This is an appeal from the Decision^[1] dated February 27, 2009 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02429, entitled People of the Philippines v. Diosdado Camat and Mamerto Dulay, which affirmed with modification the Joint Decision^[2] dated October 9, 2002 of the Regional Trial Court (RTC) of Urdaneta City, Branch 46 in Criminal Case Nos. U-10498, U-10499, U-10500, U-10501, U-10502 and U-10503. The trial court found herein appellant Diosdado Camat (Camat) guilty beyond reasonable doubt of two (2) counts of the crime of Murder with the Use of Unlicensed Firearm and four (4) counts of Attempted Murder. Prior to this ruling, the same trial court, in a Decision^[3] dated December 6, 2000, found appellant Mamerto Dulay (Dulay) guilty beyond reasonable doubt of two (2) counts of Murder with the Use of Unlicensed Firearm and one (1) count of Frustrated Murder.

Contrary to what is implied by the title of this case, the instant appeal merely affects Camat and not Dulay since the subject of this appeal is the October 9, 2002 Joint Decision of the trial court wherein only Camat was convicted. Moreover, in the Appellants' Brief, the relief prayed for was the reversal of only the October 9, 2002 Joint Decision and there was no reference to the December 6, 2000 Decision, containing Dulay's conviction. This is not surprising considering that the case involving Dulay was already resolved with finality by this Court in a Resolution dated October 11, 2007 in G.R. No. 174775, entitled People of the Philippines v. Mamerto Dulay.^[4]

The present case traces its genesis to the filing of six separate criminal informations charging the appellant Camat alias "Boyet" and his other coaccused, the accused Dulay (referred to in the title of this case), John Laurean alias "Masong," Rogelio Campos, Ibot Campos, Henry Caoile, Serafin Dulay, and Junior Lopez with the crimes of Murder with the Use of Unlicensed Firearm and Frustrated Murder. The pertinent portions of the aforementioned criminal informations read:

Criminal Case No. U-10498

That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery, and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot ELMER HIDALGO, inflicting upon him the following injuries:

"- Gunshot wound, left wrist, medial aspect.

- Gunshot wounds, left distal third of the thigh, through and through; Point of Entrance, 1 cm. in diameter, posteriorly, circular in shape; Point of Exit, 1.4 cm. in diameter, medially, circular in shape.

- Gunshot wounds, right distal third of the thigh, through and through:

1. Point of Entrance, 1 cm. in diameter, laterally, circular in shape; Point of Exit, 1.6 cms. in diameter, medially, circular in shape.
   
   
2. Point of Entrance, 1 cm. in diameter laterally, circular in shape; Point of Exit, 1.7 cms. in diameter, anteriorly circular in shape.

- Gunshot wounds, through and through. Point of entrance, 1 cm. in diameter, circular in shape on the right ear anteriorly beside the right pinna trajecting the esophagus and the upper lobe of the left lung. Point of Exit, 2 cms. in diameter, left mid-axillary line, 5^th intercostal space, circular in shape.

- Comminuted Fracture of the distal third of the femur, right.

- Homethorax, 1 liter, left.

CAUSE OF DEATH: Massive hemorrhage secondary to multiple gunshot wounds."

which caused the death of said ELMER HIDALGO, to the damage and prejudice of his heirs.

CONTRARY to Art. 248, Revised Penal Code, in relation to R.A. No. 8294, as amended by R.A. 7659.^[5]

Criminal Case No. U-10499

That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery, and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot MARCELINA HIDALGO, inflicting upon her the following injuries:

"External Findings:

- Gunshot wound (point of entrance), 1 cm., circular in shape, parasternal line, 4th inter-costal space, left.

- Gunshot wound (point of exit), 1.5 cm., circular in shape, mid-axillary line, 9th inter-costal space, right.

Internal Findings:

-Gunshot wound, through and through, 1.8 cm., left auricle, heart.

-Gunshot wound, through and through, 2 cm., upper lobe, liver.

-Gunshot wound, through and through, 1.5 cm., upper lobe lung, right.

- Hemothorax, 1.4 liters, right.

CAUSE OF DEATH: Massive hemorrhage, secondary to gunshot wound."

which caused the instantaneous death of said MARCELINA HIDALGO, to the damage and prejudice of her heirs.

CONTRARY to Art. 248, Revised Penal Code, in relation to R.A. No. 8294, as amended by R.A. 7659.^[6]

Criminal Case No. U-10500

That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot JUANITO HIDALGO, inflicting upon him the following injuries:

"Gunshot wound with fracture, tibia-fibula right. Peration performed: Debridement"

the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said JUANITO HIDALGO, which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.^[7]

Criminal Case No. U-10501

That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery, and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot AURELIO HIDALGO, inflicting upon him the following injuries:

"Open fracture proximal third fibula right. Operation Performed: Debridement"

the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said AURELIO HIDALGO, which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.^[8]

Criminal Case No. U-10502

That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shoot PEDRO HIDALGO, inflicting upon him the following injuries:

-Gunshot wound at right buttocks through and through
- Point of entry: Medial aspect of right buttocks
- Point of exit: Lacerated aspect of right buttocks
- Avulsion thena reminence left hand

the accused having thus performed all the acts of execution which would have produced the crime of MURDER as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said PEDRO HIDALGO, which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.^[9]

Criminal Case No. U-10503

That on or about November 3, 1999, in the afternoon at Barangay Anis, Laoac, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shoot RICARDO HIDALGO, inflicting upon him the following injuries:

"Gunshot wound perianal area
Fracture superior & inferior ramus pubis
Operation performed: Explor-lap, colostomy"

the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said RICARDO HIDALGO, which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.^[10]

At their arraignment, all the accused pleaded "Not Guilty" to the charges with the exception of accused Junior Lopez who eluded arrest and, thus, remained at large.^[11] Subsequent to several pre-trial conferences, trial on the merits commenced.

