THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAMON REBULLAR Y PASCUAL AND CARLOS BALDOMERO ALIAS “ALOT”, DEFENDANTS. RAMON REBULLAR Y PASCUAL, ACCUSED-APPELLANT.

Ramon Rebullar
and Carlos Baldomero were charged in the Regional
Trial Court of Cavite, Branch 16 for the murder of
Dennis Herrera.  The amended information
filed against them alleges:

“The undersigned 2nd Asst. City Fiscal for the City of Cavite accuses Ramon Rebullar y Pascual and Carlos Baldomero
@ Alot of the crime of Murder, committed as follows:

“That on or about September 7, 1985, in the City of Cavite, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating together and mutually helping
each other, armed with firearms, with intent to kill, treachery, evident
premeditation and with the use of motor vehicle, did, then and there, wilfully, unlawfully and feloniously shoot several times
one DENNIS HERRERA Y MONICAYO, hitting and inflicting upon him several gunshot
wounds, which ultimately cause (sic) his death.

All contrary to law, and with other aggravating circumstances to
wit:  that the crime was committed in the
dwelling of the victim and during nighttime.” (Original Record, p. 15)

Only Ramon Rebullar was apprehended and tried as the other accused
remained at large.

On arraignment, the
accused-appellant pleaded not guilty. 
Trial followed and a decision was rendered finding the accused guilty of
murder.  The decretal portion of the assailed decision reads:

“WHEREFORE, in view of the foregoing, the Court finds accused Ramon
Rebullar y Pascual GUILTY
beyond reasonable doubt of the crime of ‘Murder’ and he is hereby sentenced to
undergo imprisonment of reclusion perpetua; to
indemnify the heirs of Dennis Herrera the amount of P30,000.00;
the amount of P50,000.00 as funeral expenses, without subsidiary imprisonment
in case of insolvency and to pay the costs.” (Original Records, p. 232)

The prosecution’s
evidence is summarized by the trial court as follows:

“xxx                                       xxx                                                       xxx

[O]n September 7, 1985, at about 10:00
o’clock in the morning [should be around 12:00 o’clock midnight of September 7,
1985 (June 6, 1986 tsn., p. 15; June 27, 1986 tsn, p. 7)], Roselyn Samonte-Herrera,
while sleeping in their house at 8:30 (earlier) in the evening at Lopez Jaena St. at Cavite City, was
awakened by a tricycle parking in front of their house and shouts of
‘Dennis’ ‘Dennis’ were heard and which she ignored because the men who alighted
from the tricycle were still on the street; that she then heard the gate open and
when she peeped out of the window she saw them inside the yard; one was already
in front of the window and ordered her to open the door, while the other was
already at the door and said he would want to talk to Dennis.

So, she turned on the light on the front door as the sala was already lighted and the accused Ramon Rebullar y Pascual with someone
behind him told her they wanted to talk to her husband, Dennis Herrera and when
she replied that it would be alright for them to tell her what they wanted,
she, being his wife would be just like telling Dennis; but they both disagreed
and so she was forced to wake up her husband and as they came out of the room
towards the sala and when her husband asked them why, he was shot point blank and
witness, fearing for the safety of her daughter inside the bedroom, skipped
inside to get her nine year-old daughter and laid her down to the floor so that
she would not be hit and when she returned to the sala
she saw the accused Ramon Rebullar shooting at her
husband while Carlos Baldomero alias Alot suddenly headed towards her in order to shoot her;
that while her husband was alrea[d]y lying on his
belly, he was still being shot at by Ramon Rebullar
and so she locked herself inside the room; that one of the shots hit the closet
of her daughter and another the typewriter; that the shooting took about 15
minutes while she just kept shouting inside the bedroom and in the process, one
of her daughters was aroused and who told her that the gunmen had left and so
she went out of the room she saw
her husband, Dennis Herrera wallowed (sic)
in the pool of his own blood.

Hysterical and shocked, she cried out and shouted running out of
the house and when she saw that many people already approaching and who brought
her husband to Bautista Hospital, she was left behind with her children waiting
for the policemen to come and conduct an investigation and after quite a lapse
of time, policemen arrived and went inside the house and looked around, while a
certain Fred Agana, an official photographer of the Cavite City Integrated National Police took pictures of the
house, a picture of screened door showing the point of entry of the bullets,
which according to the policemen there were six points of entry, while the
counsel for the accused insisted that there were at least eight holes.

Likewise the spot on which the deceased was sprawled and the pool
of blood around him while portions of the house where slugs were found were
also depicted.  She then went to the Cavite City police station at about 9:10 a.m. of the same morning, where she
picked out picture of the accused Ramon Rebullar y Pascual, whom she did not know before the incident from the
Cavite City police station’s rogues gallery and whom
she identified as black with curly hair with bulging eyes and that of Carlos Baldomero alias Alot.

Later on, she pointed to the accused who
was ranged in a police line-up inside the City jail along with other prisoners
after Ramon Rebullar was fetched from his residence
and who voluntarily surrendered.” (Rollo, pp. 29-32)

In  this appeal, the accused raises a sole assignment of error, to wit:

“THE TRIAL COURT ERRED IN CONVICTING THE HEREIN ACCUSED-APPELLANT
OF THE CRIME OF MURDER, THE CRIME PROVED BEING ONLY ONE OF HOMICIDE.” (Rollo, p. 63)

The appellant’s
contention is devoid of merit.  The
records clearly show the presence of the qualifying circumstances of treachery
and evident premeditation.

