G.R. No. 94310. June 30, 1993
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VIRGILIO ALAY-AY, ALIAS “COT,” ACCUSED- APPELLANT.
NOCON, J.:
Evidence having been shown by the prosecution in the court below that accused-appellant was the
culprit who hit the victim, Felomena Franche, repeatedly on the head with a 2”
x 2” piece of wood and stole her Sanyo transistor radio, the trial court
convicted him of Robbery with Homicide and sentenced him to life imprisonment
and to indemnify the heirs of the victim in the amount of Thirty Thousand
(P30,000.00) Pesos.[1]
The accused-appellant, however, denied the accusation and claimed
that he was sleeping soundly at the
time the crime was allegedly committed and asks us to acquit him. This Court, however, upon a review of the
evidence, finds accused-appellant’s protestation of innocence not credible and
convicts him of two specific offenses, that of homicide and theft, instead of
robbery with homicide.
The information for robbery with homicide against Virgilio
Alay-ay, alias “Cot” reads:
“That on or about the 22nd day of March,
1985, at around 5:30 o’clock in the morning, more or less, corner Capaya and
Duhat Sts., Homesite Subdivision, Barangay Dau, Municipality of Mabalacat,
Province of Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused VIRGILIO ALAY-AY alias “COT”, with
intent to gain, by means of violence against and without the knowledge and
consent of the store’s owner Felomena Franche, and once inside the store, did
then and there willfully, unlawfully and feloniously take, steal and carry away
with the following, to wit:
One (1) transistor radio, valued at P100.00
One (1) one hundred peso bill 100.00
P200.00
in the total amount of TWO HUNDRED
(P200.00) PESOS, to the damage and prejudice of the said owner in the total
amount of P200.00, Philippine Currency, and on the occasion thereof, said
accused, with intent to kill, with treachery and evident premeditation and
taking advantage of his superior strength, did then and there willfully,
unlawfully and feloniously assault, attack and hit said Felomena Franche with a
2”x 1” and 1/2”x 26” piece of wood on the different parts of her body, thereby
resulting in her death shortly thereafter.
“All Contrary to Law.”[2]
The Solicitor General summarized the antecedent facts of the case
as follows:
“Between 5:30 and 6:00 in the morning of March 22, 1985, Felomena
Franche was tending her store at Dau Homesite, Dau, Mabalacat, Pampanga. Her daughter, Mila Pineda, lived in a house
some 20 meters from the store, with the door of the store facing the
house. Saldy Guela, Mila’s nephew and
grandson of Felomena, was staying in the same house. Suddenly, Saldy heard a woman shouting, ‘Mila, Mila, somebody is
hitting your mother’s head.’ Upon hearing this, Saldy stood up and looked out
the window. He saw a man inside the
store hitting the head of his grandmother, Felomena Franche, with a two?foot
long piece of wood. When the man was
about to get out of the store, Saldy saw his face and recognized him as ‘COT’,
who frequently drank liquor at the store. He went downstairs but upon reaching the ground, ‘COT’ was already
scaling the wall. Thus, Saldy proceeded
to the store where he carried his grandmother (tsn., Jan. 18, 1989, pp. 4-7).
“On her part, Mila Pineda was awakened by a noise to the effect
that there was a robbery committed at the store which her mother, Felomena
Franche, was tending. When she peeped
through the window, she saw many people in front of the store. A woman then approached her, saying, ‘Go
down. Your mother was hit.’ Thus, Mila
proceeded to the store to look for her mother. There, she saw that her mother was ‘nangingisay’ or trembling all over
(tsn., Nov. 20, 1986, pp. 4-5).
“It turned out that the one who shouted, Mila, Mila, your mother is
being beaten’ or words to that effect, was Dolores C. Lising. Dolores went to the store of Felomena
Franche that morning to buy sugar. There, she heard somebody pounding, as if ‘somebody was pounding a rat,’
and an old woman moaning. When she came
near, she saw a man beating the old woman with a piece of wood. Knowing that the old woman was the mother of
Mila Pineda, she ran towards the latter’s house which was located near the
store and shouted to her (tsn., Oct. 6, 1987, pp. 5-10).
