PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JESSER BARRAMEDA Y VILLACARLOS, ACCUSED-APPELLANT.
TOLENTINO, A.G., J.:
In an Information dated March 23, 2006, the appellant is charged with murder and double attempted murder, the accusatory portion of which states:
“That on or about the 19th day of March 2006, in the Municipality of Angono, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with the use of a homemade shotgun (sumpak), with intent to kill, did then and there willfully, unlawfully and feloniously shoot with the said firearm one ARJAY BARRAMEDA, a four (4) year old minor, hitting the latter on his head, thereby inflicting upon him mortal gunshot wounds which directly caused his death, and as a further result of the same gunshot and in the furtherance of the same intent to kill, did then and there willfully, unlawfully and feloniously hit two (2) other persons, namely JONATHAN BARRAMEDA y VILLACARLOS and SEVA BAWAAN y BARRAMEDA, thereby inflicting gunshot wounds on different parts of their bodies, thus commencing the commission of two (2) counts of murder directly by overt acts, but did not perform all the acts of execution which should produce the crime of two (2) counts of Murder by reason of causes other than the accused’s own spontaneous desistance, that is, the injuries sustained by the said victims were not fatal.
The crime charged herein is qualified by treachery and abuse of superior strength and aggravated by the use of an unlicensed high-powered firearm, dwelling and relationship, the deceased victim ARJAY BARRAMEDA being the accused’s nephew, a relative within the third civil degree of consanguinity, while the other victims JONATHAN BARRAMEDA y VILLACARLOS and [S]EVA BAWAAN y BARRAMEDA are his older brother and younger sister, respectively.
CONTRARY TO LAW.”[2]
During his arraignment on August 3, 2006, the appellant, duly assisted by counsel de oficio, pleaded not guilty to the charges against him.[3]
The facts, as borne by the records follows:
On March 19, 2006, Jonathan Barrameda and his 4-year old son, went to the house of his sister, Seva Bawaan at Sitio Silihan, Barangay Mahabang Parang, Angono, Rizal.[4] There he met his brother, the appellant Jesser Barrameda and had an argument with him about money. The argument got heated[5] and as Jonathan was about to leave, the appellant pulled out a homemade shotgun (sumpak) and fired at his brother. He hit his brother, his sister, Seva and nephew, Arjay. His siblings were injured and Arjay was killed. Because of the ensuing commotion, the appellant fled[6] but he later surrendered to barangay Head Tanod James Mabalot and Deputy Tanod Bernardo Angeles. He likewise turned over to them the sumpak, a bolo and the shotgun shells he was carrying.[7]
Upon examination of Arjay’s cadaver, Dr. Jose Arnel Marquez, the Medico-Legal Officer and the Police Chief Inspector of the Rizal Provincial Crime Laboratory Office, found out that he died of gunshot wounds in his head. Dr. Marquez further testified that Arjay sustained five (5) gunshot wounds, which came from a shotgun.[8]
On the other hand, the appellant’s version, as stated in his Brief, follows:
“On 19 March 2006, at around 9:00 o’clock in the morning, the accused Jesser Barrameda was sleeping inside the house of his sister, Seva Bawaan, at Sitio Silihan, Mahabang Parang, Angono, Rizal, when his brother, Jonathan Barrameda, arrived and shouted, ‘Ano ka na dyan, para ka ng asong nagbigti, magpakamatay‘. The latter then asked for his money worth Four Thousand Four Hundred Pesos (P4,400.00), which he refused to give.
Verily, Jonathan got mad and mauled the accused. The latter asked, ‘Bakit mo ako sinasaktan?‘. Eventually, Jonathan got a sumpak, which he and the accused grappled for. Suddenly, the sumpak went off. Afterwards, Jonathan and Seva ran away, while the accused voluntarily surrendered to the barangay hall.”[9]
After a full-blown trial, the RTC found the accused guilty of the crimes of Murder and Double Attempted Murder. The RTC ruled that the prosecution had credible eyewitnesses in Jonathan Barrameda and Seva Bawaan, siblings and other victims of the accused who saw him shot and hit Arjay and them. The fact that there were eyewitnesses against him and that the witnesses testified that he was in possession of the sumpak after the killing and that he surrendered it to them belie his incredible story that what happened was an accident. The RTC further held that the killing of a child is murder even if the manner of attack was not shown. Likewise, the use of an unlicensed sumpak is an aggravating circumstance that will be taken against him. The RTC also convicted the appellant for two (2) counts of attempted murder. The RTC held that the appellant shot at his siblings. The qualifying circumstance of treachery was proven beyond reasonable doubt because the use of the sumpak is a means which ensured that his unarmed siblings cannot retaliate or defend themselves.[10]
The dispositive portion of the RTC’s decision states:
“The foregoing considered, we find accused Jesser Barrameda GUILTY beyond reasonable doubt of the Murder of Arjay Barrameda and sentence him to suffer a penalty of Reclusion Perpetua and order him to pay his heirs: 1. P50,000.00 as indemnity for his death; 2. P25,000.00 as temperate damages; 3. P100,000.00 as moral damages; 4. P100,000.00 as exemplary damages and 5. trial costs.
