G.R. No. 121736




Manila FIRST DIVISION G.R. No. 121736 December 17, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAPAL MIDTOMOD, accused-appellant. BELLOSILLO, J.: This case was certified to us for review by the Court of Appeals pursuant to the second paragraph of Sec. 13, Rule 124, of the Revised Rules on Criminal Procedure.1 Usalim Aplan, Sapal Midtomod, his brother Gido (also known as Dido), Idu Pagayao and Israpil Liposin were charged with murder for the violent death of Ciriaco Ronquillo on the night of 26 November 1985 at Bgy. Inac, Mlang, Cotabato.2 However, only Usalim Aplan and Sapal Midtomod were tried as Idu Pagayao was never apprehended while Israpil Liposin and Gido Midtomod escaped while on bail and recognizance,3 respectively. The prosecution presented two principal witnesses, namely, Danny Baron and Arthur Ronquillo, nephew and son of the deceased, respectively. Felisa Ronquillo, the widow, who was with her husband on the night of the murder, died before she could be presented as a witness for the prosecution. Danny Baron testified the he saw Gido Midtomod outside the house of his uncle, the deceased Ciriaco Ronquillo, at six o'clock in the evening of 26 November 1985 while he was on his way home located a few meters away. Gido Midtomod even asked him where he was going and whether he was coming back.4 On the other hand, Arthur Ronquillo testified that in the evening of 26 November 1985 he was walking about a meter away towards the house of his parents Ciriaco and Felisa Ronquillo to take care of some animals when he heard the words, "Where is the money? Give it to me!" to which a voice, which he recognized to be that of his father, answered, "I have no money because my rice was not yet paid (for) by Villasor." Nervous, Arthur did not go inside the house but peeped instead through a hole in the wall to see what was going on. He saw five (5) Muslims surrounding his father and recognized them to be their farm laborers Sapal Midtomod, Usalim Aplan, Gido Midtomod, Idu Pagayao and Israpil Liposin. Suddenly, Idu Pagayao and Sapal Midtomod stabbed his father. As he was afraid to come forward because he was outnumbered by his father's armed assailants, Arthur ran towards his brother's house but it was too late. They found their 78-year old father already dead, bathed in his own pool of blood, with four (4) stab wounds in his body.5 Both accused denied they killed Ciriaco Ronquillo.ℒαwρhi৷ They invoked alibi. They claimed they were in their respective houses in Mlang, Cotabato at the time of the killing of Ciriaco. Two (2) of their neighbors Tinumiguez Dagindangan and Lando Gombilan, were presented in the defense of the accused. On 30 October 1990 the trial court found both accused guilty beyond reasonable doubt of murder for the killing of Ciriaco Ronquillo6 and imposed upon them an indeterminate prison term of ten (10) years and one (1) day of prision mayor as minimum to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum.7 The trial court accorded great evidentiary weight on the eyewitness account and positive identification by Arthur Ronquillo that Sapal Midtomod stabbed his father while Usalim Aplan stood nearby. The defense of alibi was rejected because neither of the accused was able to show that it was impossible for them to be at the scene of the crime at the time of its alleged commission since their respective houses were only half a kilometer away from that of the deceased8 and could be negotiated in five (5) minutes by tricycle.9 The accused filed a joint notice of appeal. 10 On 31 March 1993 the Court of Appeals affirmed the conviction of Sapal Midtomod but ordered the acquittal of Usalim Aplan. The appellate court reasoned that, as opposed to the positive identification of Sapal Midtomod as one of those who stabbed Ciriaco Ronquillo, no evidence was presented to show how Usalim Aplan participated in the murder other than he was one of those who surrounded Ciriaco when the latter was being stabbed which, however, could not be considered as sufficient to prove that he was part of the conspiracy to kill the victim. Hence, the Court of Appeals rendered judgment11 the dispositive portion of which reads: WHEREFORE, the appealed judgment is REVERSED insofar only as accused-appellant USALIM APLAN is concerned . . . and another one hereby