“About 6:00 that same morning, Natividad dela Cruz, who was on her
way to the store of Felomena Franche, saw appellant Virgilio Alay-ay, alias
‘Cot’, whom she had known since 1972, jump over the fence of said store. Appellant was carrying a Sanyo transistor
radio which Natividad recognized as the property of Felomena, because she
always saw Felomena use it whenever she Natividad) went to the store (tsn.,
Feb. 16, 1988, pp. 3-9).
“Meanwhile, Mila Pineda, Saldy Guela and a neighbor, Jimmy,
succeeded in reviving the unconscious Felomena. Afterwards, Mila and another neighbor brought Felomena to the
Pampanga Polymedic Hospital. On the way
to the hospital, Mila asked her mother ‘Who hit you?’ and she answered, ‘It was
Cot’ (tsn., pp. 16, 19-20).
“At the Pampanga Polymedic Hospital, Dr. Carmelo Mendiola attended
to Felomena Franche. At past 8:00 that
same morning, the case was referred to Dr. Eduardo Buencamino, who found
Felomena unconscious, in shock, with multiple injuries on the face and head and
blood coming out from her nose and mouth. He ordered resuscitative measures which, however, proved
unsuccessful. At 10:10 that morning,
Felomena Franche was declared dead. In
his medical certificate (Exh. B), Dr. Buencamino found at least two fractures
on the head of Felomena which could have been caused by her being beaten by
someone with a piece of wood. The
doctor ruled out the probability of Felomena’s having fallen down by herself
and her head hitting the cement floor, because the injuries sustained were
caused by multiple hitting (tsn., Sept. 10, 1987, pp. 9-19, 35-37; Exh. A).[3]
Virgilio Alay-Ay was found guilty and sentenced to life
imprisonment. The dispositive portion
of the decision reads:
“WHEREFORE, judgment is rendered convicting the accused of Robbery
with Homicide as defined and punished under Article 294 (1) of the Revised
Penal Code as amended, and this Court sentences the accused VIRGILIO ALAY-AY
alias “Cot”:
(a) to suffer LIFE IMPRISONMENT
and to suffer its accessory penalties;
(b) to indemnify the heirs
of the victim Felomena Franche, in the amount of THIRTY THOUSAND PESOS;
(c) to pay the heirs of the
victim Felomena Franche the further sum of THIRTY THOUSAND PESOS as adequate
compensation for actual damages (except attorney’s fees and expenses for
litigation), another sum of FIVE THOUSAND PESOS as moral damages;
(d) to pay the costs of
suit.
“Being a detention prisoner, the accused is entitled to the
benefits of Article 29 of the Revised Penal Code as amended.
“SO ORDERED.”[4]
Accused-appellant assails the credibilities of the prosecution
witnesses who testified against him. He
contends that:
“x x x Saldy Guela was a surprise witness for the prosecution. His name does not appear in the Police
Report (Information Report) neither x x x (was) his name ever mentioned by the
witnesses for the prosecution. x x x
Guela did not even report the incident in question to the police nor did he
ever execute a statement regarding his testimony in Court. The incident happened sometime on March 22,
1985, and (he) testified only on January 19, 1989 x x x (or after) a period of
about four years x x x. He was a close
relative of the victim (she) being his grandmother x x x.
x x x Natividad dela Cruz x x x testified that she saw a person
jump over the fence of Felomena Franche, x x x (that this person’s) name is
Virgilio Alay-ay; that she saw him bringing a radio; that after seeing the accused
jump over the fence and run away towards Duhat St., said witness went home;
that witness did not reach the store because she proceeded home; and that she
came to know later that Felomena Franche died.
“x x x the defense will submit that such testimony is highly
improbable x x x (because the witness did not) report the matter to the owner
of the property or to the x x x authorities
x x x (but rather) went home and x x x proceeded to continue her regular chores
of collecting.
