PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DANILO DIMAANO Y DELA CRUZ, DANILO BORJA Y ABESAMIS, CALIXTO SORIO Y ESPINA, RODELIO UPANA Y CATALYO, AND JOHN DOE (AT LARGE),…

This is an appeal from the decision* of the
Regional Trial Court, Branch 124, Kaloocan City, dated October 31, 1989, in
Criminal Case No. C-29560, finding appellants Danilo Dimaano, Danilo Borja,
Calixto Sorio and Rodelio Upana guilty beyond reasonable doubt of the crime of
robbery with homicide and multiple frustrated homicide committed as follows:

“That on or about the 30th day of September, 1987 in Caloocan City,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and mutually helping one another,
with intent of gain and being then armed with firearms and bladed weapons,
respectively, and with the use of violence and intimidation upon the persons of
ADOLFO FERRER Y TIONG, ELIZABETH BATARA Y CORIA, EDNA ALARCON Y CALAGOS and
CESAR ALARCON, did then and there willfully, unlawfully and feloniously take, rob and carry away the following
articles, to wit:

with the total amount of P159,800.00; that on
the occasion of the said robbery and for the purpose of enabling them to take,
steal and carry away the aforementioned articles, the herein accused in
pursuance of their conspiracy, did then and there willfully, unlawfully and
feloniously and with intent to kill, attack and stab said victims ADOLFO FERRER
Y TIONG, ELIZABETH BATARA Y CORIA, EDNA ALARCON Y CALAGOS AND CESAR ALARCON Y
CALAGOS, thereby inflicting upon said ADOLFO FERRER Y TIONG serious physical
injuries which caused his death; whereas ELIZABETH BATARA Y CORIA, EDNA ALARCON
Y CALAGOS and CESAR ALARCON Y CALAGOS sustained serious physical injuries which
could have resulted in their death were it not for the timely medical
attendance given to them at the MCU Hospital, this City.” (Original Records,
pp. 2-3).

Upon arraignment, the appellants, assisted by Atty. Benjamin A.
Opena, counsel de oficio, entered a plea of not guilty (Ibid.,
p. 16). Trial thereupon ensued.

At the trial, the prosecution presented as its witnesses
Elizabeth Batara, Edna Alarcon, Cesar Alarcon, Pat. Efren Vego, Pat. Mario
Pablo, Pat. Domingo Placido, Mrs. Annabelle Ferrer, Pat. Joven Dela Piedra, Dr.
Mariano B. Cueva, Jr., Norman Santos, Sgt. Norberto Susara and Sgt. Oscar R.
Vargas, the last – named as a rebuttal witness.

