ernesto. And it was at this time when accused-appellant threw a hand grenade to the victim. He alleged that it was Ernesto who shot him first and he only fired back. He stated that the matter was settled in October 1992 when he asked for forgiveness from Ernesto in the presence of the barangay officials. Since then, he did not have any misunderstanding with Ernesto anymore.
Defense witnesses Abraham Martin, Ernesto Aquino, Sabino Carlos and Francisco Viernes corroborated the alibi that accused-appellant attended a wedding party at Barangay Sta. Cruz, Benito Soliven, Isabela on that fateful day of November 14, 1992. They testified upon request of the father of the accused-appellant.
In this appeal, accused-appellant insists that he was not positively identified by the prosecution witnesses and that it was physically impossible for him to have been at the scene of the crime.
Again, the basic issues in the case at bar deal with the credibility of the prosecution witnesses. It is an established rule that when the issue concerns credibility of witnesses, appellate courts generally will not overturn the findings of the trial courts. The latter courts are in the best position to ascertain and measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses' manner of testifying, demeanor and behavior in court. In the case at bar, we find no basis to depart from the rule.[7]
I. Accused-appellant assails the conclusion of the trial court that he committed the crime because he tested positive for gunpowder nitrate He claims that the testimony of forensic chemist Leslie Chambers-Maalat shows that other substances like fertilizers, matches and cigarettes likewise produce positive results for nitrate, to wit:
Accused-appellant failed to recite the complete testimony of the forensic chemist relevant to the issue. Such selective quotation is unethical and will not exculpate accused-appellant. We quote the relevant testimony of the forensic chemist to avoid its distortion, viz.:
To be sure, negative gunshot residue results do not conclusively mean that a subject did not fire a gun, and positive gunshot residue results do not prove someone fired a gun either. Thus, this test for residue on skin has been challenged in the courts and fell into disfavor and disuse because of the ambiguity in conclusions whether an individual fired a weapon or not.[11]
In our jurisprudence, we have consistently held that paraffin tests are inconclusive, to wit:
II. Accused-appellant contends that it was physically impossible for him to have been at the scene of the crime because on that fateful day he went to Sta. Cruz, Benito Soliven, Isabela to attend the wedding of his cousin's daughter. This was corroborated by the defense witnesses who were all barangay officials of barangay Sta. Cruz.
There is no controversy that accused-appellant went to attend a wedding on November 14, 1992 at Barangay Sta. Cruz, Benito Soliven, Isabela. What is unclear and remains suspect, however, is his allegation that before going to Barangay Sta. Cruz, he came from the house of his employer, Board Member Natividad, in Diffun where he has allegedly been staying even before November 14, 1992. The other defense witnesses testified merely on the fact of his presence at the wedding, but none was presented to prove that accused-appellant came from Diffun town. Accused-appellant could have easily presented Board Member Natividad to corroborate his testimony but he never did. If it were true that accused-appellant was already working for Board Member Natividad at that time, it is perplexing why he did not return to his employer's house after the wedding and instead stayed with his uncle at Ricarte Norte, Diffun on the pretext that he as going to ply his tricycle to earn a living. Also, accused-appellant allegedly bought his tricycle on October 29, 1992 but it is highly dubious that he started to use it for hire only on November 16, 1992 - the day he was invited to the police headquarters for questioning.
The stubborn truth is that accused-appellant came from Doña Imelda, Diffun before going to Barangay Sta. Cruz. We are not convinced that it was physically impossible for him to be in Doña Imelda at the time of the incident considering that it is only around four hours drive going to Barangay Sta. Cruz. The trite defenses of alibi and denial proffered by accused-appellant cannot prevail over the positive and categorical statements of the prosecution witnesses. For this defense to prosper, it must preclude any doubt on the physical impossibility of the accused-appellant to be at the locus criminis at the time of the incident.[13]
III. Accused-appellant avers that it was impossible for Sanita and Aileen Quiming to have recognized him since according to them the assailant was wearing a bonnet. Moreover, when the police arrived at the scene of the crime, Sanita failed to identify the assailant and it was only several days thereafter, or on November 26, 1992, when she executed a sworn statement before the police that she named the accused-appellant. We are not persuaded.
