This is an appeal from the May 8, 2015 Decision^[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05026, which affirmed the April 6, 2011 Decision^[2] of the Regional Trial Court, Branch 128, Caloocan City (RTC) in Criminal Case No. C-70393, finding accused-appellants Geraldo Santillan y Villanueva (Geraldo) and Eugene Borromeo (Eugene) guilty beyond reasonable doubt of the crime of murder.

The Antecedents

In an Information, dated March 30, 2004, Geraldo and four (4) John Does were charged with the crime of murder. The Information reads:

That on or about the 28^th day of March 2004 in Caloocan City, Metro-Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually aiding with one another, without any justifiable cause, with deliberate intent to kill, treachery, evident premeditation and abuse of superior strength, did then and there willfully, unlawfully and feloniously attack and stab with a bladed weapon one ERNESTO GARCIA Y MARIANG, hitting the latter on the different parts of the body, thereby inflicting upon him serious physical injuries, which caused his instantaneous death.

Contrary to Law.^[3]

On April 28, 2004, Geraldo was arraigned where he pleaded "not guilty." Upon motion by the Public Prosecutor, an Amended Information was admitted by the RTC on June 24, 2004. The Amended Information named the four (4) John Does as Eugene, Ramil Santillan y Villanueva (Ramil), Julious Esmena (Julious), and Andres Cartnueva (Andres).

On January 24, 2007, Eugene was arraigned and he pleaded "not guilty" to the crime charged. Ramil, Julious and Andres, however, remained at large.

The prosecution presented Julie Ann Garcia (Julie Ann), Michael Garcia (Michael), Police Chief Inspector Felimon Porciuncula, Jr. (Dr. Porciuncula, Jr.), PO1 Joselito Bagting, and Mary Ann Parinas as its witnesses. On the other hand, the defense consisted of the testimonies of Clarita Amen (Clarita), Teresita Arias (Teresita), Geraldo and Eugene.

Version of the Prosecution

On March 23, 2004, at about 7:30 o'clock in the evening, Andres invited the victim Ernesto Garcia (Ernesto), who was then watching television in his living room, to go out. Ernesto agreed and they went to the end portion of an alley.

Minutes later, Michael, Ernesto's son, was tending their store when he saw his father running towards their gate while being chased by Ramil and Geraldo, also known in their place as Dodong Santillan.^[4] Thereupon, Ramil stabbed Ernesto at the back. Geraldo, who was also armed, tried to stab Ernesto but missed.

Ernesto ran towards their gate and embraced Michael. Michael then called out his sister, Julie Ann, who came to help her father while Michael sought assistance from their uncle, Domingo Trinidad. Julie Ann asked Ernesto who his assailants were. Ernesto answered Dodong, Eugene, Ramil, and a certain "Palaka." Ernesto vomited blood and fell to the ground. Michael returned on board a tricycle and they tried to bring Ernesto to the hospital, but their father was already dead.

Version of the Defense

Geraldo testified that on March 28, 2004, at about 7:45 o'clock in the evening, he was already asleep in their house but was awakened when he felt something cold was pointed at his side. He was surprised to see that it was a gun and policemen were inside his house. The policemen immediately handcuffed him and informed him that he was responsible for Ernesto's death.

Geraldo further attested that Ernesto filed a complaint against him for allegedly throwing stones at his (Ernesto's) house. The barangay investigation, however, showed that he was not responsible for the complained act. He and Ernesto shook hands and the latter's children even asked for an apology. On March 14, 2004, Ernesto hacked him on the head. He filed a case for frustrated murder before the police precinct, but the case did not reach the prosecutor's office because Ernesto died.^[5] Also, sometime in November 2003, he and his wife Lorna Santillan filed a complaint against Ernesto before the barangay.^[6] He never thought of retaliating as they were advised to file a case against Ernesto.

Teresita, sister of Julious, corroborated the testimony of Geraldo. She testified that on March 28, 2004, between 6:00 to 6:30 o'clock in the evening, she was at Geraldo's house and she saw him sleeping because the house had no door and there was illumination from a candle; that while on her way home from the market, she noticed a commotion; that she heard that Ernesto was stabbed; that she hurriedly went to Geraldo's house to fetch her son and saw that Geraldo was still sleeping; that she was cooking at about 8:00 to 8:30 o'clock in the evening when policemen suddenly arrived; and that she saw from their window that Geraldo, who had just awakened, was being arrested.

