People vs Bermudez : 129033 : June 25, 1999 : C. J. Davide Jr. : First Division

FIRST DIVISION

[G.R. No. 129033. June 25, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HIPOLITO BERMUDEZ y VILLACORTA and RENARIO MANLAPAZ y OCAMPO, accused.

RENARIO MANLAPAZ y OCAMPO, accused-appellant.

D E C I S I O N

DAVIDE, JR., C.J.:

Accused-appellant RENARIO MANLAPAZ (hereafter MANLAPAZ) appeals from the judgment[1] of conviction for murder and attempted murder in Criminal Cases Nos. 263-92 and 265-92 before the Regional Trial Court (RTC), Olongapo City, Branch 75.

The challenged decision resolved four criminal cases, to wit: (1) Criminal Case No. 263-92 for murder; (2) Criminal Case No. 264-92 for illegal possession of firearm and ammunition; (3) Criminal Case No. 265-92 for frustrated murder; and (4) Criminal Case No. 266-92 for violation of Republic Act No. 7166, an election offense. MANLAPAZ and Hipolito Bermudez were the accused in the first and third cases, while Bermudez was the lone accused in the second and fourth cases. The cases were filed with the different branches of the RTC. Upon motion of Bermudez, they were consolidated with Criminal Case No. 263-92 before Branch 75.

In the original informations[2] in Criminal Cases Nos. 263-92 and 265-92, only Bermudez was accused of murder and frustrated murder, respectively. The informations were based upon the sworn statements of several witnesses,[3] the autopsy report on Joseph Monteverde,[4] the medico-legal certificate of Roberto Bagalawis,[5] and two police reports.[6] Bermudez sought a reinvestigation of the case, since the informations were filed without a preliminary investigation. Upon reinvestigation, MANLAPAZ was implicated as a co-conspirator in both charges. As a result, amended informations[7] to include MANLAPAZ were filed.

During their arraignment Bermudez and MANLAPAZ entered a plea of not guilty. Bermudez jumped bail during the trial and has remained at large. The presentation of his evidence was waived by his counsel.[8]

The evidence for the prosecution was summarized in the Appellee’s Brief as follows:

It was about 4:00 o’clock in the morning of April 10, 1992, when Robert Bagalawis and Joseph Monteverde went to Richard’s Restaurant along Rizal Avenue in Olongapo City to drink beer. In a table in front of them sat Hipolito Bermudez together with three (3) companions. In a table behind Bagalawis and Monteverde sat appellant Renario Manlapaz, also with three (3) companions (pp. 7-10, TSN, April 27, 1993; p. 43, TSN, August 24, 1993).

Monteverde and Bermudez happened to stare at each other. This caused a quarrel to ensue between them, with Bermudez slapping Monteverde on the face. Appellant tried to join the fray but was prevented from doing so by a security guard (pp. 8-9, TSN, April 27, 1993; p. 45, TSN, August 24, 1993).

After the incident, appellant and Bermudez left the restaurant together with their companions. Bagalawis and Monteverde left the restaurant some time later. On the street, Bagalawis noticed an “owner-type” jeep parked near Wimpy’s restaurant some 30 meters from Richard’s Restaurant. Bagalawis and Monteverde start[ed] walking towards 18^th Street but noticed that the jeep was following them. Hearing a gunshot, Bagalawis glanced back and saw appellant, Bermudez and a group of women on board the jeep. Bermudez was driving while appellant was on the front passenger side (pp. 10, TSN, April 27, 1993). The shot heard by Bagalawis hit Monteverde. The latter was able to run away. Bagalawis then saw appellant in a standing position. He heard three (3) more shots, with appellant aiming a gun and firing at him (Bagalawis), hitting him in his left hand and right foot. Bagalawis ran towards the jeep and punched its driver, accused Bermudez. Appellant, however, was able to get control of the jeep and drive away (pp. 13-19, TSN, April 27, 1993).

Bagalawis was brought to the Olongapo City General Hospital by a police aide. While in the hospital, a policeman arrived with a man in handcuffs whom he recognized as Hipolito Bermudez. When asked by the policeman, he identified Bermudez as the one driving the jeep. He learned from a hospital attendant that Monteverde died on the same day, April 10, 1992 (pp. 8-10, 16-17, TSN, August 24, 1993).