First, prosecution witnesses Sanita and Aileen Quiming positively identified accused-appellant as the one who fired the third and last shot and killed the victim Ernesto. Although accused-appellant was wearing a bonnet, his face was not totally covered because his eyes, nose, mouth and beard were exposed. Sanita and Aileen were also able to recognize accused-appellant through his voice and gestures. Identification by the sound of the voice of the person identified is sufficient and acceptable means of identification where it is established that the witness and the accused had known each other personally and closely for a number of years.[14] It is not disputed that the prosecution witnesses and accused-appellant have been longtime neighbors ever since the latter was a child. Besides, the house was illuminated by a kerosene lamp.
Second, when the police and barangay officials arrived at their house on that fateful day, Sanita told them that "nobody killed my husband except the one who threw a hand grenade to my husband." When accused-appellant testified in court, he openly admitted that he threw a hand grenade at the victim during a meeting of barangay officials sometime in August 1992. It is patently obvious that Sanita was referring to none other than accused-appellant when she made that statement.
Third, during her cross examination, Sanita aptly explained that she intentionally withheld the name of the real culprit because she feared that accused-appellant might escape and hide. Delay or vacillation in making an accusation does not impair the credibility of the witness if such delay is satisfactorily explained.[15] Her apprehension was not absolutely baseless. Indeed, three days after the November 14 incident, accused-appellant left his house and moved his family to Ricarte Norte. On that day, November 16, 1992, accused-appellant was invited to the police headquarters and was informed by the Station Commander of Diffun that he was a suspect in the killing of Ernesto Quiming. It is a well-entrenched doctrine that, without satisfactory explanation, flight is a clear and positive evidence of guilt.[16]
It bears to stress that of the five malefactors, it was only herein accused-appellant who was wearing a bonnet. This is hardly surprising. Accused-appellant is a barangay councilor and everybody in the barangay knows him. He had to make sure that he will not be exposed and that it will be difficult to recognize him. And true enough, in trying to impugn the credibility of the prosecution witnesses, the defense made capital of the fact that the face of the assailant was covered with a bonnet. We accord greater weight however to the straightforward testimonies of the prosecution witnesses that it was accused-appellant who shot the victim on the head. The testimonies of prosecution witnesses Sanita and Aileen Quiming were clear, direct and categorical. Their recollection of the gruesome event remained steadfast and unperturbed even under the grueling cross examination by the defense.
In addition, accused-appellant has failed to impute any bad motive on the part of the prosecution witnesses in pointing to him as the culprit. In contrast, it is accused-appellant who has a clear motive to want to kill the victim. It appears that during a meeting of barangay officials sometime in August 1992, the victim and accused-appellant had a misunderstanding because the former wanted to remove the latter from his position as barangay councilor. Accused-appellant told the victim that if he is no longer deserving of the position, he will just go home. However, upon reaching home, accused-appellant felt embarrassed and humiliated. According to him, he decided to go back to settle the matter with the victim.[17] Accused-appellant did try to settle it by throwing a hand grenade at the victim. When it did not explode, he tried to shoot the victim but failed. Accused-appellant had every reason to want to get even. Motive is proved by the acts or statements of the accused before or immediately after the commission of the offense, i.e., by deeds or words that may express the motive or from which his reason for committing the offense may be inferred.[18] He attempts to remove this cloud of suspicion by testifying that he had already asked for forgiveness from the victim. His statement is, at the least, self-serving and hence has no probative value specially when it is not corroborated by other witnesses.
IV. The information charged that the killing was attended by treachery with the aid of armed men and with abuse of superior strength. The trial court considered the last two circumstances to have been absorbed in treachery, and imposed the penalty of reclusion perpetua, there being no mitigating and aggravating circumstances.
Treachery clearly attended the commission of the crime. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make.[19] The treacherous manner in which accused-appellant and his cohorts perpetrated the crime was shown by the sudden, deliberate and unexpected attack upon the unsuspecting victim. It has been clearly established that Ernesto was walking towards his house when one of the malefactors suddenly appeared from behind and shot him on the arm. When Ernesto fell to the ground, accused-appellant came out of the house where he and his companions were hiding, and shot the victim on the head.
Considering the number of armed assailants against the lone unarmed victim, there was also abuse of superior strength.[20] In a long line of cases, we have held that abuse of superior strength and aid of armed men, when present with treachery, are absorbed in the latter.[21] There being no mitigating and aggravating circumstances, the trial court correctly imposed the penalty of reclusion perpetua.
