THIRD DIVISION

[G.R. No. 120853. March 13, 1997]

PAT. RUDY ALMEDA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

FRANCISCO, J.:

This is a case of homicide.

Petitioner Rudy Almeda was charged with murder before the Regional Trial Court (RTC) of Tandag, Surigao del Sur in an information which reads as follows:

"That on the 29th day of November 1988, at about 7:30 o'clock in the evening, more or less, inside Bautista's Food and Snack Inn at Capitol Hills, Tandag, province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named, with intent to kill, treachery and evident premeditation, did, then and there, willfully, unlawfully and feloniously shoot several times one, CBL Leo Pilapil Selabao, PC Member, with the use of a caliber 45 nickled pistol, thereby inflicting upon the latter the following wounds, to wit:

1. Gunshot wound 1 cm. in diameter with point of entry 1 cm. lateral to the 6th thoracic cavity, penetrating lung thru and thru, with point of exit 2 cm. below the left nipple.

2. Gunshot wound 1 cm. in diameter with point of entry at midscapular area left at the level of 4th thoracic vertebra, penetrating the thoracic cavity, penetrating the heart thru and thru, with point of exit at level of ziphoid process.

3. Gunshot wound 1 cm. in diameter with point of entry 3 cm. left lateral to the 3rd thoracic vertebra, posterior chest wall penetrating the thoracic cavity, penetrating the mediatinum thru and thru. Slug lodged skin deep.

4. Gunshot wound 1 cm. in diameter with point of entry 4 cm. from midline right occipital area thru and thru with point of exit preauricular area right.

5. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) left infra auricular area thru and thru with point of exit at the right side of the neck 2 cm. beside the oricoid cartilage.

6. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) with point of entry at left side of neck at level of 4th cervical vertebra, tangential with point of exit at left side of the neck at the level of 5th cervical vertebra (about 4 cm. from point of entry), which wounds have caused the instantaneous death of CBL Leo P. Salabao, to the damage and prejudice of his heirs in the following amounts:

P50,000.00 — as life indemnity of the victim;

10,000.00 — as moral damages; and

10,000.00 — as exemplary damages.

CONTRARY TO LAW. (In violation of Art. 248 of the Revised Penal Code.)"[1]

During arraignment, petitioner pleaded not guilty. After trial, the lower court[2] convicted petitioner of homicide only and appreciated in his favor two mitigating circumstances.[3] The prosecution filed a motion for reconsideration with regard to the appreciation of the mitigating circumstances. On July 23, 1992, the lower court granted the motion and modified its earlier decision. The dispositive portion of the modified judgment reads:

WHEREFORE, finding accused Rudy Almeda GUILTY beyond reasonable doubt of HOMICIDE, and there being neither mitigating nor aggravating circumstances which attended the commission of the offense, but applying the Indeterminate Sentence law, the Court hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to pay the heirs of the deceased victim PC Cbl. Leo Salabao the sum of Fifty Thousand (50,000) Pesos as life indemnity and ten thousand (10, 000) Pesos as moral damages, without subsidiary imprisonment in case of insolvency; and to pay the cost.

The bail bond put up by the accused for his provisional liberty is ordered cancelled.

SO ORDERED.[4]

On appeal, the Court of Appeals (CA) affirmed the modified judgment.[5] Hence this petition where petitioner imputes error to the appellate court in (1) not finding that he acted in defense of strangers, and (2) in failing to appreciate in his favor the mitigating circumstances of sufficient provocation and voluntary surrender.