In the Plaintiff-Appellee's Brief,^[12] the prosecution narrated its version of the factual backdrop of this case, as follows:

Between 3:00 o'clock and 5:00 o'clock in the afternoon of November 3, 1999, Aurelio, together with Anastacio, Juanito, Ricardo, Pedro, Marcelina, Abelardo, Elmer, all surnamed Hidalgo, Lydia Flores, some young ladies, their children, and his nephews and nieces were in front of the yard of his brother Anastacio Hidalgo (Anastacio). At that time, they were all seated and talking to each other. The houses of Aurelio and Anastacio were located in the same compound. Aurelio's house is at the back of Anastacio's house.

While engaged in conversation, Aurelio noticed a motorcycle pass by two times. At the first pass, he noticed that only Oning Campos was on board. The second time, both Oning Campos and Pilo Cabangas were on board the motorcycle. After a few minutes, gunfire coming from the back of and directed at Aurelio's group suddenly erupted. The gunfire came from the other side of the road in front of a three feet high concrete fence fronting the house of Anastacio. Aurelio saw both accused-appellants [Diosdado Camat and Mamerto Dulay] armed with long firearms shoot at his group. Although there were six other persons armed with short firearms (Henry Caoile, Junior Lopez, John Laurean, Ibot Campos, Rogelio Campos, and Serafin Dulay), standing at the back of accused- appellants, Aurelio, however, only saw accused-appellants firing their guns at his group because he saw them place their long firearms on top of the concrete fence. The gunmen were approximately six meters away from Aurelio's group.

Aurelio said that during the shooting, his aunt Marcelina Hidalgo, and his nephew were hit and Elmer Hidalgo fell down. They died on the spot. Juanito Hidalgo was hit on his right leg. Ricardo Hidalgo was hit on the buttocks. The bullet exited near his anus. Pedro Hidalgo was injured on the buttocks and left arm. Aurelio was himself hit on both legs.

After shooting their victims, accused-appellants and their companions left the place going westward.

Immediately thereafter, Aurelio and his other injured relatives were brought to the Region I Medical Center, Dagupan City. Aurelio was confined in the hospital for five days. After leaving the hospital, he was investigated by Investigator Mariano of the Laoac Police Station.

Aurelio recalled that prior to the shooting incident, accused- appellant Mamerto Dulay hacked the house of Juanito Hidalgo, Aurelio's brother[,] with a bolo. Juanito Hidalgo had the hacking incident blottered at the barangay.^[13] (Citations omitted.) (Emphasis supplied.)

The defense, in the Accused-Appellants' Brief,^[14] offered this summation of events:

In the morning of 3 November 1999, JAIME CANDIDO accompanied accused Diosdado Camat in securing a barangay clearance as the latter was applying for a job as security guard. The next time Candido saw accused Camat was around 3:00 o'clock in the afternoon of the same day when he went to the house of accused Camat's brother, Casimiro Camat, to have some snacks. During this time, accused Camat and his brother and two (2) other companions were working on a cabinet and a book shelf. The following day, Candido again saw accused Camat with his brother and another passenger on board a red car heading towards the highway.

On 30 October 1999, CASIMIRO CAMAT went to Sta. Ana, Pampanga to attend the opening of cursillo class of Sto. Nino Brotherhood Crusade since his brother, accused Diosdado Camat, was part of the said graduating class. Casimiro and his brother spent the night in the former's house in San Miguel, Tarlac together with Pedro Caseria who was also one of the graduates. The following day, the three (3) agreed to meet again on 2 November 1999 and proceed to Casimiro's place in Baguio to undertake the construction of his double deck bed, cabinets and bookshelf.

On 2 November 1999, Casimiro, together with his wife and daughter, met his brother and Pedro Caseria at the crossing in Binalonan and proceeded thereafter to Baguio. Upon reaching the said place, the witness first unloaded his daughter's baggage at her dormitory before going to Burnham Park for lunch. Afterwards, he left his daughter in her dormitory and then accompanied his wife to the bus terminal for her trip back to Tarlac.

The Camat brothers and Caseria subsequently proceeded to the Kayang Extension to purchase some goods for their consumption during their stay in Baguio before going to Casimiro's house in Asin Road. Upon arriving at the said place, the three began working on the double deck bed. The next day, accused Diosdado Camat left for a while to visit Jaime Candido. When he returned, the Camat brothers and Caseria went to Benguet Electric Cooperative to pay Casimiro's electric bill and subsequently took their lunch at Burnham Park. Thereafter, they bought some materials from the Benguet Lumber Co. and then continued their work in Casimiro's place. In the afternoon of 4 November 1999, the Camat brothers finally left Baguio.