“x x x (the) witness
Mila Pineda gave her conflicting testimony when she testified that while on
their way to the hospital, she allegedly asked her mother who hit her and her
mother allegedly answered that it was “Cot.” However, during cross examination
x x x (half a year later), the same witness x x x (testified that when she
asked her mother if “Cot” was the one who hit her, her mother just nodded).
“x x x witness Dolores Hipolito Lising testified that while buying
sugar at the store of the victim on March 22, 1985 at or about 5:30 o’clock in the morning she heard
a pounding sound and heard somebody yelling. That while she was near the store x x x (saw) someone hitting the old
woman x x x (but) but she failed to recognize him as he ran away x x x[5]
Refuting said arguments point by point, the Solicitor General
argues as follows:
“1. As to Saldy Guela
— It is not true that Saldy Guela’s name was not mentioned by any witness for
the prosecution. Mila Pineda, the first
one to testify for the prosecution, declared that her nephew, Saldy Guela, and
a neighbor, Jimmy, were with her when she was trying to revive her mother, who
was then unconscious (tsn., November 20, 1986, p. 16). Also, the fact that Saldy Guela testified
only on January 19, 1985, (should be January 18, 1989) i.e., four (4) years
after the incident on March 22, 1985, is immaterial. The trial commenced on November 20, 1986 with the presentation of
Mila Pineda as first prosecution witness. Since the prosecution had seven (7) witnesses, with Saldy Guela as the
last, and considering postponements of the hearing, there is nothing irregular
about the date when Saldy testified. As
to Saldy’s relationship to the victim, the same does not affect his
credibility. Mere relationship is not
sufficient to discard the testimony of credible witnesses, especially where
there is no showing that these witnesses have testified merely by reason of
relationship or alleged interest in the case, other than a desire to see that
justice is done (People vs. Pajenado, 69 SCRA 172). Testimony of a witness who, although related to the victim, is
without ulterior motive in testifying against the accused, is given credence
(People vs. Moises, 66 SCRA 151).
x x x x x x x
x x
“2. As to Natividad
dela Cruz — It may be true that after Natividad saw appellant jump over
the fence of the victim’s store carrying the latter’s Sanyo radio, she did not
immediately report the matter to the authorities. But such inaction is not unusual. The initial reluctance of witnesses in this country to volunteer
information about a criminal case, and their unwillingness to be involved in or
dragged into a criminal investigation is common and has been judicially
declared not to affect credibility (People vs. Kipte, 42 SCRA 119). Besides, Natividad, not long after the incident,
gave her statement before Pfc. Gabriel Balilo, relating what she saw on March
22, 1985 (Exh. E).
x x x x x x x
x x
“3. As to Mila Pineda
x x x x x x x
x x
“There may be a little inconsistency between Mila’s declaration on
direct examination that when she asked her mother who hit her, the latter
answered, ‘It was Cot’ (whose real
name, Virgilio Alay-ay was known to Mila), and her statement on
cross-examination that when she asked her mother if it was ‘Cot’ who hit her,
the latter nodded her head. Nevertheless, what is important is the end result, which is that before
she died, the victim identified her assailant, namely, appellant Virgilio
Alay-ay, alias ‘Cot’.
“4. As to Dolores
Hipolito Lising — The fact that this witness was not able to recognize the
man whom she saw beating Felomena Franche with a piece of wood does not make
her less credible than the others. Witnesses have varying perceptions of the same event, depending on their
location, mental and physical condition, etc. In fact, her candidness in not pretending to recognize the assailant
renders her testimony believable.[6]
The appeal has no merit.