Elizabeth Batara, then 34 years old and a bank
teller, testified that on September 30, 1987, at about 7:30 o’clock in the
evening, she heard the sound of a car’s horn outside the gate of her house
located at 4405 corner Malantis and Palosapis Streets, Amparo Subdivision,
Novaliches, Caloocan City (TSN, Hearing of December 8, 1987, pp. 4-5). Being familiar with the car’s horn as that
of Adolfo Ferrer whom she was expecting to come to her house as they had just
talked over the phone, she gave the key of the gate to her housemaid Edna
Alarcon (TSN, Hearing of December 9, 1987, p. 34. TSN, Hearing of December 8, 1987, p. 6). When Edna opened the gate, four (4) persons whom she later
identified as Calixto Sorio, Rodelio Upana, Danilo Dimaano and Danilo Borja came
in, and one of them, Borja, approached her and poked a gun at her neck as well
as covered her mouth with his left palm. Borja told her to just follow his order and then dragged her to the
living room near the sofa. Thereupon,
she saw Dimaano tie the hands of Edna and those of Edna’s brother, Cesar,
behind their back. Dimaano likewise
placed masking tapes on the eyes and mouth of Edna and Cesar. Both Edna and Cesar were at the time beside
her. Dimaano also tied her hands behind
her back, and a masking tape was placed on her mouth and then she was dragged
to the master’s bedroom. She saw Borja,
Upana and Sorio ransacking said master’s bedroom Dimaano joined the three (3)
appellants in ransacking the place. Soria asked her where she kept her money, and when she told him that she
had no money, he slapped and kicked her, causing her to fall to the floor. The four appellants brought out of the master’s bedroom her colored TV
set, her Betamax machine, her hair dryer, her jewelry, her two    (2) cameras, her watch, her air rifle and her
cash of P150.00. She heard one of the
appellants shouting “ipasok mo yang asawa.” Borja and Dimaano immediately went
out of the house, and brought Adolfo Ferrer inside the house. Ferrer’s hands were tied behind his back and
his eyes were covered with masking tape. As Ferrer passed by her, she heard him pleading for his life. The four appellants, however, ignored the
pleas, and brought him to the bedroom. Borja and Dimaano went back to the place where she was and placed masking
tape over her eyes. She was then pushed
to the bed. Thereafter, she heard the
groans of Ferrer who was then at the bathroom. After she heard somebody open the door of the master’s bedroom, a pillow
was thrust on her face, and she was stabbed in her neck. A little later, there was silence. Then she heard voices of several
people. Her neighbor, a certain Aling
Belen, entered her room and helped her. She was then rushed to the MCU Hospital, together with Edna and Cesar
where she was confined for seven (7) days. A medical certificate (Exhibit “G”) was issued to her upon her
discharged from confinement. In
connection with the said confinement, she spent a total of P30,000.00 (TSN,
Hearing of December 8, 1987, pp. 9-19, 21).

On October 16 and 19, 1987, she executed sworn statements before
Sgt. Susara and Pfc. Jacinto Lascano, respectively, in connection with this
case (Ibid., p. 20). Likewise,
she had occasion to identify the four appellants at the Caloocan City Police
Station on the latter date (TSN, Hearing of December 9, 1987, p. 62).

Edna Alarcon, then 21 years old and a housemaid of
Elizabeth Batara, testified that on September 30, 1987, at about 7:00 o’clock
in the evening, she heard a car’s horn while she was inside the house of her
employer, Elizabeth Batara. She went to
Elizabeth, who was then at the guestroom (bedroom), to get the key of the gate
(TSN, Hearing of December 15, 1987, pp. 79-80, 104-105). After she opened the gate, a man whom she
later identified as Danilo Dimaano suddenly came out of the car, and chased her
until she was overtaken at the sala (living room). Dimaano poked a gun at her neck, and forced her to sit in the
sala. On orders of Dimaano, she looked
for her brother, Cesar, whom she found inside the container where they kept
their dirty clothes. She brought Cesar
to the sala. While at the sala, Dimaano
and his companions whom she later identified as Calixto Sorio, Danilo Borja and
Rodelio Upana tied her hands and those of Cesar behind their back. She then saw her employer, Elizabeth, being
dragged by Boria to the sala near the sofa where they were at the time. Thereafter, the appellants covered her eyes
and mouth and those of her brother, Cesar, with masking tape, and brought her
along with Cesar to her room. She knew
this because she bumped the double bed which was inside her room. After a brief silence, a person made her lie
on the bed face up, and stabbed her right shoulder. Then she heard the groans of Cesar. When she sensed that she was already alone in the room, she
called for Cesar. She was able to do so
as the masking tape on her mouth got loose when somebody splashed her with
water. Cesar rushed to her and removed
the masking tape from her face and untied her hands. She and Cesar went out of the house through the kitchen
door. When she realized that the
accused had already left, she went to their neighbors to ask for help. She and Cesar went back inside the house,
together with their neighbors, and opened the masters bedroom where they found
Elizabeth with her hands tied behind her back and bathed in her own blood. They removed the wire tying Elizabeth’s
hands and the masking tape on her face. They then wrapped a blanket around Elizabeth. The neighbors forcibly opened the bathroom and found Ferrer lying
on the bathroom floor bathed in his own blood. After removing the wire tied around his hands and the masking tape from
his mouth and eyes, they realized that Ferrer was already dead. Thereafter, she herself was brought to the
MCU Hospital, together with Elizabeth and Cesar, where she was confined for
several days. A medical certificate was
issued to her upon her discharge from confinement (Ibid., pp. 80-95,
99).