Dr. Richard Patilano, a medico-legal officer of Olongapo City, determined the cause of death of Monteverde to be hypovolemic shock and neurogenic shock due to gunshot wound. The autopsy he conducted on the victim showed a point of entry of a gunshot at the lower right side of the neck. The bullet recovered from the body of the victim, which he said could have been fired from a .45 caliber firearm, went downwards, crossed the right clavicle and ended up in the left lobe of the lung. Powder burns on the point of entry indicate that the assailant was near the victim. The downward angle of the wound shows that the shot was fired from above (pp. 5-17, TSN, April 13, 1993; p. 5, TSN, August 10, 1993).

For his part, Dr. Rolando Ortiz II, a senior physician of the Olongapo City General Hospital, certified that Bagalawis sustained the following wounds: “Point of entry .5 x .5 cm. 2 ½ cm. below the lateral malleolus of the right foot; point of exit .7 x .7 cm. plantar aspect heel right. Point of entry .4 x .4 cm. dorsal aspect carpo phalangcal joint 5th digit left hand; point of exit .6 x .6 cm. lateral side carpo phalangcal joint of the 5th digit left.” (pp. 16-17, TSN, April 27, 1993; p. 3, TSN, September 27, 1994).

On the other hand, MANLAPAZ had alibi for his defense. He testified that in the evening of 10 April 1992, he, his wife, daughter and driver ate in a restaurant. Bermudez was nowhere in sight. They went home before midnight. He failed to mention to his driver, who had gone home, of his planned trip to Pampanga the following morning; he thus commuted by bus. He went to Pampanga to buy scrap materials. He stayed there for two days. Upon his return to Olongapo City in the evening of 13 April 1992, his wife informed him that their vehicle was seized by the police. It was the same vehicle which they used in the evening of 10 April 1992, when they ate in a restaurant. He merely instructed his wife to arrange for the release of the vehicle. He was not questioned or subpoenaed by the police in connection with the death of Joseph Monteverde and the shooting of Robert Bagalawis. He denied knowing either man. Neither was he aware that Bermudez implicated him in both crimes.[9]

MANLAPAZ claimed that he was engaged in the scrap business. In 1992 he came to know Bermudez, from whom he bought scrap materials. In February of that year, Bermudez approached him for a loan. His refusal to lend offended Bermudez, who forewarned him that should he buy scrap materials from other sources something would happen to him and his business would close down. That was the last time he saw Bermudez.[10]

Marites Manlapaz, appellant’s wife, corroborated his testimony. On 10 April 1992, after closing their store at 9:00 p.m. she invited her husband for a snack in a restaurant. Accompanied by her daughter and the driver, they rode in the family’s Isuzu pick-up vehicle. They left at midnight and proceeded home and slept. She and MANLAPAZ awoke at 6:00 a.m. MANLAPAZ went by bus to Pampanga to buy scrap materials. That afternoon police authorities arrived and informed her that their vehicle was involved in an incident, which occurred in the restaurant where they ate. She was able to have their vehicle released after the police officer claimed that it was probably a mistake.[11]

Reynaldo Querubin testified that he served as appellant’s driver from 1990 to 1995. In the evening of 10 April 1992, he drove for MANLAPAZ, his wife and daughter. They went to a restaurant to eat and stayed there until midnight. After driving the family home, he proceeded home. He claimed that MANLAPAZ did not know how to drive and did not have a driver’s license.[12]

Antonio Miclat was a traffic aide. In the evening of 10 April 1992 he was on duty and assigned at the rotonda, Ulo ng Apo, Olongapo City. At around 4:00 a.m. the following day his assistance was sought, for a commotion was taking place inside a restaurant. On his way he saw a security guard leaving with the suspect, whom he later learned to be Bermudez. The suspect boarded an owner-type jeep parked outside. The suspect had three female companions inside the jeep. Afterwards, two teenagers left the restaurant by foot. He noticed that the jeep tailed the teenagers, keeping a safe distance. At that time he was near the jeep, conducting the traffic. He then heard a laughter and a gunshot. The jeep swerved and was parallel to one of the teenagers, who was midway crossing the street. This was followed by three more gunshots coming from the jeep, which sped away towards Manila. A wounded teenager approached him and eventually died. He immediately proceeded to the police station to report the shooting and the plate number of the speeding jeep. He denied having seen MANLAPAZ at the scene of the crime.[13]

