PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGELIO PELONES, ACCUSED-APPELLANT.

GUILLERMO SOLINA and JOSE MALTO were resting in a poultry farmhouse
one late evening enjoying the music from a cassette player unmindful that
moments later one of them would be dead and the other critically wounded. For the death of Solina and the injuries of
Malto, Rogelio Pelones was prosecuted for and later convicted of murder
penalized under Art. 248 of the Revised Penal Code, and frustrated murder under
the same Art. 248 in relation to Art. 6 of the same Code,^[1] the
dispositive portion of the decision stating thus –

WHEREFORE, judgment is hereby rendered convicting the accused,
Rogelio Pelones, of the crime of Murder, qualified by evident premeditation and
with the following aggravating circumstances: abuse of superior strength, the crime committed during nighttime (and)
by a band and he is sentenced to suffer the penalty of reclusion perpetua with its accessory
penalties and to indemnify the offended party in the amount of P30,000.00
without subsidiary imprisonment in case of insolvency in Criminal Case No.
87-11, and likewise, he is found guilty of the crime of Frustrated Murder
qualified also by evident premeditation and with the following aggravating
circumstances also: abuse of superior
strength, the crime committed during nighttime (and) by a band and he is hereby
sentenced to suffer the indeterminate penalty of TEN (10) YEARS and ONE (1) DAY
to TWELVE (12) YEARS of prision mayor as minimum to SEVENTEEN (17) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal as maximum
and to indemnify the offended party, Jose Malto, in the amount of P30,000.00, without
subsidiary imprisonment in case of insolvency in Criminal Case No. 86-676.

Jose Malto and Guillermo Solina were co-employees of Rogelio
Pelones in the New Star Farm located at Talisay, Tiaong, Quezon. Pelones was however subsequently dismissed
from the service when Solina reported to Rudy Tan, owner of the farm, that he
(Pelones) stole chickens and brought a girl to the nipa hut in the farm.

Shortly before midnight of 18 August 1986, Malto and Solina were
inside the poultry farmhouse when Pelones, together with five others, armed
with bladed weapons, suddenly appeared, forcibly dragged the two outside, and
made them face the wall. Upon signal of
one of the malefactors, Pelones started attacking Solina, and after a second,
another unidentified attacker assaulted Malto with a bladed weapon. Although critically wounded, Malto was able
to escape finally from his assailants. He sought refuge in the office of the New Star Farm where he fainted and
regained consciousness only in the Quezon Memorial Hospital, Lucena City. Although his wounds were considered fatal,
he nonetheless survived to testify against Pelones. Solina was not as lucky; he succumbed to his injuries.

Pelones professed innocence. He claimed that at the
time of the incident he was at home with his wife some three (3) kilometers
away from the New Star Farm. Although
his alibi was corroborated by the testimony of his wife and his mother-in-law,
the Court a quo did not
believe his defense and proceeded instead to convict him.

In attempting to reverse the verdict of the trial court,
appellant engages in pathetic excuses, concocting a scenario of what might have
happened instead, and posing questions that should have been asked during the
trial. Worse, without questioning the
competence of the doctor who conducted post-mortem examination on the remains
of victim Solina, appellant challenges as without basis the doctor’s findings
that wounds Nos. 1 and 2 of
Solina were fatal and instantaneous cause of death, absent any indication that
such wounds penetrated the heart. In
the same vein, appellant asserts that “the probability is strong that the
wounds were inflicted much x x x earlier
than ten (10) hours before 10:30 A.M. of August 18 because death due to loss of
blood is not instantaneous upon infliction of the wound.”^[2]
Under the Rules of Court, the opinion of a witness on a matter requiring
special knowledge, skill, experience or training, may be received in evidence
only when he is shown to possess such competence.^[3]
Hence, the supposed medical evaluation made by appellant or his counsel,
without showing their competence in the field of medicine, must give way to the
expert testimony of the examining physician that Solina’s wounds Nos. 1 and 2
were fatal and that he expired about midnight of 18 August 1986.

At any rate, the transcript of stenographic notes evidently shows
the competence of Dr. Vicente G. Umali, a 1957 graduate of the College of
Medicine, University of Santo Tomas, who has been in medical practice since
then, a municipal health officer from 13 March 1971, and has performed more
than 100 autopsies and post mortem examinations.^[4]

Pelones then trains his attack on the credibility of principal
witness Malto and fabricates a convenient but incredible tale that Solina and
Malto could have engaged in a duel that resulted in the death of the former and
injuries to the latter.