For his part, Eugene deposed that on March 28, 2004 at about 7:45 o'clock in the evening, he was in Camarin, Zapote, Caloocan City. He arrived in the said place at about 4:30 o'clock in the afternoon because his mother instructed him to collect payment from her kumadre. He ate there and was able to collect the payment. He left Zapote at about 7:00 o'clock in the evening but did not go home and instead played video carrera for more than thirty 30 minutes. Afterwards, he went home and was surprised to see a lot of people in their place. He then learned of Ernesto's death. He alleged that he never had a misunderstanding with Ernesto; and that he was present during the time that Ernesto attacked Geraldo with a bolo. On November 23, 2005, he discovered that a case for murder was filed against him when he secured a clearance from the OCC-MeTC.^[7] He stated that he never left their house in Bagong Silang; and that he did not go into hiding.

The RTC Ruling

In its April 6, 2011 decision, the RTC found Geraldo and Eugene guilty beyond reasonable of the crime of murder and sentenced them to suffer the penalty of reclusion perpetua and all the accessory penalties attached thereto.

The RTC treated the ante mortem statement of Ernesto as a dying declaration. It found that Ernesto's declaration, which was relayed to Julie Ann, concerned the circumstances surrounding his death; that it was offered in a criminal case in which he was the victim; and that it was made under the consciousness of impending death, taking into consideration the gravity of his wounds and the immediacy by which death took place. It also admitted Ernesto's declaration as part of the res gestae.

The trial court was convinced that the dying declaration, coupled with the testimony of Michael, had established beyond reasonable doubt the guilt of both Geraldo and Eugene. It opined that the defenses proffered centered on alibi, an inherently weak defense that is reduced to self-serving evidence when unsubstantiated and is undeserving of weight in law.

Moreover, the RTC ruled that the testimonies of defense witnesses Clarita and Teresita did not provide corroboration because both witnesses were not present during the stabbing incident. It observed that Teresita was at the market and saw Geraldo before and after the stabbing incident but not during its occurrence. In the same manner, the RTC noted that while Clarita saw Geraldo asleep before and after the stabbing incident, she nevertheless did not see him at the time of its commission for she was inside the house of Geraldo's mother having a massage session.

Finally, the RTC appreciated the qualifying circumstance of abuse of superior strength. In so ruling, it stressed that Ernesto was unarmed and was trying to flee from his attackers. The RTC took into account the fact that there were four assailants, two of whom were seen chasing Ernesto with a bolo on hand. Hence, it concluded that the crime committed was murder, qualified by abuse of superior strength. The fallo reads:

WHEREFORE, finding the accused Geraldo Santillan and Eugene Borromeo Guilty beyond reasonable doubt for Murder, the court hereby sentences them to suffer the penalty of reclusion perpetua and all the accessory penalties attached thereto. Accused Geraldo Santillan and Eugene Borromeo are likewise directed to pay jointly and severally the heirs of Ernesto Garcia as follows:

1) Seventy Five Thousand (P75,000.00) Pesos, as civil indemnity;
2) Seventy Five Thousand (P75,000.00) Pesos, as moral damages;
3) Seventy Five Thousand (P75,000.00) Pesos as, exemplary damages; and
4) Twenty Seven Thousand Eight Hundred Forty Five (P27,845.00) Pesos, as actual damages.

SO ORDERED.^[8]

Aggrieved, the accused-appellants elevated an appeal before the CA.

The CA Ruling

In its May 8, 2015 decision, the CA affirmed with modification the conviction of Geraldo and Eugene. It held that all the requisites for the admissibility of a dying declaration were present in this case. In the same manner, the CA ruled that Ernesto's declaration could also be admitted as part of the res gestae because when Ernesto gave the identities of those who stabbed him to Julie Ann, he was referring to a startling occurrence. It added that Ernesto was wounded and blood was oozing from his chest, thus, he had no time to contrive the identification of his assailants. The CA opined that Ernesto's utterance that Dodong, Eugene, Ramil, and a certain "Palaka" stabbed him was spontaneously made and only in reaction to the startling occurrence.

