Manila
FIRST DIVISION
G.R. No. 119332 August 29, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JACK SORREL y VILLAR, accused-appellant.
VITUG, J.:
Teofilo Geronimo y Nicolas is a 64-year old businessman engaged in the sale of heavy equipment and spare parts with an office in the JLB building at the corner of Ronquillo and P. Gomez streets, near the Quiapo central area, where he would earn around P20,000.00 a month.1 In the morning of 07 November of 1988, while walking along Paterno street on his way to the office, he was held up and shot to death. The bullet hit the posterior region of his head which lacerated his brain and caused abrasions on the right forehead.2 The slug, from a .38 caliber gun, was recovered in his cranial cavity. The muzzle of the gun must have been poised only about twenty-four inches from his head.3
Charged with, and later convicted for, the commission of the crime was Jack Sorrel y Villar.
Sorrel now appeals from the decision of the Regional Trial Court ("RTC") of Manila, Branch 28,4 finding him guilty beyond reasonable doubt of the special complex crime of robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code. The trial court has imposed on him the penalty of reclusion perpetua and ordered him to indemnify the heirs of the victim in the amount of P50,000.00 and to reimburse to them the amounts of P40,000.00 taken from the victim and P30,000.00 spent by the family for his wake and cremation.
Sorrel pleaded not guilty to the charge. From the records, the following statement of facts and events could be gathered.
Evidence for the Prosecution. —
Benito de la Cruz, the 34-year old eye-witness for the prosecution, testified that at about ten o'clock in the morning of 07 November 1988, he was just across the Villagracia Pawnshop in Paterno Street, waiting for the jewelry repair shop of a certain "Mang Roy" to open, when he noticed a man, whom he subsequently identified to be appellant Sorrel, with two other persons just standing ostensibly to while away the time in front of the pawnshop. After a few moments, he saw a man, whom he later found out to be Teofilo Geronimo, pass by. From a distance of approximately four (4) meters, Benito, through a gap between cars, saw appellant suddenly pull out a gun and heard him tell Geronimo, "Ibigay mo na lamang sa akin ang iyong bag."5 When Geronimo refused, appellant warned, "Akin na, iyang bag mo, kung hindi mo ibibigay sa akin, papatayin kita."6 Geronimo held on to his clutch bag. Then, the sound of gunshot reverberated. Geronimo fell and hit the pavement in front of the Villagracia Pawnshop. Appellant took the clutch bag and walked away with his two companions "as if nothing (had) happened."
Soon, people started to gather around the lifeless body of Geronimo. When the police arrived, Benito was among those questioned about the incident. At 11:30 that morning, he executed a sworn statement at the Western Police District ("WPD") headquarters.7 The following day, the picture of the victim lying on his belly appeared in the People's Journal. A few days later, Benito saw in an issue of the same morning daily the picture of appellant who was so described in the news item as a member of the "Dugo-Dugo" gang. Recognizing appellant to be the man who killed Geronimo, Benito went to Police Station No. 5, along U.N. Avenue, and informed Pat. Nestor Napao-it that the killer of Geronimo was at the Quezon City jail. Brought to the Quezon City jail, Benito identified appellant among those who were behind bars.8
Pat. Napao-it said that he had received the report on the shooting incident through a telephone call from Pat. Ramon de la Cruz of the mobile patrol. After informing their chief, P/Capt. Reynaldo Jaylo, of the report, Pat. Napao-it went to the crime scene with Pat. Habalo. The two police officers found the victim still slumped on the pavement. The victim was identified by a relative. Benito de la Cruz gave an eyewitness account of the incident. The investigators were informed that the victim had just withdrawn some cash from the PCIBank branch near the Quiapo Church.9 Pat. Napao-it invited Benito to the police headquarters for a sworn statement. He forwarded his advance information report 10 to the Follow-up Unit which had received, a few days after the incident, an information that appellant was arrested by the Quezon City police. Benito identified appellant at the Quezon City jail to have been Geronimo's assailant. 11
Cpl. Jesus Faller learned, on 19 November 1988, that Benito had identified Geronimo's assailant through an item in a morning daily. He accompanied Benito to the Quezon City jail where the latter pointed to appellant who was inside a jail cell with six other detained persons. Pat. Faller went back to the WPD headquarters with Benito to prepare a written request to the Quezon City Police that appellant be "lent" to the Homicide Section of the WPD. There, the police took the additional statement of Benito. 12
Allan Bautista went to the WPD headquarters on 13 November 1988. He executed a sworn statement 13 on 23 November 1988 describing one of the holduppers as "medyo mistiso." He identified appellant from among the detainees at the WPD headquarters to be the "holdupper" who grabbed the clutch bag of Geronimo. Cpl. Failer likewise prepared a progress report on the case. 14
Evidence for the Defense. —
The defense interposed denial and alibi.