When Casimiro was asked about the accusation against his brother, he firmly maintained that his brother was with him in Baguio from November 2 to 4, contrary to the allegation that the accused participated in a shooting incident on 3 November 1999 in Brgy. Anis, Laoac, Pangasinan.

PEDRO CASERIA corroborated Casimiro Camat's testimony that he was with the accused from November 2 to 4, 1999 to do some carpentries in Baguio.

HERMINIGILDA C. JIMENEA was the proprietress of Apple's Fastfood in Burnham Park where the accused had lunch with his brother and Pedro Caseria on 3 November 1999.

During the graduation of the cursillo class in Tarlac in October 1999, accused DIOSDADO CAMAT was requested by his brother, Casimiro Camat, to do some carpentries at his house in Baguio together with Pedro Caseria. It was agreed upon that Casimiro would meet both of them at the crossing in Binalonan on 2 November 1999. On the said date, Casimiro arrived at the meeting place with his wife and daughter and let the accused and Caseria board in his car. They then proceeded to Baguio. Upon reaching the said place, Casimiro first dropped by his daughter's dormitory to unload her baggage before proceeding to Burnham Park where they ate lunch together. Afterwards, Casimiro left his daughter at her dormitory and his wife at the bus terminal. The Camat brothers and Caseria went to Casimiro's place in Asin Road for the construction of some woodworks.

On 3 November 1999, the accused left for a while to see Jaime Candido to ask assistance in securing a barangay clearance as he was intending to seek employment as a security guard. When he returned, he went with Casimiro to the city as the latter paid his electric bill. Afterwards, they had lunch at Apple's Fastfood in Burnham Park and then proceeded to Benguet Lumber Co. to purchase some materials before returning to Casimiro's place for the continuation of their work. The next day, the accused left Baguio and went back home to Brgy. Caaringayan in Laoac, Pangasinan where a surprising news awaited him. His sister told him that he was being implicated in a massacre. Consequently, he rushed to the barangay captain to clarify the matter. Nonetheless, he was told to go home and just wait for the police to come.

While he was alone in his house at 12:00 midnight, he noticed that a vehicle parked near his gate and five (5) armed men broke into his house. The accused hid under the stairs. When the strangers were gone, the accused immediately left his house and went to Brgy. Tiblong in San Fabian, Pangasinan.

ALFREDO TAPO, the barangay captain of Brgy. Caaringayan, testified that in the evening of 4 November 1999, the accused did go to his house to ask him about the incident in Brgy. Anis.^[15] (Citations omitted.)

In a Joint Decision dated October 9, 2002 in Criminal Case Nos. U 10498, U-10499, U-10500, U-10501, U-10502 and U-10503, the trial court found appellant Camat guilty beyond reasonable doubt of two (2) counts of Murder with the Use of Unlicensed Firearm and four (4) counts of Attempted Murder. The dispositive portion of which reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court finds:

IN CRIMINAL CASE NO. U-10503:

[T]he accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party RICARDO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.

The accused JOHN LAUREAN, ROGELIO CAMPOS, IBOT CAMPOS, HENRY CAOILE and SERAFIN DULAY are all ACQUITTED. The accused JUNIOR LOPEZ is still at-large.

IN CRIMINAL CASE NO. U-10502:

[T]he accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party PEDRO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.

The accused HENRY CAOILE is acquitted of the charge. The accused Junior Lopez is still at-large.

IN CRIMINAL CASE NO. U-10501:

[T]he accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party AURELIO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.

The accused JOHN LAUREAN, ROGELIO CAMPOS, IBOT CAMPOS, HENRY CAOILE and SERAFIN DULAY are all ACQUITTED. The accused JUNIOR LOPEZ is still at-large.

IN CRIMINAL CASE NO. U-10500:

[T]he accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party JUANITO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.

The accused JOHN LAUREAN, ROGELIO CAMPOS, IBOT CAMPOS, HENRY CAOILE and SERAFIN DULAY are all ACQUITTED. The accused JUNIOR LOPEZ is still at-large.

IN CRIMINAL CASE NO. U-10499:

[T]he accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of MURDER WITH THE USE OF UNLICENSED FIREARMS penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law and the offense having been committed with the aggravating circumstance of with the Use of an Unlicensed Firearm under Republic Act No. 8294, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law; to pay the heirs of the victim MARCELINA HIDALGO in the amount of P50,000.00 as indemnity; P200,000.00 as moral damages and to pay the cost.

The accused HENRY CAOILE is ACQUITTED of the charge. The accused JUNIOR LOPEZ is still unapprehended.

IN CRIMINAL CASE NO. U-10498:

[T]he accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of MURDER WITH THE USE OF UNLICENSED FIREARMS penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law and the offense having been committed with the aggravating circumstance of with the Use of an Unlicensed Firearm under Republic Act No. 8294, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law; to pay the heirs of the victim ELMER HIDALGO in the amount of P50,000.00 as indemnity; P20,000.00 as actual damages; P200,000.00 as moral damages and to pay the cost.

The accused HENRY CAOILE is ACQUITTED of the charge. The accused JUNIOR LOPEZ is still unapprehended.

FINALLY, it is said: "Hoc quidem per quam durum est sed ita lex scripta est," translated as follows: "The law may be exceedingly hard but the law is written."^[16]

Since appellant Camat was sentenced to suffer the penalty of DEATH as a consequence of his conviction for two charges of Murder with the Use of Unlicensed Firearm, among others, the case was originally appealed to this Court but in conformity with our decision in People v. Mateo,^[17] the matter was remanded to the Court of Appeals for intermediate review.