On October 16 and 19, 1987, she executed sworn statements in
connection with this case before the Caloocan City Police authorities (Ibid.,
p. 101). Likewise, on the latter date,
she identified the four (4) appellants among the eight (8) prisoners detained
at the Caloocan City Police Headquarters (Ibid., p. 119).

In the course of her testimony, she identified the following as
properties of her employer, Elizabeth Batara: a) radio cassette (Exhibit “AA”), b) camera (Exhibit “BB”), c) hair
dryer (Exhibit “CC”), d) a pair of eyeglasses with a case (Exhibit “DD”), and
e) three betamax tapes (Exhibit “EE”). (TSN, Hearing of March 7, 1988, pp. 293-297).

Cesar Alarcon, then 9 years of age, testified that
on September 30, 1987, at about 7:30 o’clock in the evening, while he was at
the sala of his sister’s (Edna’s) employer, Elizabeth Batara, he saw a man whom
he later identified as Danilo Dimaano poke a gun at her sister, Edna, who was
then at the gate. He ran to the
guestroom and told Elizabeth about the men at the gate whom he later
identified, aside from Dimaano, as Rodelio Upana, Calixto Soria and Danilo
Borja. When Elizabeth ignored him, he
hid himself inside the container of dirty clothes in the guestroom. After a few minutes, he went out of the
guestroom. While at the sala, together
with Edna and Elizabeth, his hands were tied with a piece of wire by
Dimaano. He was then brought to the
room of Edna where he was stabbed repeatedly. Thereafter, he began to free himself with the use of his teeth and was
able to get rid of the wire tying his hands. He then freed his sister, Edna, who was also in the same room where he
was. After ascertaining that the
appellants had already left, he and Edna went to their neighbors for help. They went back inside the house, together with
their neighbors. Thereafter, he was
brought to the hospital, together with Edna and Elizabeth, where he was
confined for five (5) days (TSN, Hearing of December 16, 1987, pp. 116-129,
136).

On October 16 and 19, 1987, he executed sworn statements in
connection with this case before the police (Ibid., pp. 130-131).

Pat. Efren Vego, a member of the
Anti-Narcotics Unit of the Quezon City Police Station, presented before the
trial court some of the items allegedly recovered from the appellants by the
Anti-Narcotics Unit of the Quezon City Police Station. Among them were the following: 1) a portable radio-cassette tape (Exhibit
“AA”), 2) a camera (Exhibit “BB”), 3) a hair dryer (Exhibit “CC”), 4)
eyeglasses with a case (Exhibit “DD”), and 5) three betamax tapes (Exhibit
“EE”). (TSN, Hearing of January 5,
1988, pp. 150-153). He stated that the
aforementioned items were identitified by Elizabeth Batara as her belongings a
few days after this case was filed with the inquest fiscal (Ibid., p.
161). In addition, P/Col. Pablo Agacer,
his commanding officer, entrusted to him in the first week of October several
items such as two wallets (Exhibit “FF”), a
wrist watch (Exhibit “GG”) and a wedding ring (Exhibit “HH”), which were
subsequently identified by the wife of Adolfo Ferrer, Annabelle
Tolentino-Ferrer, as her late husband’s belongings (Ibid., pp. 157-159).