The appellate court explained that the qualifying circumstance of abuse of superior strength must be appreciated because the assailants enjoyed superiority in number and were armed with weapons, while Ernesto had no means with which to defend himself. It declared that the medico-legal report supported the inequality of forces between the victim and the assailants in terms of number and weapons. The CA noted Dr. Porciuncula, Jr.'s testimony that Ernesto sustained multiple incise wounds on different parts of his body; that the weapon used was a single bladed sharp instrument and it was possible that more than one was used; and that it was likely that there could have been more than one assailant that inflicted the stab wounds.^[9] The CA disposed of the appeal in this wise:

WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court of Caloocan City, Branch 128 in Criminal Case No. C-70393, finding accused-appellants Geraldo Santillan y Villanueva and Eugene Borromeo y Natividad guilty beyond reasonable doubt of the crime of murder and sentencing each of them to suffer the penalty of reclusion perpetua, is AFFIRMED with MODIFICATION. Accused-appellants are ordered to pay jointly and severally the heirs of Ernesto Garcia the amounts of Seventy-Five Thousand Pesos (P75,000.00) as civil indemnity, Seventy-Five Thousand Pesos (P75,000.00) as moral damages, Thirty Thousand Pesos (P30,000.00) as exemplary damages and Twenty-Seven Thousand Eight Hundred Forty-Five Pesos (P27,845.00) as actual damages. Accused-appellants shall also pay interest on all these damages assessed at the legal rate of six percent (6%) per annum from date of finality of this decision until fully paid.

SO ORDERED.^[10]

Hence, this appeal.

ISSUES

I.

WHETHER IT WAS PROVEN BEYOND REASONABLE DOUBT THAT GERALDO AND EUGENE WERE RESPONSIBLE FOR THE DEATH OF ERNESTO

II.

WHETHER ABUSE OF SUPERIOR STRENGTH ATTENDED THE COMMISSION OF THE CRIME

In a Resolution,^[11] dated January 16, 2017, the Court required the parties to submit their respective supplemental briefs simultaneously, if they so desired. In their Manifestation (in lieu of Supplemental Brief),^[12] dated March 3, 2017, accused-appellants manifested that they were adopting the Appellant's Brief filed before the CA as their supplemental brief, for the same had adequately discussed all the matters pertinent to their defense. In its Manifestation (Re: Supplemental Brief),^[13] dated March 15, 2017, the Office of the Solicitor General (OSG) stated that all matters and issues raised by the accused-appellants had already been adequately discussed in its Brief before the CA and manifested that it would no longer file a supplemental brief.

In their appellant's brief, accused-appellants sought a reversal of their conviction contending that Ernesto's statement, as relayed to Julie Ann, was inadmissible as a dying declaration or part of res gestae. They posited that Ernesto was incompetent to testify had he survived. Accused-appellants advanced the proposition that because the stabbing incident happened at night, darkness made it improbable for Ernesto to identify his assailants. Considering that no moral certainty could be had as to their participation, their accountability for Ernesto's death was reduced to a mere possibility which was insufficient to establish guilt beyond reasonable doubt.

Further, accused-appellants argued that the prosecution failed to prove that they took advantage of their physical strength to ensure commission of the crime for even if it was true that Michael saw Ramil and Geraldo chasing Ernesto, such circumstance did not prove that they took advantage of their physical strength by simultaneously attacking the victim.

The Court's Ruling

The appeal is partly meritorious.

