PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUDY MOSENDE, ACCUSED-APPELLANT.

The conviction for murder subject of the present appeal rests on circumstantial
evidence which, as is axiomatic, is as valid and as persuasive a foundation for
conviction for a crime as direct and positive testimonial proof of the specific
constitutive elements thereof.

No motive or reason for the killing here dealt with is revealed
by the proofs. This is immaterial,
where the evidence otherwise persuasively demonstrates who is the killer and
the acts by which he has carried out his nefarious intent. This is not to say that what lies in the
murky criminal mind is not of interest, specially to penologists, criminal
psychologists or social scientists; but it is scarcely material in reaching a
conclusion of guilt and imposing an appropriate penalty on the basis of a cold,
dispassionate appraisal of the bare facts exposed by the evidence.

The murder victim in this case was a fifteen-year old boy named
Carlo Alipao, who was living in the town of Mainit, Surigao del Norte with his
mother, Gloria Alipao. He was last seen
alive by his mother in the late afternoon of September 18, 1986, when he left
his home with two friends, Jinky Mozol and Marlon Escuyos, to visit another
friend, Rudy Mosende. Carlo, or
“Lelot,” as he was more familiarly called, was then wearing a T-shirt and
dark-colored short trousers with stripes.

There is no narration in the record of what Lelot and his
companions did after leaving his home and before Lelot was killed. What the record contains is the narrative of
Benceslao Resullar, Jr. and Fidelino Balaga, the former, a friend of Rudy
Mosende, of events transpiring after Lelot’s death.

According to Benceslao and Fidelino, at about 7 o’clock in the
evening of that day, September 18, 1986, they were drinking rum at Benceslao’s
house when Rudy Mosende dropped by and asked them to take a stroll. They agreed. When they reached a street corner, Mosende asked them to take some
“pulutan” at his
shack. Again they agreed. On entering Mosende’s shack — which was in
a dilapidated state and had no flooring — Mosende shut the door and told them
to dig a hole in the ground. Again the
two agreed and did as they were
told, thinking that they would bury the entrails and hide of the animal
slaughtered by Mosende for their pulutan. When
the hole was knee-deep, Mosende told them to go to the shack’s toilet.

Benceslao and Fidelino were aghast to find in the toilet the dead
body of a male person, whose hands and feet were bound with rope, and whose
head and upper torso were encased in a sack. Mosende now told them to bury the cadaver in the hole they had just
dug. This time, the pair demurred. However, they eventually did as they were
told when Mosende drew out a bolo and angrily threatened them with it. Fearing for their lives, they carried the
corpse to the hole, dropped it in, and covered it with soil. Benceslao asked Mosende who was the person
they had just buried. Mosende said it
was Lelot Alipao (“Lelot” being, as already mentioned, the nickname of Carlo
Alipao). Mosende then told them that if
word ever got out of Lelot’s (Carlo’s) killing, they and their parents would
themselves be slain. With Mosende’s
threat ringing in their ears, Benceslao and Fidelino left the shack; and not
long afterwards, fled to Surigao City.^[1] They
returned to Mainit after Mosende was arrested sometime in April, 1987, and
revealed what they knew to the authorities.^[2]

Carlo (Lelot) Alipao’s remains were discovered after seven (7)
months or so. The events leading to
that discovery, as disclosed by the largely undisputed evidence given by
Lelot’s mother and other disinterested witnesses, are succinctly recounted by
the Trial Court. Those events include
the extraordinary dream of Mrs. Alipao which supposedly revealed to her the
place where her son’s body lay. The
Trial Court’s summary is as follows:^[3]

“ ** (A)fter Carlo
failed to come home, Mrs. Gloria Alipao asked Jinky Mozol and Marlon Escuyos
about her son but they said they did not know where he was. She searched for her missing son in
different places in the vicinity of Mainit but without success. When she met Rudy Mosende a few times, he
gave her false leads as to the whereabouts of Carlo. When she went to the places indicated by him, she did not find
her son. Mrs. Alipao declared that she
was made to look like a fool by Rudy Mosende.

Eventually, Gloria Alipao dreamed that her son was buried somewhere
in the place of Rudy Mosende. When she
went to the place and stood outside, she smelled a very bad odor coming from
inside the lot. She told many people
about her belief that her son was buried there.

