THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JESUS ACOSTA ALIAS “JERRY,” ACCUSED-APPELLANT.

On April 28, 1980,
at about seven o’clock in the
evening, Rafael Villavicencio, Jr. was shot to death
at the Travel Lodge Restaurant in Lucena
City by a person who managed to
escape in the ensuing confusion.  Two
months later, Jesus Acosta was identified as the killer by three witnesses and
charged with murder before the regional trial court of that city.  Convicted after trial in a decision penned by
Judge Manuel A. Patron,^[1]
the accused-appellant is now on appeal before this Court.

His appeal is based mainly on the insufficiency of the evidence
of the prosecution identifying him as the person who shot Villavicencio.  He also reiterates his defense of alibi which
he claims was improperly rejected by the trial court.

The principal witness of the prosecution was Freddie Osmillo, a waiter of the said restaurant, who declared that
he served the accused-appellant shortly
before the killing.  He testified
that Acosta arrived at the restaurant at about five
o’clock in the afternoon and asked for a beer, which he immediately
brought him.  Acosta was carrying a paper bag.  At that
time there was no other customer in the place, but when Acosta asked for a
second bottle of beer, there were already around ten other customers.  These left after a while.  At about 6:40
p.m. Villavicencio
arrived with Mayor Ramon Vera Cruz of Unisan, Quezon, and his secretary, Jose Tolentino,
and they sat at a table about five meters from the accused-appellant.  By this time Acosta had already ordered his third bottle of beer, also served
by Osmillo.  A
brown-out then occurred and on Villavicencio‘s order (he was the manager of the restaurant), Osmillo lit a kerosene
lamp and placed a lighted candle on each table. 
It was at this juncture that Acosta asked for his bill, paid for the
beers, and left.^[2]

Osmillo said that shortly thereafter,
Acosta came back to the restaurant, entering through the back door, and ordered
another bottle of beer from him.  Osmillo went to the counter to get it but minutes later,
when his back was turned, he heard a
shot.  He never saw Acosta again that
night.^[3]

Nida de Chavez-Ayado,
the restaurant bookkeeper, corroborated Osmillo’s
testimony in practically every important
detail.^[4] She did not say, however, that she actually
saw the accused-appellant shoot Villavicencio.  For
his part, Jose Tolentino said it was Acosta who
approached their table during the brown-out when Villavicencio was shot from behind.  Although he did not actually see the
shooting, Tolentino declared he saw the
accused-appellant lower the gun he was carrying and step backwards to flee
through the back door.^[5]

Two other witnesses for
the prosecution testified on the possible motive for the killing.^[6] They suggested that it might have been a
dispute over a cockpit bet and rivalry in the jueteng
business and that Acosta had acted as
a hired gunman.

For his part, Acosta
declared that he was at the time of the killing nowhere near the restaurant,
being then in Atimonan, Quezon,
an hour’s ride away by public transportation.^[7]
He was supported by his friend, M/Sgt. Gabriel de Guzman, who testified that he
met the accused-appellant in Atimonan at one o’clock in the afternoon of April 28, 1980, and the two of them had attended a court
hearing in Macalelon, Quezon,
the following day.^[8]

The identification of the
offender is crucial in every criminal prosecution where the defense pleads
alibi.  Unless the identity of the
culprit is established beyond reasonable doubt, the charge against the accused
must be dismissed on the ground that the constitutional presumption of
innocence has not been overcome.

In its brief, the defense
contends that the identification of the accused-appellant as Villavicencio‘s killer had not been sufficiently proved,
being based merely on unlawful suggestions made by the investigating authorities.  These suggestions unduly influenced the
witnesses into pointing to the accused-appellant.

The only lead the
investigators had of the killer was that he was about five feet tall and lean,
as described by Osmillo.  Proceeding on this information, they asked
the three prosecution witnesses to take a look at Jesus Acosta, who was then being
detained in Camp Nakar, and see if he was the person who had shot Villavicencio.  At
the time he was identified by Osmillo and Ayado, Acosta was alone in his detention cell.^[9] There was no one else beside him with whom
he might be compared by the two onlookers. 
The argument of the defense is that as there was no police line-up,
Acosta’s identification was a manipulated conclusion.

