G.R. No. 134631




EN BANC G.R. No. 134631 May 4, 2000 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BANDY REPOLLO and TOMAS REPOLLO, accused-appellants. VITUG, J.: In an Information filed before the Regional Trial Court ("RTC") of Urdaneta, Pangasinan, Branch 46, accused Bandy Repollo and Tomas (a.k.a. Candido) Repollo were charged with murder for the killing of Alfredo C. Baybayan; viz: The undersigned accuses BANDY REPOLLO and TOMAS REPOLLO of the crime of MURDER, committed as follows: That on or about November 29, 1997 at barangay Nagsaag, San Manuel, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon with intent to kill, treachery evident premeditation and taking advantage of superior strength, conspiring together, did then and there wilfully, unlawfully and feloneously held, embrace and stab Alfredo C. Baybayan, inflicting upon him the following injuries: — Back-stab wound 2 cm in length penetrating at the left infra-scapular area. — 2 stab wounds 2 1/2 cm and 2 cm in length at the upper 3rd of the vertebra. which caused the instantaneous death of said Alfredo C. Baybayan, to the damage and prejudice of his heirs. CONTRARY to Art. 248, Revised Penal Code, as amended by R.A. 7659. 1 The criminal complaint that initiated the prosecution of the case was filed by the Chief of Police of San Manuel, Pangasinan, on 16 December 1997 with the 7th Municipal Circuit Trial Court of Asingan-San Manuel, Pangasinan. At the arraignment, the two accused pleaded not guilty, and trial thereupon ensued. Following the presentation of the evidence adduced by the prosecution and the defense, the trial court, in its decision of 02 July 1998, found both accused guilty beyond reasonable doubt of the crime with which they were charged and sentenced each of them to suffer the penalty of death. The trial court adjudged: WHEREFORE, JUDGMENT of CONVICTION beyond reasonable doubt is hereby rendered CONVICTING BANDY REPOLLO and TOMAS @ CANDIDO REPOLLO of the crime of MURDER, an offense defined and penalized under Article 248, Revised Penal Code in relation to Republic Act 7659 aggravated by treachery, the Court hereby sentences Bandy Repollo and Tomas @ Candido Repollo to suffer the penalty of DEATH to be implemented in the manner provided for by law. Ordering the accused to reimburse the heirs of Alfredo Baybayan to pay the sum of P64,700.00 as actual damages plus P50,000.00 for moral damages and P20,000.00 as exemplary damages. The Clerk of Court is hereby ordered to transmit the records of this case to the Honorable Supreme Court of the Philippines for automatic review, and to prepare the Mittimus immediately. The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to deliver the accused to the National Bilibid Prisons, Muntinlupa, Manila, with proper escort and security immediately. SO ORDERED. 2 The death penalty having been imposed, the case has been elevated to this Court for automatic review. In their brief, accused-appellants make the standard and general ascription that the trial court has erred in not acquitting them on the ground of the failure of the prosecution to establish their guilt beyond reasonable doubt and in not finding that they, in fact, have established a meritorious defense. The evidence, culled from the records, consists mainly of the testimony of witnesses tendered, in one version, by the prosecution and, in another, by the defense. For the Prosecution: On 29 November 1997, at about nine o'clock in the evening, the victim Alfredo C. Baybayan, along with his wife Mercedes, attended the wake of the late Aurelia Ramos at the house of Councilor Loreto Ramos in Sitio Saringit. Among the several persons in attendance were Tomas and Bandy Repollo (herein appellants), Councilor Mario Faustino, Manuel Diaz and Virgilio Galamgam. After paying his last respects, Alfredo joined the group then playing the "Lucky Nine" card game. Behind Alfredo was Mercedes. Manuel watched the players a few meters away. Later in the game, Mario Faustino took a break from watching the game to relieve himself. Approximately four meters away from the place where the game was being held, Mario Faustino saw Tomas Repollo and Bandy Repollo reeking of liquor and appearing to be in wait for someone. When Mario came back, Alfredo got up and walked past his wife casually telling her that he would urinate. Mercedes noticed that Tomas and Bandy hastily went to follow her husband and then, from a distance of about three meters, she saw Tomas catch up with her husband and hold the latter's hands above elbow level. Forthwith, Bandy stabbed Alfredo thrice at the back. Just as Alfredo had slumped to the ground, Tomas and Bandy scampered away. Responding to the instant cries of Mercedes, Mario Faustino ran towards the same spot where Mario had seen Tomas and Bandy. Mario saw Alfredo dripping blood and apparently lifeless. Meanwhile, Virgilio Galamgam announced over the microphone that somebody had been stabbed causing the people at the wake to panic and leave the place except for the close relatives of deceased Aurelia Ramos. Mercedes desperately attempted to revive her husband. The latter was brought to the Sacred Heart Hospital where he was pronounced "dead on arrival." Mario reported the incident to the police. In her statement, Mercedes pointed to Tomas and Bandy as being the assailants of her husband. 