For his part, Police Lieutenant Ranulfo Demiar, Station Commander
of Mainit, declared that on April 13, 1987, he received an order (Exhibit C)
from Judge Desiderio Custodio, presiding judge of the Municipal Trial Court of
Mainit, authorizing the exhumation of a body within the Mosende family
lot. After securing the consent in
writing of Arthur Mosende (Exhibit D), brother of Rudy Mosende, as both their
parents were dead, an exhumation was conducted in his presence by Dr. Lourdes
Alabat, Chief of the Mainit Medicare Community Hospital. Also present were Barangay Captain Dioscoro
Montaner of Barangay Quezon, Mainit poblacion, some policemen and other
government and health officials of Mainit.

Exhumed from the residential lot in Mainit of the Mosende family
were the remains of a human body wearing a T-shirt (Exhibit F-2) and
dark-colored short pants with stripes (Exhibit F-3). The hands and feet of the deceased were tied with rope while the
head and upper body were placed inside a sack. The body was identified by Mrs. Gloria Alipao to be that of her missing
son Carlo Alipao.

Witness Dr. Lourdes Alabat testified that on April 13, 1987, she
conducted the exhumation and autopsy of a human body which was identified by
Gloria Alipao to be that of her son Carlo. After a physical examination of the dead body, she prepared an
Exhumation Report (Exhibit A) dated April 14, 1987 which contained her medical
findings and conclusions. Among other
things she declared that she found a softening of the skull of the victim at
the right occipital region or the area just behind the right ear. She opined that the cause of the softening
was heavy pressure or a blow to that region with heavy object like a piece of
wood. At the right jaw of the head, she
also discovered a linear fracture and a circular softening of the bone which
was probably caused also by a heavy pressure or blow applied to that area. In view of these injuries to the head, she
concluded that the victim probably died of intra-cranial or brain hermorrhage. She issued the Death Certificate of Carlo
Alipao (Exhibit B) on the basis of the identification made by his mother.”

An information was filed on June 10, 1987 in the Regional Trial
Court at Surigao City accusing Rudy Mosende, Jinky Mozol and Marlon Escuyos as
co-conspirators in the killing of Carlo Alipao, “with treachery, evident
premeditation and abuse of superior strength.”^[4] The
three accused were separately arraigned, and after they all entered a plea of
not guilty, trial ensued.

After the prosecution rested its case, Mozol and Escuyos filed a
demurrer to evidence. By Order dated
October 7, 1989, the demurrer was sustained and the case dismissed against the
two (2) movants. Trial resumed and was
concluded only against Rudy Mosende.

Mosende sought to prove an alibi through his testimony and that
of two (2) others, Police Corporal Jose Arlan and Ponso Pecan, a hired helper
at the sari-sari store of his sister, Alma Mosende
Dumadag. He claims that he had ceased
to reside in Mainit as early as 1984 when the family residence was destroyed by
a typhoon and, both his parents being already dead at the time, had then
decided to live with his elder sister, Alma, in the town of Tubod, eight
kilometers away from Mainit. He claims
further that he never left Tubod on September 18, and 19, 1986 because of a
swollen left foot, sprained during a basketball game. He denied the stories of Benceslao Resullar and Fidelino Balaga,
asserting that the former bore him a grudge because they had once fought in a
basketball match.

As already mentioned, the Trial Court found Mosende guilty of the
murder of Carlo Alipao, on the basis of circumstantial evidence, refusing to
believe his alibi. The Court’s judgment
dated October 2, 1990^[5] made
the following disposition:

“WHEREFORE, the Court finds the accused, Rudy Mosende, guilty
beyond reasonable doubt as a principal of the crime of murder, qualified by
treachery, defined and penalized under Art. 248, par. 1 of the Revised Penal
Code, and there being no other modifying circumstance to consider, hereby
sentences him to suffer reclusion perpetua and its accessory penalties; to pay
civil indemnity to the heirs of the victim, Carlo Alipao, in the amount of
P30,000.00, and moral damages of P10,000.00; and the costs.”

Mosende assigns as errors allegedly fatal to the judgment of conviction
–

1) the Trial Court’s acceptance of the amended information after
Mosende had already pleaded to the original one, and its omission to cause his
re-arraignment and entry of a new plea with respect to said amended indictment;

2) its failure to accord credit to the entry of September 17,
1986 in the blotter of the Mainit Police Force to the effect that “together
with Virgilio Mujica and Victor Aguho all of the seabees, up to this date,
subject Lilot Alipao not return home and not known of his whereabouts (sic);”
and

3) said Trial Court’s failure, otherwise, to acquit him on
reasonable doubt.

