G.R. No. 174194

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 174194

Appellee,

Present:

Ynares-Santiago, J. (Chairperson),

- versus - Austria-Martinez,

Callejo, Sr.,

Chico-Nazario, and

Nachura, JJ.

EDWIN AUSA,

Appellant. Promulgated:

March 20, 2007

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This is an appeal from the Decision[1] of the Court of Appeals dated March 27, 2006 in CA-G.R. CR-H.C. No. 00411, affirming with modification the Decision[2] of the Regional Trial Court of Caloocan City, Branch 128, in Criminal Case Nos. C-51108 and C-51109 finding appellant Edwin Ausa y Cona guilty beyond reasonable doubt of the crimes of Murder and Homicide, respectively.

On October 25, 1996, two informations were filed against appellant. The Information in Criminal Case No. C-51108 for the killing of Rosendo Pascual, Jr. y Gadia reads as follows:

That on or about the 19^th day of September, 1996 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, with deliberate intent to kill, with treachery and evident premeditation did then and there willfully, unlawfully and feloniously attack and stab one ROSENDO PASCUAL, JR. Y GADIA, with the use of bladed instrument on the right back portion of his body, thereby inflicting upon the latter serious physical injuries, which injuries eventually caused his death.[3]

The information in Criminal Case No. C-51109 for the killing of Cerio David y Austria reads as follows:

That on or about the 23^rd day of October, 1996 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, with deliberate intent to kill, with treachery and evident premeditation did then and there willfully, unlawfully and feloniously attack and stab one CERIO DAVID Y AUSTRIA, with [the] use of a fan knife on the back portion of his body, thereby inflicting upon the latter serious physical injuries, which injuries eventually caused his death.[4]

Appellant pleaded “not guilty” to both charges.[5]

The prosecution established that:

On September 19, 1996 at 1:30 a.m., Teresita Libao and the victim Rosendo Pascual, Jr. were conversing at the carinderia located at the corner of J.P. Rizal Street, Maypajo, Caloocan City when appellant suddenly appeared and stabbed Pascual at the back. Thereafter, appellant fled from the crime scene. Pascual attempted to walk but fell down on the street. Libao rushed Pascual to the nearest hospital but the latter was pronounced dead on arrival.[6]

Two days later, Libao met appellant who explained to her, “Tol, pasensiya ka na kung naganoon ko ang bata[,] napagkamalan ko lang kasi[.] Trip ko, nag-aaway kaming mag-asawa.” He also warned her not to testify against him.[7]

On September 23, 1996, upon being summoned by a barangay official, Libao disclosed that appellant was the culprit; however, she requested not to inform the family of the victim because she was afraid of appellant and his brother.[8]

On October 23, 1996 at 7:30 p.m., Libao was walking with appellant along J.P. Rizal Street, Maypajo, Caloocan City when they passed a group of pedicab drivers. Appellant approached the group and extorted money from one Cerio David who refused. Appellant slapped David who retaliated by pushing the appellant. The latter then stabbed David with a double-bladed instrument hitting him on the back, breast, neck, and arm. David ran towards the highway, asking for help; but he fell and died on the spot.[9]

Reynante Aguas, who was four meters away from the group, claimed that he saw appellant stab David in the stomach, neck, and on the left side of the body.[10]

Libao reported the incident to their barangay official. Thereafter, the policemen arrested appellant.

The autopsy report[11] indicated the cause of death of Pascual as a stab wound at the back which penetrated the lower lobe of the right lung. On the witness stand, Dr. Vargas opined that the wound could have been caused by a single-bladed pointed instrument.[12] On the other hand, the cause of death of David as indicated in the autopsy report[13] was six stab wounds caused by a sharp pointed single-edged instrument like a balisong or a kitchen knife, three of which were fatal because they punctured the left lung, the large intestine, and the liver.[14]

Remedios Pascual testified as to their loss and the expenses they incurred in connection with the death of Pascual,[15] amounting to P36,404.00.[16]

Appellant denied killing either Pascual or David. He claimed that he was asleep in his house on the night of September 19, 1996, while on October 23, 1996, he was buying barbecue from Maribeth Humilda when a policeman arrived and asked if he was Bitugo;[17] that when he replied in the negative, the policeman arrested him and brought him to the precinct where he was detained and charged with killing David.[18]

Maribeth Humilda testified that appellant was buying from her barbecue stand when David was stabbed;[19] and that she was about an arm’s length away from the pedicab drivers,[20] including David.

