G.R. Nos. 85248-49 July 6, 1994
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
SGT. JERRY BALANON, accused-appellant.
The Solicitor General for plaintiff-appellee.
Emmanuel C. Paras for accused-appellant.
BELLOSILLO, J.:
On 3 November 1980, at about three o'clock in the afternoon, Roberto Laino and Gregorio Santillan, both trustee inmates1 of San Ramon Penal Farm, were exchanging fist blows along the national highway in Labuan, Zamboanga City. Accused Sgt. Jerry Balanon, an enlisted man of the Philippine Army assigned at the Southern Command Headquarters (SOUTHCOM), Camp Navarro, Calarian, Zamboanga City,2 was standing nearby. As the fight progressed, Sgt. Balanon left for a nearby store.
Ms. Maria Luningning Sinsuan and Ms. Elsa de la Cruz, both teachers in the Labuan Barangay High School were seated on a bench in the house of Alim Usman some three feet away from the road waiting for a bus to take them to Zamboanga City. They were twenty to twenty-five meters away from the protagonists. One of them shouted for help so Ms. Sinsuan went near to pacify them saying, "Tama na yan." One of them retorted, "Alam mo Ma'am . . .," but was cut short when Balanon went to Ms. Sinsuan, walked her five meters away and then told her not to interfere. Then he went back to the two quarreling inmates, pulled a gun suddenly from his waist, and shot them one after another twice. A fifth shot was supposedly fired but the trial court did not consider the same as it has not been sufficiently established in the record. Fearing that Balanon was running amok, Ms. Sinsuan ran back to where she was previously sitting. Ms. de la Cruz, who was then six months pregnant, remained seated on the bench as the startling occurrence unfolded before them. The shaken tutors then proceeded on their way to the City.
Later at six o'clock in the evening, Sgt. Balanon was picked up by some ten members of the 36th Infantry Batallion in connection with the killing of Laino and Santillan. Subsequently, Balanon was charged with murder on two counts, both qualified by evident premeditation and treachery.
Sgt. Balanon set up the defense of alibi and mistaken identity. He claimed he was "delivering information to an intelligence community."
On 31 October 1985, Judge Carlito A. Bibna of the Regional Trial Court of Zamboanga City, Br. 13, convicted Sgt. Balanon of the crime charged qualified by treachery and sentenced him to two terms of reclusion perpetua, to indemnify the heirs of the victims at P30,000.00 for each case, and to pay the costs. As a detention prisoner, he was credited in full for the period of his detention.3
The crux of the decision leaned on the credibility of witnesses —
As compared to the testimonies of the prosecution witnesses, particularly Luningning Sinsuan, Elsa de la Cruz and Rogene Acasio who testified in straightforward, spontaneous and frank manner and has answered consistently even on cross-examination, the vacillating and evasive answers of the accused Sgt. Jerry Balanon during the course of his testimony does not inspire belief and reliability.4
The aggravating circumstance of evident premeditation was not appreciated against Sgt. Balanon as "[t]here is no evidence on record to show when the plan to kill the deceased-victims was hatched by the accused . . . "5
In the present recourse, accused-appellant basically raises factual issues. He stresses his presence at the SOUTHCOM headquarters in the morning of 3 November 1980, contrary to the testimony of prosecution witness Rogene Acasio, also an inmate, that he was drinking liquor with Balanon and the victims. Appellant's alibi cannot stand in the face of his clear and positive identification by Acasio who, appellant even admitted, had no ill will to implicate him (Balanon) in the crime. Moreover, there is no compelling reason to depart from the assessment of the credibility of the witnesses made by the trial judge who, unlike the reviewing court, had the occasion and opportunity to observe their demeanor and detect any badge of fabrication. But even granting arguendo appellant's claim to be true, this does not contradict the testimonies of other prosecution witnesses that he shot the victims to death.