After a thorough evaluation, the appellate court merely affirmed with modification the assailed October 9, 2002 Joint Decision of the trial court in this wise:

IN LIGHT OF ALL THE FOREGOING, the appeal is hereby DENIED. The joint decision dated 9 October 2002 of the Regional Trial Court, Branch 45, Urdaneta City in Criminal Cases Nos. U-10498 to U10503 is hereby AFFIRMED WITH MODIFICATION only on the penalty imposed for murder with the use of unlicensed firearm. Accused- appellant Diosdado Camat is sentenced to suffer the penalty of reclusion perpetua for each count of murder with the use of unlicensed firearm instead of death in Criminal Cases Nos. U-10498 and U-10499, and the penalty of two (2) years, four (4) months and one (1) day of prision correccional in its medium period as MINIMUM to eight (8) years and one (1) day of prision mayor in its medium period as MAXIMUM for each count of attempted murder in Criminal Cases Nos. U-10500 to U10503.^[18]

Since the appeal was decided after the passage of Republic Act No. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines, enacted on June 24, 2006), the appellate court saw fit to modify the penalty to reclusion perpetua.

Thus, Camat interposed the present appeal wherein both the prosecution and their defense merely adopted their briefs filed with the Court of Appeals. Before this Court, appellant Camat reiterates the following assignment of errors:

I
THE TRIAL COURT GRAVELY ERRED IN PRONOUNCING THE GUILT OF THE ACCUSED NOTWITHSTANDING THE INCONSISTENT AND IMPROBABLE TESTIMONIES OF THE PROSECUTION WITNESSES.

II
THE TRIAL COURT GRAVELY ERRED IN PRONOUNCING THE GUILT OF THE ACCUSED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO ESTABLISH THEIR IDENTITIES WITH MORAL CERTAINTY.^[19]

Essentially, the issues raised by appellant Camat boil down to whether or not his conviction was warranted upon due consideration of the evidence on record.

Appellant Camat argues that his conviction was erroneous because it was based on contradictory and improbable testimonies made by prosecution witnesses who were among the surviving victims of the massacre. He maintains that these witnesses could not have possibly identified him with moral certainty as one of the gunmen because it was unlikely that they were able to see the faces of the assailants firing at them since they were more concerned with taking cover for their safety. Thus, he posits that his defense of alibi must be upheld over the supposedly weak testimonial evidence presented by the prosecution.

After a careful review, we affirm the guilty verdict against appellant Camat.

Article 248 of the Revised Penal Code states that:

Art. 248. Murder. Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity;

2. In consideration of a price, reward, or promise;

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin;

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity;

5. With evident premeditation;

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

As encapsulated in jurisprudence, to be liable for Murder, the prosecution must prove that: (1) a person was killed; (2) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) the killing is neither parricide nor infanticide.^[20]

We uphold the Court of Appeals' finding that all the elements of the crime of murder concur in this instance. With regard to the first element, the prosecution was able to establish the fact of death of Marcelina and Elmer Hidalgo as shown by their death certificates^[21] as well as the autopsy reports^[22] which clearly indicate that the common cause of their untimely demise is massive hemorrhage secondary to gunshot wounds that they sustained during the shooting incident in question. The fourth element is present as well since both the victims are adults and not related by consanguinity or affinity to appellant Camat which forecloses any possibility of classifying their fatal shooting as either parricide or infanticide.

As for the second element, there can be no doubt that the prosecution also proved the participation of appellant Camat in the crimes subject of this case. Appellant Camat's defenses of alibi and denial as well as his attack on the credibility of the prosecution witnesses who positively identified him simply cannot be given credence.

In the previously mentioned companion case of People v. Dulay,^[23] appellant Camat's co-accused Dulay similarly introduced the issue concerning the credibility of the testimonies made by the witnesses for the prosecution who were among the survivors of the November 3, 1999 massacre, namely, Juanito, Aurelio, Pedro, and Ricardo, all surnamed Hidalgo. Given the identity of the factual circumstances of this case with the Dulay case, we see no reason to deviate from the ruling this Court laid down in Dulay, to wit:

A few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details do not impair their credibility. Minor inconsistencies even tend to strengthen the credibility of a witness because they discount the possibility that the testimony was rehearsed. As regards the actuations of the witnesses at the time of the incident, it is settled that there is simply no standard form of behavioral response that can be expected from anyone when confronted with a strange, startling, or frightful occurrence.^[24]

Indeed, minor inconsistencies in the narration of facts by the witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable.^[25] In fact, this Court had previously held that trivial inconsistencies do not rock the pedestal upon which the credibility of the witnesses rests but enhances credibility as they manifest spontaneity and lack of scheming.^[26] Jurisprudence even warns against a perfect dovetailing of narration by different witnesses as it could mean that their testimonies were prefabricated and rehearsed.^[27]

Since the testimonies of the prosecution witnesses were credible, this Court cannot accept appellant Camat's defenses of alibi and denial in light of the positive identification of him as one of the gunmen involved in that dreadful massacre.