We also find accused Jesser Barrameda GUILTY beyond reasonable doubt of the Attempted Murder of Jonathan Barrameda and sentence him to suffer an indeterminate penalty of 4 years and 2 months of Prision Correccional and Destierro as minimum to 12 years of Prision Mayor as maximum and further order him to pay him: 1. P50,000.00 as moral damages and 2. P50,000.00 as exemplary damages. Finally, we also find accused Jesser Barrameda GUILTY beyond reasonable doubt of the Attempted Murder of Seva Bawaan and sentence him to suffer an indeterminate penalty of 4 years and 2 months of Prision Correccional and Destierro as minimum to 12 years of Prision Mayor as maximum and further order him to pay her: 1. P50,000.00 as moral damages and 2. P50,000.00 as exemplary damages.”[11]
Hence, this appeal.[12] The accused-appellant assigned the following errors allegedly committed by the trial court, viz:
“I.
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II.
THE COURT A QUO GRAVELY ERRED IN DISREGARDING THE ACCUSED-APPELLANT’S VERSION THAT THE STABBING WAS AN ACCIDENT.
III.
THE COURT A QUO GRAVELY ERRED IN FAILING TO APPRECIATE VOLUNTARY SURRENDER.”[13]
The assigned errors, being interrelated, shall be discussed jointly.
The appeal is partly meritorious.
The appellant argues that the court a quo gravely erred in disregarding his testimony that Jonathan got mad at him when he refused to give the latter’s money worth P4,400.00. In view of Jonathan’s fury, it is more credible that it was the latter who initially got hold of the sumpak, and not him.[14]
The appellant claims that it was Jonathan who initially got hold of the sumpak and that they grappled for the possession of the same, deserves scant consideration for being self-serving and uncorroborated.
The RTC correctly ruled that the prosecution had a credible eyewitness in the person of Jonathan Barrameda. Jonathan categorically testified that the appellant pulled out the sumpak from under his pillow and fired the same, hitting him (Jonathan), his sister, Seva and his son, Arjay. As a result thereof, Jonathan and Seva were injured while Arjay was killed.
It is a fundamental rule that factual findings of the trial courts involving the credibility of witnesses are accorded respect when no glaring errors, gross misapprehension of facts, and speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their deportment and manner of testifying during the trial.[15]
Moreover, the credible and straightforward testimony of Seva belies the appellant’s claim. The relevant portion of Seva’s testimony is quoted hereunder:
“PROSECUTOR ARAGONES:
CROSS-EXAMINATION BY ATTY. MENDOZA
RE-DIRECT BY PROSECUTOR ARAGONES
From the foregoing, it is very clear that after the verbal argument between Jonathan and the appellant, Seva heard a gunshot. At the time Seva heard the gunshot, the appellant was the one holding the sumpak. As per the testimony of Seva, the appellant’s claim that Jonathan was initially in possession of the sumpak and that his (appellant) act of struggling to get the sumpak is a lawful act to defend himself,[17] must fail. Necessarily, the appellant’s claim that the fact that Arjay and Seva were purportedly shot after he and Jonathan grappled for the sumpak, is considered an accident,[18] must likewise fail.
“Accident” is an affirmative defense which the accused is burdened to prove, with clear and convincing evidence. The essential requisites for this exempting circumstance, are:
- A person is performing a lawful act;
- With due care;
- He causes an injury to another by mere accident;
- Without fault or intention of causing it.[19]
In this case, the appellant failed to prove by clear and convincing evidence that what happened was an accident. On the other hand, the prosecution clearly established beyond reasonable doubt that the appellant fired the sumpak, hitting Jonathan, Seva and Arjay, resulting in the latter’s death. When the appellant fired the sumpak, he cannot be considered to be performing a lawful act with due care.
The appellant further contends that even assuming that he indeed fired the sumpak, the RTC, nevertheless, gravely erred in imposing three (3) separate penalties for Murder for the death of Arjay; and two (2) counts of Attempted Murder for wounding Jonathan and Seva. The appellant argues that there was only a single shot that he purportedly fired, hitting Jonathan, Arjay and Seva, thereby producing a compound crime pursuant to Article 48 of the Revised Penal Code that was charged against him in a single information for Murder with Double Attempted Murder.[20]
This argument is meritorious. Jonathan himself testified that the appellant fired the sumpak only once.[21] Jonathan, Seva and Arjay were hit by a single shot.[22] Seva likewise testified that there was only one shot which hit her, Jonathan and Arjay.[23] Thus, Article 48 of the Revised Penal Code is applicable, viz:
“Article 48. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be applied in its maximum period.”
