THIRD DIVISION
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lt. Col. Pacifico G. alejo, Petitioner, - versus - People of the
Respondent. |
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G.R. No. 173360 Present: AUSTRIA-MARTINEZ, J., Acting Chairperson, TINGA,* CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: |
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CHICO-NAZARIO, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court assails the Decision[1]
dated 31 January 2006 of the Sandiganbayan, Fifth
Division in A/R No. 064 which affirmed the Decision[2]
dated 26 July 2002 of the Regional Trial Court (RTC) of Palayan
City, Branch 40, finding petitioner Lieutenant Colonel (Lt. Col.) Pacifico G. Alejo guilty of Malversation of Public Property punishable under paragraph
4, Article 217 of the Revised Penal Code.
On
That on or about June 8, 1992, in Nueva
Ecija, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, a public officer, being then the Commanding Officer of
the Real Estate Preservation Economic Welfare Center, and accountable for
confiscated illegal logs he received by reason of his position and office, did
then and there, willfully, unlawfully and feloniously, and with grave abuse of
confidence, misappropriate, embezzle and take away 1,000 board feet of logs
confiscated by elements of the 56th IB, 7th ID, PA,
valued at P20,000.00 Philippine Currency and converted for his own
personal use and benefit, to the damage and prejudice of the government.[3]
When arraigned on
It appears that petitioner was also
charged with two different crimes, namely, Violation of Section 3(e) of
Republic Act No. 3019 and Direct Bribery, which were allegedly interrelated with
the malversation case. Thus, during the hearing on
At trial, the prosecution presented
the following witnesses: (1) Colonel
Gerardo Lantoria, Deputy Chief of Office, Office of
Ethical Standards and Public Accountability, Judge Advocate General’s Office (JAGO),
who received the complaint against petitioner, had the said complaint
investigated, and was the one who prepared the Affidavit-Complaint against
petitioner after the Chief of Staff of the Philippine Army recommended the
elevation of the case to the Ombudsman for preliminary investigation; (2)
Lieutenant Rodolfo Estremos, then a master sergeant and
a subordinate of petitioner, who testified that he loaded and brought the 1,000
board feet of confiscated logs to the house of petitioner upon the latter’s
instruction; (3) Sergeant Nelson Flores, who was the driver of the truck used
in transporting the confiscated logs to petitioner’s house; and (4) Amrodin Sultan, then the Commander of Atate
Detachment where the logs were stored, testified that Estremos
took the logs from the detachment after Sultan gave his consent upon being
informed that such was upon the order of petitioner who was a superior officer.
As gathered from the combined
testimonies of the prosecution witnesses, the prosecution was able to establish
that at the time of the commission of the crime, petitioner was the Commanding
Officer of the Real Estate Preservation Economic Welfare Center (REPEWC), 7th
Infantry Division, Philippine Army,
To further strengthen the
anti-illegal campaign, the DENR- Region III Office and the 7th
Infantry Division (7th ID) of the Philippine Army entered into a
Memorandum of Agreement (MOA) on 23 September 1991, wherein it was agreed upon,
inter alia,
that the 7th ID would accept custody of confiscated mineral and
forest products, tools, equipment and conveyances for safekeeping.[4]
On P20,000.00 per stipulation of the counsel of the accused.[5] On the same day, Amrodin
Sultan, the Detachment Commander thereof, was notified by Rodolfo Estremos that petitioner instructed him to load the confiscated
lumber into a 6x6 truck driven by Nelson Flores. When the confiscated logs were loaded, Flores
and Estremos drove to petitioner’s house at Sto. Domingo, Nueva Ecija, and unloaded the said logs in the presence of the
petitioner, his wife and mother-in-law.
Rodolfo Estremos
executed an Affidavit against petitioner dated
The defense, on the other hand,
presented petitioner and Romeo Buenaventura, the then Community Environment and
Natural Resources Officer. Petitioner
denied the allegations against him. He declared that he knew the prosecution
witnesses who were his subordinates. He asserted that prosecution witnesses Rodolfo
Estremos and Amrodin Sultan
testified against him because they were intimidated by people in the military’s
higher echelon, one of whom was a certain General Soriano.
He claimed that these witnesses executed
affidavits sometime in July of 1993 repudiating their earlier affidavits
accusing him of taking the confiscated logs for his benefit.
