G.R. No. 128869




Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 128869 April 14, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. *MARK PERUCHO alias* NICK PERUCHO, accused-appellant. PANGANIBAN, J** Evidence, to be believed, must conform with human knowledge, observation and experience. Testimonies that do not adhere to this standard are accorded no credence or weight. The Case Mark Perucho appeals the August 1, 1995 Decision 1 of the Regional Trial Court of Malolos, Bulacan, Branch 19, convicting him of (1) illegal possession of firearms, for which he was penalized with "imprisonment of 12 years and 1 day to reclusion perpetua" based on Presidential Decree 1866; and (2) disobedience to a person in authority, for which he was sentenced to "2 months and 1 day to 4 months of aresto mayor," based on Article 151 of the Revised Penal Code. Two separate Informations were filed by State Prosecutor Rogelio Vista on March 26, 1993. In Criminal Case No. 744-M-93, the Information for illegal possession of firearms reads: 2 On or about 7:30 o'clock in the evening of December 21, 1992, in Barangay Gumaok, San Jose del Monte, Province of Bulacan, and within the jurisdiction of this Honorable Court, above-named accused did then and there wilfully, unlawfully and feloniously without lawful authority possess and ha[ve] in his control two caliber pistols: (1) One gold Cup National Match Caliber .45 with Serial Number 716352 and (2) One Caliber .45 Pistol (Paltik) with Serial Number 476981, and two (2) magazines of caliber .45 pistols with seven live .45 cal. ammunitions each. On the other hand, in Criminal Case No. 745-M-93, the Information for disobedience to a person in authority states: 3 That on or about 7:30 o'clock in the evening of December 21, 1992, Barangay Gumaok, San Jose del Monte, Province of Bulacan and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously resist and seriously disobey Sr. Insp. Noel Estanislao, Insp. Narciso Quano, Jr., SPO4 Wenifredo 4 Nemeno, 5 SPO3 Armando Ballon and SPO2 Renero Agustin, duly appointed and qualified and acting as members of the police force and as agents of the Presidential Anti-Crime Commission, on the occasion when said agents were engaged in the performance of their official duties, namely: while making a lawful arrest of the accused as said accused was then carrying in his person and visible within plain view a .45 caliber pistol, by then and there showing real and determined efforts to evade arrest by delivering a quick blow upon the person of SPO4 Wenifredo Nemeno, and by attempting to draw his gun, which he could have used against said agents of a person in authority were it not for the latter's quick reaction [of] subduing him and forc[ing] him to lie face on the ground. Upon arraignment, appellant, with the assistance of Counsel de Oficio Nemesio Manlangit, pleaded not guilty to both charges. 6 The two cases were tried jointly. On August 1, 1995, the trial court promulgated the assailed Decision, the dispositive portion of which reads: 7 WHEREFORE, the prosecution having established the guilt of the accused beyond reasonable doubt of the crime of [v]iolation of PD 1866, he is hereby sentenced to suffer imprisonment of 12 years and 1 day to reclusion perpetua. Regarding the crime of [r]esistance and [d]isobedience to a [p]erson in [a]uthority under Art. 151 of the Revised Penal Code, [the] same accused is hereby sentenced to suffer imprisonment of two (2) months and 1 day to 4 months arresto mayor and to pay a fine of P500.00. In view of the sentence of reclusion perpetua, this appeal was filed a directly with this Court. 8 The Facts Version of the Prosecution In the eleven-page Brief for the Appellee, the Office of the Solicitor General 9 narrated the facts, as viewed by the prosecution, in this wise: 10 On or about December 16, 1992, the Task Force Habagat of the Philippine National Police, Camp Crame, Quezon City, organized a team of police officers to track down suspects, believed to be associated with either the "Galicia gang" or "Perucho gang," who may have perpetrated the kidnapping of Grace Chua and her grandfather in Bacoor, Cavite (pp. 3 to 4, tsn. Aug. 5, 1993; p. 7, tsn, Dec. 14, 1993). In the course of police investigation, Engineer Miranda, a witness to the kidnapping, pointed to the picture of appellant Nick Perucho, whom he allegedly saw in the house of the victims before