ACQUITTING said accused-appellant. Let the Presiding Judge of the Regional Trial Court (Branch XVI) of Kabacan, Cotabato and the Provincial Warden, of the Provincial Jail, Inac, Kidapawan, Cotabato be immediately sent a copy each of herein Decision, for the immediate release of accused-appellant USALIM APLAN, unless he is being detained for some other lawful cause or causes. With respect to accused-appellant SAPAL MIDTOMOD, the appealed judgment of conviction is AFFIRMED with the modification that said accused-appellant is sentenced to suffer imprisonment of reclusion perpetua. however, instead of entering judgment and pursuant to Section 13, Rule 124, of the Rules on Criminal Procedure, as amended, let the entire records of the above-entitled case be certified and elevated to the Honorable Supreme Court for review. We first rule on the notice of withdrawal of appeal of accused Sapal Midtomod before resolving the merits of the case. In a letter dated 28 August 1995 12 filed with the Court of Appeals, Sapal Midtomod signified his intention to withdraw his appeal allegedly because he wanted to avail of the privileges granted to inmates by the Bureau of Prisons and eventually to ask for executive clemency. Meanwhile, in view of the decision of 31 March 1993, the Court of Appeals referred the matter to us. The request for withdrawal of his appeal was reiterated by appellant in a letter addressed to this Court dated 8 July 1996 saying, "I am agreed (that) I commit (ted) a sin in the sight of God and in the sight of the law of the land."13 We deny the plea of appellant for the withdrawal of his appeal. First of all, it was filed long after the Court of Appeals rendered its decision affirming his conviction and raising the penalty from an indeterminate prison term to reclusion perpetua. Appellant cannot conveniently claim that he was not aware of the appeal taken by his counsel to the Court of Appeals from the decision of the trial court. We are hardly persuaded that he only happened to know of the appeal after an adverse decision was rendered against him. Besides, as opposed to his feigned ignorance, appellant is chargeable with knowledge of the appeal because he, together with co-appellant Usalim Aplan, was informed way back on 13 August 1991 by the Court of Appeals of the elevation to the Court of the complete records of their appealed case and required them to file their appellant's brief. 14 Even without such personal notice, Sapal Midtomod was informed of the proceedings in the appellate court through notice to his counsel of record which, for all intents and purposes, is considered valid notice to him.15 The instant case is now before us, not by means of an appeal, but pursuant to the second paragraph of Sec. 13, Rule 124 of the Revised Rules on Criminal Procedure which mandates the Court of Appeals to certify those criminal cases which, in its opinion, merit the imposition of a penalty of reclusion perpetua or higher. The authority to review such cases thereby imposed upon this Court cannot be waived by appellant. Even if we are otherwise minded, we are still not inclined to exercise our discretion in favor of appellant since an error of the Regional Trial Court with respect to the penalty imposed would thereby go uncorrected.16 Now, on the merits. Accused-appellant offers the defense of alibi. He contends that at the time of the alleged commission of the crime, approximately six o'clock in the evening of 26 November 1985, he was in his house taking care of his child. He was there from four o'clock in the afternoon to seven o'clock in the evening. The alibi was correctly rejected by the trial court as well as the Court of Appeals. For the proffered defense of alibi to prosper, there must be physical impossibility of the accused being present at the crime scene at the time of its commission.17 In sharp contrast thereto, it was established that the house of herein appellant in Mlang, Cotabato, is only half a kilometer away from that of the deceased18 at Bgy. Inac, Mlang, Cotabato, and may be reached in five minutes by tricycle.19 Hence, it was, not physically impossible for appellant to have been at the victim's house at the time of the murder. Secondly, appellant was positively and unwaveringly identified by Arthur Ronquillo as one of those who stabbed his father, the