PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. REYNALDO KYAMKO, ALIAS “DODON,” ACCUSED-APPELLANT.

In an Information filed on 18 January 1989 with Branch 29 of the Regional
Trial Court of Cebu at Toledo City, appellant Reynaldo Kyamko alias
“Dodon” was charged with the crime of murder. The case was docketed as Criminal Case No.
TCS-1029.

Upon his arraignment on 26 June 1989, appellant entered a plea of
not guilty.^[1]

On 7 March 1990, sometime after its first witness, Eleuterio
Rabor, had testified on direct examination, the prosecution filed a Motion For
Leave To Amend Information so as to allege that the appellant is a recidivist
or “at least a habitual delinquent” by virtue of two (2) prior final
convictions.^[2]

Over the objection of the accused on the ground that he had
already been arraigned and that the proposed amendment is not a matter of form,^[3]
the trial court granted the motion.^[4]
Thus, the following amended information was filed on 16 April 1990:

“That on or about the 2nd day of May, 1988 at 4:00 o’clock in
the morning, more or less, in the Municipality of Pinamungajan, Province of
Cebu, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, evident premeditation and treachery,
did then and there wilfully, unlawfully and feloniously stab one Epifanio
Ferrer with the use of a kitchen knife thereby inflicting upon the latter a
mortal injury which caused his instantaneous death.

That the accused is a recidivist
by virtue of previous two (2) final
convictions embraced in the same title
of the Revised Penal Code with this
present case, one, in the case of
People of the Philippines vs. Reynaldo
Kyamko docketed as criminal case no. TCS-01
for Frustrated Murder of which he was
sentenced to suffer an imprisonment of
Four (4) years. Two
(2) months and one day to ten
(10) years and one (1) day; and
second, the same accused was convicted
in the case of People of the Philippines
vs. Reynaldo Kyamko docketed as Crim.
Case No. TCS–445 and was imposed
the penalty of two (2) years, four
(4) months and one (1) day to eight
(8) years of imprisonment.

CONTRARY TO LAW.”^[5]

In due course, trial on the merits proceeded. Aside from Eleuterio Rabor, the other
witnesses presented by the prosecution were Victoria Ferrer and Dr. Alfredo
Soberano. The defense called to the
witness stand Dennis Biasong, Dr. Jesus Cerna, Rolando Dealagdon, Jose Kyamko,
Jr. and the accused.

On 20 November 1991, the trial court promulgated a judgment of
conviction,^[6]
dated 31 October 1991, the dispositive portion of which reads:

“WHEREFORE, in view of the foregoing, finding the accused
GUILTY beyond reasonable doubt of the crime of Murder under Art. 248 and there
being present the aggravating circumstance of recidivism the accused having
been previously convicted in Crim. Case No. TCS-01 for Frustrated Murder by
Regional Trial Court, Branch 29, Toledo City, on September 12, 1988 and in
Criminal Case No. TCS-445 for the crime of Frustrated Homicide by Regional
Trial Court, Branch 29, Toledo City, on September 12, 1988; (sic)

It is hereby the sentence of this Court that the accused duffers
the penalty of reclusion perpetua and to indemnify the Heirs of the Offended
party the sum of FIFTY THOUSAND PESOS (P50,000.00).

Accused is however given full credit of his preventive
imprisonment.

SO ORDERED.”^[7]

The evidence for the prosecution, upon which the judgment of
conviction is anchored, is succinctly stated by the Solicitor General in the
Brief for the Plaintiff-Appellee^[8]
as follows:

“On May 1, 1988, at about 3:00 o’clock in the afternoon,
Eleuterio Rabor went out to the sea, along the coastal area of Pinamungajan,
Cebu, to catch fish. (p. 10, October
13, 1989) The following day, May 2, at about 4:00 o’clock in the morning, he
went back to the seashore to have a snack. (p. 3, TSN, ibid.; p.4, TSN, May 16, 1990) After parking (sic) his
fishing boat at the dock, Rabor met Julito Fabular and both of them proceeded
to the public market of Pinamungajan. (p. 10, TSN, October 13, 1989) On their way, they passed by a salakot
store where they saw Epifanio Ferrer (victim) sleeping while sitting down, with
his head resting on his arm placed on top of the back of a chair. Immediately thereafter, they saw appellant
stab the victim, hitting the latter at the left side of his neck. (pp. 3-4, TSN, ibid.) After stabbing the
victim, appellant ran away.

