PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DAVID LOVERIA Y SANTOS, DEFENDANT-APPELLANT.

The accused-appellant David S. Loveria
was charged before the Regional Trial Court Branch CLIX (159) with the crime of
Robbery with Homicide and Frustrated Homicide under the following information:

That on or about the 21st day of February, 1985, in the Municipality
of Marikina, Metro-Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with three (3) John Does whose true
names, identities and present whereabouts are still unknown and mutually
helping and aiding one another, armed with a knife, with intent of gain and by
means of force, violence and intimidation, did, then and there willfully,
unlawfully and feloniously, hold-up a passenger jeepney
with Plate No. NXG-150-Pil. ’84, one of the passengers,  Richard Bales y Andres of his Seiko Wrist
Watch worth P300.00 and a colored brown wallet containing P50.00, to the damage
and prejudice of the latter in the aforementioned amount of P350.00:  that on the occasion of said robbery, said
accused, with intent to kill, did, then and there willfully, unlawfully and
feloniously attack, assault and stab with the said knife one Ricardo Yamson y Malanon, thereby
inflicting upon him stab wounds which directly caused his death, and one Cerilo Manzanero y Nacion the driver of the said passenger jeepney,
on the vital parts of his body, thereby inflicting upon him stab wounds which
ordinarily would have caused his death, thus performing all the acts of
execution which should have produced the crime of homicide as a consequence,
but nevertheless did not produce it by reason of cause independent of the will
of the accused, that is, due to the timely and able medical attendance rendered
to the said Cerilo Manzanero
y Nacion which prevented his death.

Contrary to law.  [Rollo, p. 3.]

Upon being arraigned on July
3, 1985, the appellant entered
a plea of not guilty [Record, p. 18.]

The facts as found by the trial court are as follows:

On February 25, 1985,
at around 7:00 in the evening, Cerilo Manzanero was driving a jeepney fully loaded with passengers
enroute from Cubao, Quezon City to Cogeo,
Marikina,
Metro-Manila.  While crossing the bridge
of Barangay Baranca,
Marcos Highway, Marikina, Metro Manila, accused
shouted “hold-up” and Manzanero stopped his
jeep.  Accused who was seated right
behind Manzanero, poked a knife on the latter’s right
side of his nape and then pulled him off his seat with the assistance of
another companion into the inner rear portion of the jeep; at the same time,
stabbing Manzanero with knives at the front and back
of his body.  Accused had three (3) other
companions.  One was seated on the right
side of the jeep, opposite accused:  the
two others were seated opposite each other at the rear side of the jeep.  Accused and his three other companions
divested the passengers of their jewelries, watches, rings and necklaces.

Manzanero had a companion-conductor by
the name of Richard Bales who was seated in front of the jeep at the right
side.  He was likewise stabbed by the
other companion of accused who he identified as Martin Castaneda but he
sustained only slight injury on his finger. 
His Seiko watch was taken from him.

Passenger Ricardo Yamson was likewise
seated on the front part of the jeepney in-between
driver Manzanero and conductor Bales.  He was stabbed by one of the holduppers and died that same night.  Testimonies of victim driver Cerilo Manzanero; passenger Betty
S. Apolinario; conductor and victim Richard Bales;
Patrolmen Jaime Agueda and Bill Ayun
(TSN, Hearings of August 14 and 21, 1985; October 9, 1985; November 13, 1985;
May 5, 1986; June 23, 1986, July 15, 1986, December 8 and 23, 1986, January 6,
1987); Exhibits B and I, C and O)

Cerilo Manzanero
was brought to Sto. Nino Hospital at Marcos Highway
and then transferred to Quezon City Medical Center
where he was treated by Dr. Antonio P. Ligot who
issued a Medico-Legal Certificate with the following diagnosis:

Multiple stab wound antero-posterior
chest wall, Bilat­eral, Penetrating. 
Bilateral Hemothorax Bilateral Thoracostomy

(Exhs.
A and A-1).  Dr.
Ligot testified that these injuries would have caused
the death of Manzanero were he not treated
medically.  (TSN,
hearing of October 21, 1986).