In the case of Tolentino, there was admittedly a police line-up when he
was asked to identify the accused-appellant, but this reaction was practically
suggested if not actually induced by the investigators.  Earlier he had been shown a picture of Acosta
which had not been mixed with other pictures so as to give him a choice.^[10] At the police line-up, Acosta was wearing
the same shirt he wore in the picture.^[11] Moreover, he was the shortest person in the
line-up, which should have been confined to persons of the same height and
build as he, to prevent improper suggestiveness.^[12] All this was deliberately designed to insure
Acosta’s identification as the killer.

It is clear that the
manner in which all three witnesses were asked to identify the
accused-appellant was less than objective. 
It impaired the trustworthiness of their identification insofar as it
was elicited only by that questionable procedure.

In U.S. v. Wade,^[13] the U.S. Supreme Court observed through
Justice Brennan:

What facts have been disclosed in specific cases about the conduct
of pre-trial confrontations for identification illustrate
both the potential for substantial prejudice to the accused at that stage and
the need for its revelation at
trial.  A commentator provides some
striking examples:

In a Canadian case … the defendant had been picked out of a
line-up of six men, of which he
was the only Oriental.  In other cases, a
black-haired suspect was placed among a group of light-haired persons, tall
suspects have been made to stand with short non-suspects,
and, in a case where the perpetrator of the crime was known to be a youth, a
suspect under twenty was placed in a line-up with five other persons, all of
whom were forty or over.

Similarly state reports, in the course of describing prior
identifications admitted as evidence of guilt, reveal numerous instances of
suggestive procedures, for example, that all in the lineup but the suspect were
known to the identifying witness, that the other participants in a lineup were
grossly dissimilar in appearance to the suspect, that only the suspect was
required to wear distinctive clothing which the culprit allegedly wore, that the
witness is told by the police that they have caught the culprit after which the
defendant is brought before the witness alone or is viewed in jail, that the
suspect is pointed out before or during a lineup, and that the participants in
the lineup are asked to try on an article of clothing which fits only the
suspect.

In the case of People v.
Cruz,^[14] a robbery with homicide was committed by a
band of persons wearing masks (which allegedly fell off the face of the
accused) in a house that was
either completely dark or adequately lighted, depending on the conflicting
versions of the two witnesses.  These
witnesses were later made to identify the accused-appellant in the following
manner:

That very same afternoon, Angeles Cruz was picked up in front of a moviehouse and brought to the police station for
questioning.  He was made to walk and
turn around in the presence of Zenaida and Emma.  Cruz was not placed in a police lineup,
contrary to standard stationhouse verification procedure, to test the accuracy
of the witnesses’ memory, and to afford a mere suspect a fair chance of early
relief from the inconvenience inflicted on one who is mistakenly identified. 
Moreover, Zenaida and Emma testified that the
several accused, including Cruz, were pointed out to them as the persons suspected by the police as the
perpetrators of the robbery committed in Goso-on,
and as notorious “tough guys” in Butuan City.  The identification at the police station was
attended, as the two girls themselves
admitted, by a great deal of whispered conversations as well as by at least one unexplained conference
elsewhere in the municipal building, at which they were
present, immediately prior to their being confronted with the accused.

In rejecting the
identification made by the two witnesses, Justice Fred Ruiz Castro said for the
Court:

The manner by which Emma and Zenaida were
made to identify the accused at the police station was pointedly suggestive,
generated confidence where there was none, activated visual imagination, and,
all told, subverted their reliability as eyewitnesses.  This unusual, coarse and highly singular
method of identification, which revolts against the accepted principles of scientific crime detection, alienates the esteem
of every just man, and commands neither our respect nor acceptance.

Apart from the above
considerations, we agree that the testimony of Tolentino
suffers from the added defect that by his own admission he saw Acosta only for a few seconds and in fact did not pay much attention to him before the
shooting.^[15] It is no less significant that after the
shooting, not only was it dark because of the brown-out but there was already a
great deal of alarm and confusion that could easily have beclouded his
remembrance of the incident and its principal progatonists.  As for Ayado, it is
not really believable that she could have followed Osmillo’s
every movement during the period covered by his own testimony, as she would
also have been attending to her own duties at that time as bookkeeper of the
restaurant.  The Court discerns in her
declaration a palpable effort to
corroborate every detail of Osmillo’s testimony that
renders her own testimony suspect.

But the testimony of Osmillo is another matter.