they were kidnapped. (pp. 8-9, tsn, Dec. 14, 1993). On December 21, 1992, around 7:30 in the evening, members of the Task Force Habagat, namely — Inspector Narciso Quano, Jr., SPO4 Winifredo Nemeno, Sr. Inspector Noel Estanislao, SPO3 Armando Ballon and SPO2 Renero Agustin, [were] able to locate the residence of appellant in Barangay Gumaok, San Ildefonso, 11 Bulacan (p. 4. tsn, Aug. 5, 1993; p. 10, tsn, Dec. 14, 1993). As said police officers posted themselves some 15 to 20 meters from the house, they saw appellant supervising three (3) men doing construction work (pp. 4 & 23, tsn, Aug. 5, 1993; p. 10, tsn, Dec. 14, 1003). The police officers saw appellant standing, half-naked, wearing only short pants with a gun tucked [i]n his waist (ibid; ibid.). Immediately, the police officers approached appellant, introducing themselves as members of Task Force Habagat PACC (pp. 4-5, tsn, Aug. 5, 1993; p. 10-12, tsn, Dec. 14, 1993). When the policemen inquired if appellant had any authority to carry the gun, appellant resisted and boxed SPO4 Nemeno who was able to parry the blow (pp. 4-5, tsn, Aug. 5, 1993; pp. 12-13, tsn, Dec. 14, 1993). Thereupon, the police officers, combined their efforts to subdue appellant (p. 13, tsn, Dec. 14, 1993). Inspector Quano confiscated appellant's firearm, a .45 caliber bearing Serial Number 716352 (p. 5, tsn, Aug. 5, 1993; Exh. A, see p. 58, Record). When Inspector Quano asked appellant if he had the license or authority to possess the firearm, and the latter replied "wala, wala akong papeles" (p. 5, tsn, ibid.). Appellant was informed that he would be brought to Camp Crame, so he told the police that he [could] not leave his valuable belongings inside his nipa hut (pp. 5-6, id.). There, another pistol .45 caliber with SN 4746986 and two (2) magazines loaded with ammunition were recovered (p. 6, tsn, Aug. 5, 1993; Exhs. B and series, see p. 58, Records). On December 23, 1992, the arresting police officers executed their joint affidavit attesting to the facts and circumstances antecedent and leading to the arrest of the appellant (p. 16, tsn, Dec. 14, 1995; Exh. C, p. 97, Record). On December 28, 1992, they were able to verify and secure a certification from the Firearms and Explosives Office at the General Headquarters of the Philippine National Police, Camp Crame, Quezon City, that appellant ha[d] no license or authority to possess any firearm (p. 15, tsn, Dec. 14, 1995; Exh. F, p. 109, Record). Some details in the prosecution account are amplified by the trial court thus: 12 . . . Accused was told that he would be taken to Camp Crame. On the answer [of the accused] that he could not leave his belongings, Insp. Estanislao told him to bring his valuable things from the nipa hut. During the hauling, accused turned over another pistol, Cal. .45, SN 4746986 and two magazines with ammunition inside (Exh. B). Accused was brought to Camp Crame together with his other personal belongings which were later on given to [his] wife. . . . Version of the Defense In its Brief, 13 the defense contests the factual version of the prosecution and presents the following as its own: 14 Nick Perucho denied the accusation against him. He testified that on December 21, 1992 at about 7:30 o'clock in the evening, he was inside a hut in Gumaok, San Jose del Monte, Bulacan. He . . . just finished his supper and [was] watching television when some men barged inside the hut and pointed armalite[s] at him and his brother-in-law. The armed men ordered them to lie flat on the floor and they searched the entire hut. The armed men asked for the person named Nick. He raised his hand and told them that he [was] Nick. Thereafter, he was tied and brought to Camp Crame with his face covered with a t-shirt. At Camp Crame, he was investigated and charged for the kidnapping in Cavite. The investigation started at 9:00 o'clock in the evening and [was] finished at 4:00 o'clock of the following morning. During investigation, he was tortured by pouring water on his face making him unconscious. He denied having participated in the kidnapping in Cavite. Also, he denie[d] having possessed any gun when he was arrested. (TSN., June 7, 1994, p. 3-13). Ruling of the Trial Court In ruling that the seizure of the firearms was valid, the trial court gave credence to the account of the arresting officers and disbelieved appellant's contrary claim that the police, without any