Mrs. Amada Yaco, mother-in-law of Manzanero presented receipts for medicine expenses in the
amount of P2,051.80 (Exhs.
J, J-1 to J-19; M-4 to M-6) doctor’s fee of P3,000.00
(Exh. K); payments for blood in the amount of P470.00
(Exhs. L and M); and P2,700.00
for the hospital bills (Exhs. M-1 to M-3) or a grand
total of P8,221.80.

Victim Ricardo Yamson was brought to the Quirino Memorial Hospital at 8:30 in the evening of
February 21, 1985 where he died of profuse hemorrhage, secondary to stab wound
at 9:20 in the same evening (Exhs. F, G and H; Testimony
of Mrs. Carmelita Yamson, Hearing of February 3, 1986).  Carmelita Yamson,
victim’s mother, testified that for the funeral parlor services, they spent
P5,300.00; for cemetery expenses, P1,700.00; for transportation expenses,
P750.00; for interment, P12,000.00; for 40 days prayer period, P4,500.00; for
expenses incurred during the preliminary investigation on the Fiscal’s office in Marikina,
Metro Manila, P1,500.00; or a total expenses of P28,750.00 which witness
rounded off to P29,000.00 (TSN Hearing of February 3, 1986).

[Trial Court Decision, pp. 2-3.]

The defense offered by the appellant is summarized by his counsel
as follows:

The accused David Loveria, 25 years old,
formerly residing at Sitio Maagay,
Antipolo, Rizal and a
volunteer worker of the Share and Care for Poor Settlers Pastoral (SCAP for
short) declared that on February 18, 1985, he was attending a live-in seminar
at the Communication for Asia in Old Sta. Mesa, Manila.  The duration of the seminar was from February
18 to February 22, 1989.  Between 8:00
and 8:30 o’clock in the evening of February 21, 1985, upon permission
from their training officer, he went to the Farmers Market in Cubao to ask money from his mother for transportation fare
for the following day.  When he failed to
meet his mother, he decided to go back to the Communication Foundation for Asia.  Fortunately, at the loading zone for
passenger vehicles bound for Sta. Mesa, he met his father who gave him
money.  After that, he went back to the Communication Foundation for Asia
and stayed there the whole evening. 
(TSN, pp. 6-13, January 5, 1987)

[Appellants Brief, p. 6.]

After trial, the trial court found the appellant guilty as
charged.  The dispositive
portion of the decision dated May 26,
1987 reads:

IN VIEW OF ALL THE FOREGOING, the prosecution having established
the guilt of (the) accused beyond reasonable doubt, the Court hereby finds
accused David Loveria GUILTY of the complex crime of
Robbery with Homicide and Frustrated Homicide under Article 294(1) of the
Revised Penal Code with the agggravating circumstance
of having been committed in band, without any mitigating circumstance; and, in
relation to Article III, Section 19 (1) of the 1987 Constitution of the
Republic of the Philippines, hereby imposes upon him to suffer life
imprisonment or reclusion perpetua; and
orders said accused:

(1)  to pay the compulsory heirs of deceased victim Ricardo Yamson, represented by his mother Conchita
Yamson, the amount of THIRTY THOUSAND PESOS (P30,000.00) as an indemnity for Ricardo Yamson’s
death; TEN THOUSAND PESOS (P10,000.00) as and for actual damages; TEN THOUSAND
PESOS (10,00.00) as and for moral damages; TEN THOUSAND PESOS (P10,000.00) as
and for exemplary damages;

(2)  to pay victim Cerilo Manzanero the amount of
EIGHT THOUSAND TWO HUNDRED TWENTY ONE PESOS & 80/100 (P8,221.80) as
indemnity for actual damages; P5,000.00 as and for moral damages; and P5,000.00
as and for exemplary damages; and,

(3)  to indemnify Richard
Bales the amount of THREE HUNDRED PESOS (P300.00) for the unrecovered
watch.

[Trial Court Decision, p. 7.]

From this judgment of conviction, the appellant filed the present
appeal.