Well-settled is the rule that findings of the trial court on the
issue of credibility of witnesses are entitled to great respect and are accorded
the highest consideration by appellate courts.[7]
Credibility “is a matter that is peculiarly within the province of the trial
judge, who had first-hand opportunity to watch and observe the demeanor and
behavior of witnesses both for the prosecution and the defense, at the time of
their testimony.”[8]
Likewise, it is settled that it is the prosecuting fiscal’s
prerogative to determine who or how many witnesses are to be presented in order
to establish the quantum of proof necessary for conviction.[9] The
prosecution may even call unlisted witnesses to testify.[10]
In the case at bar, Saldy Guela, an unlisted witness[11]
who was mentioned by the first prosecution witness, Mila Pineda, as having
helped her in trying to revive the victim,[12]
positively identified accused-appellant as the perpetrator of the crime as
follows:
“Q More
particularly, on March 22, 1985 while you were in your home at Dau Homesite,
Dau, Mabalacat, Pampanga, do you recall of any unusual incident between the
hours of 5:30 and 6:00 early morning on that date?
“A There
was, sir.
“Q Will
you please tell the Honorable Court, what was that unusual incident all about?
“A I
heard a woman shouting, ‘Mila, Mila! Somebody is hitting your mother’s head.’
“Q What
did you do when you heard this shouting?
“A I
stood up and saw through the window that a male was hitting the head of my
grandmother, sir.
“Q Who
is this grandmother you are talking about?
“A Filomena
Franche, sir.
“Q Where
did you see this man hitting the head of your grandmother?
“A At
the store, sir.
“Q What
was this man using in hitting your grandmother?
“A A two by two wood, sir.
(WITNESS
DEMONSTRATING A 2 FEET LONG, 2 x 2 thick wood)
“Q How
far were you when you said you stood up and peeped and saw that your grandmother
was hit by this man?
“A From
here up to the other side of the wall, sir.
COURT:
Can you stipulate?
COUNSELS:
More or less, 20
meters.
ATTY. ZAMAR:
“Q When
you said that this man was hitting your grandmother, did you see and identify
this man?
“A I
saw his face when he was about to get out because he passed a light, sir.
“Q Did
you identify that man whom you saw hit your grandmother?
“A I
recognized his face, sir.
“Q When
you recognized his face, do you know his identity–even his name only?
“A I know his name in the homesite as ‘Cot’,
sir.
“Q If
you see that Cot again, will you be able to identify him?
“A Yes,
sir.
“Q Will
you look around the courtroom and tell us if he is inside the courtroom?
“A He is there, sir.
[WITNESS
POINTED TO A MAN WHEN ASKED GAVE HIS NAME AS VIRGILIO ALAY-AY]
“Q Before
March 22, 1985, do you already know this person when you said that he was
called in the homesite as Cot?
“A Yes,
sir.
“Q How
long before March 22, 1985 that you know his person?
“A About
three months, sir.
“Q Will
you please tell us why you know the person of the accused here which you said
you know him as Cot.
“A They
frequently drink liquor at the store, sir.
“Q Whose
store is that?
“A My
Aunt’s, sir.
“Q And
this is the store where you saw your grandmother being hit by a man with a 2 x
2 wood?
“A Yes,
sir.
“Q When
you said that you saw the accused hitting your grandmother, what did you do?
“A I
went downstairs but upon reaching the ground, he was already scaling the wall,
sir.
“Q What
did you do when you saw the accused scaling the wall (pader)?
“A I
was not able to reach him so I proceeded to the store and carried my
grandmother.[13]
Another witness, Dolores Hipolito Lising, had earlier testified
that she happened to see the incident in question — a man hitting the victim
with a piece of wood. She did not,
however, recognize the assailant as she immediately ran away after seeing such
happening before her very eyes.[14]
Another prosecution witness, Natividad de la Cruz, testified that
she saw the accused-appellant carry with him the victim’s Sanyo transistor
radio when he jumped over the fence of the victim’s aunt’s store (she was the
caretaker) as follows:
“Q You
said that you saw a person jumped over the fence of Inang, Filomena Franche,
who you are referring to– did you have the occasion to recognize that person?
“A Yes, sir.
“Q Who
was this person you noticed jumped over the fence of Filomena Franche?
“A Virgilio Alay-ay, sir.
“Q And
this Virgilio Alay-ay is the same person you have just pointed a while ago”
“A Yes, sir.
x x x x x x x
x x
“Q After
having seen this accused Virgilio Alay-ay jumped over the fence, did you see
him where he went?
