PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JAIME MUYANO Y QUINTO AND RICKY FAJARDO Y OLVIDO, ACCUSED-APPELLANTS.

Jaime Q. Muyano was charged with the murder of Mar S. Rebustes
(Criminal Case No. 89-79688) and illegal possession of firearm (Criminal Case
No. 89-79689). Ernesto H. Gonzales and
Ricky O. Fajardo were also charged with the murder of Mar S. Rebustes (Criminal
Case No. 89-79881). All the
Informations were filed before the Regional Trial Court, Branch 5, Manila.

All three (3) pleaded not guilty upon arraignment. A few months later, Jaime Muyano was
re-arraigned and pleaded “guilty” to the charge of illegal possession of
firearm. Accordingly, the trial court
issued an order sentencing him to the penalty of imprisonment of two (2) years
and four (4) months of prision
correccional to eight
(8) years of prision mayor, for illegal possession of firearm.

The criminal cases for the murder of Mar Rebustes were jointly
tried and after such joint trial, the trial court acquitted Ernesto Gonzales
for failure of proof beyond reasonable doubt, but convicted appellants Jaime
Muyano and Ricky Fajardo, and sentenced each of them to the penalty of life
imprisonment and to indemnify the heirs of the deceased victim in the amount of
P30,000.00.

Jaime Muyano and Ricky Fajardo, in their present appeal, assign a
single error: “The trial court erred in
finding the accused Jaime Muyano and Ricky Fajardo guilty beyond reasonable
doubt of the crime of murder.”

From the decision of the trial court and the underlying record of
the case, the relevant facts may be summed up as follows.

The slaying of Mar Rebustes happened on 16 November 1989, at
about 7:30 p.m., near the entrance door of the Inland Trailways Bus Terminal at
F. Cayco Street, Sampaloc, Manila. On
that day and time, Mar Rebustes, who was a security guard of the Terminal, was
on duty manning his post near the entrance of the Bus Terminal. Approximately a meter away from the victim
stood Gil Gamitin, Jr., a janitor of the Bus Terminal. With their hands placed inside their shirts,
Jaime Muyano and Ricky Fajardo passed by in front of Gamitin and proceeded to
where Rebustes, who was facing the street, stood. Without saying a word, they approached Rebustes frontally, and
encircled him and after Fajardo had placed his right arm on Rebustes’ nape,
walked behind him and thereupon shot Rebustes on the right side of the back of
his head, with a .38 caliber pistol. Muyano, for his part, took Rebustes’ service firearm from his waist as
the latter lay sprawled on the ground. Muyano and Fajardo then ran across the street and went inside the
restaurant or “pub house” owned by Ernesto Gonzales.

Immediately after the shooting, Editha Ocampo, who was
employee-in-charge of the canteen at the Bus Terminal, reported the incident to
the police. The following day, the
police arrested Gonzales, Muyano and Fajardo.

Gonzales was arrested because it appeared that on the evening on
15 November 1989, the day before the slaying of Rebustes, he (Gonzales) was
inside the Bus Terminal very upset and angry over the fact that one of his
employees had apparently been “held-up” by an employee of the Bus Terminal. Gonzales told Fajardo and the latter’s
companion that they should have taken some firearms from his (Gonzales’) house,
and should have broken the lock of the cabinet where the firearms were
kept. On the early afternoon of the day
of the killing of Rebustes, Gonzales, Muyano and Fajardo were inside the Bus
Terminal, with Gonzales still in a foul mood, saying “Paano ‘yan, nasaktan ang isang bata ko.”^[1]

The autopsy report rendered by Dr. Florante Baltazar of the
Western Police District Crime Investigation Laboratory, indicated that Rebustes
had sustained a “penetrating gunshot wound, right occipital region as the point
of entry, 163 cms. from head, 0.7 cm. from posterior mid-line x x x.”

The defense of appellants Muyano and Fajardo consisted of denying
involvement in the slaying. Muyano
testified that on 16 November 1989, at around 7:30 p.m., he was inside the Bus
Terminal when he heard a gunshot coming from behind him. Turning around, he saw Rebustes, from a
distance of about four (4) meters, fall down on the sidewalk. Muyano said that he also saw a certain Toto
Mayo, allegedly a “siga-siga” gang member, about
eight (8) meters away from Rebustes holding a short firearm. Muyano noticed that there was a .38 caliber
revolver on the sidewalk about two (2) meters away from the victim; Muyano
walked over, picked up the pistol and handed it over to his compadre, one Boy Cruz, allegedly for surrender
presumably to the police authorities. Muyano stated finally that he did not see either Gonzales or Fajardo at
the scene of the shooting.^[2] Upon
the other hand, appellant Fajardo testified that on 16 November 1989, he was
inside the “pub house” owned by Ernesto Gonzales, from 6:00 p.m. to 12:00
a.m. The “pub house” was approximately
ninety (90) meters away from the situs of the killing. According to Fajardo, he did not leave the
“pub house” up to the time he was arrested the following day.^[3]

The trial court disposed of the defenses of Muyano and Fajardo
very quickly:

“x x x. The claim of
accused Muyano that he merely heard a shot and saw a gun lying on the ground
and for some hidden instinct picked it up and claim to have given it to
somebody is, to the mind of the Court, the height of the fallacy which accused
want the Court to believe. Why would a
man, after hearing a shot, expose himself to bodily harm, even death, by going
to the place where the shot came from and picking the gun lying on the ground
just for the exercise and claim to have given it to somebody who did not even
bother to come to Court to testify and give credence to his claim?”^[4]