It bears repeating that this Court has consistently held that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses.^[28] Moreover, positive identification of the accused, when categorical and consistent, and without any ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial.^[29]

To be sure, an examination of the testimonies made by the prosecution witnesses reveals that their identification of appellant Camat as one of the culprits behind the November 3, 1999 massacre was clear and unequivocal. The relevant portions of the transcripts are quoted here:

PROS. TOMBOC: (direct examination)
Q	You said a gunfire came from x x x infront of your house, do you know who are firing that gun burst?
A	Yes sir, Mamerto Dulay and Diosdado Camat, and other companions. x x x x
Q	You said a burst of gunfire came from Diosdado Camat and Mamerto Dulay and his companion. What kind of firearm [did] Diosdado Camat [fire] when you saw him fired?
A	A long firearm, but I do not know the caliber, sir.
	x x x x
Q	When you said a burst of gunfire came from these persons. Who among the group actually make or shoot towards your direction?
	A The two (2) which were holding long firearm, sir.
Q	Who are these two (2) persons?
A	Mamerto Dulay and Diosdado Camat, sir.[30] (Emphases supplied.)
ATTY CERA: (cross-examination)
Q	So, Mamerto Dulay and Diosdado Camat came into your place, how far were they from where you sat?
A	Not less than six (6) meters, sir.
Q	Where was, did the group of Mamerto Dulay come as a group?
A	Yes sir.
Q	How many shots were fired if you remember?
A	Many sir, I cannot remember how many, sir.
Q	How long was the duration of the gun burst?
A	Successive sir.
Q	What particular place Diosdado Camat was standing in relation to the place where you sat?
A	At the eastern direction, sir.[31] Emphases supplied.)
( ATTY. FLORENDO: (cross-examination)
Q	So, the first time that you are able to notice the presence of Mamerto Dulay and Diosdado Camat was when they were already running away, am I correct?
A	No sir, at the time when they were at the fence.
Q	You mentioned a while ago before the actual shooting you did not notice anybody?
A	I was able to notice them at the time when they fired their guns, sir.
Q A	And you are only able to notice Mamerto Dulay and Diosdado Camat aiming their guns to your direction?  Yes sir.[32] (Emphases supplied.)
FISCAL DUMLAO: (direct examination)
Q	Mr. Witness, why do you know this Marcelina Hidalgo?
A	She is my wife, sir.
Q	Where is she now?
A	She is dead, sir.
Q	Do you know the cause of death of your wife?
A	Yes, sir.
Q	What was the cause of her death?
A	She was shot, sir.
COURT:
Q	Who shot her?
A	Camat and companions, sir.
FISCAL DUMLAO:
Q	About this Elmer Hidalgo, do you know him?
A	I know him, sir.
Q	What happened to him?
A	He was also shot, sir.
Q	Who shot him?
A	Camat and company, sir.
COURT:
Q	Did he die also?
A	He died Ma'am.
FISCAL DUMLAO:
Q	When you testified, Mr. Witness, on March 10, 2001, before Hon. Judge Modesto Juanson, you were asked to point to Diosdado Camat but he was not around at that time, now, will you please stand up and look inside the courtroom if you can see one Diosdado Camat and if he is here please point to him.
A	(Witness pointed unto a person inside the courtroom, who, when his name was asked, he answered Diosdado Camat).
	x x x x
ATTY. MAPILI: (cross-examination)
Q	You have no grudge against Diosdado Camat?
A	None, sir.
Q	So there is no reason for him to shoot you because you have no grudge against him?
A	I do not know x x x but when we were shot he was there.[33] (Emphases supplied.)
[AURELIO HIDALGO]
PROS. TOMBOC: (direct examination)
Q	At that time you heard gunfire and directed to you, do you know who are those persons who shot that gunfire?
A	Yes sir.
Q	Will you please name them, if you know?
A	Boyet Camat, Henry Caoile, Mamerto Dulay, Junior Lopez, John Laurean, Ibot Campos, Rogelio Campos and Serafin Dulay, sir.[34] (Emphasis supplied.)
PROS. DUMLAO: (direct examination)
Q	Mr. witness, when you are asked to identify Boyet Camat inside the courtroom during you testimony on March 13, 2000, your answer was that, he was not here, before, is that correct?
A	Yes sir.
Q	Is this Boyet Camat already inside the courtroom now?
A	Yes sir, he is here.
Q	Will you please look around the courtroom and scan and point to this Boyet Camat if he is inside the courtroom?
A	He is here sir. (Witness pointing to a person seated inside the courtroom and when asked his name, answered, Diosdado Camat, alias Boyet.)
Q	Since when have you known this Boyet Camat before November 3, 1999?
A	I know him since his childhood, sir.[35] (Emphases supplied.)
[PEDRO HIDALGO]
PROS. TOMBOC: (direct examination)
Q	You said that you were shot, where were you hit, in whatn part of your body?
A	(Witness is pointing at the left palm and right buttock, sir.)
Q	While facing east you were hit, how were you able to come to know that the gunshot came from your back?
A	I turned my face at my back when I heard gunshot, sir.
Q	You said you turned your back what did you see?
A	I saw John Laurean, Rogelio Campos, Ibot Campos, Mamerto Dulay, Boyet Camat, Henry Caoile, Serafin Dulay and John Lopez, sir. x x x x
Q	Boyet Camat?
A	A long firearm, sir.
COURT:
Q	What is the name of Camat?
A	Diosdado Camat, sir.[36] (Emphases supplied.)
FISCAL DUMLAO: (direct examination)
Q	Mr. Witness, when you testified before this Honorable Court before Judge Modesto C. Juanson on April 4, 2000, you were made to identify in the court room the person of Diosdado Camat and you said before that he was not here in that hearing, if this Diosdado Camat is inside the court room now, will you please stand up and go near him and tap his shoulder?
A	(Witness pointed to a person inside the courtroom, who when his name was asked answered Diosdado Camat).[37] (Emphases supplied.)
ATTY. MAPILI: (cross-examination)
Q	Mr. Witness, do you remember having testified during the hearing on April 4, 2000, that you do not know who among the eight alleged assailants fired their gun?
A	Yes, sir, but all of them were holding guns.
Q	And you want to impress the Court that you remember the guns that they were carrying even though the shots were only for a few seconds?
A	Boyet Camat was holding long firearms, Mamerto Dulay was holding a long firearm, and the other six were holding short firearms.[38] (Emphasis supplied.)
[RICARDO HIDALGO]
PROS. DUMLAO: (direct examination)
Q	Mr. witness, you testified on April 11, 2000 before this Honorable Court regarding these three (3) cases and you are asked [a] [q]uestion [on] page 6 of the transcript of stenographic notes [TSN] of your testimony that the persons who shot you and your companions were John Laurean, Rogelio Campos, Ibot Campos, Serafin Dulay, Boyet Camat, Henry Caoile, Mamerto Dulay and Junior Lopez. If this Boyet Camat is in the courtroom, are you now in a position to point him, Mr. witness?
A	Before he was not here, but now he is here, sir.
Q	Can you point to him?
A	Yes sir. (Witness pointing to a person, when asked his name, answered, Diosdado Camat.)
COURT:
Q	Do you know the exact name of Boyet Camat?
A	I know they called him in the house, but I do not know the name in the school, sir.
PROS. DUMLAO:
Q	Mr. witness, you said that in your testimony on April 11, 2000 particularly on page 10 of the tsn. The question was asked of you Mr. witness, what caliber or firearm was this Boyet holding at that time and you answered, long firearm. My question is, will you describe that long firearm?
A	(Witness demonstrating a long firearm of about 2 ½ feet.)
	x x x x
Q	Why do you know Boyet Camat who answered by the name of Diosdado Camat?
A	He is also our former barangaymate, madam.[39] (Emphases supplied.)