The trial court ordered accused-appellant to indemnify the heirs of the victim the sum of P120,000.00 as and for actual and moral damages. This is erroneous. Prosecution witness Sanita testified that she spent P20,000.00 for the wake of her husband, but there were no receipts presented to support the same, It is axiomatic that a party seeking the award of actual damages must produce competent proof or the best evidence obtainable to justify such award.[22] Since no receipts of expenses were presented, actual damages should be disallowed.[23]
On the other hand, the heirs of the victim are entitled to receive moral damages in the amount of P50,000.00. This award is mandatory and does not require proof other than the death of the victim.[24] Under prevailing jurisprudence, civil indemnity should be awarded in the amount of P50,000.00.[25]
WHEREFORE, the decision of the Regional Trial Court of Cabarroguis, Quirino, Branch 32, in Criminal Case No. 993 finding accused-appellant MARIANO PASCUA, JR. @ PEDRO, guilty beyond reasonable doubt of the crime of Murder and imposing the penalty of reclusion perpetua is hereby AFFIRMED subject to the MODIFICATION that accused-appellant is hereby ordered to pay the heirs of the victim Ernesto Quiming the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.
[1] Penned by Presiding Judge Elias O. Lelina, Jr.; Original Record, pp. 372-384.
[2] Original Record, p. 2.
[3] Exhibit B; Original Record, p. 8-A.
[4] Exhibit D; Ibid., p. 11.
[5] Exhibit E, Original Record, p. 7.
[6] Exhibit F; Ibid., p. 5.
[7] People vs. Jimmy Alo, et al., G.R. No. 125533, December 27, 2000.
[8] TSN, November 24, 1994, pp. 8-11.
[9] Di Maio, Vincent J.M., Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques, Second ed., 1999, p. 327.
[10] De Forest, Gaensslen, and Lee, Forensic Science: An Introduction to Criminalistics, 1983, p. 407.
[11] Fisher, Barry A.J., Techniques of Crime Scene Investigation, Sixth ed., 2000, p. 285.
[12] People vs. Paule, 261 SCRA 649 (1996); People vs. De Guzman, 250 SCRA 118 (1995); People vs. Teehankee, 249 SCRA 103 (1995).
[13] People vs. Danilo Catubig y Horio, G.R. No. 137842, August 23, 2001.
[14] People vs. Baligod, et al., 227 SCRA 834 (1993); U.S. vs. Manabat, 7 Phil 209 (1906).
[15] People vs. Elizaga, 73 SCRA 524 (1976).
[16] People vs. Sison, 322 SCRA 345 (2000).
[17] TSN, February 24, 1995, pp. 12-13.
[18] People vs. Fidel Abrenica Cubcubin, Jr., G.R. No. 136267, July 10, 2001.
[19] People vs. Alejandro Go-od, 331 SCRA 612 (2000).
[20] People vs. Nicasio Enoja, et al., 321 SCRA 7 (1999).
[21] People vs. Lapay, et al., 298 SCRA 62 (1998); People vs. Torrefiel, 256 SCRA 369 (1996); People vs. Ferrera, 151 SCRA 113 (1987).
[22] People vs. Dante Domingo y Limpot, G.R. No. 131817, August 8, 2001.
[23] People vs. Edwin Bayotas, G.R. No. 136818, December 19, 2000.
[24] People vs. Dante Domingo y Limpot, supra.
[25] People vs. Benny Cabangcala y Abrasia, et al., G.R. No. 135065, August 8,2001.
In an Information dated November 27, 1992, accused-appellant Mariano Pascua, Jr. alias "Pedro", together with four John Does, was charged of Murder, committed as follows:
"That on or about 6:00 o'clock in the evening of November 14, 1992 in Barangay Doña Imelda, Municipality of Diffun, Province of Quirino, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, armed with firearms of unknown calibers and taking advantage of their superior strength and with the aid of armed men and with treachery after conspiring, confederating and mutually helping one another did then and there wilfully, unlawfully and feloniously shoot ERNESTO QUIMING, a Barangay Captain of the said place, hitting the latter on the different parts of his body that caused his instantaneous death.Evidence for the prosecution shows that on November 14, 1992, at about 6:00 in the evening, prosecution witness Sanita Quiming (Sanita), wife of the victim. Ernesto Quiming (Ernesto), was gathering dry clothes in the yard of their house at Doña Imelda, Diffun, Quirino when a man arrived looking for the house of the barangay captain. She answered "none sir" because she saw that the man was holding a gun with his two hands. Then the man inquired about Ernesto and she replied that he was attending a prayer meeting at Barangay Malayod together with their three children but they will soon be back. Suddenly the man pointed his gun at her and pushed her inside the house. She was told to keep quiet and was threatened that her children will be killed if she talked.