Pat. Mario Pablo, a member of the
Anti-Narcotics Unit of the Quezon City Police Station, testified that on
September 30, 1987, at about 6:30 o’clock in the evening, while at the office
of the Anti-Narcotics Unit, together with Patrolmen Valiente, Buenaveles,
Salamat, Carreon, Placido, Lanuza and Cpl. Vargas, an informant called by phone
and informed the desk officer, Cpl. Vargas, that a robbery was about to be
committed at Amparo Village. After Pat.
Valiente briefed the policemen, including him, who were present about the said
robbery, they boarded two ieeps and a car and proceeded to Quirino Highway,
Novaliches, near the gate of the Lagro Subdivision. Upon reaching the place at about 7:30 o’clock in the evening, the
policemen positioned themselves on both sides of the highway. The information was that a Galant car,
greenish gray in color, with Plate No. PCA-278, was going to be used in the
robbery. After several minutes, the
aforementioned car was seen passing by. The policemen gave chase until they cornered the said car in front of
the Novaliches church. The four men
inside the car were ordered to alight. They were subsequently identified as appellants Dimaano, Borja, Sorio
and Upana. After having been frisked, a
hand grenade, two guns and a fan knife were found in the possession of the
appellants. A radio cassette, a hair
dryer, cassette tapes and a reading glass were likewise found inside the said
car (TSN, Hearing of January 27, 1988, pp. 177-185, 187, 198).

Pat. Domingo Placido, also a member of the
Anti-Narcotics Unit of the Quezon City Police Station and a member of the team
which apprehended the appellants, substantially corroborated the testimony of
Pat. Pablo. In addition, he testified
that while they were already at the office of the Anti-Narcotics Unit, one of
the appellants, Sorio, admitted having killed someone at Amparo Subdivision,
Caloocan City (Ibid., pp. 213-214).

Mrs. Annabelle Ferrer, widow of the late
Adolfo Ferrer, testified that on September 30, 1987, at about 7:00 o’clock in
the morning, she helped her husband, Adolfo Ferrer, prepare his things before
reporting for work. She arranged his
clothes, jewelry consisting of his wedding ring, a wrist watch and another gold
ring, his three gold Parker ballpens, his two wallets, with the one containing
at least P2,000.00 and the other, $300.00. At around 7:45 o’clock in the morning, Adolfo left for office and she
saw him ride in his car, which was a Galant four-door Sedan with Plate No. ZI
PCA 278, with one of the appellants, Borja, seated in the front seat (TSN,
Hearing of February 16, 1988, pp. 221-225,
250-251).

At about 10:00 o’clock in the evening, while in her residence of
56 Esteban Abada, Loyola Heights, Quezon City, she received a telephone call
from somebody who identified herself as a certain Elizabeth Batara, informing
her that Adolfo was already dead and that if she wanted to see him she should
proceed at 4405 Malanting St. She
immediately contacted her brother, Dr. Arturo Tolentino, Jr. and informed the
latter about what Batara had told her. She likewise called Honey Boy Palanca, her husband’s employer, and
informed him about the matter. At
around 11:30 o’clock in the evening, she
received a telephone call from Honey Boy Palanca, confirming the death of her
husband (Ibid., p. 226-230).

In the course of her testimony, she presented a receipt (Exhibit
“KK”) from International Funeral Homes, evidencing the amount of P49,700.00
which she paid for the funeral services of her late husband (Ibid., p.
235). She likewise declared that she
suffered moral damages as a result of Adolfo’s death (Ibid., p. 236).

Pat. Joven Dela Piedra, a member of
the Caloocan City Police Station, testified that on October 19, 1987, he took
the extra-judicial statements of appellants Borja, Sorio and Upana at the
Caloocan City Police Station. He
admitted, however, that the said appellants were not assisted by counsel when
he took their extra-judicial statements (TSN, Hearing of February 23, 1988, pp.
264, 270, 278, 280).

Dr. Mariano B. Cueva, Jr.,
chief of the Medico-Legal Division of the National Bureau of Investigation,
testified that he was the one who conducted the autopsy on the corpse of Adolfo
Ferrer and he found three (3) stab wounds on the body of the victim, the most
fatal of which was the one inflicted on the left chest. Said stab wound were caused by a single
bladed stabbing instrument like a dagger, a kitchen knife or a fan knife. He further declared that the cause of
Ferrer’s death was hemorrhage secondary to stab wounds (TSN, Hearing of March
28, 1988, pp. 315, 318-321).

Norman Santos, a medical record clerk of MCU
Hospital, presented before the trial court the medical records of Elizabeth
Batara, Edna and Cesar Alarcon.