Furthermore, appellant Camat's sudden flight from his residence right after the November 3, 1999 massacre militated against his protestations of innocence. His reaction upon hearing reports that he was considered a suspect in the Loac massacre, was to leave his house without a word to his relatives on the pretext that he was evading armed men who were purportedly looking for him. He settled in his rest house located in San Fabian, Pangasinan where he stayed for more than a year before police officers managed to arrest him on December 25, 2000 pursuant to an outstanding warrant of arrest. When he testified in open court, he could not provide any plausible reason for his prolonged absence from his hometown and to his apparent aversion to the thought of voluntarily surrendering to the authorities in order to clear his name. The following pertinent portions of the transcript show this:

FISCAL DUMLAO:
Q	In other words, at about 3:00 o'clock in the morning of November 5, you immediately proceeded to Tiblong, San Fabian, is that what you mean?
A	Yes, sir.
Q	You did not even talk to your mother anymore or to your sister Monica before you went to Tiblong?
A	No more, sir, because I walked at the ricefield.
	x x x x
COURT:
Q	Why did you not proceed to the police station in that early morning?
A	I already feared because the relatives of the victims might see me.
Q	Why did you not surrender at Manaoag Police Station?
A	I did not think about that anymore, sir.
COURT:
	Continue Fiscal.
FISCAL DUMLAO:
Q	You even passed at Mangaldan in going to Tiblong, is it not?
A	Yes, sir.
Q	You did not report to the police of Mangaldan?
A	I did not think of it anymore, sir.
Q	You passed also the Poblacion of San Fabian before going to Tiblong?
A	Yes, sir.
Q	You did not think of surrendering to the police of San Fabian?
A	It did not occur to my mind, sir.
	x x x x
COURT:
Q	Casimiro Camat is a member of the army, why did you not go to him to have you surrendered and tell him that you have nothing to do with the incident?
A	It did not occur to my mind, sir.
	x x x x
COURT:
Q	In that span of one year that you are hiding, did you not learn that these cases were being tried and one Mamerto Dulay was already convicted?
	A No, sir.
COURT:
	Proceed.
FISCAL DUMLAO:
Q	Immediately after you were informed that your name was involved in that massacre when you arrived coming from Baguio City on November 4, 1999 and when your sister Monica informed you that your name was involved, so as with your mother, did you not go to the police or some other police station to give your statement that you have nothing to do in that massacre considering that you were in Baguio City, morning and afternoon of November 3, 1999.
A	No, sir.
Q	It is only your first time to narrate your version of this tragedy at Laoac, this is your first time to tell the Honorable Court that you were in Baguio City in the morning and afternoon of November 3, 1999?
A	Yes, sir.
Q	From the time, Mr. Witness, that you left your house in that early morning of November 5 up to December 25 when you were arrested at Villaflor Hospital in Dagupan City, even once or twice, you did not go or visit your barangay at Anis, Laoac, Pangasinan, is that correct?
A	No more, sir.40

In all, the lower courts correctly appreciated appellant Camat's unexplained departure against him. Flight in criminal law is the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention or the institution or continuance of criminal proceedings.^[41] In one case, this Court had stated that it is well-established that the flight of an accused is competent evidence to indicate his guilt; and flight, when unexplained, is a circumstance from which an inference of guilt may be drawn. Indeed, the wicked flee when no man pursueth, but the innocent are as bold as lion.^[42]

Moreover, the qualifying circumstance of treachery was adequately shown to exist in this case, thus, satisfying the third element of Murder.

