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PEOPLE OF
THE Appellee, - versus - CHARMEN OLIVO y ALONG,
NELSON DANDA y SAMBUTO, and JOEY ZAFRA y REYES, Appellants. |
G.R. No. 177768
Present: Quisumbing,
J., Chairperson, Carpio Morales, chico-nazario,* LEONARDO-DE CASTRO,** and BRION,
JJ. Promulgated: July 27, 2009 |
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QUISUMBING, J.:
This is an appeal from the Decision[1] dated November 30,
2006 of the Court of Appeals in CA- G.R. CR HC No. 00595 which had affirmed in
toto the Decision[2] dated August 24,
2004 of the Regional Trial Court (RTC) of Quezon City, Branch 81, finding accused-appellants
Charmen Olivo (Olivo), Nelson Danda (Danda), and Joey Zafra (Zafra) guilty
beyond reasonable doubt of the crime of robbery with homicide, with no
aggravating nor mitigating circumstance, and sentencing them to suffer the penalty
of reclusion perpetua and to indemnify, jointly and severally,
the heirs of the victim, Mariano Constantino, P65,000 as actual damages,
P50,000 for the death of the victim, and P50,000 as moral
damages.
Accused-appellants Olivo, Danda and
Zafra were charged in an Information dated
The
undersigned accuses CHARMEN OLIVO Y ALONG alias Lipay, NELSON DANDA Y SAMBUTO
alias Teng, and JOEY ZAFRA Y REYES, of the crime of Robbery with Homicide,
committed as follows:
That on or about the 21st day of November
2000, in Quezon City, Philippines, the said accused, conspiring and
confederating together and helping one another, with intent to gain and by
means of force, violence, and intimidation against persons, to wit: by then and
there armed with guns forcibly entered the hardware store of Mariano
Constantino [y] Zoleta located at Eagle Street, Sitio Veterans B, Bgy. Bagong
Silangan, this City, then announced that it was [a] HOLD-UP and ordered Maricel
Permejo, storekeeper thereat, at gunpoint to give them the money of said store,
did then and there wilfully, unlawfully and feloniously took, rob and carry
away the total amount of P35,000.00 Philippine Currency, representing the days
earnings of said hardware store, that on the occasion of and by reason of the
said robbery and in pursuance of their conspiracy, the said accused with intent
to kill, did then and there wilfully, unlawfully and feloniously attack,
assault and employ personal violence upon the person of one MARIANO CONSTANTINO
Y ZOLETA, by then and there shooting him with a gun hitting him on the trunk and
extrem[i]ties, thereby inflicting upon said Mariano Constantino [y] Zoleta
serious and mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of the heirs of said Mariano Constantino [y]
Zoleta.
CONTRARY
TO LAW.[3]
When arraigned on
The evidence for the prosecution consisted of the oral testimonies of Maricel
Permejo, storekeeper of the victim Mariano Constantino, Pablito Constantino,
the victim’s brother, SPO2 Joseph Dino (SPO2 Dino), medico-legal officer Dr.
Winston Tan, and Emelita Constantino, the victim’s wife. The defense, for its part, presented accused-appellants
Olivo and
The prosecution, through the Office of the Solicitor General, narrates its
version of the facts as follows:
On
Two
days after the incident SPO2 Joseph Dino received an information from the Batasan Police Station
that they have three (3) suspects for drug violations and illegal possession of
firearms. He borrowed the suspects for
identification by Maricel. When
presented to her, she identified them as the men who staged a hold up and shot
the deceased.[5]
The defense, through the Public Attorney’s Office, summarized its version
of facts as follows:
EVIDENCE FOR
THE PROSECUTION:
To
prove the allegations in the Information, the prosecution presented Maricel
[Permejo], Pablito Constantino, SPO2 Joseph Dino, Dr. Winston Tan, and Emelita
Constantino.
The
evidence for the prosecution tends to establish that while Maricel [Permejo]
was tending the store of the late Mariano Constantino on
Meanwhile,
the owner Constantino entered his store and shouted. Accused Charmen Olivo pointed a gun at
him. Constantino ran to the back of the
house and accused Olivo chased him.
Successive gunshots were subsequently heard.
