G.R. No. 111066-67




Manila SECOND DIVISION G.R. Nos. 111066-67 August 15, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VILLAMOR ORDOÑA @ AMOR, accused-appellant. ROMERO, J.: Two cases, one for Murder and the other for Frustrated Murder, are before us on appeal. In a Decision dated July 12, 1993, the Regional Trial Court of Guimba, Nueva Ecija, Branch 32 found accused-appellant Villamor Ordoña @ Amor guilty of murdering Felicitas Dayag-Valenzuela, as well as for the frustrated murder of Marcelo Valenzuela.1 At about five o'clock in the afternoon of April 25, 1992, spouses Marcelo Valenzuela and Felicitas Dayag Valenzuela were on their way home from Villa Bautista, Pangasinan. Marcelo was driving their tricycle and Felicitas was seated inside the sidecar as they traversed the irrigation dike in Barangay Luna, Cuyapo, Nueva Ecija. Suddenly, someone started shooting at them. Felicitas was hit and fell face down about two meters from the tricycle after she attemped to escape. Marcelo saw the gunman Villamor Ordoña, herein accused-appellant, and eventually ran into him with the tricycle. As Marcelo tried to escape, he saw Ordoña reload his long firearm. The latter shot at Marcelo who was hit twice, on the chest near his fifth rib and on the arm. When Marcelo looked back, the accused was some fifty meters away. Marcelo also saw the latter return to where Felicitas was and fire at her as she lay prostrate. Despite in injury, Marcelo reached their house. With the assistance of a tricycle driver, he reported the incident to the Philippine National Police in the town of Cuyapo. Two policemen and his aunt brought him to the Provincial hospital in Tarlac, Tarlac.2 The autopsy on Felicitas revealed that she had died on the spot after sustaining a gunshot wound on the chest which hit her heart and lungs and fractured a rib and another gunshot wound on the forehead exposing the brain and detaching part of her skull.3 Marcelo was more fortunate because the gunshot wound on his chest, although potentially fatal, exited without causing internal injuries.4 The gunman who ambushed them was SPO1 Villamor Ordoña, nicknamed Amor, a rifleman of the 126th Philippine Constabulary (now Philippine National Police) company based in Barangay Cavite, Guimba, Nueva Ecija. The attack occurred on Saturday, April 25, 1992. Ordoña was attending a course on Urban Counter-Terrorist Warfare at Cabanatuan City from March 9, 1992 to May 1, 1992, Mondays to Saturday noon. In his defense, Ordoña presents the alibi that on April 25, 1992, from four thirty in the afternoon up to six thirty that same evening, he was watching basketball games at their 126th PC Company headquarters in Cavite, Guimba, Nueva Ecija. The defense presented Cresencio Marzan who testified that he saw the accused at the games. Ordoña's family residence is located some 600 meters away from Marcelo Valenzuela's house in Barangay Luna, Cuyapo, Nueva Ecija. When asked why Ordoña wanted to kill them, Marcelo surmised that the accused still bore a grudge against him for buying an irrigation pump from the latter's father, Basilio Ordoña, in December 1991. Marcelo testified that he bought the pump for P3,500.00 on December 15, 1991 and that the accused was angered when he learned of the sale and wanted the pump back. Marcelo added that he was unable to use the pump as the accused and Basilio Ordoña, his father, returned for it on the same day, giving him back the purchase price.5 Basilio Ordoña testified that Marcelo bought the pump at the very cheap price of P1,000.00. Villamor Ordoña accompanied him when he returned the money to Marcelo. They brought the pump home in a sled (pasagad in Tagalog) as instructed by the latter. 6 Villamor Ordoña was charged with murder and frustrated murder on July 14, 1992 in Informations which read: Criminal Case No. 866-G That on or about the 25th day of April 1992, in the Municipality of Cuyapo, Province of Nueva Ecija, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a long firearm, with intent to kill by means of treachery and evident premeditation, as the attack is sudden and unexpected, which methods directly insured the execution of his plan without risk to himself from the defense which the victim might have done, did then and there, willfully, unlawfully, criminally and feloniously attack, assault and shoot one Felicitas Dayag Valezuela thereby inflicting upon her gunshot wounds on her body which caused her instantaneous death. CONTRARY TO LAW. Criminal Case No. 867-G That on or about the 25th day of April 1992, in the Municipality of Cuyapo, Province of Nueva Ecija, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a long firearm, with intent to kill by means of treachery and evident premeditation, did then and there, willfully, unlawfully, criminally and feloniously attack, assault and shoot one Marcelo Valenzuela thereby hitting him on the different parts of his body with gunshot wounds, thus performing all the acts of execution which should have produced the crime of