There is treachery or alevosia 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 insure its execution, without risk to himself arising from any defense which the offended party might make.^[43] For alevosia to qualify the crime to Murder, it must be shown that: (1) the malefactor employed such means, method or manner of execution as to ensure his or her safety from the defensive or retaliatory acts of the victim; and (2) the said means, method and manner of execution were deliberately adopted. Moreover, for treachery to be appreciated, it must be present and seen by the witness right at the inception of the attack.^[44]

In the recent case of People v. Nugas,^[45] we expounded on the essence of treachery in this manner:

The essence of treachery lies in the attack that comes without warning, and the attack is swift, deliberate and unexpected, and affords the hapless, unarmed and unsuspecting victim no chance to resist or escape, thereby ensuring its accomplishment without the risk to the aggressor, without the slightest provocation on the part of the victim. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Treachery may also be appreciated when the victim, although warned of the danger to his life, is defenseless and unable to flee at the time of the infliction of the coup de grace.

The testimonial evidence gathered in this case clearly indicates that the victims who were simply engaged in conversation in a private residence were caught entirely by surprise with the assailants' swift, deliberate and unexpected attack using multiple firearms thereby negating the possibility for the victims to escape or defend themselves.

However, contrary to the findings of both the trial and appellate courts, this Court finds that the use of unlicensed firearm was not duly proven by the prosecution. The evidence indicates that none of the firearms used in the November 3, 1999 massacre were ever recovered and presented in the trial court. Nevertheless, there is jurisprudence which states that the existence of the firearm can be established by testimony, even without the presentation of the firearm.^[46] The testimony of the prosecution witnesses had established that appellant Camat used a long firearm of unknown make and caliber to shoot his victims but that would still be insufficient to attribute to his felonious act the qualifying circumstance of use of unlicensed firearm in light of jurisprudence which asserts that in order for the same to be considered, adequate proof, such as written or testimonial evidence, must be presented showing that the appellant was not a licensed firearm holder.^[47] There was no such proof in the case at bar.

Article 248 of the Revised Penal Code provides for the penalty of reclusion perpetua to death for the crime of Murder. If no aggravating or mitigating circumstance attended the commission of the crime, the imposable penalty is reclusion perpetua. In this case, the qualifying circumstances of treachery and use of unlicensed firearms were appreciated by both the trial court and the Court of Appeals. However, only the presence of the qualifying circumstance of treachery was clearly proven in the trial of appellant Camat for the killing of Marcelina and Elmer Hidalgo, which nevertheless qualified the felonious act as Murder. There being no other aggravating circumstance, the trial court was incorrect in imposing the death penalty and should have just imposed the penalty of reclusion perpetua.

In any case, the Court of Appeals imposed the proper penalty of reclusion perpetua after considering the express mandate of Republic Act No. 9346.

This Court also upholds appellant Camat's conviction of four counts of Attempted Murder since said charges were satisfactorily proven by the prosecution.

The elements of attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;
   
2. He does not perform all the acts of execution which should produce the felony;
   
3. The offender's act be not stopped by his own spontaneous desistance;
   
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.^[48]

It is well-settled that where the wounds inflicted on the victim are not sufficient to cause his death, the crime is only Attempted Murder, as the accused had not performed all the acts of execution that would have brought about the victim's death.^[49]

In the present case, appellant Camat and his co-accused only committed Attempted Murder because they were not able to kill Juanito, Aurelio, Pedro, and Ricardo by reason of a cause independent of their will, specifically timely medical attention, despite the fact that they already performed all the acts of execution which should have produced the crime of Murder. In addition, the wounds inflicted upon these victims were not considered fatal as evidenced by the documentary and testimonial evidence presented in the trial court.

Every person criminally liable for a felony is also civilly liable.^[50] Thus, when death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in proper cases.^[51] This Court had previously declared that in cases of Murder and Homicide, civil indemnity and moral damages are awarded automatically. Indeed, such awards are mandatory without need of allegation and proof other than the death of the victim, owing to the fact of the commission of Murder or Homicide.^[52]

Pursuant to recent jurisprudence, this Court is increasing the award of civil indemnity from Fifty Thousand Pesos (P50,000.00) to Seventy-Five Thousand Pesos (P75,000.00) for each count of Murder^[53] as well as decreasing the award of moral damages from Two Hundred Thousand Pesos (P200,000.00) to Fifty Thousand Pesos (P50,000.00) for each count of Murder^[54] and from Fifty Thousand Pesos (P50,000.00) to Forty Thousand Pesos (P40,000.00) for each count of Attempted Murder.^[55] Furthermore, in accordance with Article 2230 of the Civil Code,^[56] exemplary damages should be awarded in the amount of Thirty Thousand Pesos (P30,000.00) for each count of Murder^[57] as well as for each count of Attempted Murder.^[58]