arrest or search warrant, suddenly barged into his hut and arrested him. The trial court ruled: 15 . . . Evidence obtainable in this case shows that the accused was seen outside his house, half-naked and a gun tucked in his waist. Because accused was under surveillance for having been suspected of the kidnapping in Cavite and the fact that accused [was] known to be a notorious person [as] evidenced by the fact that his name [was] included in the Order of Battle (Exh. D to D-1), the arresting officers lost no time to search the accused and seize the firearm tucked in his waist. Later on, upon questions [directed at] him, it was learned that accused did not possess any authority or license to possess said firearm. . . . The gun (Exh. A) tucked in [his] waist was open to the eyes and hands of the police officers who came upon it inadvertently. The . . . firearm was not sought deliberately but was only chanced [upon] by them. The search and seizure is therefore held to be valid[;] consequently, the firearm (Exh. A) is admissible in evidence. As regard[s] Exh. B, said firearm and ammunition were not confiscated from the accused but were voluntarily surrendered by him to the arresting police officers. . . . In connection with this case, accused was likewise charged [with] [r]esistance and [d]isobedience to a [p]erson in [a]uthority in Crim. Case No. 745-M-93. Facts obtaining show that accused tried to resist the arrest, after the members of the PACC had announced the same, by releasing a fist blow against SPO4 Nemeno who fell to the ground [i]n the process. . . . The Issues Appellant submits that the court a quo committed the following errors: 16 I The trial court gravely erred in concluding that the search/seizure and arrest of herein accused-appellant Mark Perucho was valid and that the two firearms allegedly recovered from him [were] admissible in evidence. II The trial court erred seriously in convicting the accused-appellant of the offense charged due to insufficiency of evidence on the part of the prosecution. In the main, appellant questions the credibility of the prosecution evidence. The Courts Ruling The appeal is meritorious. Main Issue Credibility of Prosecution Evidence As a general rule, the evaluation of the credibility of witnesses is a matter that peculiarly falls within the authority of the trial court, as it had the opportunity to observe the demeanor of the witnesses on the stand. 17 For this reason, appellate courts accord its factual findings 18 and assessments of witnesses 19 with great weight and even finality, barring arbitrariness or oversight of some fact or circumstance of weight and substance. In the present case, however, this Court sees flimsy support for the findings and conclusion of the trial court. The oft-stated truism is that evidence must not only proceed from a credible witness, but also be credible in itself. 20 Thus, this Court has held: "We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience." 21 After careful examination of the records, we find that the testimonies of the two prosecution witnesses do not pass, this test. In convicting the accused, the trial court relied on the testimonies of SPO3 Armando Ballon and SPO4 Winifredo Nemeno who, together with three other policemen, arrested the accused. For the sake of clarity, the allegations of the two are outlined below: 1. The PNP Order of Battle named appellant as the leader of the Perucho Gang, which was engaged in bank robberies and composed mostly of former military men. 22 2. Because the gang was the prime suspect in the kidnapping of Grace Chico and her grandfather in Cavite, the policemen conducted a surveillance of the gang members 23 and the kidnap victims. 24 3. In the course of their surveillance around 7:30 p.m. on December 21, 1992, the policemen saw appellant. Tucked in his waist was a .45 caliber pistol, which was in plain view because he did not have a shirt on. At the time, the appellant was allegedly supervising the construction of a house. Immediately, all the five policemen approached and arrested him without a warrant. 4. Appellant resisted arrest and knocked down SPO4 Nemeno with a punch, but the four other policemen subdued him and seized his unlicensed pistol. 