other being Idu Pagayao who is at large. Alibi cannot prevail over the positive identification of the accused as one of the authors of the crime.20 But appellant attempts to discredit the testimony of Arthur Ronquillo by contending that neither Felisa Ronquillo (wife of the deceased) nor Danny Baron mentioned having seen him at the scene of the crime in their respective sworn statements executed in the Police Station of Mlang Cotabato. In addition, appellant contends that it was highly irregular for Arthur Ronquillo not to have executed a sworn statement before the police considering that he, as an eyewitness to the alleged killing, appeared to be the best qualified witness for the prosecution. As the Court of Appeals correctly concluded, the fact that neither Felisa Ronquillo nor Danny Baron mentioned having spotted Arthur Ronquillo at the scene of the crime does not negate the latter's presence at the time of its commission. Besides, under the circumstances then obtaining, it is perfectly understandable why Felisa Ronquillo and Danny Baron could not have seen Arthur Ronquillo as the latter was doing his best not to make his presence known to the assailants. The fact the Arthur failed to execute a sworn statement before the Mlang Police, branded by appellant as an omission "contrary to knowledge and common experience of mankind," does not render his testimony less credible. We agree with the Court of Appeals that sufficient explanation was given therefor, i.e., Arthur was too preoccupied with assisting the police in hunting down his father's killers and by the time he was free to give the statement, he was merely instructed by a certain Cpl. Capadusa to just give it in court. Apparently, Cpl. Capadusa found the combined statements of Danny Baron and Felisa Ronquillo sufficient enough for purposes of filing the case in court. Hence, considering his positive identification as one of the perpetrators of the crime, vis-a-vis the weak defense of alibi, the conviction of accused-appellant for the death of Ciriaco Ronquillo, as decreed by both the trial court and the Court of Appeals, must be affirmed. The prosecution established beyond reasonable doubt that the crime committed was murder qualified by abuse of superior strength as the 78-year old victim was killed by five (5) male assailants at least two (2) of whom were armed. A word with respect to the penalty. The trial court imposed an indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum.21 The lower court arrived at the term after applying the penalty prescribed for murder at the time of its commission in 1985, i.e., reclusion temporal maximum to death, in its minimum period. No mitigating circumstance was identified to justify the imposition of said penalty in its minimum period. On appeal, however, the Court of Appeals applied the penalty in its medium period, i.e., reclusion perpetua, after noting that there were no mitigating nor aggravating circumstances present. The fact is, while no mitigating circumstance may be present, the generic aggravating circumstance of dwelling may still be appreciated against appellant since it is undisputed that the 78-year old victim Ciriaco Ronquillo was killed by five (5) malefactors in his own house. Hence, the penalty prescribed for the crime should have been applied in its maximum period, i.e., death. However, neither the trial court nor the Court of Appeals could properly impose the death penalty at the time the case was decided by them in October 1990 and March 1993, respectively, as it was then proscribed by Art. III, Sec. 19, par. (1), of the 1987 Constitution.22 Neither can we impose the death penalty upon appellant now because R.A. No. 7659, which took effect 31 December 1993, and which reimposes the death penalty in case of heinous crimes, does not apply to crimes committed prior to its effectivity.23 With respect to civil indemnity for the murder committed, although the trial court and the Court of Appeals did not make any award, we hold accused-appellant liable to pay the heirs of Ciriaco Ronquillo the amount of P50,000.00 conformably with existing jurisprudence.24 After all, a certification made by the Court of Appeals pursuant to Sec. 13, Rule 124, of the Revised Rules on Criminal Procedure, like an ordinary appeal, opens the whole case for review by