The determination of the integrity of witnesses, as a rule, is
within the realm of the trial judge for he has the opportunity to observe their
deportment and detect any badge of falsity. Absent any showing that the conclusion of the trial judge is without
basis, his factual determination is accorded great respect. Hence, as to the claim that Malto’s
testimony was “very unnatural,” the same must yield to the observation
of the trial court that “x x x x [h]e took the witness stand with all
honesty and candidness.”

The accused doubts whether the New Star Farm management could
have allowed Malto and Solina to play the cassette player and tolerated
unnecessary noise in the farmhouse during such “unholy hour.” The
weakness of this argument is the absence of factual basis, and resort to
speculation is indicative of paucity of evidence. But assuming that unnecessary noise was forbidden in the area,
this does not render improbable the attack on the hapless victims. Corroborative evidence is not necessary to
prove the presence of the victims at the crime scene about the time of the
assault, since the testimony of one credible witness is adequate to sustain
conviction.

Appellant also questions the coherence of the testimony of Malto
on how he and Solina were being dragged, for while he stated on direct
examination that appellant was the one who dragged him out, on
cross-examination he maintained that appellant was at the back of Solina. If this was really material to his defense,
appellant could have asked Malto while still on the witness stand, to explain the perceived inconsistency and
not at this time when the parties have long finished presenting evidence; in
fact, this case is now under
review.

In fact, we find no inconsistency in the testimony of Malto. He stated that Solina was brought out first,^[5]
hence, it was possible for him to be at the back of Solina and at the same time in front of him, with one
hand of the accused poking at Solina and the other dragging him (Malto) out. In this regard, we find the
explanation of the Solicitor General plausible:

A reading of the testimony cited as evincing an alleged
inconsistency, however, shows that the question posed to Malto on direct
examination was vague and worded as “can you recognize the three men who
dragged you out” (p. 6, TSN, Aug. 7, 1987; emphasis supplied).

Since the word “you” is both singular and plural it is
evident that Malto understood it to refer to both Solina and himself x x x x

The alleged inconsistency and seeming contradiction is thus shown
to have been caused by the manner of examination, not by any untruth on the
part of Malto.^[6]

The accused argues that Malto could not have witnessed the
stabbing of Solina because he (Malto) himself was too afraid and nervous to
notice what was then happening
around him.^[7]
He is however disproved by the
transcript of stenographic notes:

ATTY. ZURBANO:

Q     And the truth is because of your fright and
you were only concerned on what may happen to you, you did not know what was
happening to Solina, is it not?

A     Yes,
sir:

Q    And the truth is, you did not come to
know who was first stabbed, you or Solina, is it not?

A     He
was the first one to be stabbed, sir.

Q But
I thought you said that when you were already placed in front of the wall, you
did not care anymore what was happening to others, other than you?

A     I
was able to look at him, that’s why I know, sir.^[8]

As against this positive testimony of Malto regarding the stabbing
of Solina, the contrary innuendo of appellant must yield. In fact, he does not at all believe in his
own insinuation that fear rendered Malto unaware of his surroundings when he
admitted that Malto could have seen the signal by the man at his left.^[9]

The accused further claims that Malto could not have seen the
stabbing of Solina “without craning his neck backwards or turning somewhat
to the left” as his “view would have been blocked by his
upraised left arm” while his
full attention would have been to the three men surrounding him.^[10]
It should be noted that Malto made a demonstration at the trial on how he
raised his arms,^[11] but the reviewing court has no way of
appreciating the alleged physical impossibility unless that fact is made on record. Again, the positive statement of Malto that he saw Solina being stabbed
by Pelones should prevail.

Accused Pelones disputes the claim that the critically wounded
Malto could have escaped from the grips of the two (2) aggressors who were
holding his shoulders, with a third one behind him. The accused belittles Malto’s explanation that “I tried to
free myself from the two who were holding me and then I ran, Your Honor.”^[12]
Notably, Malto’s narration of the events
after he was stabbed was quite hazy, as he recounted that “I only
uttered ‘Aray, sinaksak ako,’ and then I ran, Your Honor.”^[13]

But far from being indicative of fabrication, this circumstance
could be considered a manifestation of candor since a person mortally wounded,
struggling to bolt from eventual death, would not be in a position to notice
details of his own escape.