Sgt. Norberto Susara, officer-in-charge of
the Homicide Section of the Caloocan City Police Station, testified that he
conducted the investigation of appellant Danilo Dimaano at the office of the
Investigation Division of the Caloocan City Police Station. He admitted, however, that Dimaano was not
assisted by counsel when the said investigation was conducted (TSN, Hearing of
May 2, 1988, pp. 339-340, 344).

Sgt. Oscar R. Vargas, formerly
assigned to the Anti-Narcotics Unit of the Quezon City Police Station, testified
that he was the one who made the entries in the police blotter (Exhibits “FFF”
and “FFF-1”) of the Anti-Narcotics Unit of the Quezon City Police Station,
showing that the appellants were apprehended on September 30, 1987, at about
8:45 o’clock in the evening in front of the Novaliches church (TSN, Hearing of
June 5, 1989, pp. 648-651).

On the other hand, the defense presented appellants Danilo
Dimaano, Calixto Sorio, Rodelio Upana and Danilo Borja, who are all presently
detained at the New Bilibid Prisons, Muntinlupa, Metro Manila.

Danilo Dimaano claimed that he was detained at
Narcotics Division of the Quezon City Police Station at about 6:00 o’clock in
the evening of September 30, 1987 for alleged illegal possession of
marijuana. He denied, therefore, that
he was one of the four men who robbed the house of Elizabeth Batara, killed
Adolfo Ferrer and wounded three persons at Amparo Subdivision at 7:30 o’clock
in the evening of September 30, 1987 (TSN, Hearing of June 14, 1988, pp.
376-378).

Calixto Sorio stated that he was arrested by Quezon
City policemen at his residence in Bago Bantay, Quezon City at 12:00 o’clock
midnight of September 29, 1987. He
denied having participated in any way in the commission of roberry/slaying at
7:30 o’clock in the evening of September 30, 1987 at the residence of Elizabeth
Batara as he was then under
detention (TSN, Hearing of July 4, 1988, pp. 410-413).

Rodelio Upana likewise denied having participated
in the commission of the said robbery/slaying. He stressed that he was earlier arrested by the Quezon City police at
6:00 o’clock in the evening of September 28, 1987 at the back of the Munoz
Market. He was still under detention
during the alleged occurence of the robbery/slaying incident (TSN, Hearing of
February 6, 1989, pp. 491-493).

Danilo Borja testified that on September 30, 1987,
at about 5:30 o’clock in the afternoon, he drove Adolfo Ferrer to Timog Avenue
corner EDSA from the latter’s office at La Tondena Distillery located at
Echague, Quiapo, Manila. They arrived
at Timog Avenue corner EDSA at about 6:00 o’clock in the evening. When he was about to alight from the car,
somebody poked a gun at him. The man
announced that it was a hold-up. Thereupon, the man and his two other companions boarded the car after
dragging Ferrer to the backseat. He was
then forced to drive the car to a place at Amparo Subdivision where the armed
men entered a house. Ferrer was brought
inside the said house. Thereafter, the
men came out of the house bringing with them several things contained in a
sack. He was again forced to drive the
car towards Novaliches where the Quezon City policemen arrested him, together
with the three armed men (TSN, Hearing of April 25, 1989, pp. 546-553).

Giving more weight to the evidence presented by the prosecution,
the trial court rendered a decision, finding the appellants guilty as charged,
the dispositive portion of which reads as follows:

“WHEREFORE, in view of the foregoing, this Court finds the accused
DANILO DIMAANO Y DELA CRUZ, DANILO BORJA Y ABESAMIS, CALIXTO SORIO Y ESPINA and
RODELIO UPANA Y CATALYO, GUILTY beyond reasonable doubt of Robbery with
Homicide and Multiple Frustrated Homicide, and taking into consideration the
presence of the aggravating circumstances of dwelling and of the use of
superior strength, and the absence of any appreciable mitigating circumstance,
hereby sentences each of the accused to suffer imprisonment of RECLUSION
PERPETUA. This Court directs the said
four accused to return to Mrs. Annabelle Ferrer the wedding ring, the wrist
watch, and the cash of deceased Adolfo Ferrer to his widow, Annabelle Ferrer,
and if unable to do so, to reimburse the latter the amount of P37,000.00, the
value of this missing articles. This
Court likewise directs the four accused to return to the victim Elizabeth
Batara a Sony colored TV set; a Betamax machine, a Betamax rewinder; a stereo
set; a Cannon camera; assorted jewelries and an air rifle, and if unable to do
so, to reimburse Elizabeth Batara the total amount of P90,400.00 representing
the value of these missing articles.