Romeo Buenaventura testified that on
On
WHEREFORE,
judgment is hereby rendered:
x x x
x
2.) Finding the accused GUILTY beyond reasonable doubt
of the crime of Malversation of Public Property corresponding
to Criminal Case No. 0639-P. Considering
that the subject lumber is valued at TWENTY THOUSAND PESOS (P20,000.00),
the imposable penalty under Article 217 (4) of the Revised Penal Code is
Reclusion Temporal in its medium period which is 14 yrs., 8 months and 1 day to
17 yrs. and 4 mos. Applying the
Indeterminate Sentence Law, in the absence of any mitigating or aggravating
circumstance, the Court hereby sentences the accused, LTC. PACIFICO G. ALEJO,
to suffer imprisonment of eight (8) years and one (1) days as minimum to
seventeen (17) years as maximum. The
accused is furthermore ordered to pay the State the amount of TWENTY THOUSAND
PESOS (P20,000.00) representing the value of the lumber misappropriated
as well as the costs of suit.[6]
On
The RTC, without the objection of the
prosecution, ordered the reopening of the case for the presentation of additional
evidence.
On
On
In an order dated
Dissatisfied by the ruling of the RTC,
petitioner elevated the case to the Sandiganbayan.
In a decision dated
In view of all the foregoing, we hereby affirm the decision
of the lower court finding the accused guilty beyond reasonable doubt of the
crime of malversation. However, after applying the Indeterminate
Sentence Law in the absence of any aggravating and mitigating circumstance, the
penalty imposed by it should be modified to TEN (10) YEARS AND ONE (1) DAY prision mayor as minimum, to SIXTEEN (16) YEARS, FIVE (5)
MONTHS AND ELEVEN (11) DAYS of reclusion
temporal, as maximum; perpetual special disqualification; and to pay a fine
of Php20,000.00 equal to the amount malversed, and
the costs of the suit.[11]
Petitioner filed a motion for
reconsideration which was denied by the Sandiganbayan
in its resolution dated
Hence, the instant petition.
Petitioner maintains that the prosecution
failed to discharge its burden of proving his guilt beyond reasonable doubt. Petitioner asserts that the testimonies of
prosecution witnesses Rodolfo Estremos, Amrodin Sultan and Nelson Flores should be appreciated with
careful scrutiny since these witnesses were pressured or intimidated by General
Soriano to testify against him and considering that before
they took the witness stand, they had already executed their respective
affidavits recanting their accusations against petitioner. Their act of taking the witness stand and
reviving the accusations against petitioner become suspect in view of the fact
that they are being used by General Soriano to pin
him down.
Aside from the bare testimonies of Estremos, Sultan and Flores, petitioner claims that the
prosecution failed to present any documentary evidence showing that the confiscated
logs actually existed and were included in the inventory of the DENR as
confiscated logs, which were turned over to the custody of the TFSLY and which
were subsequently lost. Petitioner insists
that the audit or inventory of confiscated logs under the possession and
custody of the TFSLY is crucial to the case and in the absence thereof, the
charge of malversation must fail. He adds that the prosecution’s failure to
establish that there were indeed confiscated logs could mean acquittal. If indeed these logs exist, it cannot be
considered vested with public character absent proper documentation of
confiscation pursuant to the MOA. Since
the logs were not vested with public character, he said he cannot be considered
as an “accountable officer” within the purview of Article 217 of the Revised
Penal Code. Moreover, he avers that the
prosecution failed to prove the actual value of the confiscated logs.
Petitioner also capitalizes on the
inconsistencies of the prosecution witnesses on the quantity of the lumber or
logs that were misappropriated. He
points out that witness Estremos’s testimony conflicts
with that of witness
In the main, petitioner wants this
Court to weigh the credibility of the prosecution witnesses vis-a-vis that of the defense
witnesses. It has often been said,
however, that credibility of witnesses is a matter best examined by, and left
to, the trial courts. [12]
When the factual findings of the trial court are affirmed by the appellate
court, the general rule applies.[13]
This Court will not consider factual issues and evidentiary matters already
passed upon. The petitioner raises the same issues he brought before the
appellate court which gave credence to the findings and decision of the trial
court.
Factual findings of the trial court
are entitled to respect and are not to be disturbed on appeal unless some facts
or circumstances of weight and substance, having been overlooked or
misinterpreted, might materially affect the disposition of the case.[14]
The assessment by the trial court of the credibility of a witness is entitled
to great weight. It is even conclusive and binding if not tainted with
arbitrariness or oversight of some fact or circumstance of weight and
influence.
In the case under consideration, we
find that the trial court did not overlook, misapprehend, or misapply any fact
of value for us to overturn the findings of the trial court.
The prosecution, through the
testimonies of the key witnesses Rodolfo Estremos,
Nelson Flores, and Amrodin Sultan, was able to
establish beyond reasonable doubt the existence of the elements of the crime
hurled against petitioner.