Rabor, who saw the incident, ran towards his fishing boat. He met Victoria Ferrer, mother of the
victim, and told her about the stabbing incident. (p. 5, TSN, ibid; p.4, TSN May 16, 1990)

Dr. Alfredo Soberano, Municipal Health Officer of Pinamungajan,
Cebu, conducted a post-mortem examination and testified that the wound on the
neck of the victim was fatal. He also
opined that the victim was probably stabbed from behind. He noted that the victim did not suffer any
defensive wounds, and concluded that the victim did not have the chance to
defend himself. (p. 5, TSN, July 5,
1990)”^[9]

During the trial, the appellant raised the defense of alibi which
he developed through his testimony and that of his witnesses. His version is summarized in the Brief for
the Accused-Appellant in this wise:

“That on May 2, 1988 at around 4:00 o’clock dawn when the
victim was allegedly stabbed by an assailant inside a salakot store at the
plaza of Pinamungajan, Cebu, the accused was at Cebu City; and that the accused
had nothing to do with the killing of Epifanio Ferrer.

On May 1, 1988, at around 10:30 o’clock in the evening, (about
5½ hours before Epifanio Ferrer was
stabbed at around 4:00 o’clock dawn on May 2, 1988) the accused, together with
Dennis Biasong, Henry Kyamko and Oscar Peña, was outside the recreation center
where a dance was being held located at the back of the municipal building of
Pinamungajan, Cebu. Suddenly, Ricardo
Ferrer (brother of Epifanio Ferrer), Arnold Ferrer and Dading Ferrer assaulted
the accused. During their brief
encounter the accused was stabbed and wounded by Ricardo Ferrer. Epifanio Ferrer was not present during this
encounter. Being outnumbered, the
accused ran away and sought the help of a cousin Jose Kyamko, Jr. nicknamed
‘Bebot.’

At around 11:00 o’clock that same evening of May 1, 1988, the
accused accompanied by Jose Kyamko, Jr. boarded a passenger bus bound for Cebu
City via Carcar, a route which is about 85 kilometers to Cebu City. Due to the delay of their travel caused ‘by
loading passengers and cargoes along the way, they arrived at Cebu City at past
2:00 o’clock dawn on May 2, 1988, and stayed in the boarding house of the
accused’s sister named Virgie. At
around 7:00 o’clock in the morning of that same date, they went to the house of
Dr. Jesus Cerna who examined the injuries of the accused.

The following day, May 3, 1988, the accused went back to
Pinamungajan to attend the town fiesta until May 4, 1988. On May 5, 1988, he went back to Cebu City
and continued working at the Pepe Art Sign. After that he went back to Pinamungajan for several times until his
arrest on October 10, 1988 at Naga, Cebu while he was attending the town
fiesta.”^[10]

According to the trial court, the defense of alibi was unavailing
because the accused was positively identified by Eleuterio Rabor. We quote verbatim what it said:

“In short accused raised the defense of DENIAL and alibi. From the evidence of the prosecution
Eleuterio Rabor testified in a straightforward manner, sincere and with candor
positively asserted that he actually saw the accused with his hands holding a
knife stabbing the deceased on the side of his neck. He is familiar and acquainted with both accused and the deceased
and the place where the victim was stabbed was well lighted aside from the
lights coming from the street. Said
witness even testified to where the victim was hit and that was on the side of
his neck. Testimony of prosecution
witness who positively identified the accused as the malefactors (sic) was
corroborated by the findings and testimony of Dr. Soberano, Municipal Health
Officer of Pinamungajan. Prosecution
witness saw (sic) the incident was only a few feet away from the victim when
the accused stabbed the former with a knife. Said fact is sufficient to exclude any doubt in the identification of
the accused (People vs. Macabenta, G.R. No. 72496, 14 Feb. 1989).”^[11]

Moreover, the trial court ruled that the
accused had failed to prove that it was physically impossible for him to be at
the scene of the crime at the time it was committed. Even granting that he was in Cebu City as he claimed, the trial
court noted that:

“In the case at bar the killing took place at 4:00 o’clock
dawn of May 2, 1988. So, considering
that it takes only two hours utmost (sic) from Pinamungajan to Cebu City
specially passing by Toledo City, it would therefore not be physically
impossible for the accused to commit the killing and thereafter immediately go
to Cebu City and arriving there at 6:00 o’clock in the morning and proceed to
the house of Dr. Jesus Cerna.”^[12]