The two cases were jointly heard and tried. On July 16, 2002, the trial court rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, in Criminal Case No. C-51108, this Court finds accused Edwin Ausa Guilty beyond reasonable doubt of the crime of Murder and he is hereby sentenced to suffer the penalty of reclusion perpetua with all the attendant penalties. He is further adjudged to pay the heirs of Rosendo Pascual the amount of P36,404.00 representing actual damages, and to indemnify them the amount of P50,000.00.

In Criminal Case No. C-51109, this Court finds Edwin Ausa Guilty beyond reasonable doubt of the crime of Homicide and he is hereby sentenced to suffer the penalty of reclusion temporal in its medium period with all the attendant penalties. He is likewise adjudged to indemnify the heirs of Cerio David the amount of P50,000.00.

Service of his sentence shall be simultaneous. The period of his preventive detention during trial shall be credited in his favor. There shall be no subsidiary imprisonment in case of insolvency.

The City Jail Warden of Caloocan City is hereby ordered to immediately commit the accused Edwin Ausa to the New Bilibid Prisons, Muntinlupa City, for the service of his sentence.

SO ORDERED.[21]

In view of the penalty of reclusion perpetua imposed on appellant, the case was brought to this Court for automatic review. Thereafter, this case was referred to the Court of Appeals pursuant to our ruling in People v. Mateo.[22]

On March 27, 2006, the appellate court affirmed with modification the Decision of the trial court, thus:

WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit. The appealed Decision dated July 16, 2002 of the Regional Trial Court of Caloocan City, Branch 128 in Criminal Case Nos. C-51108 and C-51109 is hereby AFFIRMED with MODIFICATIONS in that: (1) accused-appellant, in Criminal Case No. C-51109, is instead sentenced to suffer an indeterminate prison term of eight (8) years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months and one (1) day or reclusion temporal, as maximum; (2) in addition to civil indemnity awarded to the respective heirs of the victims Rosendo Pascual, Jr. and Cerio David, accused-appellant is further ordered to pay moral damages in the sum of P50,000.00 each; and (3) the award of P36,404.00 by way of actual damages to the heirs of Rosendo Pascual, Jr. is hereby DELETED and instead, said heirs are entitled to temperate damages in the amount of P25,000.00.

With costs against the accused-appellant.

SO ORDERED.[23]

Hence, this appeal.

Appellant claims that Aguas had ill-motive to testify against him because of his previous refusal to lend the latter his pedicab;[24] that Aguas admitted to him that he was paid to identify appellant as the killer of David;[25] and that he does not personally know prosecution witness Libao.[26]

Appellant labels as unbelievable Libao’s testimony that she saw appellant wearing a bloodied shirt two days after he allegedly stabbed Pascual;[27] that she and Pascual’s brother looked for him after the September 19, 1996 stabbing incident, considering her alleged plea to the barangay official not to tell the family of Pascual that he was the culprit;[28] that she was afraid of him due to his alleged warning for her not to testify about the September 19, 1996 stabbing incident, yet, she continued to join his company;[29] and that Libao did nothing to help Pascual after he allegedly stabbed him.[30]

Appellant also alleges that the testimonies of Libao and the medico-legal officers were inconsistent as to the type of weapon he allegedly used in killing Pascual and David. The former claimed he used a double-bladed knife, while the latter declared that the victims’ wounds were caused by a single-bladed instrument.[31]

The appeal lacks merit.

It is doctrinal that the trial court's evaluation of the credibility of a witness and his/her testimony is accorded the highest respect because of the latter’s untrammeled opportunity to observe directly the demeanor of a witness and thus, to determine whether he/she is telling the truth.[32] It is also settled that when the trial court’s findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.[33]

In the instant case, the trial court and the Court of Appeals accorded full faith and credence to the testimony of Libao, who described with reasonable certainty the fact of the killings, as well as identified appellant as the assailant. There was no indication or proof that she was impelled by ill motives in her narration of the stabbing incidents and in identifying appellant. Where there is nothing to indicate that a witness was actuated by improper motives on the witness stand, his/her positive declarations made under solemn oath deserve full faith and credence.[34]

As correctly noted by the Court of Appeals, there was no inconsistency in Libao’s narration. Libao did not testify that she saw appellant “still wearing his bloodied shirt” two days after the stabbing incident. What she said was that she was able to talk with the appellant two days after the incident.

