PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LYNDON HORANDOY AND ALLAN SENOGAT, ACCUSED,
HERNANDO, J:
Accused-appellant seeks the reversal of the judgment of conviction on the ground that the evidence of the prosecution establishing the identity of the perpetrators was not sufficiently proven. According to him, the initial investigation and the cartographic sketch given by the police investigators depicted the assailants as wearing full helmets, contrary to the evidence presented by the prosecution that assailants were wearing helmets but their faces were not fully covered, making their identities still identifiable. In short, he posits that the prosecution suppressed evidence and/or revised the evidence to implicate him to a crime which he asserts he did not commit and professes to be innocent of.
The Antecedents
In an Information dated June 24, 2009, City Prosecutor Nicolas C. Sellon of the Office of the City Prosecutor of Cebu City charged accused-appellant Lyndon Horandoy and Allan Senogat, with Murder, as follows:
That on the 6th day of January 2009 at about 4:25 o’clock in the afternoon, in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, accused Allan Senogat being the driver of a red motorcycle with accused Lyndon Horandoy as backrider and tailing a Silver Toyota Revo bearing Plate No. GPB-203 and cruising along Maria Gochan St. heading towards N. Bacalso Ave., this City then being driven by Patrick A. Osorio, an Assistant City Prosecutor of Cebu City, and when said Silver Toyota Revo momentarily stopped near the corner of Maria Gochan St. and Natalio Bacalso Avenue due to heavy traffic, accused Allan Senogat then manoeuvred his said motorcycle towards the right side portion of the Silver Toyota Revo after which accused Lyndon Horandoy alighted from the motorcycle while accused Allan Senogat remained and acted as back-up/look-out and, armed with a handgun, with deliberate intent, with intent to kill, with treachery and evident premeditation, accused Lyndon Horandoy did then and there suddenly and unexpectedly shoot said Patrick A. Osorio with the use of said handgun without giving him any opportunity to defend himself, fatally hitting him on the different parts of his body as a consequence of which the latter died several hours later due to the following:
Multiple organ failure secondary to massive hemorrhage secondary to gunshot wounds right lumbar area;
Disseminated intravascular coagulation secondary to No. 1;
That the crime is aggravated by the use of a motor vehicle in the commission thereof and which facilitated the escape of both accused.
CONTRARY TO LAW.[3]
On July 20, 2009, Allan Senogat, duly assisted by Atty. Al Rey Ouano, counsel de oficio, was arraigned and pleaded not guilty.[4] After both the prosecution and the defense presented their respective evidence but prior to rendition of judgment, Lyndon Horandoy, the other accused in this case, was apprehended and brought to trial.
When arraigned on November 14, 2011, Lyndon Horandoy, duly assisted by Atty. Daryll Roque A. Amante, Jr., pleaded not guilty.[5 ]Trial for said accused was then conducted.
Evidence for the Prosecution
The Office of the Solicitor General (OSG) narrated in its Brief6 the version of the prosecution:
On January 6, 2009 at about 4:25 o’clcok in the afternoon, Allan Senogat was driving a red motorcycle with Lyndon Horandoy along Maria Gochan St. bound towards N. Bacalso Avenue. They were tailing the Silver Toyota Revo driven by Patrick Ian Osorio. While the vehicle driven by Patrick Ian Osorio was momentarily stopped near the corner due to traffic, Allan Senogat drove his motorcycle towards the right side portion of the Silver Toyota Revo. The backrider Lyndon Horandoy, armed with a handgun, shot Patrick Ian Osorio twice, fatally hitting him on the different parts of his body, as a consequence of which, the latter died.
The prosecution witness, in the person of Sergio Abala, Jr., witnessed the crime and saw Allan Senogat as the driver of the motorcycle and Lyndon Horandoy as the backrider, who shot the victim. Sergio Abala, Jr. confirmed that at about 4:25 in the afternoon, the streets were heavy of traffic. He affirms that the Silver Revo that was driven by the victim was going from M. Gochan to N. Bacalso Avenue and came to a halt while waiting for its turn to move either towards the right or left of N. Bacalso Avenue.