Appellant faults the trial court for giving credence to the testimony of Acasio who was not only probably drunk, but was a convicted hijacker and falsifier of public documents as well; hence, apt to fabricate his testimony. But, probability is not evidence, and even if Acasio took alcohol, it does not follow that he was drunk. Moreover, a drunk person is competent to testify on what he sees or experiences, however limited or hazy his perception may be. In the same way, a hijacker or a falsifier is not necessarily a liar. Under the Rules of Court, conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification of witnesses.6
Appellant's assertion that the victims being prisoners could not have left the Penal Colony without the permission of the warden, is completely irrelevant for they were admittedly shot and killed outside the prison walls.
While appellant denies having ordered a certain handicraft product from Acasio,7 by reason of which Acasio claims to have known him, appellant nonetheless admits that most of the living-out prisoners knew him there because he used to pass by that place.8 The distinction sought to be made by appellant is too trivial to affect the testimony of Acasio. After all, he (Balanon) does not deny that Acasio knows him.
Appellant contends that he is not the assailant described by prosecution witness Sinsuan since he does not have any wound or stitches9 as confirmed by the prosecutor who "was not able to see any scar" behind his ears.10 It may be worth noting that —
. . . Sometimes in the course of time a scar may apparently disappear — that is to say, not be noticeable to the casual observer — but it is always there, to be found by him who looks carefully. By compressing the surface where the scar is suspected, so as to expel the blood supply and then releasing it suddenly, the blood rushing back will generally show an old scar very plainly, where before it could not be noticed. Thus also, where a person has been branded as well as where a scar has become invisible, by slapping the part several times or by rubbing it, the scar or brand may be made visible . . . Scars decrease in size after time in an adult, but increase in size in a child . . .11
As observed by the Solicitor General:
. . . it was only in June 1985 that appellant showed his long-haired head for a cursory look, to the prosecuting fiscal, or almost five (5) years after the commission of the crime. The Sworn Statement of Mrs. Luningning Sinsuan was taken on November 18, 1980. Appellant was already under investigation at the time. Why did he not claim at once that he had no scar, and instead alleged it for the first time after almost five (5) years? Why did he not let a doctor examine his head and certify as to the presence or absence of a scar? The answer is obvious, his scar would have been very obvious at that time, even to an untrained eye.12
In her Sworn Statement, Luningning simply described the assailant as "tall about 5'7" above, medium or little slim, fair complexion, slit eyes, plain long hair (minus haircut along the wound with stitches,"13 and nothing was categorically said about the location of the wound. Since Luningning was describing appellant's hair when she took exception to a then visible haircut bordering a wound, said wound could have been on appellant's pate or head which, when the prosecutor took a look behind appellant's ears, could have been hidden by his long hair.
But even granting arguendo that Luningning made incorrect statements about the wound, this pales in comparison with her and De la Cruz' positive identification of appellant on the stand.
Appellant also discredits prosecution witness Elsa de la Cruz by highlighting her alleged inconsistent statements, i.e., she allegedly averred that she got a close view of the accused when she was still boarding the bus, but on cue from the prosecutor, she said she was already on board the bus, to wit,
Q: . . . What was the basis for your identification of the accused Jerry Balanon?
A: I identified him because when we already boarded the bus with Mrs. Sinsuan he went near Mrs. Sinsuan and Mrs. Sinsuan was stepping one step (on) the bus and he was very near Mrs. Sinsuan.
Asst. City Fiscal Yu:
Q: How far was he when you saw him when you were about to board the bus?
A: Very near.
Court:
Q: How many meters?
A: If Mrs. Sinsuan was stepping then I am at the back of Mrs.
Sinsuan. 14
Ms. de la Cruz could be referring to two instances when accused came close to Ms. Sinsuan, i.e., when the latter was already inside the bus and when she was still boarding the bus, and the follow-up question of the prosecutor referred to the instance when the witnesses were still boarding. But even if we consider as inconsistent this portion of Ms. de la Cruz' testimony, this is too trivial to affect their straightforward account of the shooting of the victims by appellant.
While it may be unnatural for a person who has just committed a grave felony to walk back and forth and approach bystanders amiably instead of fleeing, criminal acts are aberrations and criminals are not expected to act naturally, especially in this case where the crime was committed in front of several witnesses.