Malversation of public property is defined and
penalized under Article 217 of the Revised Penal Code, the pertinent provisions
of which read:
Art. 217. Malversation of public funds or property – Presumption of malversation.
– Any public officer who, by reason of the duties of his office, is accountable
for public funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:
x x x
x
4. The penalty
of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum period to
reclusion perpetua.
In all cases, persons guilty of malversation
shall also suffer the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal
to the total value of the property embezzled.
The elements of malversation
of public property, essential to the conviction of an accused under the above
penal provision, are:
1. That
the offender is a public officer;
2. That
he has the custody or control of the property by reason of the duties of his
office;
3. That
the property is a public property for which he is accountable; and
4. That
he appropriated, took, misappropriated or consented to, or through abandonment
or negligence, permitted another person to take them.[15]
It is beyond dispute that petitioner,
during the time relative to the case, was a public officer, as he was then the
Commanding Officer of the REPEWC, 7th Infantry Division, Philippine
Army and the Task Force Commander of the TFSLY.
The evidence of the prosecution had
sufficiently shown that TFSLY was created pursuant to the
WHEREAS, The DENR-3 and the 7 ID, PA agree and
cooperate in curbing the pernicious illegal logging and mining activities
through closer coordination in the strict enforcement of forestry and mining
laws, rules and regulations;
Now, therefore, for and in consideration of the
foregoing promises, and the mutual covenants hereinafter set forth, the parties
agree on the following:
x x x
x
II.
That the 7ID, PA,
thru its authorized representative(s) shall have the following functions and
duties:
x x x
x
2.8
To accept custody of confiscated mineral and forest
products, tools equipment and conveyances for safekeeping;
2.9
To be responsible for the loss of any of the said
items under its custody;
x x x
x
III. That DENR-3 and the 7ID, PA shall organize a Task
Force to be named “Task Force Sagip Likas Yaman” composed of selected officials and personnel to implement
this Memorandum of Agreement.[16]
Being the Commanding Officer of the
REPEWC, which is the higher unit, he was also the Task Force Commander of the
TFSLY; hence, petitioner had control and custody over the confiscated forest
products that were placed within the Atate Detachment.
Prosecution witness Atty. Salome Cansino, Chief Legal Counsel of the DENR when the MOA was entered
into, affirmed that it was the military component of the TFSLY, specifically
the task force commander, in this case petitioner, who had supervision and
control of the confiscated forest products, viz:
Q: In
other words, Atty. Cansino, who is accountable for
these confiscated logs?
A: Based
on our agreement, whenever apprehension or confiscation are made by the Joint
Task Force, the DENR has no compound or place where they can store the forest
products. Based on our agreement, the
forest products or equipments or vehicles shall be placed at the 7th
ID depot for custody and security.[17]
Although the DENR had concurrent
supervision over the confiscated forest products, as the release of the same
cannot be done without the authority of the DENR representative, this does not
diminish the fact that these forest products - after their confiscation and
inventory - were deposited in the military depot, over which petitioner had
power and control as the commanding officer.
An accountable public officer, within
the purview of Article 217 of the Revised Penal Code, is one who has custody or
control of public funds or property by reason of the duties of his office. To be liable for malversation,
an accountable officer need not be a bonded official. The name or relative importance of the office
or employment is not the controlling factor.
What is decisive is the nature of the duties that he performs and that
as part of, and by reason of, said duties, he receives public money or property,
which he is bound to account for.[18] In this case, the confiscated logs were
delivered for safekeeping at the Atate Detachment over
which petitioner had control. He had the
obligation to safeguard and account for the same.
The confiscated logs are considered
public property since the same were impressed with public attributes or
character for which the public officer was accountable. While these logs were
not strictly government property, they partook of the nature of public property.
Article 222 of the Revised Penal Code states
that private property seized or deposited by public authority may be the object
of malversation.
Although the prosecution failed to
present any documentary evidence showing that the confiscated logs existed and
that the same were turned over to the custody of TFSLY, there was, however, an admission or a
stipulation as to the existence of such logs
on the part of the defense, as evidenced by the 5 August 1998 Order of
the RTC, which states: “The Public
Prosecutor dispensed with the presentation of prosecution witness Leoncio Alvaran, the counsel for
the accused having admitted the valuation of the lumber subject matter of Crim. Case No. 0639-P in the amount of P20,000.00 (1,000.00 bd. ft.), with a
qualification that the valuation was at the time the lumber were confiscated
and not while in the possession of accused.”[19] Furthermore, the prosecution, through the
testimony of Detachment Commander Amrodin Sultan, was
able to present testimonial evidence as to the existence of the confiscated
logs, which were stored in the Atate Detachment:
Q: What
were those logs which according to you were confiscated all about?