The anterior facts ably supported by evidence on record are summarized by the CA as follows:

On November 29, 1988, at approximately 5:00 o'clock in the afternoon, Julian Herrera, Jr., together with his two nephews Donato Salabao and PC Constable Leo Salabao arrived at the Bautista's Snack Inn to fetch Susonte Montero who lived in the same town with Herrera. (TSN, January 22, 1992, p. 6) Herrera asked Donato to enter the snack inn and inform Montero that they were ready to head home. However, Montero was in the middle of a drinking spree with Vice Governor Acosta and the latter's companions, one of whom was Almeda who was the Vice Governor's bodyguard. Upon the invitation of Vice Governor Acosta, Herrera joined the drinking session and left his nephews in the service jeep. (TSN Jan. 23, 1992, p. 5)

After about an hour, the Salabao brothers alighted and sought shelter in the covered porch of the Bautista's Snack Inn. (TSN, Jan. 23, 1992, p. 6) Shortly thereafter, Felix Amora, who was among the drinking companions of the Vice Governor and the then Community Development Officer and Civil Defense Coordinator, stepped out of the inn and saw the Salabao brothers. Irked because Cbl. Leo Salabao failed to salute him, Amora confronted the former and ordered Cbl. Salabao to salute him. Cbl. Salabao countered that since Amora was not known to him as a PC officer and was in civilian clothes he was not compelled to salute him.(Ibid.) Their argument got the attention of Herrera who went out to pacify them. He then asked Amora and the Salabao brothers to get inside. (TSN, Jan. 22, 1992, p. 10) Once inside, Cbl. Salabao sat at the right side of Almeda while Amora sat opposite Almeda at the left side of Herrera. (TSN, Jan. 22, 1992, p. 12-14) Donato Salabao, on the other hand, sat near the counter. (TSN, Jan. 23, 1992, p. 7)

Unknown to the Salabao brothers, during the past hour, Herrera had himself been arguing with Vice Governor Acosta because of the latter's accusation that Herrera was involved in anomalous transactions. (TSN, Jan. 22, 1992, p. 7-9)

A short time after the Salabao brothers had seated themselves, Herrera's argument with Acosta resumed. At this juncture Acosta stood up, presumably to pay for the beer he had ordered, and whispered something to Almeda. Almeda promptly grabbed the barrel of the armalite rifle which Cbl. Salabao carried with him and pushed it down. (TSN, Jan . 22, 1992, p. 16; TSN, Jan. 23, 1992, p. 8) Simultaneously, Almeda pulled out his .45 caliber pistol pointed it at Cbl. Salabao's head and shot the latter in the left temple. As Cbl. Salabao staggered Almeda fired five more shots felling (sic) the former. (TSN, Jan. 22, 1992, p. 20-21; TSN, Jan. 23, 1992 p. 12) After which Almeda picked up Cbl. Salabao's armalite, cocked it and than (sic) pointed it at Donato Salabao who immediately raised his hands. (TSN, Jan. 23, 1992 p. 13) Almeda then left along with the Vice Governor and his companions. The following day, at approximately 7:00 o'clock in the morning, Almeda was arrested by a group of PC Constables. (TSN, Feb. 18, 1992 p. 3-4)[6]

The petition is not impressed with merit. A party who invokes the justifying circumstance of defense of strangers has the burden of proving by clear and convincing evidence the exculpatory cause[7] that would save him from conviction. He must rely on the strength of his own evidence and not on the weakness of the evidence for the prosecution for even if the latter's evidence is weak, it cannot be disbelieved[8] and will not exculpate the former from his categorical admission as the author of the killing. The Court is convinced upon scrutiny of the evidence that petitioner failed to discharge this burden.

Article 11 (3) of the Revised Penal Code provides:

"Justifying Circumstance. — The following do not incur any criminal liability:

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment, or other evil motive "

This circumstance of defense of strangers has three requisites:[9]

(1) unlawful aggression;

(2) reasonable necessity of the means employed to prevent or repel it; and

(3) the person defending be not induced by revenge, resentment, or other evil motive.