The defense charges suppression of evidence in view of the
non-presentation of an instrument used in
the stabbing, allegedly in police custody.^[14]
For one thing, there was no demand for the production of such evidence;
consequently, there was no occasion for any refusal, much less
suppression. But more importantly, it is within the prosecution’s
prerogative what evidence to present and, in fact, the court agreed with the
dispensability of the same piece of evidence when it convicted the appellant nonetheless.

Pelones also finds improbable the absolute silence of the conspirators while committing
the crime, asserting that since he allegedly had an ax to grind against Solina he could have at least confronted the
latter by asking, “Bakit mo ako isinumbong.”^[15]
In this regard, we agree with the Solicitor General that “the alleged
silence is a strong indication of a well-planned crime, with each of the
perpetrators knowing beforehand what he was to do, without need of
conversations or instructions to accomplish the planned deed.”^[16]

Appellant asks why Malto did not name him when Malto was
investigated twice by the police at the hospital, suggesting that Malto’s
alleged fear of being killed was without basis not only because the
perpetrators were in Tiaong, which is far from where he was confined, but also
because he could have sought police protection.^[17]

Fear is a relative frame of mind; some are more courageous than
others. When Malto got out of the
hospital, he divulged the name of appellant as his assailant. If Malto was distrustful of police
protection, the same was not without basis. Early and provident fear is the mother of safety.^[18]
As the Solicitor General points out –

x x x x [s]ince he only recognized
appellant, his fear of reprisal at the hands of the other five (5) unrecognized
persons in case he pointed out appellant to the police, was real and natural,
considering that he was alone, in pain, and relatively helpless at the
hospital. Under such conditions, the
Supreme Court held as legitimate a delay in revealing the identity of the
assailant where the witness was afraid that he might meet the same fate as the
victim (People vs. Andres x x x citing
155 SCRA 290).^[19]

We are not inclined to give credence to the posture of the
accused that he did not leave their house on the night when Solina was killed
primarily because his defense of alibi is inherently weak, and considering
further that it is easily concocted. Since Pelones was allegedly sleeping in a house some three (3)
kilometers away from the scene of the crime, it was not physically impossible
for him to be there when Solina was slain.

On the other hand, we agree with the incisive analysis of the
Solicitor General on the apparent incredibility of appellant’s witnesses –

x x x x appellants witnesses are
unconvincing, as shown by the very clarity with which they allegedly
remembered events in detail almost two years after they occurred. For one, Salome de Castro, appellant’s
mother-in-law, testified (in 1988) that she remembered that August 18, 1986 was
a Monday, that on that particular day she did not sell vegetables, the only
time that she was unable to do so; and that her daughter cooked
“guinataang papaya” for their evening meal (pp. 9-11, TSN, Jan. 6,
1988) x x x x For his mother-in-law to
remember the exact detail of an uneventful day taxes human belief as being
outside common experience and smacks of a well rehearsed attempt to get her
daughter’s husband off the hook. In
fact, when appellant himself was asked the question of what he ate for dinner
on August 18, 1986, his counsel objected to the question with the statement
“(O)bjection, Your Honor. Nobody
can remember that” (p. 4, TSN, April 8, 1988; emphasis supplied).^[20]

Moreover, the excuse of alibi bows down to the primacy of
positive identification in the absence of any compelling motive for Malto to
falsely accuse another of committing a heinous crime.

While we agree with the court a quo that appellant is
guilty, we nevertheless should make certain clarifications. Firstly, we cannot accept the presence of the aggravating circumstance of
evident premeditation^[21]
because there was no “proof as to how and when the plan to kill was
hatched or what time elapsed before it was carried out.”^[22]
But, just the same, the killings could be categorized as murder and frustrated
murder because the circumstance of superior strength^[23]
was alleged in the informations and proved at the trial. The conspirators outnumbered the unarmed
victims two to one, and at least two (2) of them were armed as may be drawn
from the fact that the two (2) victims were stabbed almost simultaneously.

As regards the aggravating circumstance of nocturnity,^[24]
it is not automatically appreciated considering that the scene of the crime was
lighted,^[25]
which enabled Malto to identify appellant. In like manner, the aggravating circumstance that the crime was
committed by a band under Art. 14, par. 6, of the committed by a band under
Art. 14, par. 6, of the Revised Penal Code finds no sufficient factual basis
since the testimony of Malto does not disclose that at least four (4) of the
aggressors were armed.^[26]

While it was not shown that Pelones also stabbed Malto, Pelones
is nonetheless liable therefor since conspiracy^[27]
among the perpetrators was indubitable as may be gleaned from their concerted,
harmonious and methodical movements without need of express instructions,
thereby proving undeniably an agreement to commit the crimes he actually
perpetrated.