Benjamin Apaling testified that he was a security guard of the restaurant where the altercation between the accused and the victims occurred. At about 4:00 a.m. of 4 April 1992, a man whom he later identified as Bermudez arrived at the restaurant with three ladies. A while later two male friends entered the restaurant. They passed by Bermudez and tapped the table he occupied. The two friends seated themselves nearby. An exchange of glances transpired between the two groups. Bermudez finally approached the other table and cursed one of the friends, who just kept quiet. The other friend instead cussed at Bermudez. Bermudez then slapped and aimed a gun at the friend who remained quiet. Apaling immediately tried to pacify them and then left to seek help. He chanced upon Antonio Miclat, who responded but failed to follow him. Upon his return he saw Bermudez and his three female companions leaving the place. In a few minutes, the two male friends paid their bill and also left. He later learned of the shooting incident involving the two groups. The police came and questioned him. He denied having seen MANLAPAZ in the restaurant during the commotion between Bermudez and the two male friends.[14]

In its decision,[15] the trial court convicted MANLAPAZ and Bermudez for the murder of Joseph Monteverde and for the attempted murder of Robert Bagalawis. It acquitted Bermudez in the cases for illegal possession of firearm and ammunition, and for violation of Republic Act No. 7166. The dispositive portion of the decision reads as follows:

WHEREFORE, and viewed from the foregoing considerations, the Court renders judgment in the following manner:

1. In Criminal Case No. 263-92, the Court finds the accused Hipolito Bermudez y Villacorta and Renario Manlapaz y Ocampo guilty beyond reasonable doubt of the crime of murder as principals by direct participation and are hereby sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties attached thereto; and to indemnify the heirs of the deceased Joseph Monteverde, jointly and severally, the amount of P50,000.00 as moral damages, the amount of P30,000.00 and P20,000.00 as exemplary damages.

2. In Criminal Case No. 265-92, the Court finds the accused Hipolito Bermudez y Villacorta and Renario Manlapaz y Ocampo guilty beyond reasonable doubt of the offense of Attempted Murder and are hereby sentenced to suffer an indeterminate prison term of four (4) years and two (2) month of prision correccional as minimum to eight (8) years and one (1) day of prision mayor as maximum, and to pay the victim Roberto Bagalawis, jointly and severally, the amount of P30,000.00 as moral damages, and P20,000.00 as exemplary damages.

3. In Criminal Case No. 264-92 for violation of Presidential Decree [No.] 1866 (Illegal Possession of Firearm and Ammunition), and Criminal Case No. 266-92 for violation of Section 32, Republic Act [No.] 7166 (Omnibus Election Code), the accused Hipolito Bermudez y Villacorta is acquitted.

Entry of judgment[16] was made against Bermudez.

MANLAPAZ appealed the decision. He asserts that he was not at the scene of the crime and his defense of alibi was corroborated by two disinterested witnesses, a traffic aide and the restaurant’s security guard. He also emphasizes that his last encounter with Bermudez was marred by a disagreement over a loan proposal, with the latter even threatening him as they parted. There could then be no conspiracy.

In his attempt to cast doubt on the credibility of the eyewitness Roberto Bagalawis, MANLAPAZ points out omissions in Bagalawis’ sworn statement and inconsistencies in his testimony. According to him, Bagalawis’ sworn statement[17] failed to mention MANLAPAZ or state that MANLAPAZ held a gun and fired at the victims. It also omitted the exchange of words between Bermudez and Monteverde. As to Bagalawis’ testimony, the same was fraught with inconsistencies. While Bagalawis claimed that the place was well lit, he later declared that the site where the jeep was parked was not lighted. He even changed his statement that there were eight people who boarded the jeep. He likewise denied in his testimony the allegation in his sworn statement that the jeep bumped him and Monteverde.

Additionally, MANLAPAZ claimed that the sworn statement[18] of Antonio Miclat only identified Bermudez. The same holds true with the subsequent sworn statements[19] of Elizabeth Puno and Wilmafe Miller, who recanted their original affidavits and positively declared that MANLAPAZ was not in the jeep during the alleged shooting.

As to the nature of the crimes, MANLAPAZ contends that treachery was not established. The altercation in the restaurant was a forewarning to the victims of an impending danger. The suddenness of the attack is not synonymous with treachery. Moreover, the evidence show that the victims suffered frontal wounds.

Lastly, MANLAPAZ asserts that the prosecution failed to prove his guilt beyond reasonable doubt and that the award of moral and exemplary damages are unfounded.