5. Before being taken to Camp Crame, he asked and was given permission to go to his hut and take with him his stereo and television, among others. Appellant came out not only with those appliances, but also a second unlicensed pistol which he surrendered to the police. The Court finds the foregoing version improbable, incredible and incompatible with human experience. First, it is unlikely that the leader of a gang included in the PNP Order of Battle would be supervising a construction work at night, unescorted, with a gun tucked in his waist in plain view. Likewise, it is dubious that such a man would be oblivious to the approach or the presence of an unfamiliar car in that secluded place at that late time. Such nonchalance is uncharacteristic of men, especially former military men, who lead undercover lives due to illegal activities. More disturbing, however, is the manner in which the policemen SPO3 Armando Ballon admitted that the object of the surveillance was the Perucho Gang 25 and the kidnap victims. 26 Considering that appellant allegedly led the gang that was believed responsible for the kidnapping, his presence would have alerted an average policeman to the following possibilities: (1) the kidnap victims were being kept there; (2) the victims were being guarded by the Perucho Gang, not by Perucho alone; and (3) even if the kidnap victims were not there, the leader was with the other members of the gang. But the five policemen made no effort to ascertain the presence of the kidnap victims or the other gang members. Moreover, there was no showing that they stayed in the vicinity long enough to find out. Instead, SPO4 Nemeno declared that he and the four other policemen approached appellant "immediately" when they saw him carrying a pistol. This is clear from the following excerpts of his direct testimony: Q After seeing the accused Mark Perucho . . . with a firearm tucked [i]n his waist line, what did you do? A We immediately confronted the accused and introduced ourselves as police officer, sir. Q You mentioned "we." To whom [did] you refer when you said "we"? A My companions, Police Insp. Estanislao, Police Insp. Quano, SPO3 Ballon and SPO2 Renato Agustin who wee with me at that time, sir. 27 (Emphasis supplied.) Ballon corroborated Nemeno's testimony in this manner: Q After having seen Perucho, what transpired next? A We saw [i]n his tucked a caliber .45 pistol because at that time, he was half naked, wearing only shorts. Q And what happened after that? A We approached him immediately and introduced ourselves as policeman from THF, PACC and that the person who was very near to him [was] SPO4 Nemeno while Sr. Inspector Estanislao and Quano announced that he [would] be under arrest because of his possession of said firearms, [but] he immediately boxed SPO4 Nemeno. 28 (Emphasis supplied.) In immediately confronting appellant, the five policemen did not take the time to determine whether the victims or the other gang members were in the vicinity. Instead, they rushed from their observation post to arrest him, heedless of the possibility that the other Perucho gangsters might shoot them and the kidnap victims. In fact, during the rime that they were in the place, the police never took measures commensurate to the danger posed by their mission. The same carelessness was shown when they subdued appellant. When he allegedly resisted arrest and punched Nemeno, the four other policemen helped each other pin the former to the ground. Significantly, none of them positioned himself to guard against any other threat and to provide cover for the rest. Ballon stated: 29 Q. By the way, who boxed the accused? A. The accused, sir, boxed SPO4 Nemeno. Q. And then . . . A. Bumagsak po siya sa suntok ni Perucho. Q. And then who physically subdued the accused? A. Noel Estanislao, Inspector Quano, I myself and Agustin. The improbability of the police account was ably pointed out by the defense counsel, as shown by this exchange during the cross-examination of Ballon: 30 Q Usually, on occasions like this, the team making the search or the arrest are divided into 2 wa[ves], the first wa[ve] is to make the arrest; and the second wa[ve] is to give support for security[;] was it not done in this case? A It was not done because our main objective [was] only to conduct surveillance. Even after they had arrested appellant, the police displayed the same unbelievable nonchalance. Based on the PNP Order of Battle, it is clear that the alleged Perucho Gang was no pushover, for it was composed of former military men, including a sergeant