PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALFREDO SALVADOR, ET AL., ACCUSED, ALFREDO SALVADOR, ACCUSED-APPELLANT.

Appellant Alfredo Salvador and co-accused Joey Adap, Augusto
Alimurong, Jimmy Agustin and Armin Aladdin were charged before the Regional
Trial Court, Fourth Judicial Region, Branch 23, Trece Martires City with the
crime of Murder in an information allegedly committed as follows:

“That on or about October 14, 1984, in the Municipality of Gen.
Trias, Province of Cavite, Philip­pines and within the jurisdiction of this
Honorable Court, the aforesaid accused, conspiring together, acting jointly and
assisting one another, with intent to kill, with treachery and evident
premeditation, did then and there, willfully, unlawfully and feloniously,
assault and attack Orlando Grepo with the use of a piece of wood commonly known
as ‘dos por dos’, hallow (sic) block, fist and foot blows causing the victim to
suffer injuries on his head and other parts of his body, resulting to his
death, to the damage and prejudice of the heirs of Orlando Grepo.

“The aggravating circumstances of nighttime and abuse of superior
strength were present in the commis­sion of the offense.

“CONTRARY TO LAW.”

Only Alfredo Salvador was apprehended by the Cavite INP Command
while his co-accused have remained at large (Ibid., p. 34). Upon arraignment, Salvador pleaded not
guilty to the offense charged. After
trial, judgment was rendered convicting appellant Salvador, the decretal
portion of which reads:

“WHEREFORE, this Court finds accused Alfredo Salvador GUILTY beyond
reasonable doubt of the crime of Murder and sentences him to suffer the penalty
of Life Imprisonment; to indemnify the heirs of Orlando Grepo in the amount of
P30,000.00 without subsidiary imprisonment in case of insolvency; and to pay
the costs.

“SO ORDERED.”

Records disclose that at around 9:30 in the evening of October
14, 1984, prosecution witness Joel Duran was walking with Alberto Villablanca
on their way home from Bahay-Kubo in the town plaza of Gen. Trias, Cavite. Along Prinza Street, they saw from a
distance of about six meters, Orlando Grepo being mauled by five persons. Through the light of the electric lamp post
and the vehicles passing by, Joel recognized these assailants as Joey Adap,
Alfredo Salvador, Jimmy Agustin, Augusto Alimurong and Armin Aladdin.

The sheer number of assailants deterred Joel and Alberto from
helping their childhood friend Orlando. The five attackers were boxing Orlando and when he fell with his face to
the ground, they kicked him. Then Joey
Adap hit Orlando with a “dos por dos” (piece of wood) and Alfredo Salvador
dropped a hollow block on his back. Joel and Alberto shouted for help and upon seeing them, the assailants
ran away. Councilor Leonardo Gozo, who
responded to Joel’s shouts for help, assisted Joel and Alberto in bringing
Orlando to the hospital in Pinagkatipunan (TSN, August 25, 1984, pp. 4-9;
21-23).

Orlando was brought to the Medicare Community Hospital in Gen.
Trias where Dr. Charito Maldos Gozo attended to him. Dr. Gozo found him to be a “walking patient” but aside from his
bruises and contusions, Orlando was complaining of a headache (TSN, January 29,
1987, pp. 4; 8-13). In the medical
certificate she issued on October 15, 1984; Dr. Gozo stated that 17-year-old
Orlando Grepo had contusion, hematoma and abrasion on the 4th intercostal
lateral side left, another contusion on the right temporal parietal area and a
third contusion and hematoma on the occipital region. Dr. Gozo diagnosed that the healing period for these injuries
would last from nine to fourteen days “barring complications” (Exh. F). A neighbor of Orlando, Dr. Gozo knew that
during the two-week period after she treated him, Orlando was complaining of
severe headache and “off and on” fever (TSN, January 29, 1987, p. 13).

On November 4, 1984, Grepo was brought to the clinic of Dr.
Jocelyn Tirol Dignos in Rosario, Cavite. Grepo was perspiring a lot and had cold, clammy skin specially on his
left extremities. He had rolling
eyeballs and was in an unconscious shock-like state. Since he had high-grade fever running to 42.2 degrees Centigrade,
he stayed in Dr. Dignos’ clinic for only two hours (TSN, September 26, 1986, p.
5). In the medical certificate she
issued, Dr. Dignos also stated that Grepo had convulsive seizures and that he
had “meningo-encephalitis of undetermined origin” (Exh. D).

According to Dr. Dignos, said diagnosis was actually made by Dr.
Ovillo, a specialist to whom she referred Grepo as the victim was showing signs
and symptoms of brain damage. Because
they were not aware that Orlando had been a victim of a mauling incident two
weeks ago and there was then an epidemic of typhoid fever, they entertained
typhoid as Grepo’s possible ailment (TSN, September 26, 1986, pp. 7-9). But upon learning of the mauling incident,
they diagnosed Grepo’s ailment as “meningo encephalitis secondary to trauma”
(Ibid., p. 15). Moreover, they learned
that Dr. Apostol of Gen. Trias, Cavite had given Grepo two grams of chloro
ampenicol per day and therefore, if the ailment was really typhoid. Grepo’s
fever would have then subsided (Ibid., pp. 15-16). They would have conducted more tests but since Grepo had become
bluish and had difficulty in breathing, they decided to have him transferred to
the Manila Medical Center (Ibid., p. 17) where the victim finally expired on
November 5, 1984 (TSN, April 23, 1987, p. 3).