In the Brief for the Appellee, the Office of the Solicitor General (OSG) argues that the inconsistencies cited by MANLAPAZ were minor in character and did not affect the credibility of Roberto Bagalawis. Anent the omissions in his affidavit, the OSG asseverates that affidavits are generally incomplete and lacking of details. In any event, the trial court found Roberto’s testimony to be credible and straightforward.

The OSG asserts that conspiracy was inferred from the acts of both MANLAPAZ and Bermudez, which showed a common criminal design. MANLAPAZ was positively identified to have held and fired the gun. Anent his defense of alibi the same must fail, since MANLAPAZ failed to prove that it was physically impossible for him to have been at the scene of the crime.

However, the OSG agrees with MANLAPAZ that treachery cannot be appreciated because the prosecution failed to prove how the attack began. Roberto Bagalawis did not see MANLAPAZ fire the first shot. It was only after hearing the first shot did Bagalawis look behind. Treachery cannot be based on mere conjectures.

Lastly, the OSG observes a clerical error in the trial court’s award of damages. It maintains that the award of P50,000 is actually the civil indemnity for the death of Joseph Monteverde, while the P30,000 is for moral damages. Also, while the OSG agrees on the separate awards of moral damages to the heirs of Joseph Monteverde and to Roberto Bagalawis, it contends that exemplary damages cannot be granted in view of the absence of an aggravating circumstance.

We reject MANLAPAZ’s defense of alibi. MANLAPAZ was positively identified by the victim himself, Roberto Bagalawis. Alibi cannot prevail over the positive identification of the accused by the witness.[20]

On the credibility of Roberto Bagalawis, it must be stressed that appellate courts do not generally disturb the findings of the trial court on the matter. This is so because the trial court is in a better position to determine the issue, having heard the witnesses and observed their deportment and manner of testifying. Thus, unless certain facts of substance and value have been overlooked, which, if considered, might affect the result of the case, we should not overturn the assessment of the trial court on the credibility of the witnesses.[21] On this score, MANLAPAZ’s argument on the matter is not well substantiated.

As to the inconsistencies in Bagalawis’ testimony, we find them to be on minor and trivial matters. They even serve to strengthen rather than weaken his credibility, for they remove any suspicion of a rehearsed testimony.[22]

The claimed omission of certain events in Bagalawis’ affidavit[23] is understandable. It is of judicial notice that an affidavit is almost always incomplete and often inaccurate. Allegations are sometimes suggested, or certain matters are even ignored for want of inquiry. The infirmity of an affidavit as a species of evidence is a matter of judicial experience. Thus, an affidavit taken ex parte is generally considered inferior to a declaration made in open court.[24] Suffice it to say, in his testimony Bagalawis himself pointed out and clarified the inaccuracies in his affidavit.

Moreover, contrary to MANLAPAZ’s impression that he was never identified in Bagalawis’ affidavit, a scrutiny thereof indicates that Bermudez was not alone in the commission of the crime; there were two other men. We quote, thus:

T: Anong nangyari sa iyo.

A: Binundol ako at ang kasama kong si Joseph Monteverde ng owner type jeep ng taong kasama ng driver na iyan (affiant was pointing and referring to a military I.D. card, AFP who’s [sic] picture appear thereon with name Hipolito V. Bermudez with the rank of FM1, PN, care of Subcom) [Emphasis supplied]

. . .

T: Ipagpatuloy mo?

A: Ito palang dalawang lalake na may kasama ding dalawang babae ay kasama pala ni Bermudez dahil umakmang susugod sa amin ngunit naawat ng security guard at sabay-sabay silang bumaba nila Bermudez at kami ni Joseph [ay] naiwan sa itaas at nagbayad pa kami ng chit. Pagbaba namin ni Joseph nakita ko na nakasakay na si Bermudez sa owner jeep at ang dalawang lalake at tatlo pang babae [sic]. Kami naman ni Joseph ay naglakad patungong St. Joseph, 18th St. upang sumakay ng tricycle pauwing E.T. Walang kaalamalam na kami ay kanilang susundan, bubundulin at pagbabarilin. [Emphasis supplied]

Neither are we persuaded by the retraction of the two other affiants, Wilmafe Miller and Elizabeth Puno, who, in their original affidavits, positively identified MANLAPAZ as the one who shot the victims. Affidavits of recantation are easily obtained for monetary consideration or through intimidation. Thus, they are treated with suspicion and reservation.[25] Besides, MANLAPAZ failed to present the recanting affiants as his witnesses.