[Permejo]
looked for her employer and found him wounded and bloodied along the stairway
of the house. She sought help from a
neighbor and the victim was brought to the
The
cadaver was brought for autopsy to
The
cadaver was thereafter brought to the Dela Paz Funeral where he stayed for a
day and a night. The remains were then
brought to Marinduque for the wake which lasted four (4) days and four (4)
nights. Emelita Constantino
testified on the civil aspect of the case.
SPO2 Joseph Dino, an investigator at
EVIDENCE FOR THE DEFENSE:
The
defense presented the following witnesses, to wit:
The
evidence for the defense of accused Charmen Olivo and Nelson Danda shows that
at around
While
accused Olivo was fetching water along Barangay Holy Spirit in Payatas,
After
a few days, the accused were imprisoned at
On
WHEREFORE,
premises considered, the Court finds accused Charmen Olivo y Along, Nelson
Danda y Sambuto and Joey Zafra y Reyes guilty beyond reasonable doubt of the
crime of Robbery with Homicide. There
being no mitigating or aggravating circumstance, each accused is hereby
sentenced to suffer the penalty of Reclusion Perpetua and is hereby ordered to
indemnify, jointly and severally, the heirs of the victim in the following
amounts: P65,000.00 as actual damages, P50,000.00 for the death of
the victim and P50,000.00 as moral damages.
SO
ORDERED.[7]
Accused-appellants Olivo and Danda appealed to the Court of Appeals.
In a Decision dated
WHEREFORE,
premises considered, the instant appeal is hereby DISMISSED. The assailed decision is AFFIRMED in
toto.
SO ORDERED.[8]
Before this Court now, the issues raised by the accused-appellants are the
following:
I.
the court a quo gravely erred in convicting the accused-appellants
charmen olivo and nelson danda of the crime charged despite the failure of the
prosecution to prove their guilt beyond reasonable doubt.
II.
the court a quo gravely erred in finding that there was
conspiracy in the case at bar.
iii.
assuming arguendo that accused-appellants charmen olivo and nelson
danda’s culpability was established, the court a quo gravely erred in
convicting them of the complex crime of robbeRy with homicide.[9]
The accused-appellants argue that in criminal
prosecutions, the State has the burden of proving the guilt of the accused
beyond reasonable doubt. It has to prove
the identity of the accused as the malefactor, as well as the fact of the
commission of the crime for which he is allegedly responsible.[10] They argue that it can be gleaned from the
records of the case that the prosecution relied mainly on the testimony of the
alleged eyewitness Maricel Permejo, but her testimony leaves much to be
desired.[11] They argue that Maricel Permejo did not point
to them as the malefactors and she only did so upon the instruction given in
The appellants further argue that while the alleged
eyewitness claimed she saw the accused-appellant Joey Zafra take the money from
the cash register, she did not see how and who killed Mariano Constantino. She merely claimed that she saw the
accused-appellants armed and chased the deceased outside the store. They conclude that whether or not the
accused-appellants indeed committed homicide on the occasion of the robbery is
a matter that has not been proven with the required moral certainty of guilt.[13]
On the other hand, the prosecution, through the Office
of the Solicitor General, argues that findings of fact of the trial court are
generally upheld on appeal and the accused-appellants are assailing the
correctness of the findings of fact of the trial court by impugning the
credibility of the prosecution witness Maricel Permejo.[14] The prosecution
claims that contrary to the accused-appellants’ claim
that the police officers taught the witness Maricel Permejo to point to them as
the perpetrators, her testimony is straightforward and direct.[15]
After review, we find that the accused-appellants
should be acquitted.
It is settled that when the issue is the evaluation of
the testimony of a witness or his credibility, this Court accords the highest
respect and even finality to the findings of the trial court, absent any
showing that it committed palpable mistake, misappreciation of facts or grave
abuse of discretion. It is the trial
court which has the unique advantage of observing first-hand the facial
expressions, gestures and the tone of voice of a witness while testifying.[16]
The well-entrenched rule is that findings of the trial
court affirmed by the appellate court are accorded high respect, if not
conclusive effect, by this Court, absent clear and convincing evidence that
the tribunals ignored, misconstrued or misapplied facts and circumstances of
substances such that, if considered, the same will warrant the modification or
reversal of the outcome of the case.[17]
Factual findings of trial courts, when substantiated by
the evidence on record, command great weight and respect on appeal, save only
when certain material facts and circumstances were overlooked and which, if
duly considered, may vary the outcome of the case.[18]
In this case, the material fact and circumstance that
the lone alleged eyewitness, Maricel Permejo, was not able to identify the accused-appellants
as the perpetrators of the crime, varies the outcome of this case. This circumstance was established during the
direct examination of Olivo and was not rebutted by the prosecution during
cross-examination or in its pleadings. Olivo’s
testimony reads as follows:
x x x x
Q: Mr. Witness, when they
brought you to Station 6[,] what happened there in Station 6?