and several corporals, equipped with assorted high-powered firearms. It must be stressed that the alleged objective of the policemen was to conduct a surveillance of the gang and the kidnap victims. Yet, they did not try to find out if any of these persons were in the vicinity. They did not even attempt to check whether the three construction workers were similarly armed or were also members of the gang. In failing to do so, they were imprudently exposing themselves and the kidnap victims to danger. The conduct of the police after they subdued Perucho is described in Ballon's testimony: Q You did not go up . . . the newly built house? A Because there [was] yet no roofing. Q Yes, but there [was] a second floor already[, was there] not? A We did not get inside, sir. Q You were not concerned whether these people had followers hiding in that house? A We [were] not, sir. Q You did not get inside to search whether or not Grace Chico and her grandfather were there or any other member of the gang? A No, sir. True, such recklessness on the pan of the policemen may signify mere incompetence. But it is unbelievable that they, or any other law enforcers for that matter, are capable of such gross ineptitude. Their wanton disregard of their own safety and that of the victims is incompatible with common experience. Otherwise stated, their story is too improbable to be accorded credence. Worst of all, the prosecution avers that appellant, after he had been allegedly caught in possession of a pistol, went to his hut to get his belongings and returned with another unlicensed pistol, which he surrendered to the arresting officers. During direct examination, Ballon declared: 31 Q After you ha[d] confiscated the [firearm] and [the accused] told you that he ha[d] no license to possess his [firearm], what did you do next? A We informed hi[m] that we [would] bring him to our headquarters at Camp Crame and he told my officers that he [could] not leave behind his belongings in his nipa hut, so Insp. Estanislao told him to bring the valuable things in his nipa hut. And during the haul of his belongings, he also turned over to Inspector Quano another pistol caliber .45. On cross-examination, Ballon testified: Q When you said Mr. Witness that they voluntarily surrendered this second [firearm], Exh. B. . . . you said they surrender[ed] this? A Yes, sir. They surrendered it to Insp. Quano. That a person who was arrested and about to be detained would worry about his personal belongings, such as stereo and television, is hardly believable. But to maintain that he, a supposedly notorious gangster, would voluntarily retrieve from his hut a second gun and surrender it meekly and perfunctorily to the police, after he had already been apprehended, is ridiculous. The police did not say that the second firearm was a product of a lawful search incidental to a valid arrest; they said that appellant just voluntarily surrendered it. Why he did so the prosecution did not and could not explain. 32 In fact, common sense completely rejects this account. Because the improbabilities pertain to matters of weight and substance, the testimonies of the prosecution witnesses cannot be given full faith and credence. Clearly, the requirement of moral certainty has not been fulfilled. Denial and Alibi Well-entrenched is the doctrine that a finding of guilt must rest on the prosecution's own evidence, not on the weakness or even absence of evidence for the defense. 33 Herein appellant interposes denial and alibi, which have been widely held to be inherently weak and unavailing. 34 However, when the credibility of the prosecution witnesses is wanting and questionable, the said defenses assume significance. So is it in this case. When an accused invokes alibi and denial, which are deemed the "weakest" of all defenses, "the courts should not at once have a mental prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him. 35 Thus, the Court has recognized that "[i]t is precisely when the prosecution's case is weak, as in this instance, that the defense of alibi assumes importance and becomes crucial in negating criminal liability." 