Because Gil Gamitin, Jr., with the corroboration of Edith Ocampo,
had positively identified appellant Ricky Fajardo as the man who had passed by
him (Gamitin) in the company of accused Muyano, and as the man who had
approached Rebustes from the front, held him with his right hand on the neck,
went behind him, and then shot him on the back of the head with a .38 caliber
pistol, the trial court gave scant consideration to the alibi of Fajardo:

“x x x. The denial by the
accused Fajardo of any participation in the killing and his vain attempt to
throw the blame to somebody else by claiming the alibi that he was at that time
in a carinderia a short distance away from the place of the incident is again,
to the mind of the Court, another vain attempt to free himself from the
consequences of his act, that is, the killing and shooting of a terminal guard
Mar Rebustes.”^[5]

Appellants Fajardo and Muyano claim that the findings of the
trial court were “contradictory [of] the testimony of witness Gamitin in the
transcripts of stenographic notes.”^[6] We do
not think so. The findings of the trial
court that “said two (2) accused encircled the guard Rebustes and then Fajardo
approached Rebustes from the front, held him with his right arm on the neck and
fired that fatal shot with a .38 caliber revolver, making Rebustes fall dead on
the ground,”^[7]
do not contradict the testimony of prosecution witness Gil Gamitin, Jr. Gamitin testified that without uttering a
word, appellants had approached Rebustes frontally, encircled him, and after
Fajardo placed his right arm on the victim’s nape, went behind the victim and
there shot him on the right side of the back of his head with a .38 caliber
revolver, while Muyano took Rebustes’ service weapon from the latter’s waist.^[8]
We observe only that the trial court did not mention the detail that after
Fajardo had placed his right arm on Rebustes’ nape, Fajardo went behind
Rebustes and shot him on the back of the head. That additional detail was supplied by Gamitin. Upon the other hand, the trial court did not
find that Fajardo had shot the victim from the front or fired on his face. Thus, the “contradiction” asserted by
appellants was more apparent than real.

We agree with the trial court that the element of treachery had
been proven in the instant case. Muyano
and Fajardo had surrounded Rebustes and Fajardo shot Rebustes from behind, at
the back of his head. This rendered
Rebustes helpless to defend himself; appellants had employed means which
assured the execution of the crime without risk to themselves arising from any
defense that their victim might make.^[9] It is
also evident that the appellants had acted in concert and had corroborated with
each other in slaying Rebustes. The
appellants had first encircled Rebustes and then one of them went behind Rebustes and shot him on the back of the
head while the other took away Rebustes’ service weapon. The two (2) had then together fled across
the street towards Gonzales’ “pub house.”^[10]

The settled doctrine is that alibi cannot prosper as a defense
where the accused was positively identified as the killer.^[11]
It is equally settled that alibi is unavailing as a defense where there was no
physical impossibility of the accused having committed the crime charged.^[12]
The “pub house” where Fajardo had allegedly stayed all night on 16 November
1989, and until the next day, was only ninety (90) meters away from where
Rebustes had been shot to death.

We agree, however, with the Solicitor General that the
aggravating circumstance of evident premeditation, which had been alleged in
the informations for murder, cannot be appreciated in the instant case because
the essential requisites of that circumstance were not proven. The essential elements which were not
established were:

(1) the time when the offender determined to
commit the crime;

(2) an act manifestly indicating that the
offender had clung to his determination to commit the offense; and

(3) the lapse of an
interval of time between determination to commit the crime and the execution
thereof, sufficient to allow the offender to reflect upon the consequences of
his act.^[13]

Finally, we must correct the penalty imposed by the trial court,
which was the penalty for life imprisonment. The appropriate penalty is, of course, that of reclusion perpetua. As the Court has said a number of times,
life imprisonment and reclusion perpetua are juridically different, the
latter being imposed by the Revised Penal Code and having its specific duration
and corresponding accessory penalties.^[14]

ACCORDINGLY, for all the foregoing, the decision
of the trial court is AFFIRMED, with
the modification that the penalty imposed upon appellants Jaime Q. Muyano and
Ricky O. Fajardo is hereby CHANGED to
reclusion perpetua and the award of indemnity for the death of Mar
Rebustes is hereby INCREASED to
P50,000.00 in line with recent jurisprudence of this Court. Costs against appellants.

SO ORDERED.

Bidin, Romero, Melo, and
Vitug, JJ., concur.

^[1]
Decision of the Trial Court, p. 4; TSN, 28 May 1990, pp. 7-8.

^[2]
TSN, 17 January 1991, pp. 3-8.

^[3]
Id., pp. 16-18.

^[4]
Rollo, p. 62.

^[5]
Id.

^[6]
Appellants’ Brief, p. 9.

^[7]
Decision of the trial court, p. 6.

^[8]
TSN, 14 June 1990, pp. 12-14.

^[9]
E.g., People v. Cuyo, 196 SCRA 447 (1991); People v.
Laredo, 185 SCRA 383 (1990).

^[10]
E.g., People v. Benitez,
Jr., 202 SCRA 478 (1991); People v.
Base, 196 SCRA 688 (1991); People
v. Catubig, 195 SCRA 505
(1991).

^[11]
People v. Arenas, 198 SCRA 172 (1991).

^[12]
People v. Belon, 194 SCRA 447 (1991).

^[13]
People v. Balatucan, 206 SCRA 81 (1992).

^[14]
People v. Serdan, 213 SCRA 329 (1992).