Defense witness Manuel Tuason Sajul, 19 years of age, claiming to be the best friend of appellant, testified that appellant was with him at 16 Jackie Kennedy Street corner Road 20, Project 8, Quezon City, at about ten o'clock of 07 November 1988. Appellant had been there with his daughter Jenny since 8:30 in the morning waiting for their balikbayan relative, a certain Ate Alice (Alicia Campos), to arrive. The whole day was spent planning for a family reunion for their Ate Alice who arrived at one o'clock in the afternoon. 15
Appellant, 44 years old, said that he was a contractor, likewise engaged in the "buy and sell" of appliances, aside from being a part-time movie actor. At 8:30 in the morning of 07 November 1988, he attended a family reunion in the house of Andres Sajul in No. 16, Jacqueline Street, Project 8, Quezon City. He was arrested, along with his distant relative, Rogelio Sajul, at 8:30 in the morning of 16 November 1988 near the YP Cinema in Sucat, Parañaque, by Patrolmen Actibo, Molina and Balana of the Quezon City Police District. The two were dragged to an "owner-type" vehicle, blindfolded and handcuffed, and brought to a "safe house" in Quezon City where they were coerced into admitting things they supposedly could not even understand. Appellant was later brought to the WPD headquarters where he was again subjected to various forms of maltreatment after refusing to admit his having killed Geronimo. 16 Appellant came to know prosecution witness Benito de la Cruz for the first time only when the latter testified against him in court. He did not notice at any time the presence of Benito at the Quezon City jail.
Teresita Bautista Ocampo, a 60-year-old widow, 17 testified that she knew both Benito, a faith healer and an acquaintance, and appellant whom she got to know through a certain Dado. When Benito saw the witness "going out" with appellant, Benito became jealous of him. 18
Appellant's wife, Josefina Dulzo, learned about her husband's arrest on 17 November 1988. Immediately, Josefina went to the police precinct. She saw him with a blackeye and an injured shoulder. Policemen Balajunda, Actibo and Molina told her that if she would be able to come up with P100,000.00, the police would not pursue the case against her husband.
Decision of the Trial Court. —
On 03 October 1994, the trial court rendered its assailed judgment 19 in Criminal Case No. 88-68508 which concluded:
WHEREFORE, finding the accused, Jack Sorrel, guilty beyond reasonable doubt of the felony of robbery with homicide as defined and penalized under par. 1, Article 294, as amended, of the Revised Penal Code, he is hereby sentenced to suffer the penalty of reclusion perpetua.
He shall indemnify the heirs of the victim, Teofilo Geronimo, in the sum of P50,000.00 for his life, the sum of P40,000.00, the amount of money taken forcibly from the victim, and the further sum of P30,000.00 as reimbursement for the wake and cremation expenses for the deceased. The accused shall pay the costs. 20
Hence, the appeal.
Appellant contends that the trial court has erred in giving credence to the testimony of the prosecution's "star witness" (Benito de la Cruz) while completely discarding the evidence for the defense and in finding him guilty beyond reasonable doubt of the crime of robbery with homicide. He avers that, even if guilty, he could only be held liable for the crime of homicide. In impugning the credibility of Benito de la Cruz, appellant points to the discrepancies between the sworn statement Benito has given to the police investigators and his testimony before the Court.ℒαwρhi৷
Judicial experience quite often reminds us that affidavits taken ex-parte simply leave too much to be desired. Almost invariably, sworn declarations are incomplete and inaccurate. 21 It could well be since statements in an affidavit, not testified to at the trial, are mere hearsay evidence and have no real evidentiary value. 22 And, unlike an affidavit where only the declarant is normally involved in its execution, testimonial evidence exposes the witness not only to detailed examination by counsel for the proponent but also to severe cross-examination by the adverse party. It is at the witness stand where witnesses are tested on the veracity of their averments. Explainably, testimony in court is that which really counts in weighing the evidence.
The conviction for robbery with homicide requires the prosecution to firmly establish these elements: (a) The taking of personal property is perpetrated by means of violence or intimidation against a person; (b) the property taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, here used in its generic sense, is committed. 23 The law does not require that the property taken should be specified with particularity. As long as there is apoderamiento of personal property from another against the latter's will through violence or intimidation, with animo de lucro, robbery is the offense imputable to the offender.
If the victim is killed on the occasion or by reason of the robbery, the offense is converted into the special complex crime of robbery with homicide under Article 294(1) of the Revised Penal Code. All those who conspired to take part in the robbery may be held guilty as principals of the crime of robbery with homicide although they do not actually take part in the homicide unless it is clearly shown that they have endeavored to prevent the homicide from being likewise committed. 24 There is nothing in the records to show that appellant, even assuming him not to be the gunwielder, has prevented or tried to prevent the killing of Geronimo. Granting that only one of the "hold-uppers" has carried a gun and that it could have been a cohort, being inconsequential, the result would have still been the same.
Appellant would urge that he should be held guilty only of homicide because the exact amount taken from Geronimo was not clearly proven. The fact of the matter was that appellant had taken the clutch bag of Geronimo against the latter's will. Under the law, the clutch bag, which the victim held on that would unfortunately cost his life, was itself unquestionably an item of personal property. In any event, the trial court's findings on this score could not be said to be entirely baseless.