“This Court further directs the said four accused to indemnify
Annabelle Ferrer the amount of P49,700.00 which represents the amount spent
incurred (sic) for the funeral of Adolfo Ferrer; and Elizabeth Batara the
amount of P30,000.00 representing the expense incurred in the hospitalization
Of Elizabeth Batara, Edna Alarcon and Cesar Alarcon; and to pay the costs.

“The accused are entitled to full credit of their preventive
imprisonment pursuant to Article 29 of the Revised Penal Code, as amended,
provided the conditions enumerated therein have been complied with.” (Rollo,
pp. 48-49).

In this appeal, the appellants raised the following as assignment
of errors:

I

“THE LOWER COURT ERRED IN NOT ACQUITTING THE APPELLANTS DESPITE ITS
FINDING THAT ON THE BASIS OF THE POLICE BLOTTER (EXHIBITS ‘FFF’ AND ‘FFF-1’),
THE APPELLANTS WERE APPREHENDED BY THE QUEZON CITY POLICE ON ‘SEPTEMBER 30,
1987 AT 8:45 IN THE EVENING FOR ILLEGAL POSSESSION OF FIREARMS DEADLY WEAPON’
AND NOT FOR ‘ROBBERY WITH HOMICIDE AND MULTIPLE FRUSTRATED HOMICIDE’ FOR WHICH
THEY HAVE BEEN CHARGED AND CONVICTED.

II

“THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF
PAT. MARIO PABLO AND PAT. DOMINGO PLACIDO THAT ‘THEY FOUND INSIDE THE CAR WHERE
THE FOUR ACCUSED WERE ARRESTED, A RADIO CASSETTE (EXHIBIT ‘AA’); A POLAROID CAMERA (EXHIBIT ‘BB’); A HAIR DRYER (EXHIBIT
‘CC’); AN EYEGLASS (EXHIBIT ‘DD’); A WALLET (EXHIBIT ‘FF’); AND A WATCH
(EXHIBIT ‘GG’).

III

“THE LOWER COURT ERRED IN NOT HOLDING THAT THE CONFRONTATION
APRANGED BY THE CALOOCAN CITY POLICE BETWEEN THE PRIVATE COMPLAINANT AND HER
WITNESSES AND THE APPELLANTS, WHEREIN THE LATTER WERE PRESENTED TO THE FORMER
FOR PURPOSES OF IDENTIFICATION, WAS
VIOLATIVE OF THE CONSTITUTIONAL RIGHT OF THE APPELLANTS TO BE REPRESENTED BY
COUNSEL IN ALL STAGES OF THE INVESTIGATION.

IV

“THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE DEFENSE OF ALIBI
SET UP BY EACH OF THE APPELLANTS DESPITE THE FACT THAT THE EVIDENCE OF GUILT IS
WEAK, DOUBTFUL, UNCONVINCING, UNRELIABLE AND UNSATISFACTORY.

V

“THE PROSECUTION AND THE LOWER COURT ERRED IN HOLDING THAT THERE IS
SUCH A CRIME AS ‘ROBBERY WITH HOMICIDE AND MULTIPLE FRUSTRATED HOMICIDE.”
(Rollo, pp. 65-66).

In the first two assigned errors, the appellants contend that on
the basis of the police blotter, they were arrested for the crimes of illegal
possession of firearms and illegal possession of deadly weapons and not for the
crime for which they have been charged and convicted (Rollo, pp. 66-67). As a matter of fact, the said police blotter
never made mention about the articles (Exhibits “AA”, “BB”, “CC”, “DD”, “FF”
and “GG” allegedly recovered from the appellants at the time they were
apprehended (Rollo, p. 69). Thus, the
trial court should not have given credence to the subsequent testimony of Pat.
Mario Pablo and Pat. Domingo Placido to the effect that the said articles were
recovered from the appellants.

