PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SANTIAGO SERVILLON Y FILISIS, ACCUSED-APPELLANT.

Death came to 19-year old Enrico like a thief in the night – quick,
cruel, unexpected. It happened after
dinner on 5 December 1987 at the Batula residence at Taguig, Rizal. Azucena and her daughter Rhodora had just
retired to the latter’s room to view television and enjoy the evening
together. Oscar Batula, Azucena’s
husband, and son Enrico went to their grocery store, an adjunct of their house,
to attend to late customers. While
there, Oscar noticed five persons enter the garage and cover their faces with
handkerchiefs from the clothesline. Oscar and Enrico, who followed his father to the kitchen, were stunned
when the men who turned out to be armed announced a holdup and ordered them
together with their helpers Leony, Lito and Murillo, to lie face down on the
floor. A sixth companion who posted
himself outside stood beside Erlinda Taa who was buying sardines and poked his
gun at her.

While three of the robbers guarded Oscar, Enrico and the helpers,
the other two in the kitchen went up the second floor to look for the other
occupants, barging into the room of Rhodora where she and her mother were. One of the malefactors then pointed his gun
at Rhodora. The other felon, who was
unmasked, inched closer to Azucena and ordered her at gunpoint to bring out
money. She answered however that there
was no money except the P100-bill on top of the drawer. He took the money and snatched Azucena’s
wristwatch causing her to faint. As he
stood guard over the unconscious Azucena, his other companion in the room
ordered Rhodora to go with him downstairs and show him where their daily sales
were kept. He found P2,000.00 in cash
and Rhodora’s watch. Then he ordered
her to return to her room while he reported his loot to his companions.

Irked by the meagerness of the loot, one of the intruders grabbed
Oscar by the neck, lifted him from the floor and demanded that he bring out the
rest of the money. But Oscar said they
had no more money left. However, he
offered instead their television and betamax which were the only appliances of
value in the house. This however was
not acceptable to the robber who then fired at Oscar hitting him on the right shoulder. Oscar managed to jump out of the window, after which, he heard
two more shots coming from the kitchen. Meanwhile, as Rhodora was
attending to her mother who by then was already regaining consciousness, their
guard was called down by his companions.

Upon hearing the last two successive shots, Rhodora peeped from
her bedroom and saw three of the robbers fleeing the house. She hurried downstairs and went out to the
street. There she met her father
wounded and shouting for help.

Soon enough Azucena recovered her composure and found herself
alone in the room. She crept down the
stairs to the kitchen and saw Enrico bleeding and slumped on top of some
boxes. Both Enrico and Oscar were
rushed to the Makati Medical Center but Enrico died in the emergency room due
to hemorrhage.

None of the culprits responsible for the crime was immediately,
apprehended. As the prospect of
bringing justice to the Batulas dimmed with the lapse of time, a ray of hope
appeared. In mid-February 1988, while
Azucena was passing by the jeepney terminal in Bicutan, her attention was
caught by the barker at the terminal. Azucena immediately recognized him as the unmasked robber who pointed a
gun at her and snatched her wristwatch on that fateful night of December. Dazed, Azucena went on to shop for her
grocery store which was to be reopened for the first time after the robbery,
although her mind was on the barker at the Bicutan terminal.

When Azucena reached home, she told her husband about the
barker. However, since it was a
Saturday, the spouses were able to report the matter to the Criminal
Investigation Service (CIS) in Camp Crame only the following Monday.

At the CIS, a team was formed to look into the report and Agent
Rodolfo Polintan was assigned to lead the team. Accompanied by Azucena, the team proceeded to the Bicutan
terminal. There they saw the accused
Santiago Servillon and invited him to Camp Crame for questioning. Servillon was positively identified by
Azucena and Rhodora in a police line-up as one of those who robbed them.

Accordingly, Santiago Servillon was formally charged in court,
albeit erroneously, with Robbery with Homicide and Frustrated Homicide.^[1]

The defense is alibi. Servillon testified that he was at Alejandro Olicia’s house with fellow
members of the Christian Gospel Fellowship during the period that the crime was
supposedly perpetrated. He claimed he
was there for their choral practice from five-thirty in the afternoon to ten o’clock
in the evening.

The accused also questioned the credibility of Azucena and
Rhodora. He contended that if Azucena
really recognized him as one of those who robbed them, her natural reaction
upon seeing him at the terminal would have been to go home immediately and
report the matter to her husband or to the authorities and not blithely go
about her shopping.

The trial court rejected the defense. On 16 February 1990, it found Santiago Servillon guilty of robbery
with homicide and sentenced him to reclusion perpetua. The court also ordered him to pay the heirs
of Enrico Batula P30,000.00 as civil indemnity, P20,000.00 as moral damages,
P11,675.00 as actual damages for hospitalization, burial and other related
expenses, and P3,100.00 as reparation for the stolen cash and wristwatches.^[2]
He is now before us on appeal.

