PEOPLE OF THE PHILIPPINES, PLAINTIFF- APPELLEE, VS. ELPIDIO AMISTOSO Y CANDELARIO, ACCUSED-APPELLANT.
SORONGON, E. D., J.:
Statement of the Case
Accused-appellant was charged with the crime of Murder in conspiracy with sixteen (16) or more unknown armed persons, attended with qualifying circumstances of treachery and evident premeditation, for the death of PO3 Jesus Juliana (PO3 Juliana), as defined and penalized under Article 248 of the Revised Penal Code. The information states:
“The undersigned accuses Elpidio Amistoso y Candelario of the crime of Murder, committed as follows:
That on or about the 13th day of May 2001, at around 8:00 o’clock in the morning, in Barangay Magsikap, Municipality of Rizal, Province of Occidental Mindoro, Philippines and within the jurisdiction of the Honorable Court, the accused being then armed with a M-14 armalite, with intent to kill, with treachery and evident premeditation, conspiring, confederating and helping one another together with 16 or more persons whose true names and identities are still unknown, did then and there willfully, unlawfully and feloniously attack, assault and shot with the said weapon one PO3 Jesus Juliana, thereby inflicting upon the latter serious wounds which caused his untimely death.
WITH SPECIAL CIRCUMSTANCES (sic) OF USE OF UNLICENSED FIREARM.
CONTRARY TO LAW.”[2]
During arraignment, the accused-appellant with the assistance of his counsel, entered a negative plea to the charge. Trial forthwith ensued.
Statement of Relevant Facts
The Prosecution’s Case
The prosecution presented Municipal Health Officer of Calintaan, Occidental Mindoro, Dr. Beth Jimenez[3], PO3 Edgardo Dairo[4] (PO3 Dairo), PO3 Antonio Ambay[5] (PO3 Ambay) whose consolidated testimonies provide:
On May 13, 2001, at around 7:30 in the morning, members of the Philippine National Police (PNP) were on board a “back-to-back” police patrol car on their way to the Provincial Police Headquarters in San Jose, Occidental Mindoro. They were Chief Inspector Manuel Castillo, who was seated beside the driver, PO3 Renato Supranes, PO3 Dairo who was seated behind Inspector Castillo with PO3 Ambay beside him, and the victim PO3 Juliana who was seated at the back of PO3 Dairo. As they were traversing the bridge in Luminato River, they were fired upon from about five (5) meters away from the left side of the road by around twenty (20) men whom they believed to be members of the New People’s Army (NPA). PO3 Dairo instantly shouted “Pre, ambush, talon!” PO3 Dairo and PO3 Ambay jumped from their running patrol vehicle and rolled over into a deep canal where they sought cover and fired back at the NPAs. During the encounter, they saw and recognized accused-appellant, who is also known as “Ka Jovan” as he maneuvered from one spot to another. According to PO3 Dairo and PO3 Ambay, they were able to recognize the accused-appellant as the latter was once a member of the CAFGU assigned in their police detachment sometime in 1980. The firing lasted for about 15-20 minutes. Thereafter, PO3 Dairo and PO3 Ambay extricated PO3 Supranes from the patrol car which landed on the canal, about fifty (50) meters from where PO3 Dairo and PO3 Ambay took cover. Later, they found Inspector Castillo behind a tree who beckoned by waiving his shirt. Thinking that PO3 Juliana was hiding from the NPAs, the three (3) of them left and reached the nearest police station where they sought help and reinforcement. They only learned of the death of their companion PO3 Juliana when they were already in the hospital for treatment.
A Post Mortem Examination[6] of the cadaver of PO3 Juliana was then conducted by Dr. Jimenez, who testified that the gunshot wound of which point of entry is 0.3 x 0.3 cm infraclavicular area and clavicular line at the level of 1” intercoastal space, chest left; and the point of exit is 2×2 cm paravertebral area at the level 5th thoracic vertebral back left, resulted to a massive hemorrhage or bleeding due to the gunshot wound which penetrated great vessels such as the iorta or pulmonary vessels. Such bleeding caused the loss of huge amount of blood in the victim, which consequently affected the supply of oxygen in the victim’s circulatory system and resulted to his death.[7] She further testified that the gunshot could have been a long range shot (a distance of more than two (2) meters) considering the absence of tatooing and gun powder burns.
