PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PRIMITIVO PAGLINAWAN, ACCUSED-APPELLANT.

In an information dated September 8, 1987 filed before the Regional
Trial Court of Cebu, Branch 13,^[1]
accused-appellant Primitivo Paglinawan was charged with the murder of Macario
Avanceña allegedly committed with a firearm in Cebu City on May 3, 1987 and
attended by treachery and evident premeditation. After resetting the pre-trial conference several times, the
defense eventually decided to dispense with the same.

On November 18, 1988, appellant Paglinawan pleaded not guilty
when arraigned. After trial on the
merits, he was found guilty beyond reasonable doubt of the crime charged, and
was sentenced to serve the penalty of reclusion perpetua and to
indemnify the heirs of Macario Avanceña in the sum of P30,000.00.^[2]

Librada Guimal, a widowed daughter of the deceased Macario
Avanceña, was the principal witness for the prosecution. She testified that sometime in December,
1986, her father reported to the authorities the theft of his rooster. Her father suspected that it was herein
appellant who stole said rooster. It
was later recovered at the barangay hall after appellant allegedly left
it there. Nonetheless, said incident
understandably caused a misunderstanding and bad blood thereafter existed
between the parties although no charges were brought against Paglinawan.^[3]

On January 4, 1987, Librada witnessed appellant actually
threatening to kill her father, Macario. In the front yard of her father’s house, she saw Paglinawan poke a gun
at her father and heard him vow that he would kill the latter.^[4]

The next day, at about 5:00 A.M., Librada was fetching water in
their front yard. Macario likewise went
out to the yard to purchase bread from an ambulant vendor. Without any warning, she heard a gunshot and
saw appellant aiming a gun at her father. Her father sustained a gunshot wound on the right thigh. Appellant was about to fire another shot at
her father but forbore from doing so when he saw that people had started
milling around them. This incident
merited the attention of a local newspaper, the Freeman, which
reported the incident in its January 6, 1987 issue. Again, no charges were brought against appellant because the
latter allegedly threatened to kill all the members of the Avanceña
family. Besides, appellant was reputed
to have killed a number of persons and reportedly challenged others with his
firearm which he often brought with him.^[5]

A few months later, on May 3, 1987, at about 2:15 P.M., Librada,
her father Macario, and her brother-in-law were all out in the yard of their
residence in Sitio Tuburan, Cebu City. At that time, Librada, who was two meters away from her father, was
hauling firewood, and her brother-in-law was constructing a pathway, while her
father was observing the former. Suddenly, she saw appellant come out of a small pathway holding
something behind his back. Then, she
saw Paglinawan shoot her father from behind, hitting him in the right
elbow. The victim tried to run but he
was shot again in the back, causing him to fall face downward on the
ground. He died on the spot. Appellant then pointed his gun at Librada
but desisted from firing. Instead, he
ran away when Librada and her sister shouted for help.^[6]

The other witness for the prosecution was Dr. Jesus P. Cerna,
medico-legal officer of the then Philippine Constabulary-Integrated National
Police, Cebu Metrodiscom. He testified
that he conducted a necropsy examination on the body of Macario Avanceña which
revealed that the victim sustained two gunshot wounds, the first located at the
right arm, 5 centimeters above the elbow joint, and the other at the back.^[7]

Expectedly, appellant denied authorship of the crime and relied
heavily on alibi for his defense. To
explain why he was implicated in the murder of Macario Avanceña, Paglinawan
narrated the events that preceded the May 3, 1987 killing. On January 4, 1987, according to him, a certain
“Pepe,” supposedly a close friend of the Paglinawan brothers (herein
accused Primitivo and Tomas), was fatally shot. Teodoro and Alejandro Avanceña, sons of the deceased Macario
Avanceña, were suspected in the killing of “Pepe.” The following day,
on January 5, 1987, Macario Avanceña was shot on the right thigh. The names of herein appellant Paglinawan,
along with the three cousins of “Pepe,” namely, Ernie, Arthur and
Nerio, were mentioned as having had something to do with the crime. After the incident, Ernie, Arthur and Nerio
immediately fled the area, leading people to surmise that their flight was an
indication of guilt. Appellant, who did
not flee, was consequently considered as off the hook,^[8] so to
speak.