The first issue raised by the appellant pertains to the
credibility of the prosecution witnesses.

To prove the culpability of the appellant, the prosecution
presented the following witnesses: Cerilo Manzanero, the driver of the jeepney:
Richard Bales, the companion/conductor
of Manzanero; Betty Apolinario,
a passenger of the jeepney; Dr. Antonio Ligot, the physician who examined Manzanero;
Pat. Bill Ayun and Pat. Jaime Ganueda, of the Marikina
Police Station who conducted an investigation of the incident.  The following witnesses were also presented
to prove the civil liability arising from the crime; (1) Carmelita Yamson, the mother of the victim Ricardo Yamson; and (2) Amada Yaco, the
mother-in-law of Manzanero.

The appellant specifically assails the credibility of Cerilo Manzanero, Betty Apolinario and Richard Bales, all of whom positively
identified the appellant as one of the perpetrators of the crime.

According to Manzanero, while he was
driving his fully loaded passenger jeepney on the
evening of February 21, 1985
from Cubao to Cogeo, Marikina, he heard a person from
the back announce a hold-up, which made him pull the jeepney to a sudden stop.  Whereupon, the passenger immediately behind
him, or on the extreme left side of the jeepney,
poked a bladed weapon on the right side of his neck (TSN, August
14, 1985, p. 5.] Manzanero was able to identify the person who poked the
knife at him as the appellant David Loveria because
the former managed to turn his face towards the latter [TSN, August
21, 1985, p. 13.]

Manzanero was then taken by the
appellant and three other men inside the jeepney, at
the back portion thereof, and was stabbed several times [TSN, August 14, 1985, p. 6.] After the
stabbing, Manzanero’s wristwatch and earnings were
taken from him [TSN, August 21, 1985,
p. 17.] Injured, Manzanero rolled down from the jeepney but was able to flee [TSN, August 14, 1985, p. 11.]

Richard Bales, the companion/conductor of Manzanero,
who was seated on the front seat corroborated the testimony of the Manzanero
on almost all its material points.  He testified that he saw the appellant stab Manzanero [TSN, June 23, 1986, pp. 3-4 & 16.] However,
Bales added that after the four men were finished with Manzanero,
they turned to him and Ricardo Yamson, a passenger
who was also seated on the front seat beside Bales [Id. pp. 6-7.] One of the robbers, whom Bales identified
as a certain Martin Castaneda, stabbed him, injuring his finger, and took his
watch [Id.] The other robbers chased Yamson,
who attempted to flee and stabbed him on the neck (id., pp. 16-17.) Yamson was taken to the Quirino Memorial General Hospital but died that same night [Exh. “F” (Medico-Legal Certificate) and Exh. “G” (Autopsy Report).]

Betty S. Apolinario, a passenger who
was seated on the left side of the jeepney testified
that the four hold­-up men boarded the jeepney in Cubao [TSN, October 9, 1985, p. 5] and seated themselves on
the four corners of the jeepney [Id, p. 6.] Apolinario stated that she saw the appellant David Loveria poke a knife at the driver, pull the latter from
the driver’s seat, and stab him after taking him to the inner back portion of
the jeepney [Id.,
pp. 4-5.] She was able to remember the appellant because she was the third passenger from the driver’s
back.  In other words, there
was only one person between her and the appellant [Id., p. 4.] Apolinario
also testified that the hold-up men forcibly took valuables from the passengers
[Id., p. 8.]

The appellant contends that the trial court erred in giving credence to the testimony of
Cerilo Manzanero, the
driver, because of its improbability. 
The appellant argues that “[i]f indeed the
purpose was to stab the jeepney driver, then there
was no need to bring him to the rear portion of the jeepney
to accomplish the purpose.  He could be stabbed while seated at the driver’s
seat.” [Appellant’s Brief, p. 7.]