CONTRARY TO LAW."[2]
Upon entering the house, Sanita was surprised to see three other armed men pointing their guns at her two children. One of them, whose face was covered with a bonnet, spoke and Sanita was startled when she heard the voice because it sounded familiar. For a moment, Sanita surreptitiously stared at the man with the bonnet and she became apprehensive when she recognized him to be herein accused-appellant because of the eyes, eyelids, nose, mouth, and beard which were not covered. She knows accused-appellant well because they have been neighbors ever since he was a child. Sanita also knows accused-appellant as the person who threw a hand grenade at Ernesto during a barangay meeting. However, she pretended not to recognize accused-appellant.
The man who approached Sanita in the yard told her that they want to get the .38 caliber gun of Ernesto. When she told him that she did not know anything about it, herein accused-appellant got angry, insisted that Ernesto had a gun and forced her to bring it out. At this point, two of the Quiming children, Aileen and Elizabeth, arrived from the prayer meeting. The two were almost near the fence of the house when they heard somebody whistle from behind. When they looked back, a man poked a gun at them and ordered them to go inside the house and keep quiet. Aileen recognized accused-appellant though he was wearing a bonnet since his face was not totally covered. She has known accused-appellant from childhood and the latter's house is only 300 meters away from them. Not long after, her brother Jonathan followed and was likewise forced into the house by one of the armed men.
Knowing that her husband Ernesto would not be far behind, Sanita stood up and peeped through the jalousy of the window. They were still being heavily guarded by the four men inside the house. It was then that she saw Ernesto walking towards the house, around ten meters away from where she was standing. A man coming from the waiting shed located along the road going to their house followed Ernesto and suddenly shot him on the right arm. Ernesto fell to the ground facing downward. Upon seeing this, accused-appellant and his three companions immediately ran outside. One of them shot Ernesto a second time. Accused-appellant fired the third shot that hit Ernesto on the head. Ernesto's shoulder shook and then his body turned limp. Sanita was so stunned that she kept jumping helplessly. The five malefactors hurriedly ran away. Thereafter, Sanita and her children rushed to Ernesto but he was no longer moving. They brought him to the Quirino Provincial Hospital where he was declared dead on arrival.
A few hours after the incident, several barangay officials and members of the PNP went to the house of Sanita to investigate. When asked if she knew the identity of the assailants, she said "nobody had killed my husband except the one who threw a hand grenade at my husband." It was on November 26, 1992 that she gave her sworn statement[3] to the police and disclosed the name and identity of accused-appellant as one of the assailants. According to Sanita, she was afraid that accused-appellant might escape and hide if she immediately revealed his name before a formal investigation could be conducted. On November 27, 1992, Aileen and Elizabeth executed their joint affidavit.[4]
According to Sanita, during a meeting of barangay officials on August 30, 1992, Ernesto, a barangay captain, and accused-appellant, a barangay councilman, had a misunderstanding and the latter threw a hand grenade at the former. When the hand grenade did not explode, accused-appellant tried to shoot Ernesto twice inside the latter's yard but failed. Sanita was present when the first shooting incident happened.
Three days after the death of Ernesto, accused-appellant and his family left their house at Doña Imelda, Diffun and moved to Ricarte Norte, Diffun. Sanita testified that she spent P20,000.00 for the burial of Ernesto.
Prosecution witness Leslie Chambers-Maalat, a forensic chemist at the PNP Crime Laboratory Service in Camp Crame, Quezon City, testified that as per her Chemistry Report No. C-436-92 dated May 20, 1992,[5] the paraffin casts taken from both hands of accused-appellant gave positive result to the tests for gunpowder nitrates because a blue reaction was produced. She concluded that accused-appellant fired a gun. She said that matches, cigarettes and fertilizers can also test positive for nitrate and produce a blue reaction just like gun powder nitrate. However, she explained that matches and cigarettes produce positive result for nitrate only which is different from gunpowder nitrate. Also, the blue reaction produced from nitrate contained in the former does not have dots and tails whereas the blue reaction produced by gunpowder nitrate has dots and tails.