Purportedly to avoid trouble, appellant’s wife insisted that they
transfer to Dalaguete, Cebu after he was suspected as the perpetrator of the
January 5, 1987 incident. Hence,
appellant who was originally a resident of F. Llamas Street, Sitio Tuburan,
Labangon, Cebu City, reportedly transferred to Obong, Dalaguete, Cebu two weeks
after the January 5, 1987 incident.^[9]

On the day of the fatal shooting of victim Avanceña, specifically
on May 3, 1987, appellant maintained that he was in Obong, Dalaguete and
nowhere near Labangon. In fact, at the time
of that incident he was planting some root crops near the Obong Elementary
School building, after which he decided to go fishing.^[10]

On cross-examination, appellant reluctantly admitted that there
is also a pending case of illegal possession of firearms against him, as well
as the fact that he was a suspect in the theft of a rooster of deceased
Avanceña, although he denied having committed said offenses.^[11]

Tomas Paglinawan, brother of appellant, testified for the
defense. According to him, it was
impossible for Primitivo to be the killer of Macario Avanceña because two weeks
after January 6, 1987, he personally saw off Primitivo at the South Expressway
Terminal. Primitivo allegedly decided
to transfer residence to Dalaguete to avoid trouble because every time there
was an untoward incident, he was always the suspect. For instance, when the rooster of the deceased Macario Avanceña
was stolen, his brother Primitivo was implicated. Again, when a certain “Andoy” was shot in 1986,
Primitivo was a suspect.^[12]

After a thorough review and impartial evaluation of the evidence
in this case, the Court finds no cogent reason to disturb the factual findings
and legal conclusions of the court a quo.

On appeal, appellant raises the sole issue of whether or not the
State has “failed to prove that the accused Primitivo Paglinawan is one
and the same person who allegedly shot the deceased Macario Avanceña.”^[13]
The defense argues that witness Librada Guimal “mentioned the name
Primitivo Paglinawan without informing or pointing to him before the court that
Primitivo Paglinawan is one and the same person who allegedly shot (her) father
last May 3, 1987.” To convince this Court, appellant goes on to theorize
that “(i)t is also not impossible that in the locality or in any place in Cebu
City, there are other Primitivo Paglinawan(s) aside from the accused in this
case.”^[14]

We reject these posturings. To say that there may be other Primitivo Paglinawans aside from
appellant in the locality is speculative, to say the least. The categorical and positive identification
made by Guimal leaves no doubt as to the identity of appellant Paglinawan. After going through the records and the
witness’ testimony, it is readily evident that Guimal was actually familiar
with the person of appellant. Witness
Guimal had known appellant for about ten to twelve years, appellant having
often visited the sitio where they live from 1973 to 1987. She even knew the fact that appellant was
invariably jobless, and there were occasions when she was able to personally
talk to him.^[15]
In fact, appellant himself admitted that before his transfer to Obong,
Dalaguete, he knew the Avanceñas.

Generally, people in the provinces know each other both by faces
and names. It is, therefore, highly
unlikely for witness Guimal to be mistaken as to the identity of
appellant. Although it is routine
procedure for witnesses to point out the accused in open court by way of
identification, the fact that witness Guimal did not do so in this case was
because the public prosecutor failed to ask her to point out appellant, hence
such omission does not in any way affect or diminish the truth or weight of her
testimony.

As earlier stated, appellant invokes the discredited defense of
alibi to support his plea for acquittal. Time and again, and we are constrained to repeat here what appears to be
a banality, the Court has emphasized that alibi is one of the weakest defenses,
not only because it is inherently weak and unreliable but also because of its
easy fabrication without need of much checking or rebuttal.^[16]
For alibi to prosper, the requisites of time and place must be strictly
met. To recall, it must be shown that
it was physically impossible for the accused to have been at the scene of the
crime at the time it was committed or it must be established by clear and
convincing evidence that the accused was at some other place and for such a
period of time as to negate his presence at the time when and the place where
the crime was committed.^[17]

In the case at bar, Obong, Dalaguete, Cebu is 98 kilometers away
from Sitio Tuburan, Labangon, Cebu City. Although it may appear quite far, nonetheless it would only take
approximately one hour and thirty minutes by bus to reach Cebu City.^[18]
Thus, it was physically possible for appellant to go to Sitio Tuburan with
facility and ease. Furthermore, even
appellant himself could not state firmly and unflinchingly that he was no
longer a resident of Sitio Tuburan. When asked to state his personal circumstances in open court, he gave
his residential address as No. 6-C F. Llamas Street, Labangon, Cebu City. However, obviously on second thought, he
later maintained that he was a resident of Dalaguete.

Appellant’s defense of alibi was corroborated by his brother,
Tomas. The accepted evidentiary rule is
that alibi becomes less plausible as a defense when it is mainly established by
the accused himself and his immediate relative who would naturally be expected
to make statements in his favor,^[19] as
what happened in this case when appellant’s brother was relied upon to support
the defense of alibi under tenuous assumptions.

In fact, a reading of Tomas Paglinawan’s testimony shows that he
did not personally vouch for the fact that it was physically impossible for
appellant to be at Sitio Tuburan nor could he directly attest that he saw
Primitivo in a particular place, other than where the incident happened, at the
time in question. Tomas merely stated
that he sent off his brother to Dalaguete two weeks after January 6, 1987. While it may be possible that Primitivo did actually
transfer residence, Tomas’ testimony did not corroborate the claim of Primitivo
that at the time of the murder of victim Avanceña, he was really near the Obong
Elementary School or, for that matter, in the town of Dalaguete.