The appellant’s objections to the amendment of the information
must be overruled. The amendment
consisted solely in the addition of a statement that his two (2) co-defendants,
who were minors, had “acted with
discernment.”^[6] No other change was made in any other
allegation of the original indictment, much less as to the acts or omissions
ascribed to Mosende himself. As regards
Mosende, there was no revision of the charges of any sort whatsoever which
could affect the the nature of the offense charged, the modifying circumstances
alleged, or the evidence against him, or the defense he could present. The amendment was in other words purely
formal, one which could cause him no prejudice at all. Such an amendment, adding nothing essential
for conviction for the crime charged vis
a vis Mosende himself, causing him no
surprise and incapable of causing injury to his substantive rights, is one of
form which may be made at any time, even after arraignment.^[7] The
admission of the amended information by the Trial Court over the objections of
Mosende’s counsel^[8] must thus be sustained.

So, too, the Trial Court’s refusal to accord any probative value
to the entry in the blotter of the Mainit Police Force cannot be faulted. That entry allegedly reflected the report of
the mother of Carlo Alipao to the effect that as of September 17, 1986 her
son was already missing (“subject Lilot Alipao not return home and not known of
his whereabouts [sic]).” It contradicts, it is claimed, her testimony that she
had last seen Carlo alive in the late afternoon of September 18, 1986, when
he left his home with two friends, Jinky Mozol and Marlon Escuyos, to visit
another friend, Rudy Mosende.^[9] The Trial
Court evidently imputed the contradiction simply to a clerical error, some
slight imperfection either in the reporting by a distraught mother, or in the
recording by an unconcerned or passive police officer, and did not consider the
blotter entry to be entitled to full credit, or deserving of more weight than,
or otherwise militating against, the positive and more categorical and detailed
statements of Mrs. Alipao on the witness stand. It acted correctly in doing so, consistently with this Court’s observations in earlier cases on the
probative value of police blotters generally.^[10]

The Court agrees that there is no reason to disbelieve and
discard the testimonial evidence of Benceslao Resullar, Jr. and Fidelino Balaga,
notwithstanding Mosende’s contention that the former bore him a grudge and
seized the opportunity to embroil him in the murder of Lelot Alipao. It taxes credulity to suppose that an
altercation or exchange of blows during a basketball game should have so filled
Benceslao with deep-seated hatred of his antagonist and so imbued him with
great artfulness as to lead him to concoct the elaborate scenario that he
described to the Court, implicating Mosende by indirection in the crime. And even if Benceslao were to be
discredited, for the reason Mosende advances, no cause exists to accord similar
treatment to Fidelino, who echoed and confirmed Benceslao’s narrative.

Taking account of the facts laid before the Trial Court by
Benceslao and Fidelino, in relation to others confirmed with like
persuasiveness by other evidence, the Court is again impelled to agree that
although there is no proof directly linking Mosende to the actual murder of
Carlo (Lelot) Alipao, the established circumstances cannot but lead to the
conclusion of his guilt thereof.

The law is that circumstantial evidence will support and justify
a verdict of conviction if there be more than one circumstance, if the facts
from which the inferences are derived are proven, and the combination of all
the circumstances is such as to produce a conviction beond reasonable doubt.^[11]
These requisites are adequately met in the case at bar. There are several circumstances generating
certitude of Mosende’s guilt, these being:

1) it was in the shack of the family of Rudy Mosende that the
corpse of Lelot Alipao — bound hand and foot, head and upper body encased in a
sack, dead from severe blows to the head from a blunt instrument — was dug up
from a shallow hole in the dirt floor;

2) the body had been
buried in that place by Benceslao Resullar, Jr. and Fidelino Balaga some seven
months earlier;

3) it was on the invitation and request of Rudy Mosende that
Benceslao and Fidelino had gone to that shack and dug the hole themselves;

4) it was Rudy Mosende
who showed them the cadaver of Lelot Alipao, lying in the toilet; and it
was Rudy who told them to carry it to the hole and bury it there, and who bullied them into doing so when they initially demurred;

5) Mosende told them it was Lelot Alipao they were interring;

6) Mosende threatened to kill Benceslao and Fidelino and their
parents if anyone should come to know of the evening’s bizarre event; and
because of their fear, the two exiled themselves in Surigao City, returning to
Mainit only after they learned of Mosende’s arrest;

7) when Lelot left his
home for the last time, with two friends, it was allegedly to visit Rudy
Mosende.