It may be true that Azucena did not immediately go home to tell
her husband that she saw the accused Servillon at the terminal. But her reaction upon seeing him was not
altogether unnatural. While she may
have been expected to rush to the police to report the matter so that Servillon
could be apprehended at once, the fact that almost three months had already
passed since the tragedy must also be considered. Quite naturally, Azucena was unprepared, even shocked, to see the
accused whom she perhaps believed to have already gone into hiding, brazenly
calling for passengers in broad daylight in a jeepney terminal. Thus, battling with the feeling of disbelief
and the innate impulse to have the appellant apprehended at once, Azucena
needed time to assimilate the consequences of unexpectedly finding him. After all, there was no reason to be
apprehensive as her quarry was a barker at a public place, hence, could
reasonably be expected to be in the same place again, as in fact he was, when
Azucena returned with the CIS team.

Appellant insists that his identification by Rhodora cannot be
relied upon. He argues that while
Rhodora testified that he was one of the robbers, she stated in her affidavit before
the CIS on 16 February 1988 that she did not see him at the time of the robbery
but only at the office of the CIS.

In this regard, appellant appears to be suffering from a serious
misapprehension of the facts. An
examination of the affidavit of Rhodora^[3] fails
to show that she ever made any statement to the effect that she did not see the
accused during the robbery. She only
said “x x x may pumanhik na
dalawang armadong hindi
nakikilalang lalaki sa itaas ng bahay x x x x”^[4]
The words “hindi nakikilala”
do not mean that accused-appellant was not one of the robbers. A witness’ statement that she does not know (“di ko kilala“) the
robbers does not imply that she cannot identify them; rather, it only means
that she was not acquainted with, or did not know them, before the commission
of the offense.^[5]
This is confirmed by Rhodora’s later statement in the same affidavit –
unfortunately not quoted by appellant – that although she did not know any of
the robbers she would be able to recognize them if she saw them again.^[6]

Appellant likewise considers quite suspect his identification by
Azucena and Rhodora considering that Oscar testified that all the robbers were
masked, that is, their faces
were covered with handkerchiefs taken from the clothesline. Appellant also makes much of the fact that
Leonardo Murillo, an alleged eyewitness, pointed to a certain Edgardo Galauran
alias “Egay” as the unmasked
robber in his affidavit taken by the police on 7 January 1988.^[7]

These arguments do not
help appellant’s cause. Oscar did not
state that all the robbers were masked. Rather, he said that five persons entered the garage, took the
handkerchiefs from the clothesline and used them to cover their faces.^[8] However, it was established by the evidence
that six (6) persons perpetrated the robbery, not merely five (5). Hence, it was highly probable that
the sixth robber whom Oscar did not see enter the garage was appellant Santiago
Servillon who was after all clearly identified by Azucena and Rhodora. Leonardo Murillo’s statement in his
affidavit pointing to a certain “Egay” as the sixth robber, whose
face was not covered, cannot adversely affect appellant’s positive
identification considering that Murillo was never presented in court to repeat
his allegation, thus giving rise to the presumption that his testimony would be
adverse if presented.^[9]

As adverted to, the
defense is alibi. However, while
claiming to be at Olicia’s house on the night of the robbery, Servillon
completely failed to show that it was physically impossible for him to be at
the Batulas’ residence at the time the crime was
perpetrated. It is elementary that for
alibi to be believed, credible and tangible proof of physical impossibility for
the accused to be at the scene of the crime is indispensable. In its absence, the defense of alibi cannot
be sustained.^[10]

In the instant case, the
evidence proves the exact opposite of physical impossibility. Olicia’s residence was just 200 meters away
from that of the Batulas and could be reached by a mere fifteen-minute walk.^[11] Olicia himself testified that the distance
could be traversed in just three (3) minutes if a person was scared and ran
fast.^[12] This was established when Olicia’s daughter,
Erlinda Taa, who was buying sardines at the store at the time of the robbery,
testified that she arrived at her father’s house from the store in just two
minutes by running.^[13] Thus, even assuming that appellant was
really at Olicia’s house as early as five-thirty in the afternoon, in view of
the proximity of the house of the Batulas to that of Olicia, he could
have easily slipped away and returned after the robbery.

Cecilia Peñaranda and Alejandro Olicia corroborated appellant’s
story that he was practicing songs at Olicia’s residence on the night in
question. However, it is hard to believe
that Cecilia and Alejandro had their eyes fixed on appellant all the time that
he was there enough to vouch for his presence until ten o’clock in the evening
when the fellowship ended. Besides, it
was impossible for them to do so considering that more than twenty (20) members
of the Christian Gospel Fellowship were also present.^[14]
Having failed to show that he could not have gone from where he was to the locus criminis at or about the time the crime was
committed, his alibi cannot prosper.^[15]