The contention is without merit. 
It is true that Manzanero could have been
stabbed by the appellant while the former was at the driver’s seat.  But neither was it improbable for appellant
to have stabbed Manzanero in the manner described by the latter and
corroborated by witnesses Apolinario and
Bales.  The motive which impelled the
appellant and his companions in pulling Manzanero out
of the driver’s seat and stabbing him at the inner rear portion of the jeepney is known only to them.  The Court will not speculate as to why the
appellant and his companions executed the crime in the manner that they
did.  Crimes are known to have been
executed in odd and unusual ways.  But in
the instant case, the Court is of the considered view that there was nothing
strange nor improbable in the testimony of Manzanero,
Apolinario and Bales that after the jeepney stopped, the appellant poked a knife at Manzanero, pulled the latter out of the driver’s seat, and
together with his companions took him to the rear portion of the jeepney where Manzanero was
eventually stabbed and robbed of his wristwatch and earnings.

The appellant next turns to witness Betty S. Apolinario,
contending that she failed to positively identify the appellant because when
asked to identify any of the holdup men who may be present in court, she stated
the following in reference to
the appellant:  “I think he is the one
wearing a white T-shirt” [TSN, October
9, 1985, p. 7.] However, Apolinario’s use
of the expression “I think” does not necessarily indicate her uncertainty as to
the identity of the appellant.  In fact,
when the defense tried to exploit, during the cross-examination of Apolinario, the seemingly tentative statement just quoted,
it became apparent that she was sure and positive about the identity of the apppellant.  The pertinent portion of the cross-examination is quoted as follows:

Q
–   Mrs. Witness you also testified last time in answer to the question of the private prosecutor, I quote,
“This person who stabbed the driver if
you will see him, will you be able to identify him?” and you said “Yes,
sir”.  The next question, “Will you please tell us whether this person
is present in this courtroom?”
and you said “I think he is the
one wearing a
white T-shirt”.  What do you mean by “I think he is the one wearing a white T-shirt”?

A –   What
I have in mind he is the one there
that is why I am pointing to him.  (Witness pointing to the accused
David Loveria.)

Q –  Are you positive about
the identification of the accused David Loveria or
could it be also another person?

A –   No, I
am not wrong.

[TSN, November 13, 1985,
pp. 18-19.]

To impugn further the credibility of the prosecution witnesses, the appellant cites alleged inconsistencies between the sworn
statements given separately by Manzanero and Bales to the police on the one hand, and their testimonies in open court,
on the other hand.  The appellant claims that Manzanero did not mention in his affidavit (Exh. “I”) that the hold-up men took his money and valuables but on
cross-examination, he declared that the holdup men took his wristwatch and the boundary for the day.  The appellant further claims that Richard Bales did not implicate him in his affidavit but pointed to him on
the witness stand.  Affidavits, taken ex-parte, are generally considered to be inferior to the
testimony given in open court [People v. Pacola, G.R.
No. L-26647, August 14,
1974, 58 SCRA 370.]
The Court has consistently held that an affidavit, taken ex-parte, is almost always incomplete and inaccurate,
sometimes from partial suggestions, sometimes from want of suggestions
and inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first
suggestions of his memory and for his accurate recollection of all that belongs
to the subject [People v. Tan, 89 Phil. 337 (1951); People v. Gonzales, G.R.
No. L-40727, September 11, 1980, 99 SCRA 697; People v. Avanzado,
Jr., G.R. No. 73116, February 29, 1988, 158 SCRA 427.]

It has likewise been held that inconsistencies between the
testimonies given during the investigation stage and during the court
proceedings may be disregarded without impairing the credibility of the
witnesses, considering such factors as illiteracy [People v. Sato, G.R. No. L-47911,
July 27, 1988, 163 SCRA 602] or inability of the witness to read the language
in which the ex-parte affidavit was written
[People v. Capinpin, Jr., G.R. No. 67785, October 4,
1988, 166 SCRA 233.] In the instant case, Manzanero
explained his failure to state in the affidavit that certain things were taken
from him, by the fact that at the time of the execution of the affidavit, he had just checked out from the hospital and was
still under medication [TSN, August 21, 1985, p. 17.]

As a final assault on the credibility of the prosecution
witnesses, the appellant notes the delay by the former in reporting the
incident.