“A He went towards Duhat Street, sir.
x x x x x x x
x x
“Q After
jumping over the wall, was he bringing something?
A He
was bringing something, sir.
“Q Did
you notice what kind of something was that?
“A It
was a radio, sir.
“Q Why
do you say it was a radio?
“A I
saw him carrying it, sir.
“Q How
large was it?
“A About
12 inches in length, sir.
“Q How
wide?
“A It
was a Sanyo Transistor radio, sir.
“Q Why
do you know it was a Sanyo?
“A Because
that was the radio she used to use to hear news every morning, sir.”[15]
Against these positive testimonies identifying accused-appellant
as the person who hit the victim on the head with a piece of wood and took her
transistor radio when he made good his escape from the store, is
accused-appellant’s flimsy alibi that he was somewhere else sleeping at his friend’s
house at the time the incident happened. As correctly observed by the Solicitor General:
“Appellant insists that he has a valid defense — that of
alibi. According to him, he slept at
the house of Reynaldo Salunga between 10:00 p.m. of March 21, 1985 and
6:00-6:30 a.m. of the following day, March 22, 1985, and thereafter he told
Reynaldo that he was going to Bamban, Tarlac. Reynaldo’s house is located at Dau Homesite, Dau, Mabalacat, Pampanga,
where the victim’s store is situated.”
x x x x x x x
x x
“x x x Since the scene of the crime (the victim’s store) is located
in the same subdivision — Dau Homesite, and the incident
happened between 5:30 and 6:00 a.m. of March 22, 1985, it was not physically
impossible for appellant to be at the crime scene at the time of its
commission. In a defense of alibi, the
accused must show that it was impossible for him to be at the scene of the
crime (People vs. Malibay, 63 SCRA 420; People vs. Sarmiento, 64 SCRA 350). This appellant clearly failed to do.”
The Court, for its part, is not precluded from rendering a
judgment of conviction based solely on the testimony of a single witness as
long as such testimony is found to be credible and satisfies the Court that the
accused is guilty beyond any reasonable doubt of the crime charged.[16]
The Court, however, disagrees with the decision of the trial
court convicting the accused-appellant for the crime of robbery with
homicide. Incidentally, the proper
penalty here is reclusion perpetua and not life imprisonment.[17]
In People vs. Evardo,[18] this
Court stated that:
“x x x. To sustain
conviction for the special complex crime of robbery with homicide, it must be
established with certitude that the killing was a mere incident to the robbery,
the latter being the main purpose and objective of the criminals. It contemplates a situation where the
homicide resulted by reason or on the occasion of the robbery (People vs.
Robante, 178 SCRA 552 [1989].”[19]
In the case at bar, it cannot be said with moral certainty that
accused-appellant’s intention was to steal the radio and money and that the
killing of the victim was a mere incident to the robbery.
There is testimony[20] by
Saldy Guela that the accused-appellant had been frequently drinking at the
store tended by the victim for about three (3) months prior to the
killing. There is also testimony[21]
by Mila Pineda that
accused-appellant had always been quarreling with the victim and it could have
been due in part to the fact that accused-appellant had been enamored of her.
Given these two variables, a possible scenario could have been
the following:
Accused-appellant went very early to see the victim at the store
that fateful day. He might have tried
to physically display his affections, if one could call it that, toward the
victim. She must have resisted, or
worse, laughed him off, and he must have resented it. One thing might have led to another with the end result that he
hit her with a piece of wood. In his
escape, he grabbed her Sanyo transistor radio, as a souvenir,[22]
and the P100 peso-bill to provide for his fare to Bamban, Tarlac.
What We are pointing out is that there is a dearth of evidence to
show that the accused-appellant had the intention to steal cash and other
valuables in the store and that he killed the victim on occasion of the
robbery. As such he cannot be convicted
of the crime of robbery with homicide but of two specific crimes, that of
homicide and theft.