Furthermore, it is a well-entrenched doctrine that greater weight
is given to the categorical identification of the accused by the prosecution
witnesses than to the accused’s plain denial of participation in the commission
of the crime.^[20]
Such definitive apperception by the prosecution witnesses prevails over the
negative statement of the accused.^[21]
Denial cannot prevail over the positive recognition of the accused by the
prosecution witnesses.^[22]

Appellant seeks to erode Guimal’s credibility by pointing out
that although she had alleged that he had committed several atrocities against
her father, yet no charges were filed against him. This contention borders on sophistry. Whether or not charges were previously brought against appellant
is completely beside the point. For, as
clearly established by Guimal, appellant was a well-known trouble-maker and
police character, and had in fact theretofore made threats against the life of
her father, hence it was but natural for them to hesitate in filing charges
against him.

Appellant would also question the failure of the People to
further present witnesses other than the victim’s daughter, considering the
claim of the prosecution that there were other persons who witnessed the
incident. Said argument is without
logic or merit.

The testimony of a lone eyewitness, if found convincing and
trustworthy by the trial court, is sufficient to support a finding of guilt
beyond reasonable doubt.^[23] Such testimony of a single witness,
if credible and positive, is sufficient to produce conviction. The non-presentation of certain prosecution
witnesses is not a sufficient defense.^[24]
The matter of presentation of its
witnesses by the prosecution is not for the accused and, in a limited sense,
for the trial court to control. The
discretion belongs to the city or provincial prosecutor to decide how the
prosecution should present its case.^[25]

We agree with the court
below that the crime committed in the case at bar is murder qualified by
treachery. Here, appellant approached the
victim stealthily from behind and fired the first shot, hitting him at the
right elbow. The victim tried to escape
the attack but the second shot was fatal. Indisputably, the victim was attacked when he was not in any position to
defend himself. Thus, as in People vs. Gabatin,^[26]
the slaying was qualified by treachery
as the victim was not able to offer the least resistance to the sudden assault,
the manner whereof obviated any danger to his assailant arising from any
defense which the deceased might have taken.

On the other hand, the
prosecution failed to prove the time when appellant determined to kill his
victim, the act of the offender manifestly indicating that he clung to that
determination to kill, and a sufficient lapse of time between the determination
and the execution of the crime.^[27] Hence, although evident premeditation was
alleged in the information, the Court cannot consider that circumstance in this
case.

WHEREFORE, premises considered, the judgment
appealed from is hereby AFFIRMED, with
the modification that the civil indemnity to be paid by accused-appellant
Primitivo Paglinawan is increased to P50,000.00 in line with our current
doctrinal policy.

SO ORDERED.

Narvasa, C.J.,
(Chairman), Padilla, Puno, and Mendoza,
JJ., concur.

^[1]
Original Record, 1.

^[2]
Ibid., 189; Decision, 5, penned
by Judge Meinrado P. Paredes.

^[3]
TSN, August 24, 1989, 7-9; ibid., June
9, 1990, 6.

^[4]
Ibid., June 19, 1990, 7-8.

^[5]
Ibid., August 24, 1989, 9-12,
14; ibid., June 19, 1990,
9-10; ibid., June 20,
1990, 3-4, 6.

^[6]
TSN, August 24, 1985, 15-19; ibid., June
20, 1990, 9-10, 13.

^[7]
Ibid., July 12, 1989, 6; Exhibit A, Original Record, 5.

^[8]
Ibid., November 5, 1991, 5-8.

^[9]
Ibid., id., 9.

^[10]
Ibid., id., 10-11.

^[11]
Ibid., id., 9, 14.

^[12]
Ibid., December 5, 1991, 4, 6-7.

^[13]
Rollo, 40; Appellant’s Brief, 6.

^[14]
Ibid., 41; id., 7.

^[15]
TSN, June 19, 1990, 4-5.

^[16]
People vs. Lapan, G.R. No. 88300, July 6, 1992, 211 SCRA 337.

^[17]
People vs. Lozano, G.R. No. 90801, February 13, 1992, 206 SCRA 234.

^[18]
TSN, November 5, 1991, 10.

^[19]
People vs. Sabellano, G.R. Nos. 93932-33, June 5, 1991, 198 SCRA 196.

^[20]
People vs. Bausing, et al., G.R. No. 64965, July 18, 1991, 199 SCRA 355.

^[21]
People vs. Marilao, G.R. No. 71681, September 5, 1989, 177 SCRA 271.

^[22]
People vs. Samson, G.R. No. 55520, August 25, 1989, 176 SCRA 710.

^[23]
People vs. Rañola, G.R. No. 95757, August 4, 1992, 212 SCRA 106.

^[24]
People vs. Marilao, G.R. No. 71681, supra.

^[25] People vs. Fernandez, et al., G.R.
No. 80481, June 27, 1990, 186
SCRA 830.

^[26]
G.R. No. 84730, October 28,
1991, 203 SCRA 225.

^[27]
See People vs. Balatucan, G.R.
Nos. 93805-06, February 7, 1992,
206 SCRA 81.