3 The next day, 30 November 1997, PO3 Dominador Urbiztondo, Jr., and PO3 Avelino Sandi of the Philippine National Police ("PNP") stationed at San Manuel, Pangasinan, repaired to the scene of the crime and found bloodstains on the premises. On the basis of the information given by Mario Faustino and Loreto Ramos, and with the help of Barangay Captain Marciano Alvarado, the two police officers interviewed Tomas and Bandy Repollo, Rogelio Alvarado and Marcial Alvarado. On 03 December 1997, in a follow-up investigation conducted by SPO1 Joselito Sagles in the house of Barangay Captain Marciano Alvarado, Tomas Repollo admitted having been at the wake when the stabbing incident occurred. Bandy, on the other hand, said that he did not leave his house that night. Dr. Asuncion Tuvera, a rural health physician of San Manuel, Pangasinan, who conducted the autopsy on the body of the victim, found the latter to have suffered from three fatal stab wounds delivered from behind. In the autopsy report, 4 as well as in the death certificate, 5 Tuvera indicated the cause of death of Alfredo to be "cardio-respiratory arrest — severe internal hemorrhage." For the Defense: Lorenzo Paguyo testified as having been one among those present at the Ramos wake watching the "Lucky Nine" card game. He did not actually see the actual stabbing incident but just as he heard the announcement of Galamgam that somebody was stabbed, he saw Alfredo walking in a "zigzag manner" until he fell to the ground. 6 He tarried for about 10 more minutes after Alfredo was brought to the hospital. Bandy Repollo and Tomas Repollo were still at the scene of the incident when he left. Manuel Diaz stated that on the night of 29 November 1997, he went to the wake in the company of Tomas Repollo and Bandy Repollo. He watched the card game and beside him was Tomas Repollo. After about 15 minutes, Alfredo arrived and greeted him with a pat on his shoulder, followed by a hug. Alfredo joined the card game. He saw Bandy Repollo approach Tomas for some money to buy balut but Tomas ignored Bandy. Alfredo played the game for about 25 to 30 minutes and then left to urinate. Moments later, he heard an announcement made by Galamgam that someone had been stabbed. The victim turned out to be Alfredo Baybayan. Manuel did not see how the incident happened. The witness, in answer to the query of the Court, "Was it Bandy who stabbed him (Alfredo)," answered, "I am not sure sir;" and to the next question, what "about Tomas Repollo," the witness replied, "Tomas did not stab him because he was beside me, sir." 7 Testifying in his defense, accused Tomas (Candido) Repollo admitted that he was at the Ramos wake on 29 November 1997, at seven o'clock in the evening, together with Alex Alvarado, Noel Alvarado, Rod Alvarado, Jose Alvarado, Bandy Repollo and Manuel Diaz. He saw Alfredo later come in, talk to and embrace Manuel Diaz, and then participate in the card game. After some minutes, Alfredo got up and left the game. When Alfredo returned he was walking "as if drunk" until he fell to the ground. When Galamgam announced the stabbing incident, he was beside Manuel Diaz, and Bandy. He and Bandy went home afterwards at around ten o'clock that evening. Bandy Repollo denied having stabbed Alfredo and had no idea who did it. He arrived at the place at eight o'clock in the evening, together with Candido Repollo, Marcial Alvarado, Alex Alvarado, Rogelio Alvarado, Jose Alvarado and Manuel Diaz. He was watching the card game about three meters away from the place where his uncle (Tomas) and Manuel Diaz were conversing. Moments after Alfredo had left the card game, he heard Pepe Galamgam announce over the microphone that somebody was stabbed. Alfredo was then seen walking awkwardly until he fell to the ground. The card players soon resumed the game which he, along with Tomas Repollo and Manuel Diaz, continued to watch. When the victim was brought out of the yard, he and his companions left for home. Evaluating the foregoing evidence respectively offered by the prosecution and the defense, the trial court ruled against accused-appellants. Finding the latter both guilty beyond reasonable doubt of murder, aggravated by treachery, the court a quo, per its judgment aforequoted, imposed the penalty of death. In arguing for their acquittal, accused-appellants assail the testimony of Mercedes Baybayan for being biased and uncorroborated and claim that the filing of murder charges against them is a mere "product of guesswork and not based on solid evidence." Insisting that Mercedes did not witness the stabbing of her husband, accused-appellants point out that Mario Faustino, who could have been in the best position to witness the incident, has failed to specifically implicate them to the crime. The appeal basically boil down to the issue of credibility. Let it be said at the outset that the Court will not hesitate to superimpose its own judgment over that of the trial court in passing upon the credibility of witnesses if there should appear a clear case of misapprehension by the latter of significant facts or circumstances that, otherwise, can warrant a completely variant result. 