The penalty for homicide is reclusion temporal.[23]
There being no mitigating or aggravating circumstance, the minimum of his
indeterminate penalty is anywhere within the range of prision mayor
while the maximum is the medium period of reclusion temporal.[24]
Accordingly, we fix his penalty at six years and one day of prision mayor,
as minimum, to fourteen years, eight months and one day of reclusion
temporal medium, as maximum.
The penalty for theft in the amount of Two Hundred Pesos is arresto mayor in its medium period to prision correccional in its
minimum period. Since there are neither
mitigating nor aggravating circumstances, the penalty imposable is arresto mayor in its maximum
period. The Indeterminate Sentence Law
does not apply as the penalty actually imposed does not exceed one (1) year.[25]
Accordingly, we fix his penalty at six (6) months of arresto mayor maximum.
WHEREFORE, the appealed judgment is hereby VACATED and SET
ASIDE. A new one is entered finding the
accused-appellant Virgilio Alay-ay guilty of the crimes of Homicide and
Theft. For the crime of Homicide, he is
sentenced to Six Years and One Day of Prision
Mayor, as minimum, to
Fourteen Years, Eight Months and One Day of Reclusion Temporal medium, as maximum, and to indemnify the
heirs of the victim in the amount of Fifty Thousand (P50,000.00) Pesos. For the crime of Theft, he is sentenced to a
straight penalty of Six (6) Months of Arresto
Mayor maximum, and to return the Sanyo transistor radio to the heirs
of the victim, and the P100 peso-bill, or the amount of P200.00 if the Sanyo
transistor radio can no longer be returned.
SO ORDERED.
Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.
[1]
Decision, “People v. Virgilio Alay-Ay,” Crim. Case No. 8525, Angeles
City RTC, penned June 15, 1990 by Hon. Reynaldo B. Daway, Presiding Judge.
[2]
Rollo, p. 5.
[3]
Appellee’s Brief, pp. 5-8; Rollo, p. 69.
[4]
Appellant’s Brief, pp. 6-7; Rollo, pp. 23-24.
[5]
Appellant’s Brief, pp. 8-12; Rollo, pp. 43-47
[6]
Appellee’s Brief, pp. 10-18; Rollo, p.
69.
[7]
People v. Narito, G.R. No. 96949, March 8, 1993.
[8]
People v. Turla, 167 SCRA 278 (1985).
[9]
People v. Navaja, G.R. No. 104044, March 30, 1993.
[10]
People v. Mandapat, 196 SCRA 157 (1991).
[11]
Listed as a witness under “And Others” in the Information filed July 8, 1986; Rollo, p. 6.
[12]
TSN, November 20, 1986, p. 16.
[13]
TSN, January 18, 1989, pp. 4-7.
[14]
TSN, October 6, 1987, pp. 8-9.
[15]
TSN, February 16, 1988, pp. 4-7.
[16]
People v. Narvaja, G.R. No. 104044, March 30, 1993.
[17]
People vs. Garcia, G.R. No. 94187, Nov. 4, 1992.
[18]
G.R. No. 100724, Dec. 1, 1992.
[19]
Ibid., at p. 11.
[20]
Supra, p. 11.
[21]
TSN, November 20, 1986, pp. 58-59.
[22]
“Hence, the accused did not take any interest on Mercedes’ belongings
notwithstanding her pleas for the appellants to take them in exchange for her
life. They persisted in satisfying
their lust and even helped each other in their bestial acts. If not for the accidental touching of
Mercedes’ ring, the accused’s intent to rob would have been totally forgotten
as the culprits had dumped her body to hide their crime from immediate
discovery. Indeed, the taking of
Mercedes’ ring, watch and money turned out to be afterthought. The force employed on her having no bearing
on such illegal taking, the crime committed is the separate one of theft.”
(People v. Flores, 195 SCRA 295, 312).
[23]
Article 249, Revised Penal Code.
[24]
Sec. 1. Indeterminate Sentence Law.
[25]
Section 2, Act 4103, as amended (Indeterminate Sentence Law).