Murder as a consequence but nevertheless, did not produce it by reason of causes independent of his will, that is, the timely and able medical attendance extended to said victim which prevented his death. CONTRARY TO LAW. After trial, the appealed decision convicting Villamor Ordoña of the crimes charged was rendered on July 12, 1993. The lower court found Ordoña's alibi unavailing and appreciated treachery to qualify the killing of Felicitas into murder. The dispositive portion of the decision reads: WHEREFORE, this Court finds the accused Villamor Ordoña alias "Amor" guilty beyond reasonable doubt of the crimes charged in the information, to wit: In Criminal Case No. 866-G for the Murder of Felicitas Dayag-Valenzuela, in Violation of Article 248 of the Revised Penal Code, without aggravating or mitigation circumstances, and hereby sentences the said accused to RECLUSION PERPETUA, with the accessory penalties provided by law; In Criminal Case No. 867-G for the Frustrated Murder of Marcelo Valenzuela, without aggravating or mitigating circumstances, in Violation of Article 248 in relation to Article 50 of the Revised Penal Code and hereby sentences the accused to the indeterminate penalty of 6 years, 1 month and 11 days of prision mayor as maximum with the accessory penalties provided by law. The accused is hereby ordered to indemnify the heirs of the victim for the death of Felicitas Dayag-Valenzuela of (sic) the amount of P50,000.00 and to pay the said heirs the amount of P37,157.00 by way of funeral and other expenses. SO ORDERED.7 The accused is here represented by both counsel de oficio and counsel de parte who filed an appellant's brief and a supplement thereto, respectively. 8 Accused-appellant here points out several errors committed by the trial court including the alleged inconsistencies in Marcelo Valenzuela's testimony, the misappreciation of his alibi, the failure to prove treachery, the lack of motive to kill and its failure to apply the "equipoise rule." After a thorough review of the records in the case before us, the Court is convinced that Ordoña was proven guilty beyond reasonable doubt. Accused-appellant cites two inconsistencies in Marcelo's testimony. Marcelo initially stated that fifteen shots were fired at them9 and later said there were fifteen shots more or less. 10 The Court accepts Marcelo's explanation that he could not precisely recall how many shots were fired because the accused suddenly appeared and fired at them. 11 In such a situation, it is quite understandable that one cannot keep track of the number of shots fired because ones's immediate concern would be to flee or seek cover in order to survive. Accused likewise makes much of the fact that Marcelo first stated that Villamor Ordoña was the one who gave back the purchase price for the water pump but later declared it was Basilio Ordoña. The transcript of stenographic notes reveals a possible misunderstanding of the question proffered by counsel to which Marcelo assented. Q And when you said that when Amor Ordoña was trying to get back that irrigation pump from you, you were demanding the return of what you paid for it, was Amor Ordoña not able to return to you what you paid for that irrigation pump? A Yes, Sir. Q And you returned the irrigation pump to Amor Ordoña? A I returned it to his father, Sir.12 Q Therefore when you testify (sic) on January 5, 1993 as read to you, you are not telling the truth because it was his father who returned to you the money. A He was the one who returned the money, Sir. Q Who? A His father, Sir.13 It must be borne in mind that the questioning was done in the local dialect. The subsequent translation into English by the court stenographer may have resulted in a different interpretation. In any case, Marcelo clarified and categorically stated that it was the accused's father who returned the money to him. We find this alleged inconsistency to be minor and hardly relevant, as well as one that does not affect Marcelo's credibility. In his supplemental brief, accused-appellant also suggests that Marcelo had a motive to falsely testify against him since the purchase price for the pump was not returned, according to Marcelo's testimony. On the other hand, accused-appellant contends that he has no reason or motive to kill the victim. 14 The Court dismisses this argument as insignificant mainly because the element of motive is considered only when there is a doubt with respect to the identification of the assailant. 15 Motive is immaterial when the assailant is positively identified, such as in the case before us. We also find no reason for Marcelo to falsely accuse Ordoña on account of the purchase price because the money was returned to him. Marcelo lost his wife in this attack and was himself nearly mortally wounded. Logically, he would seek justice and redress against the guilty party and not anyone else. Accused-appellant adds that Marcelo's behavior after the incident is unusual because he allegedly did not report the same to the authorities. This is not the Court's finding after reviewing the records. We note that Marcelo clearly stated that he was accompanied by his aunt and a tricycle driver to the police and that two police officers brought him to the Tarlac Provincial Hospital for treatment. 