Ernesto's dying declaration stands; likewise, his statement is admissible as part of the res gestae

A dying declaration, although generally inadmissible as evidence due to its hearsay character, may nonetheless be admitted when the following requisites concur, namely: (a) the declaration must concern the cause and surrounding circumstances of the declarant's death; (b) at the time the declaration is made, the declarant is under a consciousness of an impending death; (c) the declarant is competent as a witness; and (d) the declaration is offered in a criminal case for homicide, murder, or parricide, in which the declarant is a victim.^[14]

All of the above requisites are present in this case. The Court quotes with approval the CA's disquisition on the matter:

Ernesto communicated his ante-mortem statement to Julie Ann, identifying accused-appellants and the other two accused as the persons who stabbed him. At the time of his statement, Ernesto was conscious of his impending death, having sustained multiple incise and stab wounds, one of which being fatal, piercing deeply into the middle lobe of his right lung, trachea and esophagus. Ernesto even vomited blood, collapsed, and eventually died.

x x x

Ernesto would have been competent to testify on the subject of the declaration had he survived. Lastly, the dying declaration was offered in this criminal prosecution for murder in which Ernesto was the victim.^[15]

The postulate that darkness of the night prevented Ernesto from identifying his assailants must be rejected for being entirely conjectural. Basic is the rule that mere allegation and speculation is not evidence, and is not equivalent to proof.^[16]

To be sure, Geraldo and Eugene's proposition crumbles in light of the testimony of Dr. Porciuncula, Jr., whose competence as an expert witness was admitted by the defense. Dr. Porciuncula, Jr. testified that with respect to the injuries in front, the assailant could have been in the front right side of the victim if the assailant was right-handed; whereas, if the assailant was left-handed, then he was facing the victim in front.^[17] He likewise stated that the incise wounds on the hands could be considered as defense wounds and it was possible that the victim was able to fight back his assailant.^[18]

The presence of defense wounds is a positive indication of resistance on the part Ernesto. Gauging from the situs of the defense wounds, it is discernible that the victim utilized his hands to ward off the slew of attacks from his assailants. Logically, the defense wounds resulted from attacks that were hurled within Ernesto's line of sight, for the simple reason that his hands could only parry those attacks coming from the direction he was facing. This leads to the unmistakable conclusion that at one point in time, Ernesto came face to face with his assailants. Contrary to Geraldo and Eugene's assertion, the evidence on record reveals that Ernesto was in a position to glance upon and recognize the face of his aggressors. Moreover, such conclusion is buttressed by the uncontroverted findings that Ernesto sustained frontal injuries; and that the attacker could have been in front or facing the victim.

Ernesto's statement may also be considered part of the res gestae. A declaration or an utterance is deemed as part of the res gestae and thus admissible in evidence as an exception to the hearsay rule when the following requisites concur, to wit: (a) the principal act, the res gestae, is a startling occurrence; (b) the statements are made before the declarant had time to contrive or devise; and (c) the statements must concern the occurrence in question and its immediately attending circumstances.^[19]

Ernesto's statement referred to a startling occurrence, that is, him being stabbed by Dodong, Eugene, Ramil, and a certain "Palaka." At the time he relayed his statement to Julie Ann, he was wounded and blood oozed from his chest. Given his condition, it is clear that he had no time to contrive the identification of his assailants. Hence, his utterance was made in spontaneity and only in reaction to the startling occurrence. Definitely, such statement is relevant because it identified the authors of the crime.^[20]

The Qualifying Circumstance of Abuse of Superior Strength was improperly appreciated; Geraldo and Eugene could only be convicted of the crime of homicide

Although the Court entertains no doubt that Geraldo and Eugene are responsible for Ernesto's death, the lower tribunals erred when it appreciated abuse of superior strength to qualify the killing to murder. The courts a quo commonly concluded that the assailants' number and weapons gave them significant advantage in ensuring the death of Ernesto. Such reasoning, however, is incorrect and fails to muster the standards set by jurisprudence on the proper appreciation of the qualifying circumstance of abuse of superior strength.

In People v. Beduya (Beduya)^[21] the Court explained the qualifying circumstance of abuse of superior strength as follows:

Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor selected or taken advantage of by him in the commission of the crime. The fact that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength, there being no proof of the relative strength of the aggressors and the victim. The evidence must establish that the assailants purposely sought the advantage, or that they had the deliberate intent to use this advantage. To take advantage of superior strength means to purposely use excessive force out of proportion to the means of defense available to the person attacked.^[22]

As pointed out in the appellant's brief, only the fact that there were two (2) persons chasing Ernesto, Ramil and Geraldo, can be ascertained from Michael's testimony. In line with Beduya, the sole fact that there were two (2) persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength. Moreover, as can be gleaned from Michael's testimony, the respective attacks thrown by Ramil and Geraldo occurred alternately, one after the other. It is settled that when the attack was made on the victim alternately, there is no abuse of superior strength.^[23] Besides, the Court notes that Eugene was not even a participant in the chase Michael witnessed.