A: When I
was assigned here in Atate, those logs were already
stocked, sir.
Q: As a
Detachment Commander, have you actually seen those logs?
A: Yes,
sir.[20]
Anent the last element, this Court
has held that to justify conviction for malversation
of public funds or property, the prosecution has only to prove that the accused
received public funds or property, and that he could not account for them or
did not have them in his possession and could not give a reasonable excuse for their
disappearance.[21] An accountable public officer may be convicted
of malversation even if there is no direct evidence
of misappropriation, and the only evidence is that there is a shortage in his
accounts which he has not been able to explain satisfactorily.[22] Here, the prosecution was able to muster
direct evidence that petitioner had misappropriated the subject confiscated
logs. Three prosecution witnesses,
Rodolfo Estremos, Nelson Flores and Amrodin Sultan, all of whom were petitioner’s subordinates,
corroborated each other in declaring categorically that it was petitioner who
ordered them to pick up the confiscated lumber and to deliver the same to his
residence.
Estremos, during the direct examination, declared
that petitioner instructed him to get the confiscated logs and bring the same
to petitioner’s residence:
Q. x x x Noong June 8, 1992 ay sinundo ako
ng 6x6 truck ng 525 EBM, na hiniram ni
Lt. Col. Alejo sa REPEWC,
Fort Magsaysay, Palayan
City at inutusan ako na pumunta sa
Atate Detachment, Palayan
City at isakay sa truck ang nakaimbak na
mga kahoy doon na nakakumpiska
at iti-turned over ng 56
IB. Pagkakuha ko ng mga
nasabing kahoy ay dinala ko sa
kanyang bahay sa Sto. Domingo, Nueva Ecija x x
x.
x x x
x
Q: You
said that you were ordered by Col. Alejo to proceed to
Atate Detachment and load the lumber therein to be
taken to his house. How were you ordered by Col. Alejo?
A: Verbal,
sir.
Court: Tinawag ka?
A: Opo.[23]
Estremos likewise testified that the one who
drove the truck was witness Flores:
Q: You
said that you were fetched by six by six truck on the said date which was
borrowed by Col. Alejo. Who was then driving the said six by six
truck?
A: I
remember sir, Sgt. Flores.[24]
Q: And
during that time and date, do you remember having met Lt. Col. Alejo?
A: Yes,
sir.
Q: What
transpired or what happened when you met Col. Alejo
on that time and date?
x x x
x
A: x x x We are instructed to unload
the lumber beside his house after that we left.
x x x
x
Court: What is
the participation of this witness here in that particular incident of loading
and unloading the lumber, are you the driver?
A: Yes,
Your Honor.[25]
Witness Sultan, the Detachment
Commander of the Atate Detachment, also testified
that Estremos and Flores went to Atate
Detachment and informed him they were there upon the order of petitioner to
take the confiscated lumber to the petitioner’s house:
Q: So, upon
being told by Estremos that he was ordered by Col. Alejo to take those lumber stock filed in the building you
were then referred to, what did you tell him or what did you do?
A: When
the lumber was already loaded, they asked permission from me that they are
going to bring the logs to the house of Col. Alejo,
sir.[26]
Against these damning pieces of
evidence adduced by the prosecution, all that petitioner could interpose as
defense are mere denials and finger-pointing.
He claimed that it was General Soriano who was
behind the plot to indict him of the crime.
Sadly, petitioner did not substantiate such defense and he merely said
that it was based on his gut feeling. Under
settled jurisprudence, denial could not prevail over the positive testimony of
witnesses.[27] Denial is intrinsically a weak defense which
must be buttressed by strong evidence of non-culpability to merit credibility.[28]
Contrary to petitioner’s postulation,
it is sufficient that the prosecution established by competent evidence that
there existed confiscated logs under the control and custody of petitioner and
that he misappropriated the same.
Inventory or audit of the confiscated logs under the custody of the
TFSLY is not necessary, since the prosecution was able to prove all the elements
of the crime charged. There is no
requirement under the law that for one to be convicted of malversation
of public property, such property must first be inventoried or audited.