The Court of Appeals also correctly found as credible Libao’s testimony that she and Pascual’s brother went looking for the appellant on September 19, 1996, and that when she was summoned by the barangay official on September 23, 1996, she requested the latter not to relay what she reported to the victim’s family. Libao’s actions as found by the appellate court were understandable considering appellant’s warning not to implicate him in the crimes.[35] The testimony of Libao reads as follows:

Q: When you said you went home where did you proceed?

A: At Sawata along J.P. Rizal St., Maypajo, Kalookan City, sir.

Q: Why did you proceed at Sawata?

A: So that I can see Edwin, sir.

Q: Were you able to see Edwin?

A: I saw him and his t-shirt was blood[i]ed.

Q: What was the color of his t-shirt at that time?

A: Light blue t-shirt, sir.

Q: Which part of his t-shirt was blood[i]ed?

A: At the lower part of his t-shirt, sir.

Q: When you saw the t-shirt of Edwin to be blood[i]ed rather (sic) did you talk to him?

A: No, sir.

Q: And did Edwin see you when you went to see him?

A: Yes, sir.

Q: Did Edwin talk to you?

A: Yes, sir.

Q: And what did he tell you?

A: He told me. “Trip lang daw po niya.”

Q: Will you tell exactly how did Edwin tell you the word, “Trip lang daw po niya.”?

A: “Tol, pasensya ka na kung naganoon ko ang bata napagkamalan ko lang kasi Trip ko, nag-aaway kaming mag-asawa.”

Q: And did you reply when Edwin told you those things that you mention?

A: Yes, sir.

Q: What did you reply?

A: I told him that it is not easy to get in to trouble and he told me if I will testify there will be a trouble (magkakaperwisyuhan) as if there is threats (sic).

Q: After Edwin told you or threatened you as you mentioned what else happened after conver[s]ing with Edwin?

A: After that we play tong-its, sir.

x x x x

Q: You said that the people whom you sought help brought Rosendo to the hospital what did you do next after Rosendo brought to the hospital who sought help?

A: I asked the brother of Rosendo to go with me and to go to Sawata to look for Edwin.

x x x x

Q: How long a time did it elapsed after Rosendo was brought to the hospital up to the time you look for Reynante to look [for] Edwin at Sawata?

A: For almost one hour, sir.

Q: What else did Reynante do after he talk with Edwin?

A: We were not able to talk with him so we went home.

Q: I thought that you were able to talk to Edwin as you just testified a while ago?

A: When he was alone, sir.

Q: When was that how long was it elapsed?

A: After two days after the stabbing incident had occurred.

Q: Now, in connection with the stabbing of Rosendo by Edwin do you recall having been investigated by the police?

A: It’s not the police who investigated me but the barangay official.

Q: How many days thereafter after the stabbing of Rosendo?

A: I was summoned by the barangay official on September 23, 1996.

Q: The stabbing incident occurred in the early morning of September 19, 1996 four days had elapsed when you were summoned by the barangay?

A: Yes, sir.

Q: And who was the barangay official who summoned you?

A: Brgy. Imelda Cupada at Bgy. 34 Maypajo, Kaloocan City.

Q: And when you were summoned by Imelda Cupada what happened if any?

A: I told her what happened but I requested not to relay the story which I told to the family of Rosendo, Jr.

Q: Why did you tell to Imelda Cupada not to relay what you had witnessed in the stabbing incident?

A: Because I am afraid, sir.

Q: To whom you were afraid?