Neither will Ernesto's dying declaration suffice to establish abuse of superior strength. The ante mortem statement, as relayed to Julie Ann, revolved solely on the identification of the assailants Dodong, Eugene, Ramil, and a certain "Palaka." There was no account on how the assault transpired or a narration to the effect that the aggressors cooperated in such a way as to secure advantage of their combined strength to perpetrate the crime with impunity.^[24] Aside from naming his assailants, Ernesto's ante mortem statement is bereft of any indicia that will convince the Court that the perpetrators espoused a deliberate design to utilize the advantage of number and weapons. Thus, the dearth in the prosecution's evidence impels a downgrading of the nature of the offense committed from murder to homicide.

Proper penalty and
award of damages

Having established Geraldo and Eugene's guilt beyond reasonable doubt for the crime of homicide, they must suffer the appropriate penalty imposed by law. The crime of homicide is punishable by reclusion temporal. Considering that there are no mitigating or aggravating circumstances, the penalty should be fixed in its medium period. Applying the Indeterminate Sentence Law, they should be sentenced to an indeterminate term, the minimum of which is within the range of the penalty next lower in degree, i.e., prision mayor, and the maximum of which is that properly imposable under the RPC, i.e., reclusion temporal in its medium period.^[25]

In line with prevailing jurisprudence,^[26] the Court reduces the awards of civil indemnity to P50,000.00. Likewise, the award of moral damages is reduced to P50,000.00.

WHEREFORE, the April 6, 2011 Decision of the Regional Trial Court, Branch 128, Caloocan City, in Criminal Case No. C-70393, is AFFIRMED with MODIFICATION. The Court finds accused-appellants Geraldo Santillan y Villanueva and Eugene Borromeo y Natividad guilty beyond reasonable doubt of the crime of Homicide and hereby sentences them to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to pay the heirs of Ernesto Garcia the amounts of P27,845.00 as actual damages; P50,000.00 as civil indemnity; and P50,000.00 as moral damages.

The damages awarded shall earn interest at the rate of six percent (6%) per annum from the date of finality of judgment until fully paid.

SO ORDERED.

Carpio, (Chairperson), Peralta, Leonen, and Martires, JJ., concur.

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^[1] Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate Justice Noel G. Tijam (now member of the Court) and Associate Justice Victoria Isabel A. Paredes, concurring; rollo, pp. 2-20.

^[2] Penned by Presiding Judge Eleanor R. Kwong; CA rollo, pp. 82-92.

^[3] Id. at 82.

^[4] Id. at 84.

^[5] Id. at 89.

^[6] Id.

^[7] Id. at 90.

^[8] Id. at 92.

^[9] Rollo, p. 11.

^[10] Id. at 18-19.

^[11] Id. at 26-27.

^[12] Id. at 28-30.

^[13] Id. at 33-35.

^[14] People v. Salafranca, 682 Phil. 470, 481-482 (2012).

^[15] Rollo, pp. 13-14.

^[16] Office of the Ombudsman v. De Villa, G.R. No. 208341, June 17, 2015, 759 SCRA 288, 304.

^[17] CA rollo, p. 86.

^[18] Id.

^[19] People v. Salafranca, supra note 14, at 482-483.

^[20] People v. Palanas, G.R. No. 214453, June 17, 2015, 759 SCRA 318, 329.

^[21] 641 Phil. 399 (2010).

^[22] Id.

^[23] People v. Baltar, Jr., 401 Phil. 1, 16 (2000).

^[24] People v. Mariano Baluyot, 252 Phil. 591, 598 (1989).

^[25] People v. Beduya, supra note 21, at 413-414.

^[26] People v. Jugueta, G.R. No. 202124, April 5, 2016.