He came from a basketball game and he walked towards Park and Go, going to the Mambaling area on his way home. At that moment, he noticed two (2) men riding a motorcycle that stopped in front of him. The back rider came down from the motorcycle towards the right side and proceeded to the right portion of the Silver Revo driven by the victim. He pulled out a gun from the back part of his waist and popped 2 shots at the right side of the vehicle. Afterwhich, he returned to the motorcycle where the driver was waiting and drove towards N. Bacalso Avenue and turned to the right. The victim did not ask for help. He just alighted from the Silver Revo and crossed the street and sat down on the other side of the street. Sergio Abala, Jr. did not bother to help the victim. He left the crime scene after the victim was brought to the hospital by two (2) policemen from Station 11 who were in civilian clothes.[7]
Evidence for the Defense
On the other hand, the evidence for the defense was presented by the accused-appellant in his Brief as follows:
To refute the allegations, the defense presented six witnesses: Dargeo V. Tejero, Police Sr. Supt. Patrocinio Commendador, Guamitos Logronio, Allan Senogat (accused-appellant), Rodglyn Dicdican and Allan Cabaluna.
Dargeo Tejero, a trisikad driver who was present when the victim Fisacal Osorio was being shot at in Maria Gochan, Cebu City. In January 6, 2009, at around 4:00 in the afternoon, he was at the corner of the trisikad terminal playing dama with Aga Taboada and waiting for passengers. To their surprise they heard a sudden explosion and saw a person inside the car hurriedly taking his seat belt and opening the door. He heard the victim asked for help when he got off from his car and slumped down. He then carried the victim to the pedestrian side of the road. Thereafter, he called Mambaling Police Station for assistance.
Sr. Supt. Patrocinio Commendador is the Head of the Task Force Osorio assigned to investigate this case. He identified the cartographic picture that told the police that both assailants were wearing “Full Face Helmets”.
Guamitos Logronio is the local news reporter who went to the crime scene to personally inquire from the Police Officers as well as their witnesses which resulted to the newspaper article that was published on January 7, 2009 entitled “Fiscal Osorio gi-ambush”. In that new article the assailants were described as wearing “Full Face Helmets” during the commission of the crime.
On January 11, 2009 he published another article entitled “Osorio gunmen sketch ipublikar” where the assailants were depicted to be wearing “Full Face Helmets.
Allan Senogat testified as to the manner of the investigation of this case that lead to his arrest as he claim that he is a “Fall Guy” because the initial investigation of this case described the assailants to be wearing “Full Face Helmets” has lead to no suspects. He is charged of allegedly being the driver of the motorcycle wherein the assailant shot dead Assistant City Prosecutor Patrick Osorio.
According to Senogat, on January 27, 2009, there were policemen looking for him in his house for an investigation and discovered that it was a murder case and it was due to a text message relayed to the police office by the media involving him as one of the assailants.
On January 30, 2009, he proceeded to Cebu City Homicide Section to clear his name, but instead of going home, he was arrested for a pending Attempted Homicide Warrant of Arrest that was previously filed against him by defense witness Allan Cabaluna. The attempted homicide case of Allan Cabaluna was in relation to an incident where Allan Senogat, as a Barangay Tanod, responded to an alarm that resulted to the shooting injury of Allan Cabaluna.
While being detained in the Police Office of Talisay, he was photographed and at the same time made to wear a red shirt with a yellow “Full Face Helmet”, depicting one of the assailants of this case (as being described by initial witnesses in the initial investigation of Police Officer Alex Dacua’s Memorandum of Report dated January 6, 2009).
He clarified that he learned in the news that the assailants were wearing full face helmets when they committed the crime.
He testified that he was in his house in Urban Poor Maghaway, Talisay City on January 6, 2009, the same time and date of the incident. He was with his children and his wife Rodglyn Dicdican and her wife’s New Year visitors. He testified that his children at the time were ten months old and four years old, in that way, he cannot leave them behind.
Rodglyn Dicdican is the wife of Allan Senogat. She testified that she was with her visitors namely, her aunt, sister and sister’s daughter on January 6, 2009. They went to Taboan at around 12:00 to 1:00 o’clock in the afternoon to buy squid and dried fish.
She knew defense witness Allan Cabaluna and testified as to the incident that lead to the filing of the Attempted Homicide case against Allan Senogat. She also testified that she learned in the news that the assailants were wearing full face helmets.
Allan Cabaluna is the informant that led to the arrest of Allan Senogat in relation to his murder case. He sent a text message to the media implicating Allan Senogat as the assailant in this case out of his anger and that he wanted the accused to be arrested to implement the Warrant of Arrest which has not been served against Allan Senogat in connection with the Attempted Homicide case he filed against him.