As aforesaid, the trial court rendered a judgment of conviction
against Salvador specifically finding him to be “one of those instrumental in
inflicting the fatal wounds which resulted in the death of Orlando Grepo.”

Appellant claims that he was with his family at home watching
television at the time the mauling incident took place. His alibi was corroborated by his sister,
Edita Santores, who testified that appellant watched TV until 10:00 p.m. and
immediately went to bed thereafter.

Previous to his testimony in open court, however, appellant
executed an affidavit stating that at around 9:00 o’clock in the evening of
October 14, 1984, he was walking from school with his friend Willy Buclatin
when they saw Orlando Grepo walking with three persons and when they reached
Prinza St., there was a melee (“bigla na lamang nagkagulo”).

The Court is therefore presented with two contradictory
statements of the accused. One
involving alibi and the other which is practically denial.

Aggrieved by the decision, Salvador interposed this appeal making
the following assignment of errors:

I

“THE COURT A QUO ERRED IN NOT GIVING CREDENCE TO THE
EVIDENCE PRESENTED BY THE DEFENSE.

II

“THE COURT A QUO ERRED IN NOT ACQUITTING THE
ACCUSED-APPELLANT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE OF THE PROSECUTION.”
(Appellant’s Brief, p. 1)

A finding of sufficiency of the evidence to establish guilt by
proof beyond reasonable doubt is one of fact. As such, its review by the appellate court must be guided by the
principle that, unless arbitrary or without sufficient basis, the findings of
the trial court on questions of fact are accorded the highest respect on appeal
if not regarded as conclusive (People vs. Alitao, 194 SCRA 120 [1991]; People
vs. Millarpe, 134 SCRA 555 [1985]; People vs. Lopez, 132 SCRA 188 [1984]). In the same manner, the credibility of
witnesses is the province of the trial court who is in a better position to
examine real evidence as well as observe the demeanor of the witnesses (People
vs. Lardizabal, 204 SCRA 320 [1991]; People vs. Vinas, 202 SCRA 720
[1991]). After a review of the records,
We find no reason to depart from these principles in the instant appeal.

Anchored on denial and alibi, the defense had not overcome the
prosecution’s solid proof beyond reasonable doubt of appellant’s complicity in
the fatal mauling of Orlando Grepo. In
the first place, the defense had not shown that it was physically impossible
for Salvador to be at the scene of the crime at the time it was committed (People
vs. Bicog 187 SCRA 556 [1990]; People vs. Pio Cantuba, 183 SCRA 289 [1990];
People vs. Tamayo, 183 SCRA 375 [1990]; People vs. Andres, 155 SCRA 290 [1987];
People vs. Ornoza, 151 SCRA 495 [1987]; People vs. Tuando, 150 SCRA 8 [1987];
People vs. Petil, 149 SCRA 92 [1987]). While Salvador was on the witness stand, the defense counsel under­standably
did not ask him about the distance of the scene of the crime from the Salvador
residence where he was allegedly watching TV. Neither had the prosecution ferreted this information from Salvador on
cross-examination. For her part, all
that Edita Santores could say was that the scene of the crime was “far from us”
when asked by the prosecution if the distance between the two places was about
fifty meters (TSN, September 30, 1987, p. 12). Considering, however, that appellant Salvador was himself a resident of
Prinza St. (TSN, August 28, 1987, p. 2) where the crime occurred, his alibi
must fail. Alibi is unconvincing when
the distance from the place where the accused was and the scene of the crime
can be negotiated within minutes (People vs. Marmita, Jr., 180 SCRA 723
[1989]).

But what sealed appellant’s conviction is the fact that he was
recognized by Joel Duran as one of the five persons who ganged up on
Grepo. Denial and alibi cannot prevail over
the prosecution witness’ positive identification of the accused as a
perpetrator of the crime (Collado vs. IAC, 206 SCRA 207 [1992]; People vs.
Bocatcat, Sr., 188 SCRA 175 [1990]; People vs. Cirilo, Jr., 156 SCRA 397
[1987]; People vs. Danes, 131 SCRA 286 [1984]; People vs. Cortez, 57 SCRA 308
[1974]; People vs. Esmael, 37 SCRA 601 [1971]). Worth noting is the fact that the defense did not even try to
discredit prosecution witness Joel Duran whose damaging testimony was the
principal foundation of the prosecution theory. Unsullied, Duran’s testimony must therefore be given its due
weight and credit.

However, one other aspect of the crime which the defense, even in
the instant appeal, has failed to argue in favor of appellant is the fact that
appellant had been charged with and convicted of, the crime of murder
for the killing of Orlando Grepo. Art.
248 of the Revised Penal Code provides that to be liable for murder, an accused
must be proven to have committed the killing of another person under the attendant
circumstances specified therein. Of
these circumstances, the information alleges treachery and evident
premeditation to qualify the the killing to murder.