WHEREFORE, premises considered, the Decision dated February 27, 2009 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02429 is hereby AFFIRMED with further MODIFICATIONS that:

(1) Appellant Diosdado Camat is ordered to pay, for each count of MURDER in Criminal Case Nos. U-10498 and U-10499, Seventy-Five Thousand Pesos (P75,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages;

(2) Appellant Diosdado Camat is ordered to pay, for each count of ATTEMPTED MURDER in Criminal Case Nos. U-10500, U-10501, U10502 and U-10503, Forty Thousand Pesos (P40,000.00) as moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages; and

(3) Appellant Diosdado Camat is further ordered to pay the private offended parties or their heirs interest on all damages awarded at the legal rate of six percent ( 6%) per annum from the date of finality of this judgment. No pronouncement as to costs.

SO ORDERED.

Bersamin, Del Castillo, Villarama, Jr., and Perlas-Bernabe^,** JJ., concur.
Leonardo-De Castro,^* (Acting Chairperson).

---

^* Per Special Order No. 1226 dated May 30,2012.

^* Per Special Order No. 1227 dated May 30, 2012.

^[1] Rollo, pp. 2-23; penned by Associate Justice Pampio A. Abarintos with Associate Justices Amelita G. Tolentino and Myrna Dirriaranan Vidal, concurring.

^[2] CA rollo, pp. 49-159; penned by Executive Judge Joven F. Costales.

^[3] Records, Vol. III, pp. 73-93; penned by Judge Modesto O. Juanson.

^[4] G.R. No. 174775, October 11, 2007, 535 SCRA 656.

^[5] CA rollo, pp. 12-13.

^[6] Id. at 15-16.

^[7] Id. at 18-19.

^[8] Id. at 20-21.

^[9] Id. at 22-23.

^[10] Id. at 25-26.

^[11] Id. at 57.

^[12] Id. at 334-357.

^[13] Id. at 343-346.

^[14] Id. at 189-209.

^[15] Id. at 200-203.

^[16] Id. at 157-159.

^[17] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

^[18] Rollo, p. 23.

^[19] CA rollo, p. 203.

^[20] People v. Francisco, G.R. No. 192818, November 17, 2010, 635 SCRA 440, 454.

^[21] Records, Vol. I, p. 7.

^[22] Id., Vol. IV, pp. 16-17.

^[23] Supra note 4.

^[24] Id. at 661.

^[25] People v. Bi-ay, Jr., G.R. No. 192187, December 13, 2010, 637 SCRA 828, 837.

^[26] People v. Bautista, G.R. No. 188601, June 29, 2010, 622 SCRA 524, 539.

^[27] People v. Asis, G.R. No. 177573, July 7, 2010, 624 SCRA 509, 521.

^[28] People v. Villamor, G.R. No. 187497, October 12, 2011.

^[29] People v. Amatorio, G.R. No. 175837, August 9, 2010, 627 SCRA 292, 304-305.

^[30] TSN, March 10, 2000, pp. 5-8.

^[31] Id. at 17-18.

^[32] Id. at 22-23.

^[33] TSN, August 1, 2001, pp. 2-11.

^[34] TSN, March 13, 2000, pp. 6-7.

^[35] TSN, September 24, 2001, p. 4.

^[36] TSN, April 4, 2000, pp. 7-9.

^[37] TSN, August 22, 2001, pp. 5-6.

^[38] Id. at 19-20.

^[39] TSN, July 23, 2001, pp. 4-6.

^[40] TSN, August 21, 2002, pp. 39-43.

^[41] People v. Lalli, G.R. No. 195419, October 12, 2011.

^[42] People v. Combate, G.R. No. 189301, December 15, 2010, 638 SCRA 797, 811.

^[43] People v. Agacer, G.R. No. 177751, December 14, 2011.

^[44] People v. Concillado, G.R. No. 181204, November 28, 2011.

^[45] G.R. No. 172606, November 23, 2011.

^[46] People v. Malinao, 467 Phil. 432, 443 (2004).

^[47] People v. De Leon, G.R. No. 179943, June 26, 2009, 591 SCRA 178, 202.

^[48] People v. Rellota, G.R. No. 168103, August 3, 2010, 626 SCRA 422, 445.

^[49] People v. Gutierrez, G.R. No. 188602, February 4, 2010, 611 SCRA 633, 645.

^[50] REVISED PENAL CODE, Art. 100.

^[51] People v. Lucero, G.R. No. 179044, December 6, 2010, 636 SCRA 533, 542-543.

^[52] People v. Torres, Sr., G.R. No. 190317, August 22, 2011, 655 SCRA 720, 732.

^[53] People v. Baroquillo, G.R. No. 184960, August 24, 2011, 656 SCRA 250, 270; People v. De Guzman, G.R. No. 173477, February 4, 2009, 578 SCRA 54, 68.

^[54] People v. Agacer, supra note 43.

^[55] People v. Barde, G.R. No. 183094, September 22, 2010, 631 SCRA 187, 222; People v. Gutierrez, supra note 49 at 647.

^[56] Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party.

^[57] People v. Agacer, supra note 43.

^[58] People v. Torres, Sr., supra note 52 at 733.