Manila
THIRD DIVISION
G.R. No. 124128 November 18, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMAN TAGOLIMOT alias "OMEK", APOLONIO ENORME, ELVIS FUNDAL, RODRIGO GARDOCE, ROBERTO SAYMAN alias "BERT", JOSE IGNACIO alias "DODONG", and alias "ROMY", accused.
RODRGO GARDOCE, accused-appellant.
MELO, J.:
On appeal is the decision of the Regional Trial Court of the 11th Judicial Region (Branch 22, General Santos City) in its Criminal Case No. 7465, with accused-appellant averring that said decision which found him guilty beyond reasonable doubt of the crime of robbery with homicide and frustrated homicide, is wrong. The appeal must fail, there being no reversible error committed by the trial court except for the designation of the offense which should properly be robbery with homicide.
The initial criminal complaint charged Apolonio Enorme, Roman Tagolimot, "John Doe", and "Peter Doe" with robbery with homicide and slight illegal detention. During the course of the investigation, Mary Ann Velayo, one of the victims, further identified Elvis Fundal as the one who shot her, and accused-appellant Rodrigo Gardose (or Gardoce, as sometimes spelled in the record) as the one who stood watch. The complaint was thus amended to include both men. Following implicatory statements by a witness and accused Enorme, three other persons, Roberto Sayman, Jose Ignacio, and a certain "Romy" were included in the final complaint (pp. 6, 18-19, 40-43, Record). The Information thus recites:
That on or about 10:30 o'clock in the morning of April 29, 1991, at Makar, Labangal, General Santos City, within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and by means of intimidation and violence upon persons, conspiring, confederating and mutually helping one another to attain a common purpose, without the consent of the owner thereof, did then and there willfully, unlawfully and feloniously take and carry away cash money and bank checks amounting to One Hundred Thirty Five Thousand Pesos (P135,000.00), more or less, owned by Asia Brewery, Inc. to the damage and prejudice of said owner in the said total sum which at the time of the robbery, was in the possession of Mary Ann Velayo, a duly appointed cashier of said company, and who was on board a panel truck with Plate No. PEY 877, driven by Ernesto Vasquez and drove the aforementioned vehicle to Dole Pineapple Plantation, Polomolok, South Cotabato and while thereat, accused, by reason of said robbery, in pursuance to their conspiracy, did then and there willfully, unlawfully and feloniously with evident premeditation and taking advantage of their number and strength and with intent to kill, treacherously attack, assault and shoot Ernesto Vasquez who was wounded and died as a consequence; that likewise, herein accused, also by reason of said robbery, did then and there willfully, unlawfully and feloniously, with intent to kill, shoot Mary Ann Velayo who sustained, as a consequence, injuries which would heal in about six (6) to eight (8) months time, and would have caused her death, but it did not, by reason independent of the will of the accused, that is, the timely medical assistance accorded to her.
CONTRARY TO LAW
(p. 1-2, Ibid.)
Accused Tagolimot and "Romy" were not apprehended. The rest pleaded not guilty during arraignment (p. 65, Ibid.). In the course of the trial, Enorme, succumbing to tetanus, died in prison (pp. 73-75, Ibid.). Accused Fundal meanwhile entered another plea, this time acknowledging his guilt in exchange for a lighter sentence. The prosecution agreed to the plea bargain and Fundal was correspondingly sentenced to reclusion temporal, with civil liabilities to be determined at the trial (pp. 118, 120, Ibid.). The expenses for Vasquez's funeral amounting to P20,000.00 and hospital expenses incurred by Velayo totaling P15,349.80 were admitted during trial. The determination of the amount of moral damages to be awarded to the heirs of Vasquez, also by submission of accused Sayman, Ignacio, Fundal and accused-appellant Gardose, was left to the trial court's discretion (p. 106, tsn, March 23, 1992; pp. 109-110, tsn, March 24, 1992). The assailed decision was thereafter rendered by the trial court disposing of the case thusly:
ACCORDINGLY, finding the accused Rodrigo Gardose guilty beyond reasonable doubt of the crimes of robbery with homicide and frustrated homicide, he is hereby sentenced to RECLUSION PERPETUA. The accused Robert Sayman and Jose Ignacio are exonerated for insufficiency of evidence. Elvis Fundal who pleaded guilty earlier and who was penalized with RECLUSION TEMPORAL and Rodrigo Gardose are jointly and severally adjudged to indemnify the heirs of the deceased Ernesto Vasquez P20,000.00 in actual damages and P50,000.00 for his death; P15,349.80 for compensatory damage to Mary Ann Velayo. They are also held solidarily liable to Asia Brewery, Inc. in the amount of P113,000.00, plus costs.