36 The appellant claims that he was watching television at home, when some men barged and pointed armalite rifles at him and his brother-in-law. The armed men ordered them to lie flat on the floor as they searched the whole house. They asked who Nick Perucho was; when the accused identified himself, he was tied and brought to Camp Crame with his face covered with a t-shirt. From 9:00 in the evening to 4:00 in the morning, he was investigated for the Cavite kidnapping. He also alleged that he lost consciousness because of the water torture administered to him. While nobody else was presented by the defense to corroborated the appellant's story, it sounds more plausible than that of the prosecution. In any event, acquittal is inevitable, where the prosecution evidence does not produce moral certainly. Conviction cannot rest on improbable testimonies. WHEREFORE, the appeal is hereby GRANTED. The Decision of the court a quo is hereby REVERSED and VACATED. Accused Mark Perucho alias Nick Perucho is hereby ACQUITTED on reasonable doubt. The director of the Bureau of Corrections is hereby directed to cause the release of appellant forthwith, unless the latter is being lawfully held for another cause, and to inform the Court of his release, or the reasons for his continued confinement, within ten days from notice. No costs.1âwphi1.nêt SO ORDERED. Romero, Vitug, Purisima and Gonzaga-Reyes, JJ., concur. Footnotes 1 Penned by Judge Camilo O. Mantesa Jr. 2 Rollo, pp. 6-7. 3 Records, pp. 14-15. 4 This is also spelled "Winifredo". 5 This is also spelled "Nemenio." 6 Records, p. 33. 7 RTC Decision, pp. 3-4; rollo, pp. 20-21. 8 The case was deemed submitted for resolution on October 13, 1998, when the Appellee's Brief was filed. The filing of a reply brief was deemed waived, as none was submitted within the reglementary period. 9 The Brief was signed by Solicitor General Ricardo P. Galvez, Assistant Solicitor General Antonio L. Villamor, and Solicitor John Emmanuel F. Madamba. 10 Brief for the Appellee, pp. 2-5; rollo, pp. 58-61. 11 According to the Information (supra) and the appellant's testimony (TSN, June 7, 1994, p. 3), the incident happened in the Municipality of San Jose Del Monte, not San Ildefonso. 12 RTC Decision, p. 2; rollo, p. 19. 13 The Appellant's Brief, filed by the Public Attorney's Office, was signed by Attys. Arceli A. Rubin, Diosdado G. Garcia and Francisco L. Salomon. 14 Appellant's Brief, p. 4; rollo, p. 36. 15 RTC Decision, p. 3; rollo, p. 20. 16 Ibid., p. 1; rollo, p. 33. 17 People v. Morin, 241 SCRA 709, February 24, 1995; People v. Cogonon, 262 SCRA 693, October 4, 1996. 18 People v. Sumbillo, GR No. 105292, April 18, 1997; People v. Quinao, GR No. 108454, March 13, 1997; People v. Nuestro, 240 SCRA 221, January 18, 1995. 19 People v. Ombrog, GR No. 104666, February 12, 1997; People v. Sumbillo, supra; People v. Ortega, GR No. 116736, July 24, 1997; People v. de Guzman, 188 SCRA 405, August 7, 1990. 20 People v. Fabro, GR No. 95089, August 11, 1997, per Panganibn, J.; Tuason v. Court of Appeals, 241 SCRA 695, February 23, 1995. 21 People v. Fabro, supra; People v. Escalante, 238 SCRA 554, December 1, 1994. 22 Records, p. 99. 23 TSN, August 5, 1993, p. 4. 24 Ibid., p. 11. 25 TSN, August 5, 1993, p. 4. Ballon testified: Q Because the information that you gathered regarding the kidnapping of Grace Chico and her grandfather . . . [were] perpetrated by the 2 gangs, what steps did you undertake? A We conducted surveillance [of] the two groups. x x x x x x x x x Q What [was] the purpose why you were in the said place? A We were conducting surveillance [of] the group of Perucho and we located his house at Block 10, Brgy. Gumaok, San Jose del Monte, Bulacan. 26 TSN, August 5, 1993, p. 11. 27 TSN, December 4, 1993, pp. 10-11. 28 TSN, August 5, 1993, pp. 4-5. 29 TSN, August 5, 1993, pp. 17-18. 30 Supra. 31 TSN, August 5, 1993, p. 6. 32 The solicitor general's explanation is speculative as it is lame: "Surely, the appellant must have acknowledged the futility of hiding the second firearm and [known] that it would only be a matter of time before it [would] be discovered by the police." 33 People v. Llaguno, GR No. 91262, January 28, 1998; People v. Paguntalan, 242 SCRA 753, March 27, 1995. 34 People v. Sumbillo, GR No. 105292, April 18, 1997; People v. Quinao, GR No. 108454, March 13, 1997; People v. Pagal; GR Nos. 112620-21, May 14, 1997; People v. Yparraguirre, GR No. 117702, February 10, 1997. 35 People v. Abellanosa, supra; People v. Esclante, supra; People v. Villacorte, 55 SCRA 640, February 28, 1974. 36 People v. Adofina, 239 SCRA 67, December 8, 1994, per Regalado, J. The Lawphil Project - Arellano Law Foundation