The crime was committed on February 21, 1985.  Manzanero reported the matter to the police on March 14, 1985 (Exh.
“B”.) However, Manzanero was confined at the Quezon City Medical
Center from February 21 up to March 2, 1985 [Exh. “A”.] Hence,
it is evident that the lapse of time between the commission of the crime and
the filing by Manzanero of a complaint with the police,
was due to the fact that he was still recuperating from the wounds inflicted on
him.

Although Richard Bales executed his affidavit
only on May 7,
1985 [Exh.
“O”], while Betty Apolinario remained silent until
she was presented in court to testify, these circumstances alone should not
destroy their credibility.  The rule is
well-established that the failure to reveal or disclose at once the identity of
the accused does not necessarily affect, much less impair, the credibility of
the witness [People v. Valdez, G.R. No. 75390, March 25, 1988, 159 SCRA 152.]
The initial reluctance of witnesses to volunteer information about a criminal
case and their unwillingness to be involved in criminal investigations due to
fear of reprisal is common and has been judicially declared not to affect credibility [People v. Rosario, G.R. No. L-46161, February 25, 1985, 134 SCRA 497.]

In fine, the Court, after a thorough examination of the entire
record of the case, especially the transcript of stenographic notes, finds the trial
court’s reliance on the credibility of the prosecution witnesses to convict the
appellant, to be well-founded.  The
claims made by the appellant have not
impaired the credibility of the prosecution witnesses who positively identified
him as one of the perpetrators of the crime.

Finally, the appellant assails the manner in which he was
identified by Manzanero at the headquarters of the
225th Philippine Constabulary (PC) in Cogeo, Antipolo, Rizal, claiming
violation of his constitutional right to counsel.

Sec. 20, Art. IV of the 1973 Constitution, which was in force at
the time the events under review occurred reads:

Sec. 20. No person shall be compelled to
be witness against himself.  Any person
under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right.  No force, violence, threat, intimidation, or
any other means which vitiates the free will shall be used against him.  Any confession obtained in violation of this
section shall be inadmissible in the evidence.

Sec. 12 (1), Art. III of the 1987
Constitution provides similar guarantees by stating:

Sec. 12(1).  Any person under investigation for the
commission of an offense shall have the right to remain silent and to have competent
and independent counsel preferably of his own choice.  If the person cannot afford the services of
counsel, he must be provided with one. 
These rights cannot be waived except in writing and in the presence of
counsel.

The Court must emphasize that the so-called Miranda rights
contained in the abovequoted constitutional
provisions may be invoked by a person only while he is under custodial investigation [People v. Duero,
G.R. No. 52016, May 13, 1981, 104 SCRA 379.] which has been defined as the
“questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way” [People v. Caguioa, G.R. No. L-38975, January 17, 1980, 95 SCRA 2, 9 citing
Miranda v. Arizona, 384 U.S. 436.] Hence, for instance, these constitutional
rights may no longer be claimed by a defendant in a criminal case already
pending in court [People v. Ayson, G.R. No. 85215,
July 7, 1989] because he is no longer under custodial investigation.

 The ruling enunciated in Gamboa v. Cruz, [G.R. No.
56291, June 27, 1988, 162
SCRA 642), concerning the right to counsel of a person under custodial
investigation finds application in the instant case.  In that case, the accused was arrested for
vagrancy and taken to the police station. 
The following day he was placed on a line-up and a female complainant pointed
to him as one of the persons who robbed her. 
While on trial, the accused filed a motion to acquit or demurrer to
evidence on the ground, among others, that he was deprived of his
constitutional right to counsel at the time the complainant was in the process
of accusing or identifying him for allegedly committing a crime.  The motion having been denied by the trial court,
the accused filed a petition for certiorari and prohibition with the
Supreme Court, which ruled that the right to counsel of a person under
custodial investigation cannot be invoked until such time that the police
investigators start questioning, interrogating or exacting a confession from
the person under investigation.  The
Court held that in the police
line-up conducted in that particular case, it was the complainant who was being
investigated and who gave a statement
to the police while the accused was not questioned at all.  Thus, the Court concluded that the latter
could not, during the line-up, invoke his right to counsel because he was not
under custodial interrogation.  In the
case at bar, Manzanero, upon learning that certain
hold-up men were being detained at the 225th PC Company, Cogeo,
Antipolo, Rizal
in connection with another robbery, went there to check.  Having identified the appellant among the
detainees, he reported the matter to the Marikina police (See Exh. “B”.) 
Thereafter, Pat. Bill Ayun accompanied Manzanero back to the PC headquarters in Antipolo where Manzanero
identified to Pat. Ayun the appellant as one of the
persons involved in the incident.  Pat. Ayun then took the sworn statement of Manzanero
which was presented in court as Exh. “B” [TSN, December 8, 1986, p. 3.] Since, as in
the Gamboa case, the appellant was not
investigated when Manzanero was in the process of
identifying him, he cannot claim that his right to counsel was violated because
at that stage, he was not entitled to the constitutional guarantee invoked.