The autopsy examination conducted by Dra. Mary Jean Baguioen, Medical Officer III at the Quirino Provincial Hospital, showed the following postmortem findings as contained in Autopsy Report No. 92-06-35-99:[6]
Dra. Baguioen explained that the victim suffered a penetrating wound on the right breast caused by a gun shot. The right lung was fatally damaged. There was also a penetrating wound at the base of the heart caused by a gunshot These wounds sustained by the victim were the most fatal. Another gunshot wound entry was found on the right parietal bone which is located on the right side of the head. When they opened the skull of the victim, they recovered a slug inside. The orbital bone located just below the lower left eyelid was also fractured and she discovered a bullet lodged in this area Finally, she testified that the victim suffered severe bleeding inside the chest which caused his death.
CAUSE OF DEATH :
Intrathoracic hemorrhage secondary to Gunshot Wound."
The defense relied mainly on denial and alibi.
Accused-appellant testified that in the afternoon of November 14, 1992, he went to Barangay Sta. Cruz, Benito Soliven, Isabela with his wife and two children to attend the wedding of the daughter of his cousin, Ernesto Aquino. He drove his tricycle from the town proper of Diffun to Barangay Sta. Cruz. It was almost dusk when they reached the place. On their way to the house of his cousin, he saw Barangay Captain Sabino Carlos and invited the latter to the pre-nuptial party that night. Accused-appellant parked his tricycle at the house of Kagawad Abraham Martin. There he saw Barangay Secretary Francisco Viernes and several others in a drinking session. The group invited accused-appellant for a drink to which he obliged. Shortly thereafter, they all proceeded to the house of Ernesto Aquino where the pre-nuptial party was being held. The group of accused-appellant drank at the party until 9:00 p.m. They had to stop when trouble erupted from a group of guests who were also drinking. Accused-appellant decided to go upstairs and sleep.
The next day, November 15, 1992, the wedding ceremony was held which ended at around 12 o'clock in the afternoon. Thereafter, accused-appellant and his family left for Diffun town. They passed by Santiago City to have the tricycle painted with the names of their children. Since it was raining and the road going to their house was not passable because it was muddy and slippery, they proceeded to Ricarte Norte and spent the night at the house of accused-appellant's uncle, Fred Antonino. That night, accused-appellant was informed by his uncle about the killing of Barangay Captain Ernesto Quiming.
The following day, November 16, 1992, accused-appellant left in the morning to ply his tricycle from Ricarte to Diffun. He was at the parking area in Diffun when two policemen approached him and invited him to the police station for questioning. At the police headquarters, the Station Commander asked him if he already knew what happened to Ernesto and he answered that his Uncle Fred told him about it the night before. Accused-appellant was informed that he is a suspect in the killing because he was the person last known to have a grudge against the victim. He was then brought to the Crime Laboratory Service in Cauayan, Isabela to undergo paraffin test. That night, accused-appellant slept at Ricarte Norte and only his wife and children went home. Since then, accused-appellant has never returned to Doña Imelda, Diffun.
Accused-appellant admitted that during a barangay meeting sometime in August 1992, he had a misunderstanding with Barangay Captain Ernesto Quiming because the latter wanted to remove him as barangay councilman. He felt embarrassed and humiliated before the barangay officials and so he went home. But he went back to settle the matter with Ernesto. And it was at this time when accused-appellant threw a hand grenade to the victim. He alleged that it was Ernesto who shot him first and he only fired back. He stated that the matter was settled in October 1992 when he asked for forgiveness from Ernesto in the presence of the barangay officials. Since then, he did not have any misunderstanding with Ernesto anymore.
Defense witnesses Abraham Martin, Ernesto Aquino, Sabino Carlos and Francisco Viernes corroborated the alibi that accused-appellant attended a wedding party at Barangay Sta. Cruz, Benito Soliven, Isabela on that fateful day of November 14, 1992. They testified upon request of the father of the accused-appellant.
In this appeal, accused-appellant insists that he was not positively identified by the prosecution witnesses and that it was physically impossible for him to have been at the scene of the crime.