The Defense’ Case
The defense forthwith presented three (3) witnesses, Avelino Dalisay[8] (Dalisay), the accused himself Elpidio Amistoso[9], and Klunie Amistoso.[10] Their version is as follows:
On May 13, 2001 at around 9:00 o’clock in the morning, Dalisay was with the accused-appellant and the latter’s wife, Klunie Amistoso talking about accused-appellant’s intention of returning to the fold of the government. Their meeting took place in a dilapidated house in the middle of a field in Barangay San Pedro, Rizal, Occidental Mindoro which is about two (2) kilometers away where the ambush occurred. After their conversation which lasted more or less for an hour, they parted ways. Upon reaching home, he learned of the ambush from his wife and children. Two (2) years later, he learned about the arrest of the accused-appellant upon the latter’s return from Visayas.
Accused-Appellant recalled that on May 13, 2001 at around 9:00 o’clock in the morning, he and his wife were talking with Dalisay in Barangay San Pedro, Rizal, Occidental Mindoro which lasted for about an hour. Around 11:00 o’clock in the morning, he heard over the radio of the ambush that took place earlier. He admitted that he was a former CAFGU from 1990 to 1993 and became an active member of the NPA in 2004. He joined the NPA because a certain policeman named Baliguat hit him with a 9MM on his face then warned him, “Huwag ka ng magpapakita sa akin baka samain ka lang.” However, he was on AWOL in the NPA prior to the ambushcade. According to him, he was implicated in the said incident because PO3 Ambay knew him to be a CAFGU turned NPA.
Klunie Amistoso, testified that she is the wife of the accused-appellant. According to her, she and her husband had a meeting with Dalisay at San Pedro, Rizal, Occidental Mindoro on May 13, 2001. After their talk, she left them and went home riding a jeep. It was then that she knew about the ambush because the jeep passed the site of the incident. She remembered that it was only in November of 2005 that she again saw her husband as the latter was sick and needed help. She convinced him not to return to the mountain. The accused-appellant agreed and thereafter, both of them went to Antique where they stayed until accused-appellant surrendered to Burgos Nicopior, a Board Member in Antique. She knew her husband had been a member of the NPA in 2002. She came to know of her husband’s implication in the ambush while they were staying in Antique.
Ruling of the Trial Court
In a Decision dated August 25, 2011, the trial court found the accused-appellant guilty as charged, the dispositive portion thereof reads:
“WHEREFORE, this Court finds the accused ELPIDIO AMISTOSO y CANDELARIO, GUILTY beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code but pursuant to the mandate of R.A. 9346 which abolished the Supreme Penalty of Death hereby SENTENCES him to suffer the penalty of Reclusion Perpetua.
Also, this Court ORDERS the accused to pay the surviving spouse of the victim, the following, viz:
1. Php 50,000.00 as Civil indemnity ex-delicto;
2. Php 50,000.00 as Actual damages;
3. Php 50,000.00 as Moral damages’
4. Php 15,000.00 as Exemplary damages; and
5. The costs of this suit.SO ORDERED.[11]
Accused-appellant through this appeal prays for the reversal of the aforementioned Decision and his consequent acquittal based on the proposition that “THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT”.
Accused-appellant maintained that the prosecution failed to establish his actual participation in the ambush as there was no showing that the witnesses actually saw him fire any shots; his mere presence at the scene of the crime is not enough absent proof of cooperation or agreement to cooperate to the commission of an offense, accused-appellant could not be deemed a party to the conspiracy; that the testimonies of PO3 Dario and PO3 Ambay as to the death of PO3 Juliana should not be given credence being hearsay and self-serving; that the medico-legal report is inconsistent as to how PO3 Juliana sustained the wound in both documentary and testimonial evidence; and that while the accused-appellant may have only alibi and denial for his defense, the same should not be taken entirely against him citing the case of People v. Lejano (G.R. No. 176389, December 14, 2010) and People v. Webb (G.R. No. 176864, December 14, 2010).
We deny this appeal.
Prefatorily, the trial court is correct when it ruled that treachery was present in this case.