A [(Charmen Olivo)]: A woman [(Maricel
Permejo)] came in and the police took me out.
Q: After bringing you out[,]
what happened when the certain woman arrived?
A: They questioned the
woman sir.
Q: What did they ask the
woman?
A: They asked the woman,
[“ito ba”]? [T]he woman answered, [“he is not the one sir”.]
Q: How many times did
they ask the woman that question, if they asked more than [once]?
A: Three (3) times sir.
Q: And what was the
answer of that woman for the second and third time that they asked her again?
A: Hindi po yan sir.[19] (Emphasis supplied.)
x x x x
It was only a few days after, when the
accused-appellants were brought to
x x x x
Q: After that what
happened?
A: The woman gave a
negative answer.
After a few days, we
were brought to
Q: When you were brought to
A: Our names were asked
sir.
Q: Who took your names?
A: I do not know sir.
Q: What happened after
somebody took your names while you were there at
A: We were put in prison
sir.
Q: What happened after you
were brought to the cell?
A: A woman arrived sir.
Q: Are you saying that that
woman who arrived was the same woman that you saw there at Station 6?
A: Yes sir.
Q: When she arrived what
did you notice that the poli[c]emen were doing while the woman arrived?
A: I saw the poli[c]emen
teaching the woman sir.
Q: How do you know that the
poli[c]em[e]n [were] te[a]ching the woman?
A: I heard them sir.
Q: How far were you from
the police and this woman when you said you overheard them?
A: About one and one half
me[t]ers sir.
Q: And what did the policem[e]n
[do] when you said the policemen were teaching the woman[?] What did the policem[e]n tell the woman?
A: The police said [“ituro
mo na”].
Q: What did the woman do
after the policem[e]n said [“ituro mo na”] did the[y] point at you and
your companion?
A: She
mentioned my name sir.
Q: What did the woman [do]
aside from mentioning your name?
Aside from the woman [giving]
your name, [what else] did she do, if she did any?
A: No more sir.[20]
x x x x
The fact that Permejo was not able to identify accused-appellants
as the perpetrators of the crime impinges heavily on the credibility of
prosecution’s evidence. For if, indeed,
the accused-appellants were the malefactors of the crime who did not hide their
faces during the robbery, the eyewitness, who had such close, traumatic encounter
with them, should automatically have recalled their faces upon seeing them. It behooves this Court to declare that she
was not able to do so positively.
Having ignored the abovementioned important
circumstance, the trial court misconstrued and misapplied facts and
circumstances of the case, warranting the modification or reversal of the
outcome of the case. The trial court
grievously erred when it ruled that the lone prosecution eyewitness
categorically and positively identified accused-appellants as the perpetrators
of the crime.
Other circumstances tend to prove that the
accused-appellants were not the perpetrators of the crime.
One, they were not arrested for
the crime of robbery with homicide but were arrested during a buy-bust
operation. The records are bereft as to
whether or not the case against them for violation of Republic Act No. 6425[21]
prospered.
Two, they were brought to P1 million, the case
will be handled by the Criminal Investigation Unit (CIU). Apparently realizing his mistake that the
amount taken was only P35,000.00 when asked the same question during
cross-examination, SPO2 Dino replied that it was SOP that if the case is murder
or homicide and if there is no available police investigator for that police
station, then
x x x x
Q: How did you learn of the
death of the same person?
A: The case was called at
the Batasan Police Station, in our station, and our desk officer told me to
handle the case.
Q: By the way, can you tell
this court why the case/incident happened in Batasan and you were called to
investigate when in fact you were in
A: It was SOP in the [Central
Police District (CPD)] that when the case is Murder and Robbery [and the
amount] is more than 1 million, the case is to be handled by the [Criminal
Investigation Unit (CIU)].[22] (Emphasis
supplied.)
x x x x
On cross-examination, he replied:
x x x x
Q: Now, Mr. [P]oliceman,
would you tell us why you were assigned to conduct the investigation in this
case when they have other police investigator[s] at Batasan Hills,
A: Because that was the
standard [operating] procedure that if the case is [murder] or [h]omicide that
if there is [no] available police investigator for that police station,
then Camp Karingal will be the one to conduct the investigation.