Again, the basic issues in the case at bar deal with the credibility of the prosecution witnesses. It is an established rule that when the issue concerns credibility of witnesses, appellate courts generally will not overturn the findings of the trial courts. The latter courts are in the best position to ascertain and measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses' manner of testifying, demeanor and behavior in court. In the case at bar, we find no basis to depart from the rule.[7]
I. Accused-appellant assails the conclusion of the trial court that he committed the crime because he tested positive for gunpowder nitrate He claims that the testimony of forensic chemist Leslie Chambers-Maalat shows that other substances like fertilizers, matches and cigarettes likewise produce positive results for nitrate, to wit:
In an attempt to discredit the accuracy of the paraffin test conducted on him, accused-appellant testified that while waiting for his paraffin test, he smoked a cigarette which he lighted with a match. We are not convinced.
"Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:
Accused-appellant failed to recite the complete testimony of the forensic chemist relevant to the issue. Such selective quotation is unethical and will not exculpate accused-appellant. We quote the relevant testimony of the forensic chemist to avoid its distortion, viz.:
The ability to determine whether an individual has fired a firearm is of great significance in the investigation of both homicides and suicides. Thus, over the years a number of tests have been developed in an attempt to fill this need The first of such tests was the "paraffin test" also known as the "Dermal Nitrate" or "diphenylamine test." In this test, the hands were coated with a layer of paraffin. After cooling, the casts were removed and treated with an acid solution of diphenylamine, a reagent used to detect nitrates and nitrites that originate from gunpowder and may be deposited on the skin after firing a weapon. A positive test was indicated by the presence of blue flecks in the paraffin. Although this test may give positive results on the hands of individuals who fired weapons, it also gives positive results on the hands of individuals who have not fired weapons because of the widespread distribution of nitrates and nitrites in our environment.[9] Thus, nitrates can also be found in many other materials, including cigarette smoke, urine, fertilizers, and other kinds of chemicals such as oxidizing agents.[10]
"Q: A: Q: A: Q: A: Q: A: Q. A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:
To be sure, negative gunshot residue results do not conclusively mean that a subject did not fire a gun, and positive gunshot residue results do not prove someone fired a gun either. Thus, this test for residue on skin has been challenged in the courts and fell into disfavor and disuse because of the ambiguity in conclusions whether an individual fired a weapon or not.[11]
In our jurisprudence, we have consistently held that paraffin tests are inconclusive, to wit:
". . . Scientific experts concur in the view that the paraffin test has . . . proved extremely unreliable in use. The only thing that it can deliberately establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposit on his hands since these substances are present in the products of combustion of tobacco."[12]Be that as it may, the result of the paraffin test conducted on accused-appellant in the case at bar still proves that he tested positive for gunpowder nitrates. The allegation of accused-appellant that he smoked while waiting for his test is of no consequence. According to witness Dr. Chambers-Maalat, the blue reaction produced by nitrate coming from cigarettes and matches has a different characteristic from the blue reaction produced in gun powder nitrate, in that the former does not have dots and tails which are present in the latter. It bears to stress too that the fact that accused-appellant fired a gun is corroborated by the convincing, straightforward and categorical testimonies of the prosecution witnesses.
II. Accused-appellant contends that it was physically impossible for him to have been at the scene of the crime because on that fateful day he went to Sta. Cruz, Benito Soliven, Isabela to attend the wedding of his cousin's daughter. This was corroborated by the defense witnesses who were all barangay officials of barangay Sta. Cruz.
There is no controversy that accused-appellant went to attend a wedding on November 14, 1992 at Barangay Sta. Cruz, Benito Soliven, Isabela. What is unclear and remains suspect, however, is his allegation that before going to Barangay Sta. Cruz, he came from the house of his employer, Board Member Natividad, in Diffun where he has allegedly been staying even before November 14, 1992. The other defense witnesses testified merely on the fact of his presence at the wedding, but none was presented to prove that accused-appellant came from Diffun town. Accused-appellant could have easily presented Board Member Natividad to corroborate his testimony but he never did. If it were true that accused-appellant was already working for Board Member Natividad at that time, it is perplexing why he did not return to his employer's house after the wedding and instead stayed with his uncle at Ricarte Norte, Diffun on the pretext that he as going to ply his tricycle to earn a living. Also, accused-appellant allegedly bought his tricycle on October 29, 1992 but it is highly dubious that he started to use it for hire only on November 16, 1992 - the day he was invited to the police headquarters for questioning.