Treachery exists when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the offense which the offended party might make.[12] It must (1) ensure that the offended at the time of the attack was not in a position to put up any defense, not even token defense; and (2) the means, manner, and form was consciously and deliberately chosen.[13]
The essence of treachery is the swiftness and the unexpectedness of the attack upon the unsuspecting and unarmed victim, who does not give the slightest provocation.[14]
In this case, it has been established that the police officers while traveling on board their patrol car were fired upon by their attackers who were already positioned along the road and waited for their police car to pass by. They were completely taken by surprise. From the testimonies of the survivor-witnesses, accused-appellant and his cohorts waited for the police car all set to spray them with bullets. The malefactors have strategically positioned themselves at the forested area (kakahuyan) of the mountains overlooking the highway, purposely to avoid detection and being hit in retaliation. They were stationed in such a way that vehicles passing by cannot notice their presence. As narrated by the survivor-witnesses, they were oblivious of their attackers until their vehicle traversing the bridge was peppered with shots coming from the forested area. They were in fact forced to jump while the car was running at a speed. Nevertheless, the accused-appellant was distinctly identified as he was leading the group and changing his positions while firing shots at the police officers.
The trial court ruled:
“Also, the said prosecution’s witnesses were able to describe how the fully armed group of the accused positioned themselves in a place where impossibility of being hit in retaliation is high. While the PNP officers were also armed and able to retaliate yet such action was so ineffective and inferior compared to the spread out position of the ambushers in a higher plane with tall trees covering them and overlooking the wide open location of the former. Indeed there is inferiority of strength in number and in firearms by the said ambushers xxx” (emphasis supplied).
As regards the allegation of abuse of superior strength in the information, the trial court correctly ruled that the same is absorbed in treachery and therefore, it cannot be appreciated separately as another aggravating circumstance.
In conspiracy, the act
of one is the act of all
The accused-appellant also impugns the trial court’s finding of conspiracy considering the absence of evidence of his actual participation in the killing of PO3 Juliana. He averred that the witnesses never actually saw who and how the latter was killed.
We find such contention without merit.
Under Article 8 of the Revised Penal Code, there is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused when such point to a joint purpose and design, concerted action and community of interest.[15]
Conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused, before, during, and after the commission of the crime, which, if all taken together, would reasonably be strong enough to show a community of criminal design.[16] It is also well-settled that when conspiracy is established, all who participated therein, irrespective of the quantity and quality of his participation is liable equally, whether the conspiracy is pre- planned or instantaneous. Thus, the criminal liability of one is the same as the criminal liability of the other, unless it can be shown that one or some of the conspirators committed some other crime, which is not part of the intended crime.[17]
Prosecution witnesses PO3 Dairo and SPO3 Ambay, were present at the scene of the crime, they being victims themselves. They testified that on May 13, 2001, they were on their way to the PNP Provincial Headquarters in San Jose, Occidental Mindoro on board a PNP vehicle when ambushed by a group of armed men. Both of them saw and recognized accused-appellant because SPO3 Ambay knows the latter as a member of the NPA. They described and demonstrated how the accused-appellant moved and positioned himself carrying two (2) rifles, M-14 and M-16.
As cogently pointed out by the Office of the Solicitor General (OSG), the treacherous method of attack demonstrates a concerted action and unity of purpose. The accused-appellant and his comrades, accordingly, consciously adopted, deliberated and intended to kill all the police officers on board the patrol car. In the first place, they were already anticipating the passing of the patrol car as shown by their inconspicuous positions at the woods. Thereafter, the accused-appellant and his group fired upon the police officers, thereby inflicting upon them gun-shot wounds on the different parts of their body. Irrespective therefore of whoever shot the victim P02 Juliana, the appellant should still be held responsible for murder based on the principle that in conspiracy, “the act of one is the act of all.”[18]
Conspiracy having been adequately shown, all the accused are answerable as co-principals regardless of the degree of their participation. In fact, it is not necessary to ascertain the individual participation in the final liquidation of the victims or to ascertain the precise modality or extent of participation of each individual conspirator as the applicable rule is that the act of one conspirator is the act of all of them.[19] It hardly matters, therefore, that accused-appellant did not actually kill or shoot PO2 Juliana. Again, in conspiracy, “where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals.”[20]
Alibi and denial, if not
substantiated by clear and
convincing evidence, are
negative and self-serving
evidence undeserving of
weight in law.