A word on the designation of the offense charged. The crime alleged in the Information is
“robbery with homicide and frustrated homicide.” However, we agree
with the court a quo that the crime committed was only
robbery with homicide because the term “homicide” as used in Art.
294, par. (1), of the Revised Penal Code is meant in its generic sense,
embracing not only the act which results in death but also all other acts
producing anything short of death, and is, designated as such regardless of the
number of homicides and physical injuries committed.^[16]
Hence, there is no such crime as “robbery with homicide and frustrated
homicide.”^[17]

The penalty prescribed for robbery with homicide is reclusion
perpetua to death.^[18] With
the aggravating circumstances of commission by a band^[19]
and dwelling,^[20]
the proper penalty imposable under the Revised Penal Code should have been
death.^[21]
However, since the crime was committed on 5 December 1987 when the imposition
of the death penalty was proscribed under the 1987 Constitution,^[22]
the trial court was correct in meting out only the penalty of reclusion perpetua. However, under present
jurisprudence, the civil indemnity to be awarded to the heirs of the victim
should be increased from P30,000.00 to P50,000.00.

WHEREFORE, the Decision appealed from declaring
accused-appellant SANTIAGO SERVILLON Y FILISIS guilty beyond reasonable doubt
of robbery with homicide, imposing upon him the penalty of reclusion
perpetua and ordering him to pay the heirs of Enrico Batula P20,000.00 as
moral damages, P11,675.00 as actual damages, and P3,100.00 as reparation for
the cash and wristwatches is AFFIRMED with the sole modification that the civil
indemnity is increased to P50,000.00.

Costs against accused-appellant.

SO ORDERED.

Davide, Jr., Quiason, and
Kapunan, JJ., concur.

Cruz, (Chairman), J., on leave.

^[1]
The proper charge should be
Robbery with Homicide as
discussed herein; Original Records, pp. 1-2.

^[2]
Decision penned by Judge Martin S. Villarama, Jr., Regional Trial Court, Pasig,
Br. 156, Original Records, pp. 401-410; Rollo, pp. 13-22.

^[3]
Original Records, pp. 49-50.

^[4]
Id., p. 49.

^[5]
People v. Villareal, Nos. L-36317-18, 31 January 1984, 127 SCRA 279, 285.

^[6]
Original Records, p. 50.

^[7]
Id., pp. 51-52.

^[8]
TSN, 28 April 1988, p. 5.

^[9]
x x x evidence willfully
suppressed would be adverse if produced (Sec. 2, par. [e], Rule 131, Rules of
Court).

^[10]
People v. Angeles, G.
R. Nos. 104285-86, 21 May 1993, 222 SCRA 451, 463; People v. Manero, Jr., G. R. Nos. 86883-85, 29 January 1993, 218 SCRA 85, 92; People v. Pielago, No.
L-42256, 19 December 1985, 140 SCRA 418, 423-424; People v. Catipon, Nos. L-­49264-66, 9 October 1985, 139 SCRA 192, 203; People v. Pacis, Nos. L-32957-8, 25 July 1984, 130 SCRA 540, 549; People v. Sambangan, No.
L-44412, 25 November 1983, 125 SCRA 726, 731-732.

^[11]
TSN, 30 October 1989, p. 12.

^[12]
Ibid.

^[13]
TSN, 4 October 1989, p. 8.

^[14]
Id., p. 9.

^[15]
People v. Repuela, G. R. No. 85178, 15 March 1990, 183 SCRA 244, 251.

^[16]
People v. Pamintuan, G.
R. No. 100771, 28 May 1993, 222 SCRA 716, 722; People v. De Los Reyes,
No. L-44112, 22 October 1992, 215 SCRA
63, 77; People v. Chanas, G. R. No. 90802, 4 August 1992, 212 SCRA 65,
74; People v. Dimaano, G. R. No. 95231, 15 June 1992, 209 SCRA 819,
833; People v. Penillos, G. R. No. 65673, 30 January 1992, 205 SCRA
546, 564; People v. Ponciano,
G. R. No. 86453, 5 December 1991,
204 SCRA 627, 637; People v. Repuela, G. R. No. 85178, 15 March 1990, 183 SCRA 244, 251; People v.
Cariño, G. R. No. 73876, 26 September 1988, 165 SCRA
664, 673.

^[17]
People v. Penillos, G. R. No. 65673, 30 January 1992, 205
SCRA 546, 564; People v. Ga, No.
L-49831, 27 June 1990, 186 SCRA 790, 805.

^[18]
Art. 294, par. (1), The Revised Penal
Code.

^[19]
People v. Damaso, Nos. L-30116-7, 20 November 1978, 86
SCRA 370, 381; People v. Salip Manla, No. L-21688, 28 November 1969, 30
SCRA 389, 396-397.

^[20]
People v. Gapasin, G. R. No. 52017, 27 October 1986, 145 SCRA 178, 195;
People v. Lucero, No. L-28811, 31 March 1980, 96 SCRA 694, 704.

^[21]
People v. Cruz, No. L-37173, 29
November 1984, 133 SCRA 426, 436.

^[22]
Now reimposed on certain heinous crimes under R.A. 7659 which took effect 1
January 1994.