The stubborn truth is that accused-appellant came from Doña Imelda, Diffun before going to Barangay Sta. Cruz. We are not convinced that it was physically impossible for him to be in Doña Imelda at the time of the incident considering that it is only around four hours drive going to Barangay Sta. Cruz. The trite defenses of alibi and denial proffered by accused-appellant cannot prevail over the positive and categorical statements of the prosecution witnesses. For this defense to prosper, it must preclude any doubt on the physical impossibility of the accused-appellant to be at the locus criminis at the time of the incident.[13]
III. Accused-appellant avers that it was impossible for Sanita and Aileen Quiming to have recognized him since according to them the assailant was wearing a bonnet. Moreover, when the police arrived at the scene of the crime, Sanita failed to identify the assailant and it was only several days thereafter, or on November 26, 1992, when she executed a sworn statement before the police that she named the accused-appellant. We are not persuaded.
First, prosecution witnesses Sanita and Aileen Quiming positively identified accused-appellant as the one who fired the third and last shot and killed the victim Ernesto. Although accused-appellant was wearing a bonnet, his face was not totally covered because his eyes, nose, mouth and beard were exposed. Sanita and Aileen were also able to recognize accused-appellant through his voice and gestures. Identification by the sound of the voice of the person identified is sufficient and acceptable means of identification where it is established that the witness and the accused had known each other personally and closely for a number of years.[14] It is not disputed that the prosecution witnesses and accused-appellant have been longtime neighbors ever since the latter was a child. Besides, the house was illuminated by a kerosene lamp.
Second, when the police and barangay officials arrived at their house on that fateful day, Sanita told them that "nobody killed my husband except the one who threw a hand grenade to my husband." When accused-appellant testified in court, he openly admitted that he threw a hand grenade at the victim during a meeting of barangay officials sometime in August 1992. It is patently obvious that Sanita was referring to none other than accused-appellant when she made that statement.
Third, during her cross examination, Sanita aptly explained that she intentionally withheld the name of the real culprit because she feared that accused-appellant might escape and hide. Delay or vacillation in making an accusation does not impair the credibility of the witness if such delay is satisfactorily explained.[15] Her apprehension was not absolutely baseless. Indeed, three days after the November 14 incident, accused-appellant left his house and moved his family to Ricarte Norte. On that day, November 16, 1992, accused-appellant was invited to the police headquarters and was informed by the Station Commander of Diffun that he was a suspect in the killing of Ernesto Quiming. It is a well-entrenched doctrine that, without satisfactory explanation, flight is a clear and positive evidence of guilt.[16]
It bears to stress that of the five malefactors, it was only herein accused-appellant who was wearing a bonnet. This is hardly surprising. Accused-appellant is a barangay councilor and everybody in the barangay knows him. He had to make sure that he will not be exposed and that it will be difficult to recognize him. And true enough, in trying to impugn the credibility of the prosecution witnesses, the defense made capital of the fact that the face of the assailant was covered with a bonnet. We accord greater weight however to the straightforward testimonies of the prosecution witnesses that it was accused-appellant who shot the victim on the head. The testimonies of prosecution witnesses Sanita and Aileen Quiming were clear, direct and categorical. Their recollection of the gruesome event remained steadfast and unperturbed even under the grueling cross examination by the defense.
In addition, accused-appellant has failed to impute any bad motive on the part of the prosecution witnesses in pointing to him as the culprit. In contrast, it is accused-appellant who has a clear motive to want to kill the victim. It appears that during a meeting of barangay officials sometime in August 1992, the victim and accused-appellant had a misunderstanding because the former wanted to remove the latter from his position as barangay councilor. Accused-appellant told the victim that if he is no longer deserving of the position, he will just go home. However, upon reaching home, accused-appellant felt embarrassed and humiliated. According to him, he decided to go back to settle the matter with the victim.[17] Accused-appellant did try to settle it by throwing a hand grenade at the victim. When it did not explode, he tried to shoot the victim but failed. Accused-appellant had every reason to want to get even. Motive is proved by the acts or statements of the accused before or immediately after the commission of the offense, i.e., by deeds or words that may express the motive or from which his reason for committing the offense may be inferred.[18] He attempts to remove this cloud of suspicion by testifying that he had already asked for forgiveness from the victim. His statement is, at the least, self-serving and hence has no probative value specially when it is not corroborated by other witnesses.
IV. The information charged that the killing was attended by treachery with the aid of armed men and with abuse of superior strength. The trial court considered the last two circumstances to have been absorbed in treachery, and imposed the penalty of reclusion perpetua, there being no mitigating and aggravating circumstances.