Petitioner cannot utilize the
testimonial inconsistencies committed by the prosecution witnesses. They clearly and affirmatively gave a full
account of what actually transpired on
The affidavits of recantation executed
by witnesses Estremos, Flores and Sultan prior to the trial cannot prevail over their testimonies
made before the trial court. Their
testimonies effectively repudiated the contents of the affidavits of
recantation. The recantation could hardly suffice to overturn the finding of
guilt by the trial court which was based on their clear and convincing testimonies,
given during a full-blown trial. As held
by this Court, an affidavit of recantation, being usually taken ex parte,
would be considered inferior to the testimony given in open court.[31]
This Court agrees with the Sandiganbayan that there is no need for the prosecution to
present evidence as to the value of the confiscated logs, which, in turn, is
the basis for determining the period of imprisonment of petitioner. Petitioner’s counsel stipulated the quantity
and the valuation of the confiscated logs as evidenced by the RTC Order dated
The Public Prosecutor dispensed with the presentation
of prosecution witness Leoncio Alvaran,
the counsel for the accused having admitted
the valuation of the lumber subject matter of Crim.
Case No. 0639-P in the amount of P20,000.00 (1,000.00 bd. ft.),
with a qualification that the valuation was at the time the lumber were
confiscated and not while in the possession of accused.[32]
It is doctrinal that the requirement
of proof beyond reasonable doubt in criminal law does not mean such a degree of
proof as to exclude the possibility of error and produce absolute
certainty. Only moral certainty is required or that degree of proof which
produces conviction in an unprejudiced mind. The prosecution sufficiently established that petitioner
had custody of the subject logs of which he is accountable and he appropriated
the same for his own benefit. Unmistakably,
petitioner malversed public property.
The Sandiganbayan
imposed upon petitioner the penalty ranging from 10 years and 1 day of prision mayor as minimum, to 16 years, 5 months and 11 days of reclusion temporal, as maximum. Under Article
217, paragraph 4 of the Revised Penal Code, the penalty for malversation
is reclusion temporal in its medium
and maximum periods, if the amount involved is more than P12,000.00 but
less than P22,000.00. Applying the Indeterminate Sentence Law, and
there being no mitigating or aggravating circumstances, the maximum imposable
penalty shall be within the range of 16 years, 5 months and 11 days to 18
years, 2 months and 20 days, while the minimum shall be within the range of 10
years and 1 day to 14 years and 8 months.[33]
Therefore, the penalty imposed by the Sandiganbayan
is proper.
Under the second paragraph of Article
217, persons guilty of malversation shall also suffer
the penalty of perpetual special disqualification and a fine equal to the
amount of funds malversed or equal to the total value
of the property embezzled, which in this case is P20,000.00.
WHEREFORE, the
31 January 2006 Decision of the Sandiganbayan, Fifth
Division, in A/R No. 064 finding Lieutenant Colonel Pacifico
G. Alejo guilty of Malversation
of Public Property and sentencing him to suffer the penalty of imprisonment ranging
from 10 years and 1 day of prision mayor as minimum, to 16 years, 5 months
and 11 days of reclusion temporal, as
maximum, with the accessories of the law, with the additional penalty of
perpetual special disqualification and a fine of P20,000.00 is AFFIRMED in toto.
|
|
MINITA V. CHICO-NAZARIOAssociate Justice |
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Acting Chairperson
Associate Justice Associate
Justice
RUBEN T. REYES
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.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Acting Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Acting 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
* Per
Special Order No. 497, dated
[1] Penned by Associate Justice Ma. Cristina G. Cortez-Estrada with Associate Justices Roland B. Jurado and Teresita V. Diaz-Baldos, concurring; rollo, pp. 29-39.
[2] Penned by Judge Erlinda Pestaño Buted; rollo, pp. 48-65.
[3]
[4]
[5]
[6]
[7] TSN,
[8]
[9] TSN,
[10]
[11]
[12] People v. Matito, 468 Phil. 14, 24 (2004).
[13] People v. Gallego, 453 Phil. 825, 849 (2003).
[14] People v. Piedad, 441 Phil. 818, 838-839 (2002).
[15] Diego v. Sandiganbayan, 394 Phil. 88, 100-101 (2000).
[16] Rollo, pp. 111-112.
[17] TSN,
[18] People v. Hipol, 454 Phil. 679, 689 (2003).
[19] Records, Vol. 1, p. 190.
[20] TSN,
[21] People v. Pepito, 335 Phil. 37, 46 (1997).
[22] Villanueva
v. Sandiganbayan, G.R. No. 95627,
[23] TSN,
[24]
[25] TSN,
[26] TSN,
[27] People v. Alagon, 382 Phil. 179, 192 (2000).
[28]
[29] People
v. Belibet, G.R. No. 91260,
[30]
[31] People v. Nardo, 405 Phil. 826, 842 (2001).
[32] Records, Vol. 1, p. 190.
[33] Arriola v. Sandiganbayan, G.R. No. 165711,