In the case at bench, when the appellant fired the sumpak, Jonathan, Seva and Arjay were hit. Arjay sustained gunshot wounds in his head which caused his death, while Jonathan and Seva were injured.
The killing of Arjay, a 4-year old, amounted to murder. Arjay’s death certificate[24] shows that he was 4 years old at the time of his death. The killing of minor children who, because of their tender age, could not be expected to put up a defense, is considered attended with treachery even if the manner of attack is not shown.[25]
With respect to the injury sustained by Jonathan, this Court holds that the appellant should be held liable for attempted murder. The appellant attacked Jonathan by shooting him using a sumpak, a deadly weapon. The sumpak was aimed at the upper portion of Jonathan’s body as he suffered a gunshot wound on his arm.[26] The attack on Jonathan could have been fatal had the bullet entered any of the vital parts of his upper body. There was no showing, however, that the wound sustained by Jonathan was fatal and would have caused his death without medical attention. Thus, in Concepcion v. People,[27] the Supreme Court held:
“Here, evidence abound as to the clear intent on the part of the petitioner to finish off his victim. Petitioner attacked Ramil Lopez with the use of a gun, a weapon capable of killing from a distance. The weapon was aimed at the upper portion of Ramil’s body as evidenced by the fact that he suffered a gunshot wound on his left arm. The attack on Ramil could have been fatal had the bullet entered any of the vital parts of his upper body. Nonetheless, even as the prosecution had duly established the presence of intent to kill, there was no showing, however, that the wound sustained by Ramil was fatal and would have caused his death without immediate medical attention. The resulting crime, therefore, is only attempted murder, the accused not having performed all the acts of execution that would have brought about the victim’s death.”
Moreover, the attack against Jonathan was attended by treachery. It is long settled in jurisprudence that two elements must concur in order to establish treachery: (a) that at the time of the attack, the victim was not in a position to defend himself; and (b) that the offender consciously adopted the particular means of attack employed. Thus, the essence of treachery is that the attack comes without warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to resist or escape.[28] The use of a gun against the unarmed Jonathan, and the appellant’s act of shooting him when he was about to leave, insured the execution of the crime without risk upon the appellant. Further, the appellant’s attack upon Jonathan when the latter was about to leave can be characterized as swift, deliberate and unexpected.
From the foregoing, the appellant is hereby convicted with the complex crime of Murder with Attempted Murder. The single act of firing the sumpak which resulted in the death of Arjay and injury to Jonathan constituted a complex crime under Article 48 of the Revised Penal Code. The penalty for the most serious crime of Murder under Article 248 of the Revised Penal Code is reclusion perpetua to Death. Thus, applying Article 48, the death penalty should be imposed. However, pursuant to Republic Act No. 9346,[29] the proper sentence therefore is reclusion perpetua without eligibility for parole. Applying now the provisions of Article 48 of the Revised Penal Code, the appellant is hereby convicted of murder, which is the graver offense. He is hereby sentenced to suffer the penalty of Reclusion Perpetua.[30]
Furthermore, the prosecution failed to establish intent to kill on the part of the appellant with respect to the injury sustained by Seva. Moreover, since there was no proof either as to the extent of the injury or the period of incapacity for labor or of the required medical attendance, the appellant can only be convicted of slight physical injury.[31] Accordingly, the appellant is sentenced to suffer the penalty of thirty (30) days of arresto menor.
Anent the appellant’s claim of voluntary surrender, We are not persuaded.
For voluntary surrender to mitigate criminal liability, the following elements must concur: (1) the offender has not been actually arrested; (2) the offender surrenders himself to a person in authority or to the latter’s agent; and (3) the surrender is voluntary. To be sufficient, the surrender must be spontaneous and made in a manner clearly indicating the intent of the accused to surrender unconditionally, either because they acknowledge their guilt or wish to save the authorities the trouble and the expense that will necessarily be incurred in searching for and capturing them.[32] The accused-appellant failed to establish that he surrendered voluntarily to the barangay authorities. On this score, We find enlightening the testimony of James Mabalot, Head of the Barangay Tanod to whom the appellant allegedly surrendered:
“Q- A- Q- A- Q- A-
It can be gleaned from the above testimony that the appellant surrendered only after James Mabalot and his companion chased and caught him. Hence, the appellant’s surrender cannot be characterized as spontaneous and voluntary.