He further testified that he was bothered by his conscience and wanted to tell the court that it was not Allan Senogat who killed Fiscal Osorio. He admitted having mislead the court to the arrest of Allan Senogat and has admitted to the consequences that he may face in doing the same.[8]
The Ruling of the RTC
On May 15, 2013, the court a quo convicted both accused with murder by appreciating the qualifying circumstances of treachery, evident premeditation, use of a motor vehicle in the commission of the crime and conspiracy, viz:
xxx xxx Considering that the attack and shooting of the victim by the accused was so sudden and unexpected, the qualifying aggravating circumstance of treachery was clearly attendant to the commission of the criminal act. Likewise, it is very clear that the shooting of the victim was planned and preconceived, thus, evident premeditation is also present, apart from the use of a motor vehicle in the commission of the crime.
Obviously, the two accused conspired in the commission of the offense. In his Extra-Judicial Confession, he narrated that co-accused Allan Senogat initially hired his services, being a motorcycle-for-hire, to drive him at 3:00 in the afternoon in going to Mambaling and back to their residence. While cruising to Mambaling, Allan Senogat divulged to him his plan to shoot somebody for a fee of Php50,000.00. While in Maria Gochan St. and upon seeing a big white silver car moving towards N. Bacalso St., co-accused Allan Senogat handed him a .45 caliber pistol and ordered him to shoot the driver of said vehicle. Without hesitation he obliged.
It must be proved that the members of the alleged conspiracy had an agreement and intent to commit murder. However, it need not be proved that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit that crime. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.
WHEREFORE, premises considered, the court finds accused LYNDON HORANDOY and ALLAN SENOGAT GUILTY beyond reasonable dbout of the crime of MURDER. Accordingly, the court sentences each of them to suffer the penalty of reclusion perpetua.
Furthermore, both accused are also ordered to indemnify solidarily the heirs of the victim, as follows:
- Php25,000.00 as civil indemnity;
- Php500,000.00 as moral damages;
- Php30,000.00 as exemplary damages;
- Php25,000.00 as temperate damages;
- Php469,374 as actual and compensatory damages;
- Php7,040,000.00 as loss of earning capacity;
- Interest at 6% per annum of all the damages herein awarded from the date of the finality of this Judgment.
SO ORDERED.[9]
The Assignment of Errors
The judgment convicting accused-appellant Allan Senogat of the crime of murder constrained him to interpose this appeal on the grounds that:
I. The court a quo gravely erred in convicting the appellant Allan Senogat by giving weight and credence to the inconsistent and improbable testimony of the prosecution witnesses Sergio Abala, Jr.;
II. The court a quo gravely erred in finding that there was positive identification of the accused-appellant Allan Senogat as the malefactor; and
III. The court a quo gravely erred in convicting the accused-appellant despite failure of the prosecution to prove his guilt beyond reasonable doubt.[10]
On the other hand, the OSG argued that the court a quo did not err in convicting accused-appellant for murder.[11] The inconsistencies asserted by appellant relating to the credibility of the eyewitnesses are insignificant details which do not form part of the elements of murder. It also does not change the fact that eyewitness Sergio Abala, Jr. positively identified the appellant as one of the assailants. It also pointed out that jurisprudence instructs that discrepancies between a sworn statement and testimony in court does not justify the outright acquittal of an accused. Affidavits are often incomplete and have often been taken as inferior to court testimony.[12]
The Ruling of this Court
We resolve to deny this appeal.
Accused-appellant insists that the evidence presented by the prosecution was contrary to and did not jibe with the initial police investigation reports that the assailants of the victim were wearing full-faced helmet. He imputes that the prosecution tailored its evidence to coincide with its conceived scenario that the assailants were identifiable since they were wearing helmets which did not completely cover their faces.
Appellant was clearly identified as
one of the perpetrators of the crime
It is of paramount interest that it was the initial police investigation reports that stated that the assailants were wearing full-faced helmets. However, there is no indication that a specific person was called by the police investigators to execute an affidavit about this fact. In fact, such description of the assailants was conveyed to the public by way of print and broadcast media without giving details as to the exact person as the source of the information. As it happened, there could have been other possible witnesses since the incident happened in broad daylight and in populous place where traffic abounds. As it were, the people in the area who witnessed the incident were hesitant to come as witnesses fearing for their own life and the safety of their family.[13]
Six days after the incident, Sergio Abala, Jr., the prosecution’s eyewitness surfaced and approached his policeman friend, a certain Dennis Mosqueda,[14] to shed light on the incident and the fact that he was able to see the ambush of the victim. His testimony is replete with details as to how and who fired the shots at the victim.[15] Even when the defense counsel tried to mislead him, he was able to recount how the incident happened and how the perpetrators executed their acts.[16]
Sergio Abala, Jr. testified in a clear, categorical and convincing manner. He even narrated that he and the assailants were able to see eye-to-eye as to definitely establish the identity of the appellant as one of the gunmen. Thus:
Atty. Yap: You said the back rider made a glance at you after the shooting. How about the driver of the motorcycle, what did he do after the shooting? A: He also glanced at me and our eyes met at that time.