Treachery clearly attended the commission of the crime. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make.[19] The treacherous manner in which accused-appellant and his cohorts perpetrated the crime was shown by the sudden, deliberate and unexpected attack upon the unsuspecting victim. It has been clearly established that Ernesto was walking towards his house when one of the malefactors suddenly appeared from behind and shot him on the arm. When Ernesto fell to the ground, accused-appellant came out of the house where he and his companions were hiding, and shot the victim on the head.
Considering the number of armed assailants against the lone unarmed victim, there was also abuse of superior strength.[20] In a long line of cases, we have held that abuse of superior strength and aid of armed men, when present with treachery, are absorbed in the latter.[21] There being no mitigating and aggravating circumstances, the trial court correctly imposed the penalty of reclusion perpetua.
The trial court ordered accused-appellant to indemnify the heirs of the victim the sum of P120,000.00 as and for actual and moral damages. This is erroneous. Prosecution witness Sanita testified that she spent P20,000.00 for the wake of her husband, but there were no receipts presented to support the same, It is axiomatic that a party seeking the award of actual damages must produce competent proof or the best evidence obtainable to justify such award.[22] Since no receipts of expenses were presented, actual damages should be disallowed.[23]
On the other hand, the heirs of the victim are entitled to receive moral damages in the amount of P50,000.00. This award is mandatory and does not require proof other than the death of the victim.[24] Under prevailing jurisprudence, civil indemnity should be awarded in the amount of P50,000.00.[25]
WHEREFORE, the decision of the Regional Trial Court of Cabarroguis, Quirino, Branch 32, in Criminal Case No. 993 finding accused-appellant MARIANO PASCUA, JR. @ PEDRO, guilty beyond reasonable doubt of the crime of Murder and imposing the penalty of reclusion perpetua is hereby AFFIRMED subject to the MODIFICATION that accused-appellant is hereby ordered to pay the heirs of the victim Ernesto Quiming the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.
[1] Penned by Presiding Judge Elias O. Lelina, Jr.; Original Record, pp. 372-384.
[2] Original Record, p. 2.
[3] Exhibit B; Original Record, p. 8-A.
[4] Exhibit D; Ibid., p. 11.
[5] Exhibit E, Original Record, p. 7.
[6] Exhibit F; Ibid., p. 5.
[7] People vs. Jimmy Alo, et al., G.R. No. 125533, December 27, 2000.
[8] TSN, November 24, 1994, pp. 8-11.
[9] Di Maio, Vincent J.M., Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques, Second ed., 1999, p. 327.
[10] De Forest, Gaensslen, and Lee, Forensic Science: An Introduction to Criminalistics, 1983, p. 407.
[11] Fisher, Barry A.J., Techniques of Crime Scene Investigation, Sixth ed., 2000, p. 285.
[12] People vs. Paule, 261 SCRA 649 (1996); People vs. De Guzman, 250 SCRA 118 (1995); People vs. Teehankee, 249 SCRA 103 (1995).
[13] People vs. Danilo Catubig y Horio, G.R. No. 137842, August 23, 2001.
[14] People vs. Baligod, et al., 227 SCRA 834 (1993); U.S. vs. Manabat, 7 Phil 209 (1906).
[15] People vs. Elizaga, 73 SCRA 524 (1976).
[16] People vs. Sison, 322 SCRA 345 (2000).
[17] TSN, February 24, 1995, pp. 12-13.
[18] People vs. Fidel Abrenica Cubcubin, Jr., G.R. No. 136267, July 10, 2001.
[19] People vs. Alejandro Go-od, 331 SCRA 612 (2000).
[20] People vs. Nicasio Enoja, et al., 321 SCRA 7 (1999).
[21] People vs. Lapay, et al., 298 SCRA 62 (1998); People vs. Torrefiel, 256 SCRA 369 (1996); People vs. Ferrera, 151 SCRA 113 (1987).
[22] People vs. Dante Domingo y Limpot, G.R. No. 131817, August 8, 2001.
[23] People vs. Edwin Bayotas, G.R. No. 136818, December 19, 2000.
[24] People vs. Dante Domingo y Limpot, supra.
[25] People vs. Benny Cabangcala y Abrasia, et al., G.R. No. 135065, August 8,2001.