Besides, the accused-appellant was positively identified by the police officers, and surviving victims, as among the perpetrators of the ambush against them. As ably argued by the OSG[21]:
“And, appellant was positively identified as the head of the group responsible for the ambush, leading to the death of the victim PO3 Jesus Juliana. Appellant was positively identified. He was distinctly seen and identified by the witnesses as the one leading his comrades to ambush the victims. There can be no mistake. He was immediately recognized being a former CAFGU member assigned to their unit. Appellant was maneuvering and changing his position while continuously firing shots at the police officers. After a grueling three (3) minute cross-fire, appellant and his armed comrades retreated, leaving behind three (3) wounded[22], and one lifeless police officer[23].
The trial court found the testimonies of these police officers credible. It is doctrinal that findings of trial courts on the credibility of witnesses deserve a high degree of respect and will not be disturbed on appeal absent clear showing that the trial court had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance, which could reverse a judgment of conviction. In some instances, in fact, such findings are even accorded finality. This is so because the assignment of value to a witness’ testimony is essentially the domain of the trial court, not to mention that it is the trial judge who has the direct opportunity to observe the demeanor of a witness on the stand, thus providing him unique facility in determining whether or not to accord credence to the testimony or whether the witness is telling the truth or not.[24]
As the trial court held and to which we concur:
“Culled from the foregoing prosecution’s evidence, the prosecution has succeeded in establishing and proving the identity of the accused, ELPIDIO AMISTOSO y Candelario, as one of the armed men who staged the ambush in broad day light against the group of PNP officers on board a PNP vehicle (back-to-back). Two (2) prosecution’s witnesses, namely: PO3 Edgardo Dairo and SPO3 Apolinario Ambay were amongst the members of the PNP who were ambushed by the armed men led by the accused and his companions numbering about twenty (20) armed men more or less suddenly fired upon them with M-16 and M-14 rifles hitting their vehicle and severely wounding their Chief of Police and PO3 Jesus Juliana Jr. which caused the latter’s death”[25] xxx.
The alibi offered by the accused-appellant also deserves scant consideration. To be believed, an alibi must be supported by the most convincing evidence, as it is an inherently weak, though paradoxically volatile, if allowed to go unchecked, human argument that can easily be fabricated to suit the ends of those who seek its recourse.[26]
We also agree with the trial court that the alibi resorted to by the accused-appellant is worthless in the face of the positive identification by the victims. The surviving victims were found not to have any reason to falsely testify against the accused-appellant. As stressed by the OSG, there was no showing that the police officers have an axe to grind against him to implicate him to the crime. Thus, citing People v. Bocalan, “where there is no evidence that the principal witness of the prosecution was actuated by ill or devious motive, the testimony is entitled to full faith and credit.”[27] Thus said the trial court:
“The defense of the accused is plain alibi or denial. He claimed innocence in the participation or commission of the crime charged. But he miserably failed to destroy the clarity of his identity as the one moving from one position to another wearing fatigue camouflage and heavily armed xxx”[28] (emphasis supplied).
In any case, it is unnatural for victims interested in vindicating a crime to accuse somebody other than the real culprits. Human nature tells us that the aggrieved parties would want the real culprits punished, and not to accept a mere scapegoat to take the rap for the real malefactors.[29]
When averring alibi, accordingly, two requirements must be strictly met in order that the same may be of value to the defense, namely, (1) that the accused was not present at the scene of the crime at the time of its commission, and (2) that it was physically impossible for him to be there at the time. Without said essential requisites having been established, reliance on alibi, all the more becomes a liability. Hence, for the defense of alibi to prosper, it is not enough to prove that accused was somewhere else when the offense was committed; it must likewise be demonstrated that he was so far away that it was not possible for him to have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[30] In this case, however, apart from testifying that in the morning of May 13, 2001, he and his wife were at Barangay San Pedro, Rizal, Occidental Mindoro talking with Dalisay for about more or less one (1) hour, the accused-appellant was unable to show that it was physically impossible for them to be at the scene of the crime. Hence, no physical impossibility existed for the accused-appellant to have been at the scene of the crime at the time of its commission.