The contention is without merit.

Like an affidavit, an entry in the police blotter is taken ex-parte. Hence, in the same manner, it could be just
as incomplete and inaccurate, sometimes from either partial suggestions or for
want of suggestions or inquiries, without the aid of which the witness may be
unable to recall the connected collateral circumstances necessary for the
correction of the first suggestion of his memory and for his accurate
recollection of all that pertains to the subject. It is understandable that the testimony during the trial would be
more lengthy and detailed than the matters stated in the police blotter. In this light, the entry in the police
blotter is inferior to the testimony of Pat. Mario Pablo and that of Pat.
Domingo Placido given in open court (People v. Solis, 195 SCRA 405 [1991]; Ford
v. Court of Appeals, 186 SCRA 21 [1990]).

Anent the allegation of the appellants that their identification
by the private complainants at the police heardquarters in the absence of their
counsel violated their constitutional right to counsel, suffice it to say that
the right to counsel attaches upon the start of an investigation, i.e., when
the investigating officer starts to ask questions to elicit information and/or
confessions or admissions from the accused. At such point or state, the person being interrogated must be assisted
by counsel to avoid the pernicious practice of extorting false or coerced
admissions or confessions from the lips of the person undergoing interrogation
for the commission of an offense (Gamboa v. Cruz, 162 SCRA 642 [1988]).

In the instant case, when the appellants were identified by the
complainants at the police line-up, the former had not yet been held to answer
for the criminal offense for which they have been charged and convicted. The police could not have, therefore,
violated their right to counsel as the confrontation between the State and them
had not yet begun. As held in the case
of Gamboa v. Cruz (supra), police line-up is not part of the
custodial inquest, hence, the appellants were not yet entitled, at such stage,
to counsel.

The appellants also faulted the trial court in not giving
credence to the defense of alibi set up by each of them, saying that the
defense of alibi assumes importance and acquires commensurate strength when the
evidence of guilt is weak, doubtful, unconvincing, unreliable and
unsatisfactory, and, therefore, may be given credence (Rollo, pp. 72-73). This contention, however, must fail in the
face of the positive identification of the appellants as the perpetrators of
the crime by Elizabeth Batara, Edna Alarcon and Cesar Alarcon (People v. Solis,
supra). Their identification was not
difficult as the garage, the living room and the dining room of Batara’s house
were all lighted at the time that the crime in question was committed by the
appellants (TSN, Hearing of December 9, 1987, p. 55).

Moreover, the appellants have not shown any ill motive on the
part of private complainants to fabricate charges against them. It is well-settled that when there is no
evidence to show that the witnesses for the prosecution were actuated by
improper motive, their identification of the appellants as the offenders should
be given full faith and credit (People v. Gonzales, Jr., 182 SCRA 393 [1990]).

However, the trial court appears to have erred in the designation
of the crime as robbery with homicide and multiple frustrated homicide. As held in the case of People v. Repuela
(183 SCRA 244 [1990]), there exists no offense of robbery with homicide and
frustrated homicide because “homicide”, as the term is used by Article 294,
paragraph (1) of the Revised Penal Code, is meant in its generic sense, that
is, any act that results in death. Any
other act producing a result short of death is embraced by “homicide”, assuming
that death occurs at the same time. If
no death supervenes, the accused should be held liable for robbery and
frustrated or attempted homicide or murder (provided there was intent to kill),
and not the complex crime of robbery with homicide.

PREMISES CONSIDERED, the decision appealed from is hereby
AFFIRMED, with the modification that the appellants are held guilty of the
offense of robbery with homicide as defined in Article 294, paragraph (1) of
the Revised Penal Code, and are hereby ORDERED TO PAY the sum of P50,000 as
indemnity for the death of Adolfo Ferrer.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.

Nocon, J., on leave.

* Penned by Judge Rene Victoriano