We now discuss the issue of conspiracy. It exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[26] Direct proof of a previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and manner in which the crime was perpetrated. It may also be inferred from the acts of the accused which point to a joint purpose and design, a concerted action, and community of interest.[27] The simultaneous acts of leaving, waiting for their victims to come out, tailing and firing at them continuously at close range, and escaping from the crime scene clearly establish a conspiracy between MANLAPAZ and Bermudez.[28] Since conspiracy was proved, the act of one became the act of all.[29] It matters not who among the accused shot and killed the victims, for the felonious act is attributable to all the accused.[30]

Nonetheless, we agree with the OSG that the crimes committed by MANLAPAZ were not murder and attempted murder, but only homicide and attempted homicide. The informations alleged treachery as the qualifying circumstance. Treachery exists when the offender commits any crime against the person, employing means, methods, or forms which tend directly and specially to insure the execution of the crime without risk to himself arising from the defense which the offended party might make.[31]Article Two elements are therefore necessary: (1) the employment of means of execution that affords the person attacked no opportunity to defend himself or to retaliate; and (2) the said means of execution was deliberately or consciously adopted.[32]

We find no treachery in both cases. An altercation preceded the shooting incident. The time between the altercation and shooting was not significant as to create a break in the series of events. In fact, when Monteverde and Bagalawis were outside the restaurant, Bagalawis himself saw MANLAPAZ and Bermudez inside the jeep, awaiting them. Sensing some danger, Bagalawis suggested to Monteverde that they go home.[33] That they were unarmed and defenseless does not by itself make the attack treacherous. Treachery cannot be presumed. It must be proved by clear and convincing evidence.[34] Hence, MANLAPAZ and Bermudez can only be convicted of homicide for the death of Monteverde. In the same manner, they can only be convicted of attempted homicide for their crime against Bagalawis. The evidence indicates that the injury suffered by Bagalawis was not life-threatening.

The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal, while the penalty for attempted homicide pursuant to Article 51 of the same Code is prision correccional. There being no modifying circumstances proved by the prosecution or the defense, the penalties shall be imposed in the medium period. Since MANLAPAZ is entitled to the benefits of the Indeterminate Sentence Law, he can, for the homicide charge, be sentenced to an indeterminate penalty whose minimum shall be within the range of prision mayor (the penalty next lower in degree to that provided in Article 249) and whose maximum shall be within the range of reclusion temporal in its medium period. For the attempted homicide charge, he can be sentenced to an indeterminate penalty whose minimum shall be within the range of arresto mayor and whose maximum shall be within the range of prision correccional in its medium period.

The reduction in penalty shall benefit Hipolito Bermudez notwithstanding the entry of judgment of the decision against him.

Finally, we rectify the error of the trial court in designating the award of damages. In the homicide case, we affirm the awards of P50,000 as civil indemnity for the death of Joseph Monteverde and P30,000 as moral damages for his heirs. Contrary to MANLAPAZ’s contention, the award of moral damages was supported by sufficient evidence through the testimony of Joseph’s father. However, in both homicide and attempted homicide cases, we delete the award of exemplary damages in the absence of any factual basis therefor. The law is clear that exemplary damages can only be recovered in criminal cases when the crime is committed with one or more aggravating circumstances.[35] No aggravating circumstance was proved by the prosecution.

WHEREFORE, except as modified above, the judgment appealed from is AFFIRMED in all other respects. As modified, accused-appellant RENARIO MANLAPAZ y OCAMPO is found guilty beyond reasonable doubt as co-principal by direct participation of homicide for the death of Joseph Monteverde and of attempted homicide against the life of Roberto Bagalawis. He is hereby sentenced to the following indeterminate penalties: (a) in Criminal Case No. 263-92 for homicide, 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; and (b) in Criminal Case No. 265-92 for attempted homicide, from two (2) months and one (1) day of arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision correccional as maximum. He is ordered to indemnify (a) the heirs of Joseph Monteverde in the sum of P50,000 as indemnity for his death and P30,000 for moral damages; and (b) Roberto Bagalawis in the sum of P30,000 for moral damages.

In the service of his sentence, accused-appellant RENARIO MANLAPAZ y OCAMPO shall be credited with the period of his preventive imprisonment, subject to the provisions of Article 29 of the Revised Penal Code, as amended.

Costs against accused-appellant.

SO ORDERED.

Melo, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.