The accused-appellant
contends that even if the attack is sudden, it is not sufficient to prove
treachery.  In support of this defense,
he cites the cases of People v. Atienza, 148 SCRA 147
[1987] and People v. Manalo, 148 SCRA 98 [1987].  The facts of the present case are different from those of the cases he
mentions.  For one, the prosecution
witness in the Atienza case did not actually see the
killing.  Conviction was on the basis of
circumstantial evidence.  On the other
hand, the prosecution witness in the case at bar saw
the accused shoot the victim as she was only a few feet away
from them when her husband was killed. 
In the Manalo case, the accused stabbed the
victim while the two were facing each other. 
The victim had the opportunity to defend himself.

The present case is,
however, different.  The accused was
positively identified by the wife of the victim and the attack while frontal
did not offer the victim any opportunity for defense as he had just risen from
his sleep.  The case of People v. Perante, Jr., 143 SCRA 56 [1986] states that there is
treachery when the victim had just awakened and might still be dazed and
unprepared for the attack and would not be in a position to offer any risk or
danger of retaliation to the attacker. 
The various circumstances surrounding the shooting from the time they
entered the house, forced the wife to wake up her husband, and immediately
pumped him with bullets as he came out into the sala
indicate a treacherous attack which left no opportunity to the victim to defend
himself and which insured the killing with absolutely no risk to the killers.

The fact that the
victim’s wife saw the accused-appellant shoot the victim belies the accused’s denials and alibi.  (People v. Parilla,
144 SCRA 454 [1986]) It was Roselyn Herrera whom they earlier talked to and she
was a few feet away from her husband when he was shot.  The wife herself barely escaped being killed.

As stated in an earlier
case, the negative assertion that accused did not stab the victim cannot
prevail over the positive testimony of the prosecution witness x x x (People v. Amoncio, 144 SCRA 384 [1986]).

Moreover, it is not disputed that the appellant and the victim
were at the same party prior to the incident and that the appellant was hit
with a beer bottle by the victim and suffered injuries during the
incident.  There was motive for the
killing.

Anent the allegation of the absence of evident premeditation, the
accused merely states that this circumstance was absent in the trial court’s
finding but he makes no attempt to satisfactorily substantiate his point.

We hold that the trial court correctly appreciated the qualifying
circumstance of evident premeditation. 
The accused had reason to commit the crime.  The records show that during the birthday
party of Sgt. Leaño, Dennis Herrera hit the
accused-appellant on the face at about 5:30 in the afternoon.  At 9:00 in the evening, they were brought to
the police station but Rebullar declined to file
charges despite the injuries he had sustained. 
According to the trial court, the accused Rebullar
thought of retaliating against the victim rather than filing charges against
him which was the lawful and natural procedure as he was already in the police
station and his own step brother, Captain Benjamin Rebullar
was Operations Officer of the police force. 
Thus, between 12:00 midnight and 1:00 in the morning, he and his
co-accused went to the victim’s house which is a manifestation of his determination
to cling to his plan to kill the latter.

We agree with the accused-appellant that the use of motor vehicle
and the circumstance of nighttime are not aggravating circumstances in this
case.  The accused rode in a motor
vehicle but it was not a “means” used to commit the crime.  There is no showing that the motor vehicle
was used precisely to facilitate the commission of the crime.  In the same manner, nighttime was not especially
sought in the commission of the crime as the house was adequately lighted at
the time.  The evidence does not
establish that the appellant took advantage of nocturnity,
that he especially sought the coming of night, and that it was not simply the
effect of a succession of events from the brawl to the killing.  These notwithstanding, the
crime committed is still murder considering the aggravating
circumstances of treachery and evident premeditation.

The fact that Rebullar voluntarily went with the police does not negate
liability.  He was positively identified
by the victim’s wife as one of the assailants.

Neither will the accused’s assertion of the absence of paraffin traces prove
his innocence.  As pointed out by Aida Magsipoc, Research Biologist of the NBI who conducted
the paraffin test on Rebullar, negative findings on
the paraffin test does not mean that he did not fire a gun.  On the contrary, there is a great possibility
that there will be no paraffin traces on the hand if the bullet was fired from a .45 caliber pistol.

As stated by the trial court:

“On questioning by the Court, witness cited several factors wherein
a person who has fired his firearm but was negative for nitrates; the type of
the caliber of the ammunition of the firearm itself; a new firearm or revolver
type would be so close that nitrates could not escape from the bridge of the
gun, whereas an old firearm where the mechanism is already a little bit loose,
more nitrates appear in the subject who fired the gun; the direction of the
wind if the subject is firing the firearm against the target, the nitrates will
be blown away from the scene and so he would also be negative of nitrates;
depending on the velocity of the wind, humidity of the area where the shooting
happened; in a closed room or place and there is no wind on or against the firearm,
he could be positive for nitrates; whereas outside the room he would be
negative and the less humid the area the less fall of nitrates on the subject,
and another possibility is if the subject is using something to cover his hand
firing the gun it would be negative for nitrates and in using a 45 caliber gun,
which has a close and tight compartment where the bullet is set and with the
revolver type firearm which has an open chamber, the former has a greater
possibility that he would be negative for nitrates.” (Rollo,
37-38)

WHEREFORE, the decision of the trial court is hereby
AFFIRMED in toto.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.