Appellant tries to revitalize the testimony of defense witness Rolando Daño who claimed not to have seen any teacher nor heard shots at the scene of the crime, which account the trial court disregarded because he admitted that he did not know all the teachers of Labuan Barangay High School and that he went to the scene only after the shooting was over. But appellant takes exception to the damaging parts of Daño's testimony, especially the statement that he saw the accused Sgt. Jerry Balanon coming out from the Orellano store in Labuan at three o'clock in the afternoon and stood there akimbo,15 explaining that Daño could not have been precise in stating the time because —
Sgt. Daño was not wearing a watch on that particular day. Hence, when he testified under oath that he did not hear the shots . . . the only plausible explanation was that he was not in the vicinity of the crime scene at the time the killings were committed. He only became aware of the crime after everyone else in the locality knew of the same . . . Undoubtedly then, his estimate of the time that he saw Balanon come out of the Orellano store was wrong. Yet the falsity of the testimony itself was never established. He did in fact see Balanon at the scene after the crime was committed. This, however, should not be used as a basis to totally discredit Balanon's testimony. Balanon himself was not wearing a watch on that day. Consequently, his estimate of the time he reached Labuan could likewise be wrong.16
Since the testimony of defense witness Daño did not do any good to appellant's cause, the latter now belabors to justify every unfavorable statement made by said witness. But even if we totally disregard the statements of Daño, appellant himself, as pointed out by the Solicitor General, admitted at one point that he left the SOUTHCOM at about one o'clock in the afternoon,17 contrary to his statement that he never left the SOUTHCOM until four-thirty in the afternoon.18 Interestingly, since appellant admitted that he and his witness Daño could not be expected to be precise in their estimates of the time, it naturally follows that appellant could not also state with precision that at about three o'clock that afternoon he was not at the scene of the crime.
The qualifying circumstance of treachery is not disputed since the victims were suddenly shot, unexpectedly, and were not in a position to defend themselves.
While the victims were using their bare fists to settle their differences, the accused used a deadly firearm to silence them. Appellant's guilt having been established beyond reasonable doubt, the affirmance of his conviction is imperative.
WHEREFORE, the decision of the court a quo finding accused-appellant SGT. JERRY BALANON GUILTY of Murder on two (2) counts qualified by treachery, and sentencing him to reclusion perpetua in each case, and to pay the costs, is AFFIRMED with the modification that the indemnity for the death of each victim is increased to P50,000.00, or a total of P100,000.00 for the two (2) victims, in consonance with existing jurisprudence. Costs against accused-appellant.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
#
Footnotes
1 Inmates assigned as guards in the penal farm; Decision of the Regional Trial Court, Zamboanga City, Br. 13, p. 9.
2 RTC Record, Crim. Case No. 1227 (4706), p. 22.
3 Art. 29, The Revised Penal Code, as amended by R.A. No. 6127 and E.O. No. 214, prom. 10 July 1987; see RTC Decision, p. 29.
4 RTC Decision, p. 27.
5 Id., p. 29.
6 Sec. 20, par. (2), Rule 130.
7 As he claims he ordered the handicraft product from a certain Muslim.
8 Appellant's Brief, p. 11, citing TSN, 19 June 1985, p. 6.
9 Appellant's Brief, p. 12, citing Sworn Statement of Ms. Luningning Sinsuan dated 18 November 1980, p. 2.
10 Id., p. 13, citing TSN, 19 June 1985, p. 16.
11 Herzog, Alfred H., Medical Jurisprudence (1931), pp. 211, 213.
12 Brief for the Plaintiff-Appellee, p. 18.
13 See Note 2, p. 3.
14 Appellant's Brief, p. 16, citing TSN, 13 January 1982, pp. 24-25.
15 RTC Decision, p. 26.
16 Accused-Appellant's Brief, p. 19.
17 TSN, 19 June 1985, p. 17.
18 TSN, 19 July 1985, p. 9.
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