this Court.25 WHEREFORE, the Decision of the Court of Appeals dated 31 March 1993 affirming the conviction of accused-appellant SAPAL MIDTOMOD for murder and raising his penalty to reclusion perpetua is AFFIRMED. In addition, he is ordered to indemnify the heirs of Ciriaco Ronquillo in the amount of P50,000.00, and to pay the costs. SO ORDERED. Davide Jr., Vitug, and Kapunan, JJ., concur. Footnotes 1 The second paragraph of Sec. 13, Rule 124, of the Revised Rules on Criminal Procedure, provides — Whenever the Court of Appeals should be of the opinion that the penalty of reclusion perpetua or higher should be imposed in a case, the Court after discussion of the evidence and the law involved, shall render judgment imposing the penalty of reclusion perpetua or higher as the circumstances warrant, refrain from entering judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review. 2 Docketed as Crim. Case No. 303, RTC-Br. 16, Kabacan, Cotabato. 3 Gido Midtomod, who was only sixteen, escaped while under the custody of his father. 4 TSN, 16 November 1987, pp. 3-4. 5 Id., 8 February 1988, pp. 4-7. 6 Decision penned by Judge Fabiana Inserto Tejada, Original Records, pp. 275-280. 7 The penalty of reclusion temporal in its maximum period to death prescribed under Art. 248 for murder (prior to its amendment by R.A. No. 7659 on 31 December 1993) was applied by the trial court in its minimum period, i.e., seventeen (17) years, four (4) months and one (1) day to twenty (20) years. No explanation was given therefor. After thus imposing the prescribed penalty in the minimum, the trial judge applied the Indeterminate Sentence Law and came up with a prison term of ten (10) years and (1) day of prison mayor as minimum (which is within the range of prision mayor in its maximum period to reclusion temporal in its medium period, the penalty next lower to that prescribed by the Code for the offense) to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum. 8 TSN, 23 May 1988, p. 10. 9 Id., 4 April 1989, p. 6. 10 Original Records, p. 289. 11 Decision penned by Mme. Justice M. A. Austria-Martinez, concurred in by Justices Nathaniel P. De Pano Jr. and Quirino D. Abad Santos Jr.; Rollo, pp. 114-123. 12 See Temporary Rollo of the Court of Appeals, p. 13. 13 Rollo, p. 10. 14 Rollo of the Court of Appeals, p. 44. 15 Galang v. Court of Appeals, G.R. No. 76221, 29 July 1991, 199 SCRA 683, 689-690; Salen v. Dinglasan, G.R. No. 59082, 28 June 1991, 198 SCRA 623, 632; UERM Employees Union-FFW v. Minister of Labor and Employment, G.R. No. 75838, 31 August 1989, 177 SCRA 165, 177; Zoleta v. Drilon, G.R. No. 77242, 18 October 1988, 166 SCRA 548, 554; Lee v. Romillo, Jr., G.R. No. 60937, 28 May 1988, 161 SCRA 589, 599. 16 See Teodoro v. Court of Appeals, G.R. No. 103174, 11 July 1996, 258 SCRA 603, 612. 17 People v. Aliposa, G.R. No. 97935, 23 October 1996, 263 SCRA 471, 480; People v. Cordero, G.R. No. 108919, 11 October 1996, 263 SCRA 112, 139; People v. Narciso, G.R. No. 103875, 18 September 1996, 262 SCRA 1, 9; People v. Alshaika, G.R. No. 113224, 11 September 1996, 261 SCRA 637, 646; People v. Paynor, G.R. No. 116222, 9 September 1996, 261 SCRA 615, 628. 18 See Note 8. 19 See Note 9. 20 People v. Cosonon, G.R. No. 94548, 4 October 1996, 262 SCRA 693, 704; People v. Gaban, G.R. No. 116716-18, 30 September 1996, 262 SCRA 600; People v. Narciso, G.R. No. 103875, 18 September 1996, 262 SCRA 1, 6.; People v. Alshaika, G.R. No. 113224, 11 September 1996, 261 SCRA 637, 646; People v. Fabrigas, Jr., G.R. No. 115005, 5 September 1996, 261 SCRA 436, 447. 21 See Note 7. 22 Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. 23 People v. Redulosa, G.R. No. 94594, 29 March 1996, 255 SCRA 279, 287-288, citing People v. Cayanan, G.R. Nos. 73257-58, 16 June 1995, 245 SCRA 66, 79, and People v. Pandiano, G.R. No. 90893, 30 May 1994, 232 SCRA 619, 629-630. 24 People v. Castillo, G.R. No. 116122, 6 September 1996, 261 SCRA 493, 504; People v. Dasig, G.R. No. 100231, 28 April 1993, 221 SCRA 549, 559. 25 People v. Aliviado, G.R. Nos. 113782-84, 14 August 1995, 247 SCRA 300, 311; See Dissenting Opinion (which later became the majority opinion on the preliminary issue) of Chief Justice Fred Ruiz Castro in People v. Daniel, No. L-40330, 20 November 1978, 86 SCRA 511, 537. The Lawphil Project - Arellano Law Foundation