(p. 132, Record.)
The relevant factual antecedents, as established by the sole eyewitness Mary Ann Velayo, are as follows:
At around 11:30 o'clock on the morning of April 29, 1991, Ernesto Vasquez, driver, and Mary Ann Velayo, cashier, both of Asia Brewery, Inc. were on their way to Allied Bank in General Santos City on board a company Mitsubishi truck bearing Plate No. PEY 877. She had with her a total of P135,000.00, some P113,000.00 of which were in cash and another P18,000.00 in checks with their accomplished deposit slips. Some 50 to 60 meters from Asia Brewery's compound at Makar, there was a man standing on the middle of the road. Vasquez slowed down to avoid running him over. Suddenly, the man, later identified as Tagolimot, hopped on the truck, opened the driver's door, pulled out a gun, and pointed it at the driver. Two more persons then approached and boarded the vehicle, Enorme on the left and Fundal, who was armed with a knife, on the right side. Vasquez and Velayo were forced to crouch on the floor. Enorme then took over the wheel and drove the truck towards the highway. Vasquez and Velayo were assured that the robbers were only after the money, after which, on demand of Fundal, Velayo handed over the cash and checks contained in a brown envelope (pp. 128-129, Ibid.).
Enorme exited from the highway onto a dirt road. When the vehicle stalled, Vasquez and Velayo were ordered to get down from the truck. Three of the robbers also alighted. Velayo noticed another person, whom she later identified as accused-appellant Gardose, at the back of the vehicle. After being ordered by Enorme, Vasquez and Velayo ran towards a pineapple plantation. She then heard somebody shout, "Why did you allow them to run?" Enorme, with gun in hand, then chased Vasquez and fatally shot him. Velayo saw Vasquez fall face down. Enorme then gave the gun to Fundal who approached Velayo. Fundal reloaded the gun and from a distance of about one and one-half meters pointed it at her. Velayo pleaded that she be shot only in the leg. She saw Fundal point the gun at her legs, change his aim to her face and shoot. Fortunately, only her wrist was hit but wisely, she feigned death. All the accused then fled on board the stolen truck (p. 129, Ibid.).
With the robbers gone, Velayo got up and flagged down a passing Ford Fiera. She pleaded with the Fiera's occupants that they first attend to Vasquez who might still be alive but they decided to bring her first to the Howard Hubbard Hospital in Polomolok. South Cotabato after promising her that they will take care of Vasquez. Velayo was treated for her wounds and was subsequently transferred to the Doctor's Hospital in General Santos City where she had to be confined for ten days (p. 129, Ibid.).
In seeking acquittal, accused-appellant Gardose is of the opinion that Velayo failed to positively identify him as one of the conspirators. In support of this, he calls attention to the following testimony of Velayo, to wit:
Atty. Torres:
Q: How many times did you look at Gardoce from the moment you observed him to be around?
A: Only once, sir, when I passed by him at the back.
Q: And when you looked at him once, it was not a long look, is that correct?
A: No, sir.
Q: It was in a split second when you looked at him?
A: Just like that, sir.
Q: And he was not facing you when you looked at him, is that correct?
A: I saw his profile.
Q: Of course, you did not notice the color of his shirt?
A: No, sir.
Q: That is because you were so afraid at that time?
A: Yes, sir, and we were made to run.
Q: And in spite of that, would you say that you are absolutely certain that that fourth person was Rodrigo Gardoce?
A: I am not very sure.
x x x x x x x x x
Q: In the direct examination you said that the man who was standing at the back of the panel was Apolonio Enorme and in the cross-examination you said that you are not sure whether that man was Gardoce or not. Can you tell this Honorable Court if you can really identify that man standing at the back of the panel when you went down?
A: Yes, sir, but I am not very sure.
x x x x x x x x x
Q: On redirect, you can explain what was taken during the cross, not just limit on the things that was exactly touched on cross, anything that will explain or supplement.
A: I am not very sure of the identity of Gardoce.
COURT:
Q: You do not want to commit a mistake?
A: Yes, sir.
(pp. 8-10, Accused-Appellant's Brief.)
It is accused-appellants contention that the foregoing shows Velayo's uncorroborated testimony to be unreliable, thus casting reasonable doubt on his guilt and strengthening his alibi.
The Court, in accord with the People, does not see it that way. Immediately following the portion of the testimony cited by accused-appellant is the following:
Prosecutor Gacal:
Q: Will you look at the bench and look for Gardoce?