Q: That was after the shooting?
A: Yes, sir.Q: And you can remember very well his face?
A: Yes, sir.Q: The accused Allan Senogat you earlier pointed out before the court as the driver of that motorcycle?
A: Yes, sir.[17]Atty. Ouano:
Q: Mr. Witness, you stated before that you were here after the incident. After the first shot you have seen the face of the shooter, you were afraid. Is that correct?
A: After the first shot I was here.Q: After the first shot, your eyes with the shooter met. Is that correct?
A: Yes, sir.Q: In fact, you said that it gave fear to you?
A: Yes, sir.Q: In other words, at that time, after seeing the shooter, you tried to hide yourself? A: I was moving a little backward.
Q: When you were moving backward Mr. Witness, of course, you were trying to hide from the shooter, is that correct.
A: No, I just stayed in the side.Q: You were moving backward because you were trying to hide from the shooter, correct?
A: Yes, sir.[18]
Treachery and evident premeditation
were present in the commission of the
offense
Treachery is present when the offender commits any of the crimes against person, employing means, methods, or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might take.[19]
On the other hand, evident premeditation is present when the following elements concur: (1) proof of the time when the offender determined to commit the crime, (2) an act manifestly indicating that the culprit has clung to his determination, and (3) a sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will had he desired to hearken to its warnings.[20]
The essence of premeditation is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment. When it is not shown as to how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered. Evident premeditation must be based on external acts and must be evident, not merely suspected, indicating deliberate planning. Otherwise stated, there must be a demonstration by outward acts of a criminal intent that is notorious and manifest.[21]
Here, the prosecution was able to prove all the elements for treachery and evident premeditation.
The evidence of the prosecution disclosed that appellant was the motorcycle driver of the vehicle utilized by the accused in killing the victim. The unity of purpose and the accused’s design in carrying out the objective of killing the victim with impunity were demonstrated by their concerted acts in effecting the crime. Appellant was the driver of the motorcycle and the other accused was the shooter or gunman. Had it not been for the appellant, the facility in the gunning of the victim and the ease by which they made their escape would not have been possible considering that the place of the incident was near a police station and there were a number of people present in the area when the crime was committed.
Appellant, together with his co-accused, ensured that the victim will not be able to make any semblance of defense. The victim was gunned down while driving his vehicle. After delivering the fatal gunshot wounds, the accused left the place, riding the same motorcycle which they used in the commission of the offense. Clearly, the manner of the execution of the crime reflects that it was made in a manner that would afford no opportunity for the victim to escape or retaliate.
In contrast, appellant foisted the inherently weak defense of alibi and denial. Jurisprudence is settled that these defenses are unavailing when placed astride the positive identification of the accused as the offender. We hold that in this case, and at the risk of being repetitive, the prosecution’s evidence, consisting of positive identification of appellant as the offender, must prevail over the latter’s alibi and denial.
Had the eyewitness, Sergio Abala, Jr., narrated a false or concocted testimony, it would have been revealed during the cross-examination by the defense counsel. As it stands, said witness was steadfast and unwavering in his narration of how the events unfolded and the exact participation of the perpetrators.
The Civil Liability
The trial court awarded Php25,000.00 as civil indemnity. Consistent with jurisprudence, the amount is increased to Php75,000.00.[22] Moral damages of Php500,000.00 is decreased to Php50,000.00, consistent also with prevailing jurisprudence. The exemplary damages of Php30,000.00 and the Php25,000.00 temperate damages are however sustained, consistent as they are with law.
The trial court also awarded Php469,374.00 as actual damages. However, a summation of the expenses represented by Exhibits “D” to “F” reflects the following amounts: Php138,783.10 under Official Receipt No. 406774;[23] Php167,046.35 as additional medical expenses;[24] and Php193,845.00 for the burial and internment expenses,[25] would amount to a total of Php499,674.45. Thus, a modification of the actual damages would also be in order.