Unable to accept the verdict, the accused interposed an appeal
from the decision to this Court on questions of fact and of law.^[13]

In his appeal, accused submits that the trial court erred:

“I

X X X IN GIVING WEIGHT TO THE MANIFESTLY BIAS[ED], UNCORROBORATED
AND UNRELIABLE TESTIMONY OF PROSECUTION WITNESS ELEUTERIO RABOR, WHO ALLEGEDLY
WAS AN EYEWITNESS TO THE STABBING OF THE VICTIME (sic) EPIFANIO FERRER BY THE
ACCUSED.

II

X X X IN REJECTING THE ACCUSED-APPELLANT’S DEFENSE OF ALIBI.”^[14]

The first assigned error is premised on the claim that Rabor was
very close to the deceased and to the latter’s mother from whom Rabor usually
borrowed money, and that he acted in a manner contrary to human experience by
not attempting to rescue or extend a helping hand to the victim and by not
reporting the incident to the police authorities although the police station
was just across the road at a distance of “20 fathoms.”^[15]
Rabor’s claim that he did not do so because he was frightened is assailed as
being incredible since he had a companion, Julito Fabular, and the accused had
already fled. Moreover, it is contended
that his statement in court on the position of the victim is in conflict with
what he had stated in his affidavit. Finally, accused tries to depreciate the evidence for the prosecution
because Fabular was not presented as a witness.

The second assigned error merely elaborates on the appellant’s
defense of alibi which he insists should have been favorably considered by the
trial court.

This appeal is devoid of any merit and must accordingly be
dismissed.

Credibility of witnesses is the core issue in the assigned
errors. Deeply embedded in Our
jurisprudence is the rule that when the issue of the credibility of witnesses
is concerned, appellate courts will generally not disturb the findings of the
trial court considering that the latter is in a better position to decide the
question, having heard the witnesses themselves and observed their deportment
and manner of testifying during the trial, unless certain facts of value have
been plainly overlooked which, if considered, might affect the result of the
case.^[16]
The trial court gave full faith and credit to the testimony of Eleuterio
Rabor. As observed by it, the said
witness testified in a straightforward manner and with sincerity and candor. These are reliable indications of truthfulness
which only the trial court had the singular opportunity to observe. As this Court said in United States vs.
Macuti:^[17]

“The emphasis, gesture and inflection of the voice are potent
aids in understanding the testimony of witnesses. The trial court has the opportunity and is presumed to take
advantage of these aids in weighing the testimony of the witnesses. But as they cannot be incorporated into the
record, this Court has no assistance in the examination of the testimony and we
must therefore rely on the good judgment of the lower court.”

Our own review of Rabor’s recorded testimony confirms the direct
and straightforward manner by which he gave his answers — a conduct consistent
with sincerity and candor. The rigorous
cross-examination failed to cast a shadow of doubt on his truthfulness or to
unravel an ulterior motive for him to testify for the prosecution and against
the accused. There is no evidence, and
nothing on record tends to indicate, that the said witness was actuated by any
improper motive. The presumption then
is that he was not so actuated and his testimony is entitled to full faith and
credit.^[18]
For, indeed, if an accused had really nothing to do with the crime, it is
against the natural order of events and of human nature and against the
presumption of good faith that the prosecution witness would falsely testify
against the former.^[19]

That Rabor is a close friend of the victim and his mother, as
claimed by the appellant, does not vitiate his testimony, but, on the contrary,
strengthens it as his natural interest in securing the conviction of the guilty
would deter him from implicating innocent persons, for, otherwise, the
perpetrator would thereby gain immunity.

The foregoing discussion refutes the imputation of bias against
Eleuterio Rabor.

The failure of Eleuterio Rabor to help the victim or to report
the incident to the police authorities after the appellant had ran away does
not make his testimony less worthy of credence. Such failure can be attributed to the shock and fear instilled in
the mind of Rabor upon seeing a violent crime.^[20]
Not every witness to a crime can be expected to act reasonably and conformably
to the expectation of mankind. “Human nature teaches us that people may react differently to the
same situation. One person’s
spontaneous or unthinking, or even instinctive, response to a horrid and
repulsive stimulus may be aggression while another’s may be cold
indifference.”^[21]
We have taken judicial notice of the fact that witnesses in our country are reluctant
to volunteer information to the authorities.^[22]
In any event, Rabor did in fact immediately inform the victim’s mother of the
stabbing incident.^[23]
This was sufficient to remove any doubt that he had witnessed the commission of
the crime.