The first and crucial requisite for defense of strangers to prosper is absent in this case. Unlawful aggression presupposes an actual, sudden and unexpected attack or imminent danger on the life or limb of a person.[10] The mere cocking of the M- 14 rifle by the victim (Cbl. Salabao) without aiming the firearm at any particular target, is not sufficient to conclude that the life of the Vice-Governor, Herrera or even of Amora was in imminent danger. A threatening or intimidating attitude per se does not constitute unlawful aggression.[11] Even a mysterious whisper poses no danger. There is nothing from the act of the victim in trying to stand up, from which the Court may infer that the life of the person (the Vice Governor) whom petitioner was allegedly protecting, was under actual threat or attack from the victim.

Besides, assuming that such act of the victim posed an imminent danger, petitioner was able to check if not neutralize such danger, when with a lightning speed, he held and pointed downward the rifle of the former and simultaneously poked his .45 caliber at the victim's head. Moreover, when the victim fell down and staggered after petitioner shot him pointblank in the head, any supposed unlawful aggression by the former, assuming that it has begun, had ceased. If so, the one making the defense has no more right to kill or even wound the former aggressor.[12] Accordingly, petitioner's contention that "he was forced to fire five more shots to defend the life of the Vice-Governor belongs to the realm of fantasy. "[13]

Moreover, the number, location and severity of the fatal wounds suffered by the victim belie the claim of defense of stranger but is indicative of a determined effort to kill.[14] The victim was hit on the vital parts of his body — head, lungs, heart, chest and neck.[15]

With the absence of unlawful aggression that can be attributed to the victim, it becomes unnecessary to determine the remaining requisites for they obviously have no leg to stand on. Thus, in this case, the defense of stranger will not lie, complete or incomplete.[16]

On petitioner's claim that he voluntarily surrendered, the evidence on record disclosed otherwise. Military men acting on order of their superior officer were tasked to look for and apprehend petitioner. When they spotted him, they surrounded and captured petitioner. Moreover, before he was captured, petitioner could have easily surrendered to the Vice Governor or to the police station which is a few blocks from his house. Yet, the record is bereft of any evidence that he made any effort to do so.

The Court does not also agree with petitioner's claim that he is entitled to the mitigating circumstance of "sufficient provocation on the part of the offended party immediately preceded the act."[17] To avail of this benefit, it must be shown that the provocation originated from the offended party, in this case, the victim. However, the records will attest that it was not the victim who provoked the heated confrontation between the Vice-Governor and Herrera, as he has nothing to do with their discussions. Neither was it shown that the victim provoked petitioner into committing the felonious act. Petitioner and the victim do not know each other, they never met before that incident, and the victim never aimed his rifle at petitioner. They merely sat beside each other which could hardly be sustained as a provocative act. Moreover, any purported provocation by the victim on Amora, when the former refused to salute the latter outside the restaurant, could not be considered as a provocation on petitioner since the latter was not even aware of the saluting incident between the victim and Amora. Thus, the benefit of the mitigating circumstances under Article 13 (4) of the Revised Penal Code is unavailable to petitioner.

At any rate, the errors assigned by petitioner assail the factual findings and evaluation of witness's credibility by the trial court. It is a settled tenet, however, that the findings of fact of the trial court is accorded not only with great weight and respect on appeal but at times finality, especially when such findings are affirmed by the CA and provided it is supported by substantial evidence on record.[18] Upon examination of the evidence in this case, the Court is convinced that no significant facts or circumstances were overlooked or disregarded by the courts below which if considered would warrant a reversal of the findings and vary the outcome hereof.[19] With respect to the issue of credibility of witnesses, the appreciation and assessment thereof is best left to the trial court judge[20] having the unique opportunity of observing that elusive and incommunicable evidence of the witness' deportment on the stand, a privilege denied to the appellate court.[21] Again, there is nothing in the record that would indicate material inconsistencies or even improbabilities in the testimony of prosecution's witnesses. Since no arbitrariness or any cogent reasons were cited that would call for the reversal of the lower court's evaluation of credibility of witness, such evaluations bind this court.[22]