Granting for the sake of argument that the mitigating circumstance of voluntary surrender is present, the same cannot be appreciated in view of the presence of the special aggravating circumstance of the use of unlicensed firearm. The use of an unlicensed firearm in murder is a special aggravating circumstance and not merely a generic aggravating circumstance. As such, it cannot be offset by an ordinary mitigating circumstance such as voluntary surrender. Thus, the only modifying circumstance remaining in the present case is the special aggravating circumstance of use of an unlicensed firearm. Article 63 (1) of the Revised Penal Code provides that if the penalty is composed of two indivisible penalties, as in this case, and there is present only one aggravating circumstance, the greater penalty shall be applied. Consequently, the penalty imposable on appellant is death. However, with the effectivity of Republic Act No. 9346, the imposition of the capital punishment of death has been prohibited. The penalty to be meted out to the appellant shall be reclusion perpetua, without eligibility for parole.[34]
As to the Award of Damages
We increase the award of civil indemnity to P75,000.00, and reduce the award of moral damages and exemplary damages to P50,000.00, and to P30,000.00, respectively, to conform to jurisprudence.[35] We likewise affirm the award of P25,000.00 as temperate damages, which are awarded 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.[36]
As to the award of damages for the attempted murder, the appellant is ordered to pay P40,000.00 as moral damages and P30,000.00 as exemplary damages[37] to Jonathan. In addition, and in conformity with current policy, we also impose on all the monetary awards for damages interest at the legal rate of 6% per annum from date of finality of this Decision until fully paid.[38]
WHEREFORE, the RTC Decision dated June 30, 2012 is AFFIRMED with MODIFICATIONS. The appellant Jesser Barrameda is hereby found guilty beyond reasonable doubt of the complex crime of Murder with Attempted Murder, and is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. The appellant is also ordered:
1. to pay the heirs of Arjay P75,000.00 as indemnity for his death, P50,000.00 as moral damages, P30,000.00 as exemplary damages and P25,000.00 as temperate damages;
2. to pay Jonathan P50,000.00 as moral damages and P30,000.00 as exemplary damages.
3. to pay Jonathan and the heirs of Arjay interest on all damages awarded at the legal rate of six percent (6%) per annum from the date of finality of this judgment.
The appellant is likewise found guilty beyond reasonable doubt of the crime of Slight Physical Injury and is further sentenced to suffer the penalty of thirty (30) days of arresto menor.
SO ORDERED.
Rosario and Bueser,[*] JJ., concur.
[*] Vice Justice Leoncia R. Dimagiba, per Office Order No. 244-14-ABR dated May 26, 2014.
[1] Records, pp. 255-256.
[2] Records, pp. 1-2.
[3] Records, p. 37.
[4] tsn, hearing dated April 2, 2008, p. 6.
[5] tsn, hearing dated June 25, 2008, pp. 5, 9.
[6] tsn, hearing dated April 2, 2008, pp. 7, 9.
[7] tsn, hearing dated May 25, 2011, p. 4.
[8] tsn, hearing dated March 17, 2010, pp. 6-11.
[9] Rollo, p. 6.
[10] Records, pp. 255-256.
[11] Records, p. 256.
[12] Records, p. 275.
[13] Rollo, pp. 35-36.
[14] Rollo, pp. 36-37.
[15] People of the Philippines v. Zapuiz, G.R. No. 199713, February 20, 2013.
[16] tsn, hearing dated June 25, 2008, pp. 5, 9-11.
[17] Rollo, p. 37.
[18] Rollo, p. 37.
[19] People of the Philippines v. Castillo, G.R. No. 172695, June 29, 2007.
[20] Rollo, p. 38.
[21] tsn, hearing dated April 2, 2008, p. 9.
[22] tsn, hearing dated April 2, 2008, p. 7.
[23] tsn, hearing dated June 25, 2008, p. 9.
[24] Records, p. 176.
[25] People of the Philippines v. Jorolan, G.R. Nos. 142683-84, June 23, 2003.
[26] tsn, hearing dated April 2, 2008, p. 9.
[27] Concepcion v. People of the Philippines, G.R. No. 167135, November 27, 2006.
[28] People of the Philippines v. Mores, G.R. No. 189846, June 26, 2013.
[29] An Act Prohibiting the Imposition of Death Penalty in the Philippines.
[30] People of the Philippines v. Mores, G.R. No. 189846, June 26, 2013.
[31] People of the Philippines v. Aviles, G.R. No. 172967, December 19, 2007.
[32] People of the Philippines v. Rebucan, G.R. No. 182551, July 27, 2011.
[33] tsn, hearing dated May 25, 2011, pp. 3-4.
[34] People of the Philippines v. Guevarra, G.R. No. 182192, October 29, 2008.
[35] People of the Philippines v. Mores, G.R. No. 189846, June 26, 2013.
[36] People of the Philippines v. Dejillo, G.R. No. 185005, December 10, 2012.
[37] People of the Philippines v. Mores, G.R. No. 189846, June 26, 2013.
[38] People of the Philippines v. Rarugal, G.R. No. 188603, January 16, 2013.