We also find no inconsistency between Rabor’s testimony and his
statement in his affidavit as to the position of the victim at the time he was
stabbed by the accused. In his direct
examination, Rabor testified that the victim was “leaning on a chair with
his chin laying (sic) on the right hand,” which testimony he reiterated on
cross-examination.^[24]
In his affidavit, Rabor declared that the victim “was sleeping, sitting
down with his head suspended on the backchair; that it was on this state that I
saw Reynaldo Kyamko raising his hand with a kitchen knife and stabbed Fanny
Ferrer by the side of his neck downward (lusong-lusong).”^[25]
What is thus clear is that the affidavit did not give in minute detail the
precise position of the victim at the time he was stabbed. The inconsistency then is more apparent than
real. In any event, the finding of Dr.
Soberano as to the location and cause of the wound sustained by the victim
confirms Rabor’s testimony in open court and his statement in the affidavit.

The failure of the prosecution to present the other eyewitness,
Julito Fabular, neither diminished the credibility of Rabor nor impaired the
evidence for the prosecution. In People
vs. Samillano,^[26]
this Court held:

“It has, time and again, been held that the non-presentation
of certain witnesses by the prosecution is not a sufficiently plausible defense
(People v. de la Cruz, 184 SCRA 461 [1990]) and the matter of whom to present as
witness by the prosecution is addressed to the sound discretion of the
fiscal or the prosecution handling the case (People v. Fernandez, 186 SCRA 830
[1990]); People v. Nabunat, 182 SCRA 52 [1990]); People v. Marilao, 177 SCRA
271 [1987]); People v. Campana, 124 SCRA 271 [1983]). There should, thus, be no unfavorable inferences to be made from
the failure of the prosecution to present Ruben. Moreover, if the appellant believes that Ruben’s testimony would
bolster his theory, then it is the defense who should have presented
Ruben. The coercive processes of the
Court were at the appellant’s disposal if Ruben refused to testify.^[27]

Besides, the testimony of Fabular would only be corroborative
and, thus, dispensable. The
non-presentation of Fabular as a witness did not then imply suppression of
evidence.^[28]

Finally, it is an oft-repeated rule that the testimony of a
single witness, if credible and positive and if it satisfies the court as to
the guilt of the accused beyond reasonable doubt, is sufficient to convict.^[29]

As to the second assigned error, the trial court correctly
rejected the accused’s defense of alibi. It is a fundamental juridical dictum that alibi is an inherently weak
defense as it is so easy to fabricate and difficult to disprove; it cannot
prevail over the positive testimony of the prosecution witness and his clear
identification of the accused as the perpetrator of the crime.^[30]
Furthermore, for it to prosper, it must be shown that the accused was at
another place at the time when the crime happened and that it was physically
impossible for him to have been at the place where the crime was committed.^[31]
The trial court found that “there are no more passenger buses traveling
from Pinamungajan to Cebu via Aloguinsan and Carcar past 4:00 o’clock in the
afternoon and [that] from Pinamungajan to Cebu City, it will take only one hour
by car and about two hours at most by truck.”^[32]
Thus, it was not physically impossible for the accused to have been at the
scene of the crime at the time it was committed — at about 4:00 o’clock in the
morning of 2 May 1988 — and thereafter to leave for Cebu City and to arrive thereat
at about 6:00 o’clock that same morning.

The qualifying circumstance of treachery, which was alleged in
the amended information, attended the killing of Epifanio, Ferrer. The attack was so sudden and unexpected that
the victim was unable to defend himself, thus insuring the execution of the
crime without risk to the appellant. As
a matter of fact, the victim was absolutely defenseless as he was then
asleep. Treachery is present when the
offender commits any of the crimes against persons, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended
party might make.^[33]

It was also proven that the appellant is a recidivist. A recidivist is one who, at the time of his
trial for one crime, shall have been previously convicted by final judgment of
another crime embraced in the same title of the Revised Penal Code.^[34]
Appellant was convicted on 12 September 1988 for frustrated* murder in Criminal
Case No. TCS-01 and for frustrated homicide in Criminal Case No. TCS-445 by the
court a quo. The decisions
therein became final before the filing of the original and amended informations
in this case, and the crimes subject of this and in the said cases are all
embraced in Title Eight, Book II of the Revised Penal Code.