Accused-appellant’s alibi was further demolished by the fact that it was corroborated by his wife and his friend Dalisay, who may not have been impartial witnesses. Thus, in the light of the positive identification of accused-appellant as among the perpetrators of the said ambush, the defense of alibi and denial cannot be sustained.[31]
Jurisprudence is well-settled that as between the categorical statements of the prosecution witnesses, on one hand, and the bare denial of the accused-appellant, on the other, the former must perforce prevail. An affirmative testimony is far stronger than a negative one, especially when it comes from the mouth of credible witnesses. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. They are considered with suspicion and always received with caution, not only because they are inherently weak and unreliable, but also because they are easily fabricated and concocted.[32]
A word on the award of damages.
When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.
Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. In many cases, the Supreme Court held that even if the penalty of death is not to be imposed because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is proper, because it is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. Thus, based on prevailing jurisprudence, the heirs of PO3 Juliana is entitled to civil indemnity in the amount of P75,000.00 in consonance with existing jurisprudence. With regard to moral and exemplary damages, his heirs shall be entitled to P75,000.00 and P30,000.00,33 respectively.
WHEREFORE, the Decision dated August 25, 2011 finding the accused-appellant guilty beyond reasonable doubt is hereby AFFIRMED with the following MODIFICATIONS, viz: the civil indemnity for the death of PO3 Jesus Juliana is increased to P75,000.00, and the amounts of moral and exemplary damages awarded to his heirs are increased to P75,000.00 and P30,000.00, respectively.
SO ORDERED.
Reyes, Jr., A.B., Chairperson, and Rosario, R.R., JJ., concur.
[1] Rollo, pp. 10-20.
[2] Records p. 1.
[3] TSN, July 19, 2007.
[4] TSN, March 25, 2008; July 23, 2008.
[5] TSN, April 28, 2009; November 12, 2009.
[6] Records, p. 89.
[7] Records, p. 90.
[8] TSN, August 24, 2010.
[9] TSN, August 25, 2010; September 23, 2010.
[10] TSN, September 23, 2010.
[11] Rollo, p. 20.
[12] Article 14 (16) of the Revised Penal Code.
[13] BOADO, LEONOR D. NOTES AND CASES ON THE REVISED PENAL CODE. 2008, pp. 172-173.
[14] BOADO, LEONOR D. NOTES AND CASES ON THE REVISED PENAL CODE. 2008, p. 173 citing the case of People v. Rebamontan, G.R. No. 125318, April 13, 1999.
[15] Boado, Leonard. Notes and Cases on the Revised Penal Code. 2008, p. 54.
[16] People of the Philippines v. Assemblyman Arturo F. Pacificador, et al., G.R. No. 126515, February 6, 2002.
[17] Boado, Leonard. Notes and Cases on the Revised Penal Code. 2008, pp. 61-62.
[18] Rollo, p. 32.
[19] People of the Philippines v. Jose Torrefiel, G.R. No. 115431, April 18, 1996.
[20] People of the Philippines v. Assemblyman Arturo F. Pacificador, et al., G.R. No. 126515, February 6, 2002.
[21] Rollo, p.30.
[22] SPO3 Ambay, PO3 Dario and Inspector Castillo.
[23] PO3 Jesus Juliana.
[24] People of the Philippines v. Ismael Mokammad, et al., G.R. No. 180594, August 19, 2009 citing the case of Lascano v. People, G.R. No. 166241, September 7, 2007.
[25] Rollo, p, 71.
[26] People of the Philippines v. Ismael Mokammad, et al., G.R. No. 180594, August 19, 2009 citing the case of People v. Cantere, 363 Phil. 468, 1999.
[27] Rollo, p.30, 457 Phil 472, 2003.
[28] Rollo, p. 72.
[29] People of the Philippines v. Ismael Mokammad, et al., G.R. No. 180594, August 19, 2009 citing the case of People v. Togahan, G.R. No. 174064, June 8, 2007.
[30] Elizardo Ditche y Dela Cerna v. Court of Appeals and Nonito Tam, G.R. No. 110899, March 7, 2000.
[31] People of the Philippines v. Ismael Mokammad, et al., G.R. No. 180594, August 19, 2009.
[32] People of the Philippines v. Ismael Mokammad, et al., G.R. No. 180594, August 19, 2009 citing the case of People v. Togohan, G.R. No. 174064, June 8, 2007; People v. Baniega, 427 Phil. 405, 2002; and People v. Ramos, G.R. No. 125898, April 14, 2004, 427 SCRA 207.
[33] People of the Philippines v. SPO2 Cesar Fortuna y Abudo, et al., G.R. No. 187745, September 7, 2010.