16 The Court perceives Marcelo's testimony to be clear, convincing and worthy of credence. Ordoña's imputations of contradiction and improper motive on Marcelo's part are baseless and incapable of affecting the latter's credibility. Next, accused-appellant contends that his alibi should have been accepted at its face value by the trial court since it was corroborated by a credible and impartial witness.ℒαwρhi৷ He adds that the Court should not be prejudiced against him simply because alibi was presented as part of his defense. Viewed in the light of Marcelo Valenzuela's positive identification of accused-appellant as their attacker and his credible narration of the events that transpired, Cresencio Marzan's tale hardly inspires belief when he claims to have seen Ordoña watching the basketball games during the time of the alleged ambush. Marzan stated that he saw the accused-appellant standing beside the guardhouse at the start of the game and again, at around four thirty in the afternoon at the same place when it ended. When queried how he could have been sure that the accused-appellant was there, Marzan replied that they "waved at each other." Like the trial court, we are not convinced that Marzan's testimony is trustworthy. Besides, it is even possible that the accused slipped away to ambush the Valenzuelas and returned at six thirty in the evening just as the second basketball game was ending. Ordoña's alibi thereby fails to impress us. Accused-appellant argues that the qualifying circumstance of treachery, not having been proved, the crime is, therefor, homicide and not murder. We cannot accept his theory. There is treachery or alevosia when an offender employs means and methods in the execution thereof which tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make. 17 Treachery was present in the sudden and unexpected attack on the Valenzuelas, rendering them easy and defenseless targets of Ordoña. 18 The unprovoked gunfire upon the unsuspecting spouses who were on their way home in their tricycle without any weapon to resist the attack constitutes a treacherous circumstance. Accused-appellant's reliance on the "equipoise rule" is misplaced. If an issue of fact is "in equipoise," that is to say, if the evidence pertinent to a disputed fact is equally balanced or does not produce a rational belief of its existence, the party holding the affirmative as to such fact must fail. 19 Said rule is not applicable in the case before us because the evidence here presented is not equally weighty. 20 The fact that Ordoña was the gunman who shot at the Valenzuelas has been firmly established with moral certitude and the case against accused-appellant has not been successfully assailed. Consequently, his conviction stands. WHEREFORE, the appealed decision convicting Villamor Ordoña of Murder and Frustrated Murder is hereby AFFIRMED. Costs against accused-appellant. SO ORDERED. Regalado, Puno, Mendoza and Torres, Jr., JJ., concur. Footnotes 1 Criminal Case Nos. 866-G and 867-G. 2 TSN, May 27, 1992, December 3, 1992, January 5, 1993 and March 18, 1993. 3 Autopsy Report by Dr. Leopoldo C. Doctor of the Guimba District Hospital on April 25, 1992; Records of Criminal Case No. 866-G, p. 8. 4 Medico-Legal Certificate by Dr. Ricky Figueroa of the Tarlac Provincial Hospital, April 27, 1992; Records of Criminal Case No. 867-G, p. 9. 5 TSN, March 18, 1993, p. 10. 6 TSN, May 11, 1993, p. 18. 7 Penned by Judge Rogelio P. De Guzman, Rollo, pp. 27-28. 8 By counsel de oficio Atty. Felipe P. Fuentes, Jr., Rollo, p. 73. The supplemental brief was filed by Atty. Joseph John, M. Literal, accused's counsel de parte, Rollo, p. 82. 9 TSN, December 3, 1992, p. 5. 10 TSN, March 18, 1993, p. 13. 11 TSN, March 18, 1993, p. 14. 12 TSN, January 5, 1993, p. 3. 13 TSN, March 18, 1993, p. 10. 14 Supplemental Brief, pp. 3-5; Rollo, pp. 84-86. See quoted testimony above from TSN, January 5, 1993, p. 3. 15 People v. Martinez, 127 SCRA 280 (January 1, 1984); People v. Balbas, 122 SCRA 850 (June 24, 1983); People v. Almeda, 124 SCRA 484 (September 2, 1983). 16 TSN, December 3, 1992, pp. 8-9. 17 People v. Francisco Santos, G.R. No. 94545, April 4, 1997 citing People v. Soldao, 243 SCRA 199 (March 31, 1995) and People v. Camahalan, 241 SCRA 558 (February 22, 1995). 18 People v. Uycoque, 246 SCRA 769 (July 31, 1995). 19 R. FRANCISCO, BASIC EVIDENCE 490 (1991 edition) citing Howes v. Brown, 75 Ala. 385; Evans v. Winston, 74 Ala. 349; Delaware Coach Co. v. Savage, 81 Supp. 293. 20 When the scale shall stand on an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant. M. MORAN, VI COMMENTS ON THE RULES OF COURT 134 (1980 edition) citing Ray v. Donnel, 4 McLean (U.S.), 20 Fed. Cas 11, 520. The Lawphil Project - Arellano Law Foundation