There being a generic aggravating circumstance of recidivism,
which is not offset by any mitigating circumstance, the penalty for the crime
for murder, which is reclusion temporal maximum to death, should be
applied in its maximum period.^[35]
Death then would have been the imposable penalty. However, in view of Section 19(1), Article III of the 1987
Constitution which prohibits the imposition of the death penalty, and the rule
laid down in People vs. Muñoz,^[36]
the penalty to be imposed should be reclusion perpetua.

WHEREFORE, the trial court having committed no reversible
error, the appealed judgment in Criminal Case No. TCS-1029 of Branch 29 of the
Regional Trial Court of Cebu at Toledo City is hereby AFFIRMED, with costs
against accused REYNALDO KYAMKO alias “Dodon.”

SO ORDERED.

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

^[1]
Original Records (OR) 34.

^[2]
Id., 113-114.

^[3]
OR, 136-137.

^[4]
Id., 144-145.

^[5]
Id., 162-163; Rollo, 3-4.

^[6]
OR, 296-302; Rollo, 17-23. Per
Judge Gualberto P. Delgado.

^[7]
Id., 301-302; Id., 22-23.

^[8]
Id., 63, et seq.

^[9]
Appellee’s Brief, 3-5.

^[10]
Brief for the Accused-Appellant, 5-6.

^[11]
OR, 300.

^[12]
Id., 301.

^[13]
Id., 305.

^[14]
Rollo, 32.

^[15]
A fathom is a nautical measure of six (6) feet in length (Black’s Law
Dictionary, 5th ed., 547).

^[16]
People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92
SCRA 465 [1979]; People vs. Abejuela, 92 SCRA 503 [1979]; People vs.
Florida, G.R. No. 90254, 24 September 1992; People vs. Ponce, G.R. No.
90297-98, 11 December 1992.

^[17]
26 Phil. 170, 182 [1913].

^[18]
People vs. Simon, 209 SCRA 148 [1992], and the cases cited therein.

^[19]
People vs. Balili, 92 SCRA 552 [1979].

^[20]
TSN, 16 May 1990, 5-7.

^[21]
People vs. Ferrera, 151 SCRA 113 [1987]; People vs. Gonzales, 99
SCRA 697 [1980].

^[22]
People vs. Bigcas, 211 SCRA 631 [1992].

^[23]
TSN, 13 October 1989, 5.

^[24]
Id., 10.

^[25]
OR, 9.

^[26]
207 SCRA 50, 55 [1992].

^[27]
See also People vs. Ruedas, 194 SCRA 553 [1991]; People vs. Gadiana,
195 SCRA 211 [1991]; People vs. Mandapat, 196 SCRA 157 [1991]; People vs.
Atilano, 204 SCRA 278 [1991].

^[28]
People vs. Capulong, 160 SCRA 533 [1988]; People vs. Fernandez,
209 SCRA 1 [1992].

^[29]
People vs. Francia, 154 SCRA 495 [1987]; People vs. Egaras, 163
SCRA 692 [1988]; People vs. Javier, 182 SCRA 830 [1990]; People vs.
Clores, 184 SCRA 638 [1990]; People vs. Sampaga, 202 SCRA 157 [1991].

^[30]
People vs. Badilla, 48 Phil. 718 [1926]; People vs. Mercado, 97
SCRA 232 [1980]; People vs. Almenario, 172 SCRA 268 [1989]); People vs.
Carpio, 191 SCRA 108 [1990]; People vs. Damaso, 190 SCRA 595 [1990];
People vs. Beringuel, 192 SCRA 561 [1990]; People vs. Lee, 204
SCRA 900 [1991].

^[31]
People vs. Nabor, 185 SCRA 615 [1990]; People vs. Petil, 149 SCRA
92 [1987]; People vs. Sorio, 190 SCRA 548 [1990].

^[32]
Decision, 5; Rollo, 21.

^[33]
Paragraph 16, Article 14, Revised Penal Code; People vs. Buka, 205 SCRA
567 [1992].

^[34]
Paragraph 9., Id.

^[35]
Article 248 in relation to Article 64 of the Revised Penal Code.

^[36]
170 SCRA 107 [1989]; see also, People vs. Barba, 203 SCRA 436 [1991];
People vs. Lee, supra.