WHEREFORE, the judgment of the trial court finding the
accused ROGELIO PELONES guilty of Murder in Crim. Case No. 87-11 and Frustrated
Murder in Crim. Case No. 86-676, both of the Regional Trial Court of Lucena
City, with the corresponding penalties therein imposed, is affirmed subject to the following modifications:

For the Murder of Guillermo Solina in Crim. Case No. 87-11,
qualified by abuse of superior strength instead of evident premeditation, with
no other aggravating circumstance, we affirm the imposition of the penalty of reclusion
perpetua together with its accessory penalties provided by law, except the
indemnity to the heirs of the deceased which we here increase from P30,000.00
to P50,000.00.

For the Frustrated Murder of Jose Malto, qualified by abuse of superior strength instead of evident
premeditation, with no other aggravating circumstance, we modify the sentence
and impose the indeterminate prison term of eight (8) years, four (4) months
and ten (10) days of prision mayor medium
as minimum, to twelve (12) years, six (6) months and twenty (20) days of reclusion temporal minimum as
maximum, and to indemnify complaining witness Jose Malto in the amount of
P30,000.00. Costs against
accused-appellant in both cases.

SO ORDERED.

Cruz, (Chairman), Davide, Jr., Quiason, and Kapunan, JJ., concur.

^[1]
Penned by Judge Rodolfo G. Palattao, Regional Trial Court, Br. 54, Lucena City,
in Crim. Cases Nos. 87-11 and 86-676, respectively, both promulgated 28 July
1988.

^[2]
Brief for the Accused-Appellant, p. 8.

^[3]
Sec. 49, Rule 130, Rules of Court.

^[4]
TSN, 14 August 1987, p. 1.

^[5]
TSN, 7 August 1987, p. 16.

^[6]
Brief for the Appellee, pp. 13-14, Rollo, pp. 70-71.

^[7]
Brief for the Accused-Appellant, p. 11.

^[8]
TSN, 7 August 1987, p. 20.

^[9]
Brief for the Accused-Appellant, p. 11.

^[10]
Ibid., pp. 11-12.

^[11]
TSN, 7 August 1987, p. 21.

^[12]
Brief for the Accused-Appellant, p. 12, referring to TSN, 7 August 1987, p. 23.

^[13]
TSN, 7 August 1987, p. 24.

^[14]
Brief for the Accused-Appellant, p. 12, referring to TSN, 7 August 1987, pp. 13-14.

^[15]
Brief for the Accused-Appellant, pp. 12-13, referring to TSN, 7 August 1987, pp. 17-18.

^[16]
Brief for the Appellee, pp. 18-19, Rollo, pp. 75-76.

^[17]
Brief for the Accused-Appellant, p. 13.

^[18]
Edmund Burke, cited in Bergen Evans, Dictionary of Quotations, 1968, p.
231.

^[19]
Brief for the Appellee, p. 21, Rollo, p. 78.

^[20]
Brief for the Appellee, pp. 30-31, Rollo, pp. 87-88.

^[21]
The elements of evident premeditation, which is established under Art. 14, par.
13, of the Revised Penal Code, are: (1)
the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit has clung to his determination; and,
(3) a sufficient /apse of time between the determination and
execution, to allow him to reflect upon the consequences of his act and to
allow his conscience to overcome the resolution of his will (Luis B. Reyes, The
Revised Penal Code [13th ed.], Bk. 1, pp. 382-383, citing People v. Lagarto, G.R. No. 65833, May 6, 1991, and other cases).

^[22]
Ibid., citing People v. Peñones, G.R. No. 71153, Aug. 16, 1991,
200 SCRA 624, 635.

^[23]
To take advantage of superior strength means to use purposely excessive
force out of proportion to the means of defense available to the person
attacked (Art. 14, par. 15 [1]; see footnote 21, p. 400, citing People v.
Cabiling, No. L-38091, Dec. 17, 1976, and other cases).

^[24]
Art. 14, par. 6, Revised Penal Code.

^[25]
TSN, 7 August 1987, pp. 18-19.

^[26]
Ibid., p. 6.

^[27]
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Art. 8, 2nd, Revised Penal
Code).