The foregoing circumstances are incapable of no rational
explanation save Mosende’s wish to conceal the fact that Lelot Alipao had died
a violent death; and there can be no rational cause for that wish except his
being himself the cause of Alipao’s violent demise.

There was satisfactory identification of the exhumed corpse made
by the victim’s own mother and another person, distantly related to Rudy
Mosende, as well as by the latter himself. As the Trial Court observed:

“With respect to the identity
of the exhumed human remains, the evidence clearly showed that it was that of
the missing Carlo Alipao. The victim’s
mother, Mrs. Gloria Alipao, definitively declared that the short pants (Exhibit
F-3) and the T-shirt (Exhibit F-2) were the very same ones worn by her son when
she last saw him in the afternoon of September 18, 1986. On cross-examination she described the
T-shirt as having several figures in front and the short pants as dark-colored
with stripes (tsn, Gloria Alipao, pp. 62-63, April 18, 1989). Although the face of Carlo Alipao was no
longer recognizable, she identified him thru his clothes.

Aside from Mrs. Alipao, another person present at the exhumation,
Vicente Montaner, Jr., declared that he recognized the pair of short pants worn
by the deceased because it had been given by his wife to Carlo Alipao who was
her nephew. Incidentally he is also
related to Rudy Mosende as the latter’s late mother and the father of Vicente
were second cousins (tsn,Vicente Montaner, Jr., p. 10 and p. 21, January 6,
1989).”

Rudy Mosende’s proffered alibi must rejected in line with
familiar jurisprudence. It cannot stand
in the face of the positive declarations of disinterested witnesses having no
reasonable motive to give false evidence that he was at the scene of the crime
on the day of its commission and consummation and in fact sought to conceal it,
apart from the fact that Tubod, the place where he claimed to be residing, is
“only eight kilometers away from Mainit,” as the Trial Court points out, “and
there are public conveyance(s) plying the road ** (and it) would have been
quite easy for the accused to take a jeepney ride to Mainit considering that it
was nearly fiesta and there were many jeepneys going to town.”

Appreciated against the appellant was the qualifying circumstance
of alevosia, for when found the corpse was trussed hand and foot “like
an animal,” according to the Court. It
was while the victim was thus helpless, in no position to offer any sort or
resistance or defense, that in the Trial Court’s view, the fatal blows on the
head were inflicted; that Alipao, in other words, was tied up and rendered
defenseless before he was killed; and that it makes no sense to assume that he
was bound only after he was killed. This inference of the Trial Court will not be disturbed either.

WHEREFORE, the judgment of the Trial Court subject of the
appeal at bar, being in accord with the evidence and applicable law and
jurisprudence, is AFFIRMED, with costs de officio.

Padilla, Regalado, Nocon, and
Puno, JJ., concur.

^[1]
SEE TSN, Jan. 5, 1989, pp. 4-10; TSN, Mar. 13, 1989, pp. 63-76

^[2]
TSN, April 17, 1989 [F. Balaga], p. 16; TSN, Jan. 25, 1989 [B. Resullar, Jr.],
p. 24

^[3]
Rollo, pp. 40-41

^[4]
Docketed as Crim. Case No. 246 and
assigned to Branch 32. The information
was amended on December 11, 1987 in view of the discovery that Jinky Mozol and
Marlon Escuyos were minors, to include the additional averment that the two had
“acted with discernment.”

^[5]
Per Hon. Diomedes M. Eviota

^[6]
SEE footnote 4 and related text, supra

^[7]
Sec. 13, Rule 110, Rules of Court; SEE Peo. v. Borromeo, 123 SCRA 253
(1983); Peo. v. Montenegre, 159 SCRA 236 (1988)

^[8]
TSN, March 15, 1989, p. 4

^[9]
SEE pp. 1-2, supra

^[10]
SEE Peo v. Santito, 201 SCRA 879 (1991) to the effect that an entry in a
police blotter “is not necessary entitled to full credit for it could be
incomplete and inaccurate **;” and Ford v. C.A., 186 SCRA 21, to the
same effect

^[11]
Sec. 4, Rule 133 (Revised Rules of
Evidence) Rules of Court