Q: In your direct
examination, I did not remember you tell before this Court that you conduct[ed]
the investigation of this case. Since it
involved robbery with [h]omicide, do you know how much was involved in the
robbery?
A: If I remember, it was
P[h]p 30,000.00 sir.
Q: It was not one (1)
million?
A: Yes sir.
Q: By the way, who is the
one making the assignment in case of destination of [a] case like this[?]
A: The criminal
investigator, sir.
Q: You are referring to
Camp [K]aringal or Batasan Hills?
A:
Q: You are saying that even
if the offense is committed at another place,
A: Yes sir.
Q: This case was reported
to the Batasan Hills Police Station?
A: Yes sir.
Q: And it was not directly
reported to
A: The Batasan Police
Station Desk Officer reported the case to
Q: How do you know
that?
A: The
Desk Officer called the Camp Karingal Office, sir.[23] (Emphasis
supplied.)
x x x x
The abovementioned testimony of
SPO2 Dino makes his credibility doubtful.
Apparently, the accused-appellants were arrested
without a warrant during a buy-bust operation on
Trial courts are mandated not only to look at the
direct examination of witnesses but to the totality of evidence before them. In every case, the court should review,
assess and weigh the totality of the evidence presented by the
parties. It should not confine itself to
oral testimony during the trial.[25]
We cannot convict appellants for the special complex
crime of robbery with homicide when the evidence relied upon by the trial court
is plainly erroneous and inadequate to prove appellants’ guilt beyond
reasonable doubt. Conviction must rest
on nothing less than moral certainty, whether it proceeds from direct or
circumstantial evidence.[26]
In view of the foregoing,
acquittal of the accused-appellants is in order.
One final note. The other accused, Joey Zafra, who is
identically circumstanced as the other appellants and who was likewise
convicted on the same evidence, does not appear to have perfected an appeal
from the trial court’s judgment. The
record does not show the reason therefor.
Be that as it may, the present
rule is that an appeal taken by one or more several accused shall not affect
those who did not appeal, except insofar as the judgment of the appellate court
is favorable and applicable to the latter.[27] Our pronouncements here with respect to the
insufficiency of the prosecution evidence to convict appellants beyond
reasonable doubt are definitely favorable and applicable to accused Joey
Zafra. He should not therefore be
treated as the odd man out and should benefit from the acquittal of his
co-accused. In fact, under similar
conditions and on the same ratiocination, Section 11(a), Rule 122 of the Rules
of Court has justified the extension of our judgment of acquittal to the
co-accused who failed to appeal from the judgment of the trial court which we
subsequently reversed.[28]
WHEREFORE, the Decision dated
No pronouncement as to costs.
SO
ORDERED.
|
|
LEONARDO A. QUISUMBING Associate Justice |
WE CONCUR: CONCHITA
CARPIO MORALES Associate Justice |
|
|
MINITA V. CHICO-NAZARIO Associate Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate Justice |
|
ARTURO D.
BRION Associate Justice |
|
A T T E S T A T I O N
I
attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
LEONARDO
A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
* Designated member of the Second Division per Special Order No. 658.
** Designated member of the Second Division per Special Order No. 635.
[1] CA rollo, pp. 88-102. Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Bienvenido L. Reyes and Fernanda Lampas Peralta concurring.
[2] Records, pp. 228-231. Penned by Presiding Judge Ma. Theresa L. Dela Torre-Yadao.
[3]
[4]
[5] CA rollo, pp. 74-75.
[6]
[7] Records, p. 231.
[8] CA rollo, p. 102.
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16] People v. Gloria, G.R. No. 168476,
[17] Abuan v. People, G.R. No. 168773,
[18] People v. Sy, G.R. No. 171397,
[19] TSN,
[20]
[21] The
Dangerous Drugs Act of 1972, approved on
[22] TSN,
[23] TSN,
[24] Records, pp. 9-10.
[25] People v. Servano, G.R. Nos.
143002-03,
[26] People v. Canlas, G.R. No. 141633,
[27] SEC. 11. Effect of appeal by any of several accused. —
(a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.
(b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from.
(c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party.
[28] People v. Fernandez, et al., G.R. No.
80481,