It is unfortunate that the trial court failed to discuss the
presence or absence of these qualifying circumstances. However, from the evidence on record,
treachery cannot be appreciated. Sole
eyewitness Joel Duran testified that while he and Alberto Villablanca were
walking along Prinza Street, they saw Grepo being mauled by five persons. While Duran may have witnessed the incident
in progress, he did not testify as to how it began. As the Court held in People vs. Tiozon (198 SCRA 368
[1991]), treachery cannot be considered where the lone witness did not see the
commencement of the assault. The
importance of such testimony cannot be overemphasized considering that
treachery cannot be presumed nor established from mere suppositions.

In the same manner, evident premeditation cannot be appre­ciated
to qualify the killing to murder in the absence of direct evidence of the
planning and preparation to kill or when the plan was conceived (People vs.
Wenceslao, 212 SCRA 560 [1992]). Thus,
in the absence of any qualifying circumstance, the crime committed is homicide
under Art. 249 of the Revised Penal Code and not murder.

As to aggravating circumstances, the information alleges
nighttime and abuse of superior strength. To be appreciated as an aggravating circumstance, there must be a
convincing showing that the accused had purposely sought nighttime in order to
facilitate the commission of the crime or to prevent its discovery or to evade
the culprits’ capture (People vs. Rodriguez, 193 SCRA 231 [1991]). There is, however, no proof at all, much
more a convincing one, to warrant appreciation of nighttime as an aggravating
circumstance.

Abuse of superior strength, a qualifying circumstance in murder,
was alleged in the information as an aggravating circumstance only.* Mere numerical superiority does not always
mean abuse of superiority to qualify the killing to murder.

Appellant is liable for the crime even if he had not intended to
kill Orlando Grepo. This is because he
participated in the concerted effort of mauling the victim, which was proven
beyond reasonable doubt, in furtherance of a common design to inflict physical
harm on Grepo. But where the attack is
not treacherous as there is no proof as to how the attack commenced, the fact
that there are four assailants would constitute abuse of superiority (Aquino,
The Revised Penal Code, Vol. I, 1987 ed., p. 377, citing, among others, U.S.
vs. Banagale, 24 Phil. 69 [1913]). Thus, the homicide committed in this case is attended by the aggravating
circumstance of abuse of superiority as five persons mauled the unarmed and
defenseless victim Orlando Grepo (People vs. Ocimar, 212 SCRA 646 [1992]).

Art. 4 of the Revised Penal Code provides that criminal liability
shall be incurred “by any person committing a felony (delito) although the
wrongful act done be different from that which he intended.” The essential
requisites of Art. 4 are: (a) that an
intentional felony has been committed, and (b) that the wrong done to the
aggrieved party be the direct, natural and logical consequence of the felony
committed by the offender (People vs. Iligan, 191 SCRA 643, 651 [1990] citing
People vs. Mananquil, 132 SCRA 196, 207 [1984]). All these requisites are present in this case. The intentional felony was the mauling of
Grepo and, in the case of appellant, his dropping of the hollow block on the
fallen and hapless victim. The latter’s
death had been the direct, natural and logical consequence of the felony as
shown by the evidence provided by the doctors who testified for the
prosecution.

Under Art. 249 of the Revised Penal Code, homicide is punishable
by reclusion temporal. In view
of the presence of the aggravating circumstance of abuse of superior strength,
which is not offset by any mitigating circumstance, the penalty shall be
imposed in its maximum period (Art. 64(3), Revised Penal Code). Parenthetically, the lower court erroneously
imposed the penalty of “life imprisonment” for murder. The proper penalty for murder under Art. 248
is reclusion perpetua and not “life imprisonment.” The need to apply the
correct penalty is dictated by the fact that in appropriate cases, a penalty
under the Revised Penal Code carries with it accessory penalties (See: People vs. Cruda, 212 SCRA 125 [1992]).

Hence, the appropriate penalty prescribed by law for the crime of
homicide in the case at bar is the maximum period of reclusion temporal
which is 17 years, 4 months and 1 day to 20 years. Applying the Indeterminate Sentence Law, the imposable penalty is
ten (10) years and one (1) day of prision mayor maximum as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal
as maximum.

WHEREFORE, the decision appealed from is hereby MODIFIED
to the extent that appellant Alfredo Salvador is hereby declared guilty of the
crime of homicide and is hereby ordered to suffer the indeterminate sentence of
ten (10) years and one (1) day of prision mayor as minimum to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal as
maximum. The civil indemnity is hereby
increased to P50,000.00 in line with current jurisprudence.

SO ORDERED.

Feliciano, (Chairman), Romero, Melo, and Vitug, JJ., concur.

* Actual title

* If not alleged
as a qualifying circumstance, abuse of superior strength would be treated as a
generic aggravating circumstance if proven at the trial (Aquino, The Revised
Penal Code, Vol. I, 1987 ed., p. 376 citing People vs. Acusar, 82 Phil.
490 [1948] and People vs. Peje, 99 Phil. 1052 [1956]).