A: I am afraid to (sic) Edwin and his brother.

x x x x[36]

The failure of Libao to help the wounded victim does not affect her credibility nor render incredible her testimony that she witnessed the stabbing incident.[37]

Moreover, even granting that Libao erred in identifying the weapon used by the appellant as double-bladed knife, vis-à-vis the medical findings that the said victims died of wounds possibly caused by a single-bladed instrument, it is a settled rule that witnesses are not expected to remember every single detail of an incident with perfect or total recall. Even if a witness may have erred in some aspects of his/her testimony, the same does not necessarily impair his/her testimony nor corrode his/her credibility. Where a part of the testimony of a witness runs counter to the medical evidence submitted, it is within the sound discretion of the court to determine which portions of the testimony to reject as false and which to consider worthy of belief.[38]

In the case of People v. Lucena,[39] we held that:

Modern trend in jurisprudence favors more flexibility when the testimony of a witness may be partly believed and partly disbelieved depending on the corroborative evidence presented at the trial. Thus, where the challenged testimony is sufficiently corroborated in its material points, or where the mistakes arise from innocent lapses and not from an apparent desire to pervert the truth, the rule may be relaxed. It is a rule that is neither absolute nor mandatory and binding upon the court, which may accept or reject portions of the witness' testimony based on its inherent credibility or on the corroborative evidence in the case.

Witnesses cannot be expected to give a flawless testimony all the time. This is even more true if they are called to testify on details of a harrowing and frightening event which unfolded before their eyes.[40] In addition, witnesses are usually reluctant to volunteer information about a criminal case or are unwilling to be involved in or dragged into criminal investigations due to a variety of valid reasons such as fear of reprisal and the natural reluctance of a witness to get involved in a criminal case.[41]

Appellant’s defense of denial and alibi must fail. For an alibi to be credible and given due weight, one must show that it was physically impossible for him to have been at the scene of the crime at the approximate time of its commission. Denial is an intrinsically weak defense and could not prevail over witnesses’ positive identification. The denial of an accused cannot be accorded greater evidentiary weight than the positive declarations of credible witnesses who testify on affirmative matters.[42] Measured against these standards, appellant’s alibi that he was at his house when Pascual was killed; and his denial of any participation in David’s death, deserve no credence at all. The positive, categorical, and credible testimonies of the prosecution witnesses must prevail.

The trial court correctly found appellant guilty of Murder in Criminal Case No. C-51108 for the death of Pascual, for which he should suffer the penalty of reclusion perpetua. Records clearly show that the killing of Pascual was attended with treachery, as alleged in the information. Appellant caught Pascual unaware when he suddenly stabbed him from behind, giving the latter no opportunity to raise any defense or repel the attack.

Treachery under paragraph 16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods, or forms in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the intended victim might raise. For treachery to be present, two conditions must concur: (a) the employment of means of execution which would ensure the safety of the offender from defensive and retaliatory acts of the victim, giving the victim no opportunity to defend himself; and (b) the means, method and manner of the execution were deliberately and consciously adopted by the offender.[43]

Likewise, the trial court correctly found appellant guilty of Homicide for the killing of David. The testimonies of Libao and Aguas clearly negate the existence of the qualifying circumstance of treachery or evident premeditation. The fatal stabbing of David was immediately preceded by an argument with appellant due to the former’s refusal to give the latter some money. A scuffle ensued before the fatal stabbing. It was not also shown that sufficient time has lapsed for appellant to reflect upon his determination and actual execution of the act of repeatedly stabbing David. As held by the Court of Appeals:

As to the separate charge of murder in Criminal Case No. C-51109 involving the fatal stabbing of tricycle driver Cerio David, We also sustain the trial court in convicting the appellant of homicide only. The eyewitness testimonies of both Libao and Aguas clearly negate the existence of either treachery or evident premeditation. Where a killing was preceded by an argument or quarrel, treachery can no longer be appreciated, as the victim could be said to have been forewarned and could anticipate aggression from the assailants. While it is true that it was appellant who was the initial aggressor when he slapped Cerio after the latter refused to give money for drink being demanded by appellant, said victim retaliated by pushing the appellant. This triggered and infuriated appellant who repeatedly stabbed Cerio as the latter was bending down holding his knees. Of the six (6) stab wounds inflicted by appellant upon Cerio David, three (3) are fatal (stab wounds on the chest, stomach and back shoulder), as testified to by Dr. Munoz who conducted an autopsy on the victim’s body.[44]

The penalty for Homicide under Article 249 of the Revised Penal Code, as amended, is reclusion temporal. Applying the Indeterminate Sentence Law, the minimum is prision mayor in any of its periods, and the maximum is reclusion temporal in its medium period.[45] Thus, the Court of Appeals correctly imposed the penalty of a prison term 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.