WHEREFORE, premises considered, the decision of the Court of Appeals affirming the decision of the trial court convicting Rudy Almeda of homicide and sentencing him to suffer an indeterminate penalty of eight (8) years and one ( 1 ) day of prision mayor, as minimum to fourteen (14) years, eight (8) months and one ( 1 ) day of reclusion temporal, as maximum and to pay the heirs of the victim Leo Salabao, a total of P60, 000.00 as indemnity and damages is hereby AFFIRMED in toto.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur._Slxâ

---

[1] CA Decision pp. 3-4; Rollo, pp. 36-37, 43-44.

[2] RTC Branch 27 in Tandag, Surigao del Sur presided by Judge Ermilindo G. Andal.

[3] RTC Decision dated May 25, 1992.

[4] RTC Order dated July 23, 1992, p. 4; CA Decision, p. 5; Rollo pp. 38, 60.

[5] CA (Fourth Division) decision promulgated February 2, 1995 penned by Justice Hector Hofileña with Justices Gloria Paras and Salome Montoya, concurring.

[6] CA Decision pp. 1-2; Rollo, pp. 34-35.

[7] People v. Cahindo, G.R. No. 121178, January 22, 1997 citing People v. Boniao, 217 SCRA 653 (1993); People v. De Gracia, supra.; People v. Gregorio, 255 SCRA 380 (1996); People v. Berio, 59 Phil. 533.

[8] Ibid.; People v. Rivera, 221 SCRA 647 (1993) citing People v. Rey, 172 SCRA 149 (1989) and People v. Mercado, 159 SCRA 453 (1988).

[9] Ambrosio Padilla, Criminal Law, Revised Penal Code Annotated, Book I, 1974 ed. p. 231.

[10] People v. De Gracia, supra.; People v. Boniao, supra.

[11] People vs. Bobiao, 217 SCRA 653; People vs. Tac-an, 182 SCRA 601; People vs. Bayocot, 124 SCRA 285; U.S. v. Guy- Sayco, 13 Phil. 923.

[12] People v. Santos, 255 SCRA 309 (1996).

[13] CA decision, p. 7; Rollo, p. 40.

[14] See People v. Santos, 255 SCRA 309 (1996); People v. Bigcas, 211 SCRA 631 (1992); People v. Manlapaz, 55 SCRA 598.

[15] Exhibit"C"; RTC Records, pp. 108-109.

[16] See People v. Bautista, 254 SCRA 621 (1996); People v. Osigan, January 20, 1993; People v. Madali, 188 SCRA 69 (1990).

[17] Article 13(4), Revised Penal Code.

[18] People v. Bracamonte, G.R. No. 95939, June 27. 1996; People v. Alapan, 315 Phil. 39 (1995); Lee Eng Hong v. CA, 241 SCRA 392 (1995).

[19] See People v. Godoy, 250 SCRA 676 (1995); People v. Ballagan, 247 SCRA 535 (1995); People v. Hilario, 244 SCRA 633 (1995); People v. Gapasan, 243 SCRA 53 (1995); People v. Adonis, 240 SCRA 773 (1995).

[20] Son v. Son, 251 SCRA 556 (1995).

[21] See People v. Estanislao, G.R. No. 118079, December 24, 1996; People v. De Gracia, G.R. No. 112984, November 14, 1996; People v. Echegaray, G.R. No. 117472, June 25, 1996; People v. Laurente, 255 SCRA 543 (1995); People v. Faigano, 254 SCRA 13 (1996); People v. Angeles, 315 Phil. 23 (1995); Sison v. People, 250 SCRA 58 (1995).

[22] People v. Borja, G.R. No. 114183, February 3, 1997; People v. Tan, Jr., G.R. No. 103134-40, November 20, 1996: People v. Ferrer, 255 SCRA 19 (1996); People v. Kyamko, 222 SCRA 183 (1993).