Appellant, in assailing the credibility of Benito, asseverates that while he claims to be engaged in the purchase and sale of jewelry, he actually has only been a fake faith healer. To appellant, a person who can lie about his job cannot be trusted on the witness stand. 25 The law does not see it that way. Under the Rules, a person is qualified and competent to be a witness if (a) he is capable of perceiving and (b) perceiving, he can make his perception known. 26 Unless disqualified, 27 such a person would be capable of testifying. 28 In consonance with the modern trend to broaden the field of competency of witnesses and to restrict that of incompetency, 29 even a person convicted of a crime or one who has a pending criminal case is not by that alone disqualified from testifying. 30
The fact that the judge who has penned the decision is not the trial judge who has heard the case does not render the judgment necessarily assailable. 31 It is axiomatic that a judge who did not hear a case may write the decision based on the record of the case. 32 The continuity of the court and the efficacy of its decision is not adversely affected by the death, resignation or cessation from the service of the judge presiding over it 33 nor by the fact that its writer merely has taken over from a colleague who presided at the trial absent a clear showing of grave abuse of discretion in the factual findings reached by him. 34
Neither might appellant's alibi bail him out of conviction. He utterly failed to prove by a convincing account that it was physically impossible for him to be at the crime scene at the crucial time. For alibi to be credible, the accused should not only prove his presence at another place at the time of the commission of the offense but he should also demonstrate that it would have been physically impossible for him to be at the scene of the crime at that time. 35 As the trial court so observed, Project 8 in Quezon City could just be an hour's ride from Quiapo. Moreover, alibi supported by friends 36 and relatives, 37 like appellant's alibi, would normally deserve the barest evidentiary weight. And in the face of appellant's positive identification by Benito de la Cruz, his alibi easily would disintegrate. 38
The amounts awarded by the trial court would appear to have been substantiated. Exhibit M-3 would show a withdrawal of P40,000.00 from the PCIBank in just a matter of minutes before the robbery had taken place. The claim for expenses for the wake and cremation of P30,000.00 was testified to by the victim's son-in-law. The loss of the receipts showing such expenses was sufficiently explained to have been due to the confusion during the last rites for the victim. 39 The Court sees no cogent reason to reverse the findings of the trial court.
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.
Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.
Footnotes
1 TSN, 27 September 1989, pp. 5-6.
2 Exhs. F & G.
3 TSN, 31 August 1989, pp. 5-8.
4 Presided by Judge Antonio L. Descallar.
5 TSN, 30 August 1989, p. 8.
6 Ibid., p. 11.
7 Exh. A.
8 TSN, 30 August 1989, pp. 3-21.
9 Exh. M-3, a PCIBank savings account withdrawal slip, shows that Geronimo withdrew the amount of P40,000.00 at 9:56 of 07 November 1988.
10 Exh. I.
11 TSN, 31 August 1989, pp. 10-17.
12 Exh. C.
13 Exh. J or 5.
14 TSN, 06 September 1989, pp. 3-9.
15 TSN, 03 November 1989, pp. 4-8.
16 TSN, 18 July 1991, pp. 3-12.
17 Decision, p. 5.
18 TSN, 30 January 1992, pp. 2-6.
19 Promulgated by Judge Antonio L. Descallar. The case was heard by Sabino de Leon, Jr. and Rosalio de la Rosa.
20 Rollo, p. 22.
21 People vs. Cruza, 237 SCRA 410; People vs. Sarellana, 233 SCRA 31.
22 Osias vs. Court of Appeals, 256 SCRA 101, citing People vs. Santos, 139 SCRA 583; People vs. Lavarias, 23 SCRA 1301; People vs. Carlos, 47 Phil. 626.
23 People vs. Cabiles, 248 SCRA 207.
24 People vs. Pacapac, 248 SCRA 77.
25 Appellant's Brief, pp. 17-21.
26 Section 20, Rule 130, Rules of Court.
27 The disqualifications enumerated by Rule 130 are: physical disqualification (Sec. 19); disqualification by reason of interest or relationship (Section 20), and disqualification with respect to privileged communication (Section 21).
28 Persons who are convicted of perjury may still become witnesses unless they are co-accused in a crime and are sought to be discharged to be a state witness. In such a case, because perjury involves moral turpitude, under Section 9, Rule 119 of the Rules of Court they are disqualified from testifying (Francisco, the Revised Rules of Court, Vol. VII, Part 1, 1990 ed., p. 233).
29 Francisco, supra., p. 233 citing 97 C.J.S. 459.
30 People vs. De Leon, 248 SCRA 609.
31 People vs. Hatani, 227 SCRA 497.
32 People vs. Jaymalin, 214 SCRA 685; People vs. De Paz, 212 SCRA 56.
33 Ayco vs. Fernandez, 195 SCRA 328.
34 People vs. Sadiangabay, 220 SCRA 551.
35 People vs. Alcantara, 254 SCRA 384; People vs. Melivo, 253 SCRA 347.
36 See People vs. Gamiao, 240 SCRA 254.
37 See People vs. Lapuz, 250 SCRA 250; People vs. Pano, 257 SCRA 274.
38 People vs. Pano, supra.; People vs. Alberca, 257 SCRA 613.
39 TSN, 27 September 1989, pp. 7-8.
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