A: That person sitting over there who is second from the left. (Witness is pointing to a person sitting on the accused bench who, when asked his name, answered Rodrigo Gardoce.)
Q: Is he the man you saw at the back of the panel?
Atty. Landero:
We are objecting. Your Honor.
Prosecutor Gacal:
We are clarifying, Your Honor, please.
COURT:
Never mind, witness may answer.
A: Yes, sir.
(p. 98., tsn, December 10, 1991.)
In addition, earlier in the direct examination, Velayo pointed to accused-appellant as the man she saw at the back of the truck:
Q: The man who was standing at the rear of the panel when you and Ernesto Vasquez got out from the same, if you will see him again, can you recognize him?
A: Yes, sir.
Q: Is he in court today?
A: Yes, sir.
Q: Will you please point him out?
A: That person sitting next to the person I pointed earlier. (Witness is pointing to a person sitting on the dock, who when asked his name answered Rodrigo Gardoce.)
(p- 62, tsn, December 9, 1991.)
Aside from subjecting the testimony of a witness under the most careful scrutiny possible, of equal importance is getting the bigger picture of the events the witness is narrating. That is why it is the norm and accepted practice to look into the entire testimony of a witness to determine if it is to be believed, and not otherwise, by looking only at the inconsistencies and mistakes, as accused-appellant would have the Court do (People vs. Dabon, 216 SCRA 656, [1992]). Too, there is value and weight to the observation of the Office of the Solicitor General that Velayo's reluctance to identify accused-appellant as the person behind the truck was more of a "temporary hesitancy rather than a prevarication", which may reasonably be inferred as resulting from her desire not to make a mistake in identifying the perpetrators.
Accused-appellant also capitalizes on the failure of Velayo to get a long, hard look at him during the incident. That is not necessary under the circumstances. Conditions of visibility were very good at the time of the incident, noontime as it was.ℒαwρhi৷ Jurisprudence further recognizes that victims of criminal violence have a penchant for seeing the faces and features of their attackers and remembering them (People vs. Salazar, 248 SCRA 460 [1995]).
Interjected as a defense is alibi, accused-appellant saying that at the time of the incident he was at Barrio 9, Sto. Niño, South Cotabato, about three hours away by bus from Polomolok where the shooting took place. For alibi to prosper, he who raises it must establish his presence at another place during the commission of the offense and prove the physical impossibility of being at the scene of the crime (People vs. Ballabare, 264 SCRA 350 [1996]). Accused-appellant has failed to prove these. On the contrary, Velayo positively identified accused-appellant, placing him at the scene of the crime at the time of its commission. Another prosecution witness, Francisca Sumague whose son is married to accused-appellant's sister, testified that at around 1 o'clock in the afternoon of the day of the incident, accused-appellant went to her house at Pitimini St., also at Polomolok, South Cotabato with three other persons. Fundal, whom she also knew, was with them. They asked permission to use a vacant store inside her yard. Accused-appellant later, after spending some time inside the store, came out and remarked to Sumague in the Ilonggo dialect. "Kagamay nga pera, mahirap kwentahin", meaning small bills are hard to count. Later, peering through her kitchen window. Sumague saw Fundal burning some papers (pp. 170-173, tsn, June 3, 1992).
Also, accused-appellant Gardoce, at the time of the incident, says that he was a minor. In his direct examination held on September 28, 1993, he stated for the record that he was 21 years old. Attached to his appellant's brief is a photocopy of his supposed certificate of live birth showing he was born on July 24, 1973, making him only 17 years and 9 months old on the day of the incident. He thus prays that he be extended the privileged mitigating circumstance of minority which requires that the penalty imposable be reduced by a degree. This cannot be done. Accused-appellant's age at the time he committed the crime is a question of fact which cannot be raised for the first time on appeal, much less through documentary evidence which is of minimal persuasive force for not bearing the certification of its lawful custodian that it is an exact reproduction of the original.
The Court, therefore, sustains the assailed judgment of the trial court, save for the fact that the designation of the offense committed should simply be robbery with homicide, and not robbery with homicide and physical injuries as erroneously stated in the assailed decision, the physical injuries inflicted on Velayo having been absorbed by the homicide.
WHEREFORE, in view of the foregoing, the appealed decision is hereby AFFIRMED, with the modification that the offense should properly be designated as robbery with homicide. No special pronouncement as to costs is made.
SO ORDERED.
Romero, Francisco and Panganiban, JJ., concur.
Narvasa, C.J., is on leave.
The Lawphil Project - Arellano Law Foundation