Anent the loss of earning capacity, the trial court awarded the amount of Php7,040,000.00 representing the loss of earning capacity which was probably based on the testimony of the widow of the victim that her husband received a Php40,000.00 monthly stipend.[26]
Damages for loss of earning capacity are awarded pursuant to Article 2206 of the Civil Code, which states that:
Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death xxx
As a rule, documentary evidence should be presented to substantiate the claim for loss of earning capacity. By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when: (1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the deceased’s line of work, no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws.[27] None of the exceptions apply to the victim since it was a given fact that he was a public prosecutor at the time of his death.
However, this Court takes judicial notice that under the Salary Standardization Law of 2009, a public prosecutor, like the victim in this case, has an entry level of Salary Grade 22, which would be more or less around the Php40,000.00 benchmark used by the trial court.
Utilizing the formula: Net Earning Capacity = life expectancy x [gross annual income – living expenses][28]
= 2/3 [80-age at time of death] x [gross annual income – 50% of gross annual income]
= 2/3 [80-36] x [P480,000.00 – P240,000.00]
= 29.33 x P240,000.00
= P704,000.00
We find this award of Php704,000.00 representing loss of earning capacity to be prudent and just.
Ergo, We find no reversible error in the judgment handed down by the trial court in convicting the accused-appellant of murder. However, as explained above, the indemnity and other damages are modified as follows: Php75,000.00 as civil indemnity; Php50,000.00 as moral damages and Php499,674.45 as actual damages. The award of Php30,000.00 as exemplary damages; Php25,000.00 as temperate damages and Php704,000.00 representing loss of earning capacity are sustained.
WHEREFORE, this appeal is DENIED. The Decision dated May 15, 2013 of the Regional Trial Court (RTC), Branch 17 of Cebu City in Crim. Case No. CBU-86411 convicting both accused for Murder is AFFIRMED with MODIFICATION only in the award of damages. Accused-appellant is likewise directed to pay the heirs of the victim the following amounts: Php75,000.00 as civil indemnity; Php50,000.00 as moral damages and Php499,674.45 as actual damages. We sustain the award of Php30,000.00 as exemplary damages; Php25,000.00 as temperate damages and Php704,000.00 as loss of earning capacity.
SO ORDERED.
Quijano-Padilla, and Azcarraga-Jacob, JJ., concur.
[1] Penned by Judge Silvestre A. Maamo, Jr.
[2] RTC Decision; Rollo, pp. 41-67.
[3] Information; RTC records, pp. 1-2.
[4] Order dated July 20, 1999; RTC records, p. 30; Certificate of Arraignment dated July 20, 2009; RTC records, p. 31.
[5] Order dated November 14, 2011; RTC records, p. 219; Certificate of Arraignment dated November 14, 2011; RTC records, p. 220.
[6] Brief for the Appellee; Rollo, pp. 81-96.
[7] Ibid.
[8] Evidence for the Defense, Brief for the Accused-Appellant; Rollo, pp. 13-40.
[9] RTC Decision; supra.
[10] Brief for the Accused-Appellant; supra.
[11] Brief for the Appellee; Rollo, pp. 81-96.
[12] Ibid.
[13] Testimony of SPO4 Alex Dacua; TSN, November 23, 2009, p. 9.
[14] TSN, October 20, 2009, pp. 19, 21-22.
[15] TSN, October 6, 2009, pp. 3-9; TSN, October 20, 2009, pp. 4-28.
[16 ]TSN, October 20, 2009, pp. 3-19.
[17] Ibid at p. 26.
[18] Ibid. at p. 27.
[19] People v. Fieldad, G.R. No. 196005, October 1, 2014.
[20] People v. Derilo, G.R. No. 117818, April 18, 1997, 271 SCRA 633; People v. Bokingo, G.R. No. 187536, August 19, 2011; People v. Rebucan, G.R. No. 182551, July 27, 2011.
[21] People v. Derilo, Ibid.
[22] People v. Lucero, G.R. 179044, December 6, 2010; People v. Bernardo, G.R. No. 198789, June 3, 2013.
[23] Formal Offer of Exhibits for the Prosecution; RTC records, pp. 65-66. See also Exhibit “D-1” which reflected the amount of Php138,783.10 as the total amount due for payment; Folder of Exhibits, p. 8.
[24] Ibid. See also Exhibit “E”; Folder of Exhibits, p. 9.
[25] Ibid. See also Exhibit “F”; Folder of Exhibits, p. 10.
[26] TSN, June 1, 2010, p. 8.
[27] Serra v. Mumar, G.R. No. 193861, March 14, 2012.
[28] People v. Lagat, G.R. No. 187044, September 11, 2011; People v. Lopez, G.R. No. 188902, February 16, 2011.