The award for civil indemnity is mandatory and is granted to the heirs of the victim without need of any evidence or proof of damages other than the commission of the crime. Hence, the award of civil indemnity ex delicto of P50,000.00 each for the respective heirs of Pascual and David is affirmed.[46]

The Court of Appeals correctly deleted the amount of actual damages awarded by the trial court for lack of basis. No documentary evidence to prove the same was presented. However, temperate damages may be recovered under Art. 2224 of the Civil Code,[47] when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. In this case, the amount of P25,000.00 is reasonable, considering that it is undisputed that Pascual’s family incurred expenses for the wake and burial of the victims.[48]

However, the award of moral damages must be modified. In Criminal Case No. C-51108, the mother of Pascual testified as to the pain and anguish suffered by her family brought about by Pascual’s death. Hence, the award of P50,000.00 is justified.[49] However, in Criminal Case No. C-51109, no testimony on any mental anguish or emotional distress suffered as a result of David’s death was presented; thus, there is no basis for the award of moral damages which may only be awarded in favor of the heirs of the victims upon sufficient proof of physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.[50]

Finally, exemplary damages should also be awarded to the heirs of Pascual since the qualifying circumstance of treachery was established by the prosecution. If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code.[51] This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.[52]

WHEREFORE, the Decision of the Court of Appeals dated March 27, 2006, affirming the decision of the Regional Trial Court of Caloocan City, Branch 128, in Criminal Case Nos. C-51108 and C-51109, finding Edwin Ausa y Cona guilty beyond reasonable doubt of the crimes of Murder in Criminal Case No. C-51108 and Homicide in Criminal Case No. C-51109, is AFFIRMED.

In Criminal Case No. C-51108, Edwin Ausa y Cona is sentenced to suffer the penalty of Reclusion Perpetua and to indemnify the heirs of the deceased, Rosendo Pascual, the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity ex delicto, Fifty Thousand Pesos (P50,000.00) as moral damages, Twenty-Five Thousand Pesos (P25,000.00) as temperate damages, and Twenty Five Thousand Pesos (P25,000.00) as exemplary damages.

In Criminal Case No. C-51109, Edwin Ausa y Cona is sentenced to suffer the 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 indemnify the heirs of the deceased, Cerio David, the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity ex delicto.

Costs against the appellant.

SO ORDERED.

CONSUELO YNARES-SANTIAGO

Associate Justice

WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice

[1] Rollo, pp. 3-22; penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justices Edgardo F. Sundiam and Japar N. Dimaampao.

[2] Records, pp. 255-261; penned by Executive Judge Silvestre H. Bello, Jr.

[17] Sometimes referred to in the records as “Bisugo.”

[22] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

[32] People v. Pascual, G.R. No. 173309, January 23, 2007, SC E-Library.

[33] People v. Aguila, G.R. No. 171017, December 6, 2006, SC E-Library.

[34] Marturillas v. People, G.R. No. 163217, April 18, 2006, 487 SCRA 273, 302.

[37] People v. Quirol, G.R. No. 149259, October 20, 2005, 473 SCRA 509, 516.

[38] Ferrer v. People, G.R. No. 143487, February 22, 2006, 483 SCRA 31, 44.

[39] G.R. No. 137281, April 3, 2001, 356 SCRA 90, 99.

[42] People v. Otayde, G.R. No. 140227, November 28, 2003, 416 SCRA 597, 609.

[43] People v. Malabago, 333 Phil. 20, 34 (1996).

[45] People v. Dagani, G.R. No. 153875, August 16, 2006.

[46] España v. People, G.R. No. 163351, June 21, 2005, 460 SCRA 547, 555-556.

[47] Civil Code, Art. 2224: Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.

[48] People v. Abatayo, G.R. No. 139456, July 7, 2004, 433 SCRA 562, 581.

[51] Civil Code, Art. 2230: In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstance. Such damages are separate and distinct from fines and shall be paid to the offended party.