8 Bearing this possibility in mind, the Court has closely reviewed the records; unfortunately for the accused-appellants, it finds not enough justification to reject and reverse the assessment made by the trial court. The records, in fact, appear to adequately substantiate the findings of the trial court in holding that — Mercedes S. Baybayan, was clear and positive, unswerving and sure that she saw her husband (Alfredo) left the card game table in the wake of Aurelia Ramos at the house of Loreto Ramos at Brgy. Nagsaag, San Manuel, Pangasinan on November 29, 1997 at about 9:00 P.M. — followed by Bandy Repollo and Tomas @ Candido Repollo. Afterwards, Tomas held the two (2) hands of Baybayan above his elbow, thereafter, Bandy stabbed Alfredo Baybayan's back three (3) times hitting Alfredo which caused him to fall to the ground. Alfredo Baybayan died as a result of the three (3) stabbing blows that he sustained. 9 The failure of Mercedes to disclose right away to the police the identity of the malefactors could scarcely impair her credibility. 10 She explained that her mind was still "much disturbed" after the stabbing to death of her husband; nonetheless, she was positive that accused-appellants, whom she had known for a long time, were the malefactors who attacked her husband. She saw the episode unfold before her eyes since the place was well-lighted. The eyewitness account of Mercedes was corroborated by the physical evidence appearing in the AUTOPSY REPORT, dated 30 November 1997, of Dr. Asuncion Tuvera, i.e.; that the victim was stabbed three times at his back. The inaccurate date of October 1997 appearing in the transcript of stenographic notes, capitalized by accused-appellants to discredit Dr. Tuvera's testimony, was clearly a mere typographical error. The written autopsy report itself, Exhibit "D," would show that the autopsy was conducted in the house of the deceased on 30 November 1997 at 10:30 a.m., and not in October 1997 per the stenographic notes. 11 The argument that Mercedes, being the widow of the victim, makes her testimony unreliable is tangential. Just to the contrary, her testimony can be far more credit-worthy than not because her natural interest to bring to justice the real perpetrators, a matter of fact that certainly would be incompatible with accusing anyone other than the real culprits themselves. 12 It is the defense account of the case that the Court finds to be much less than credible. Tomas Repollo testified that Bandy Repollo stayed behind and continued to watch the card game that he said had resumed. Bandy Repollo, on his part, averred that after it was announced over the microphone that someone had been stabbed, the card players simply looked at the victim and, apparently unperturbed, resumed playing, while he remained in his place and went on to watch the game. The trial court did not err in rejecting this unusual version of the incident. Conspiracy between the appellants to kill the victim was adequately shown by their overt acts. Just as he left the card game, Alfredo Baybayan was pursued by accused-appellants. Catching up with Alfredo, Tomas (Candido) Repollo held the victim by the elbow in order to allow Bandy Repollo to attack from behind and to strike at the unsuspecting victim. The trial court was correct in its disquisition that the qualifying circumstance of treachery attended the crime. To quote: The killing was attended by treachery. For treachery to exist, it must be established that the means, method or manner of execution of the offense was deliberately and consciously adopted in order to make it possible or difficult for the victim to defend himself or to retaliate, People v. Castro, 117 SCRA 1018. The attendance of treachery as a qualifying circumstance is founded upon the concurrence of two (2) conditions: 1. The employment of means, method or manner of execution which would ensure the offender's safety from any defensive or retaliatory act on the part of the offended party, which means that no opportunity is given the latter to defend himself or to retaliate; and 2. That such means, method or manner of execution deliberately or consciously chosen. People v. Ganut, 118 SCRA 46. In the instant case, the fact that Tomas @ Candido Repollo held the two (2) hands of Alfredo Baybayan above his elbow in order to ensure that Bandy would deliver the fatal blows and in fact he did deliver the three (3) stabbing blows from behind hitting the back of Alfredo Baybayan which caused his death. Alfredo under the situation could not retaliate or defend himself from the attack of Bandy Repollo because his two hands were held by Tomas @ Candido. The attack "came without warning, was swift, deliberate and unexpected, and afforded the helpless, unarmed and unsuspecting victim no chance to resist or escape, and this is the essence of treachery. 