We do not think it is flawed by the irregular manner in which he
and Ayado were made to identify Acosta at Camp
Nakar, as such identification was not really necessary in his
case.  We agree that in the case of Ayado and Tolentino, there was
improper suggestiveness exerted on them to induce them to believe that Acosta
was the same person they had seen two months earlier when Villavicencio was killed.  In our view, however, that suggestiveness did
not induce or impair Osmillo’s own identification,
which was made on a different basis.

Osmillo’s identification was not based
on his own observation of Acosta in his detention cell at Camp
Nakar,
but on his previous experience with the accused-appellant on the day of the
killing.  The incident at Camp
Nakar
only seconded his earlier identification of Acosta on April 28, 1980, before Villavicencio was shot in the neck
by the lone gunman.

Osmillo testified that Acosta arrived
at the restaurant at five o’clock in
the afternoon and left at about twenty to seven.  He was the waiter who served Acosta three
bottles of beer during that period of more than one-and-a-half hours and it was
he who met Acosta again when, after paying his bill and leaving through the
main door, he re-entered through the back door of the restaurant and ordered
another bottle of beer from Osmillo.  He did not see Acosta for only a few seconds, as Tolentino
did, or from a distance, like Ayado.  They talked
to each other for at least five times, the first three when Acosta placed his
successive orders of beer, the fourth when he asked for his chit and paid it, and the fifth when he returned and ordered another
beer.  During that period, he saw Acosta
long enough to retain recollection of him after the incident even without the
necessity of his going to Camp Nakar to take a look at the
accused-appellant.

That identification at Camp
Nakar
merely affirmed his earlier impressions of Acosta that he had acquired
during the time he served him at the Travel Lodge Restaurant.  In other words, when Osmillo
went to Camp Nakar, he was not identifying
Acosta for the first time at the prodding of the authorities.  Osmillo merely recognized
Acosta then.

On the basis of this conclusion, we find that there is sufficient
evidence to establish the identity of the accused-appellant as the person who killed Villavicencio.  The identification made by Ayado and Tolentino must be, as
it is hereby, rejected.  Even so, the
testimony alone of Osmillo, who had a long enough
time to retain his recollections of
that tragic afternoon, including the physical description of Acosta, who was
his customer, justifies the accused-appellant’s conviction.

The defense of alibi is less than persuasive and must also be
dismissed.  The testimony of de Guzman is
hardly believable and does not deserve much comment.  Even the distance between Atimonan
and Lucena City is against the accused-appellant, who
could easily have come from Atimonan, assuming he was
really there on that date, committed the crime in Lucena
City, and thereafter gone back to join his friend in Atimonan
that same night or the following morning. 
Moreover, we have held in a long line of decisions that alibi is
unavailing against the positive identification of the culprit,^[16]
which has been clearly and unmistakably established in
the case at bar.

The killing was qualified by alevosia,
the murderer having shot the victim from behind without warning.  Evident premeditation not having been proved
and there being no mitigating circumstances, the penalty of reclusion perpetua was correctly imposed, together with the
civil indemnity of P30,000.00 payable to the victim’s heirs, and the costs of
the suit.

WHEREFORE, the challenged judgment is AFFIRMED and the
appeal is DISMISSED, with costs against the accused-appellant.  It is so ordered.

Narvasa, (Chairman), Gancayco, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Rollo, pp. 14-22.

^[2]
TSN, July 29, 1981, pp. 88-117.

^[3]
Ibid., pp. 118-125.

^[4]
Id., March 10, 1982, pp. 67-81.

^[5]
Id., February 2, 1982; pp. 37-41.

^[6]
Id., July 9, 1982, pp. 7-29; September 13, 1982, pp. 9-26.

^[7]
Id., July 17, 1984, pp. 16-24; March 5, 1984, p. 25.

^[8]
Id., March 5, 1984, pp. 14-22.

^[9]
Id., July 29, 1981, pp. 143-146.

^[10]
Id., February 2, 1982, pp. 118; 189; March 10, 1982, pp. 34-40.

^[11]
Exhibits J; F; F-2.

^[12]
Exhibits F; F-2.

^[13]
388 U.S. 218.

^[14]
32 SCRA 181.

^[15]
TSN, February 2, 1989, pp. 81-89, 113.

^[16]
People v. Salcedo,
122 SCRA 54; People v. Plandez, 132 SCRA 69;
People v. Arbois, 138 SCRA 24; People v.
Sinaw-ay, 138 SCRA 221; People v. Egaras, 163 SCRA 692.