But even assuming that the process of
identification of the appellant by Manzanero at the
PC headquarters was attended by constitutional infirmities, only Manzanero’s sworn statement [Exh.
“B”] where he identified appellant and which was taken by Pat. Ayun,
would be excluded for being inadmissible in evidence.  The testimony of Manzanero
made in open court positively identifying the appellant, as well as those of
Richard Bales and Betty Apolinaria, would not be
affected.  These testimonies, taken together
with the other evidence on record would be sufficient to sustain the trial
court’s judgment of conviction.

The defense of alibi put up by the appellant has not helped him
any for it has not destroyed the damaging effects of the evidence for the
prosecution.  Courts look upon the
defense of alibi with suspicion and always receive it with caution, not only
because it is inherently weak but also because of its easy fabrication [People
v. Badilla, 48 Phil. 718 (1926); People v. Lumantas, G.R. No. L-16383, May 30, 1962, 5 SCRA 157; People v. Genoguin, G.R. No. L-23019, March 28, 1974, 56 SCRA 181; People v. Gaddi,
G.R. No. 74065, February 27, 1989, 129 SCRA 649; People v. Salcedo,
G.R. No. 78774, April 12, 1989; People v. Somera,
G.R. No. 65589, May 31, 1989.] For alibi to succeed, it must be shown not only
that the accused was at some other place but that it was physically impossible
for him to have been at the site of the crime at the time of its commission
[U.S. v. Oxiles, 29 Phil. 587 (1915):  People v. Alcantara,
G.R. No. L-26807, June 30,
1970, 33 SCRA 812; People v. Pigon, G.R. No.
76048, May 29, 1989] In People v.
Lumantas [G.R. No. L-28355, July 17, 1969, 28 SCRA 764,] where
the accused claimed that at the time of the killing he was in another barangay two kilometers away from the scene of the crime,
the Court held that it was not impossible for him to have been at the place
where the crime was committed at the time of its commission.  In the case at bar, the appellant admitted
his presence in Cubao on the night the crime was
committed [TSN, January 6, 1987, p. 14.] The Court notes the fact that the
four men who committed the crime boarded the jeepney
in Cubao [TSN, October 9, 1985, p. 5.] And although according to the
appellant he was in Cubao at 8:30 p.m. while the crime was committed between 7:00 p.m. to 8:00
p.m. in Marikina, the Court rules that the required physical
impossibility of being at the scene of the crime has not been proved for alibi
as a sufficient defense to become available to the appellant.

Moreover, the defense of alibi cannot prevail over the positive
and credible testimony of the prosecution witnesses that the accused committed
the crime [People v. Chavez, G.R. No. L-38603, September 30, 1982, 117 SCRA
221; People v. Torres, G.R. No. 76711, September 26, 1988, 165 SCRA 702; People
v. Sabado, G.R. No. 76952, December 22, 1988, 168
SCRA 681.]

WHEREFORE, in view of the foregoing, the decision appealed
from is hereby AFFIRMED.

SO ORDERED.

Gutierrez, Jr., Feliciano, and
Bidin, JJ., concur.

Fernan, C.J., on leave.