1 The sudden and unexpected attack by the two appellants, who positioned themselves with one in front and the other at the back of the victim immediately holding the latter's two hands and then delivering the fatal blows from behind, rendered the victim completely defenseless and ensured the commission of the crime without risk to the malefactors. The aggravating circumstance of "taking advantage of superior strength," although present, could not be so appreciated as an independent aggravating circumstance, it being absorbed by treachery. 14 Evident premeditation has not been adequately established. Evident premeditation exists when the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. Premeditation, to be considered, must be evident and so proved with equal certainty and clarity as the crime itself. It is essential that the following elements should there concur: (1) the time when the offender has determined to commit the crime, (2) an act manifestly indicating that the culprit has clung to his determination and, (3) a sufficient interval of time between the determination and the execution of the crime has lapsed to allow him to reflect upon the consequences of his act. 15 These requirements are not extant in the case. The penalty prescribed by law for murder, the qualifying circumstance of treachery having attended the killing, is reclusion perpetua to death. There being no ordinary aggravating circumstance that can still be appreciated in this case, the penalty of death imposed by the trial court on the appellants must be reduced to the minimum of the penalty, i.e., reclusion perpetua. 16 The trial court has ordered accused-appellants to pay the heirs of Alfredo Baybayan the sum of P64,700.00 as actual damages plus P50,000.00 for moral damages and P20,000.00 as exemplary damages. We have previously ruled that actual damages, to be awarded, must be supported by evidence. 17 The trial court has found Mercedes Baybayan to have spent P64,700.00 for the burial of Alfredo Baybayan. It appears, however, that the prosecution, in support of its prayer for actual damages, has merely presented a bond paper, Exhibit "B," containing a list of the "expenses" allegedly "incurred after the death of Alfredo C. Baybayan." 18 For failing to prove the ACTUAL AMOUNT of the damages with any reasonable degree of certainty, the Court is in no position to uphold the award of P64,700.00, except with respect to the claims supported by receipts — (1) Myrna Valena Funeral Parlor Official Receipt No. 1212, (P36,000.00) and (2) Nicolas Band Memorandum Receipt (P6,000.00) — for a total of P42,000.00. Mercedes Baybayan has testified having suffered from anxiety and been unable to sleep and eat, or to attend to her work and regular duties, due to the untimely and felonious death of her husband. The Court finds the amount of P50,000.00 moral damages awarded by the trial court as being reasonable. There being no aggravating circumstance independently established, however, the exemplary damages awarded by the trial court cannot be held to be warranted by law. WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION by reducing the penalty of death imposed by the trial court to RECLUSION PERPETUA; likewise, in conformity with the foregoing disquisition, Tomas (Candido )and Bandy Repollo are ordered to pay the heirs of the victim, Alfredo Baybayan, the amounts of P50,000.00 as death indemnity, P42,000.00 as actual or compensatory damages, and P50,000.00 as moral damages, all without subsidiary imprisonment in case of insolvency. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur. Melo, Kapunan and Purisima, JJ., no part — abroad. Footnotes 1 Records, p. 29. 2 Rollo, pp. 30-31. 3 TSN, 27 April 1998, pp. 10 and 18. 4 Exh. D, Records, p. 6. 5 Exh. F, Records, p. 7. 6 TSN, 14 May 1998, pp. 4-6. 7 TSN, 20 May 1998, pp. 2-9. 8 People vs. Nang, 289 SCRA 16. 9 Rollo, p. 84. 10 People vs. Lapay, 298 SCRA 62. 11 See Records, p. 6. 12 People vs. Montero, Jr., 277 SCRA 194; People vs. Salvame, 270 SCRA 766; People vs. Oliano, 287 SCRA 158. 13 Rollo, pp. 29-30. 14 Revised Penal Code, Aquino, Vol. I, 1997 Edition, pp. 386-387; citing the cases of Jamino, 3 Phil. 102; Bastas, 5 Phil. 251, Vitug, 17 Phil. 1; Domingo and Dolor, 18 Phil. 250; Estopia, 28 Phil. 97; Redoña, 87 Phil. 743; Develos, 122 Phil. 1145; Agustin, 123 Phil. 301; Reyes, 126 Phil. 667; Nabual, 28 SCRA 747; Lumantas, 28 SCRA 764; Layson, 30 SCRA 92; Abletes, 58 SCRA 241. 15 People vs. Manalili, 294 SCRA 220; People vs. Gatchalian, 300 SCRA 1. 16 People vs. Viovicente, 286 SCRA 1. 17 People vs. Nialda, 289 SCRA 521. 18 Records, p. 86. The Lawphil Project - Arellano Law Foundation