G.R. No. 201584, June 15, 2016 - PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. APOLONIO "TOTONG" AVILA Y ALECANTE, Accused-Appellant.
We resolve in this Decision the appeal from the September 13, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 04311. The CA sustained the September 9, 2009 Decision of the Regional Trial Court (RTC), Branch 219 of Quezon City, which found Apolonio "Totong" Avila (accused-appellant) guilty beyond reasonable doubt of murder, and imposed on him the penalty of reclusion perpetua.The Facts
In an Information2
dated October 23, 2002, the prosecution charged the appellant with the crime of murder, to wit:chanRoblesvirtualLawlibrary
"That on or about the 20th day of October 2002, in Quezon City, Philippines, the said accused, conspiring, confederating with another person whose true name, identity and whereabouts has not as yet been ascertained and mutually helping each other, with intent to kill, qualified by evident premeditation and treachery, taking advantage of superior strength, did then and there wil[l]fully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one [JANJOY] VASQUEZ Y DAGANATO, by then and there shooting [her] with a gun hitting [her] on the head and stomach, thereby inflicting upon [her] serious and mortal wounds which were the direct and immediate cause of [her] untimely death, to the damage and prejudice of the heirs of said [Janjoy] Vasquez y Daganato.
CONTRARY TO LAW."3cralawred
Upon being arraigned, appellant pleaded NOT GUILTY to the crime charged. Pre-trial conference was terminated on December 12, 2002. Thereafter, trial on the merits ensued.
The prosecution's version of the facts of the case as laid down in the RTC Decision4
and the Appellee's Brief5
is hereby summarized as follows:chanRoblesvirtualLawlibrary
On October 20, 2002 at about 7:30 in the evening, Ryan Vasquez, the 9-year-old brother of the victim, returned home after borrowing a guitar next door as instructed by his sister. Ryan was atop the stairscase leading to their house when he saw "Totong" and another man lingering outside their door. Ryan saw the two men peeping inside the house and out of fear of being spotted by Totong and his companion, he hid in a spot by the stairs, which was more or less 8 meters away from where the men were standing.6 While hiding, Ryan saw Totong fire the first shot. The bullet went through the door, hitting his sister [Janjoy] on the right side of her body.7 Totong then kicked the door open and shot [Janjoy] on the head.8 The two men immediately fled the scene. Ryan rushed inside the house and saw his sister lying on the ground bleeding. He hurried to his Ate Milda's nearby house and asked for help. Ryan's Ate Milda and Kuya Ricky brought [Janjoy] to the hospital.cralawred
The victim's neighbor and aunt sought to shed light on the whereabouts of accused-appellant before and after the shooting incident. Bryan Hermano, a 19 year old construction worker and neighbor of the Vasquez family, testified that on the same night between the hours of 7 and 8 o'clock in the evening, he was at the basketball court when he overheard Totong talking to his companion, Bong Muslim, about his plan to kill Rovic Vasquez, father of the victim. Unfortunately, before he could warn Rovic Vasquez, he learned that Janjoy was already shot. Jonalyn Vasquez, aunt of the victim, was at home that night and around 7 to 7:30 in the evening, she heard a gun shot coming from the next house. Upon hearing the gun shot, she immediately went outside and saw the accused walking on the pathway between her house and the victim's house. She claimed that no person other than the accused used said pathway after the shooting incident. The father of the victim, Rovic Vasquez, testified as to the funeral and burial expenses incurred by his family. He maintained that he incurred expenses for the burial lot and coffin amounting to P60,000.00 and expenses for food and drinks during the wake amounting to P8,400.00. A handwritten receipt amounting to P113,412.18, showing a breakdown of total expenses was also submitted.
The defense of accused-appellant is one of denial and alibi. His version of the facts as summarized in his Brief9
is hereby adopted as follows:chanRoblesvirtualLawlibrary
"Between 11 o'clock to 12 o'clock in the evening of October 20, 2002, Apolonio Avila was inside a room which he rented on that same day at Freedom Park, Batasan Hills, Quezon City. While sleeping, he heard a loud bang at the door and several men forcibly entered. They introduced themselves as policemen and barangay officials further asked him if he was Totong. Avila was then informed that he was a suspect in a crime that took place at the lower part of Batasan and was invited to go to Police Station 6 without being presented a warrant of arrest. Upon arrival thereat, they waited for Rovic Vasquez, the private complainant in the case. At that time, he was not required to give any statement nor was he asked to sign a waiver. When the complainant arrived, he was brought to Camp Karingal to be incarcerated. He was not informed of the reason of his detention and was subjected to inquest proceeding only after three (3) days, on October 23, 2002. He affirmed that he was only renting a room in Freedom Park and was a resident of Santiago, Caloocan City. He confirmed knowing the complainant as he was a 'kababayan' but he firmly denied knowing a 'Toto Pulis' and 'Boy Muslim'."cralawred
Accused-appellant was the sole witness for the defense. On cross-examination, he testified that Rovic Vasquez, father of the victim, was his friend and kababayan
. He claimed that he has known Rovic for a long time and there was no point in time when their friendship has turned sour even at the time when he was arrested. He also claimed that he only moved to Freedom Park, Batasan Hills, Quezon City because the complainant invited him to their place to rent a room as it would be more convenient for him. Accused-appellant also testified that no weapon search was conducted when he was apprehended, neither was he subjected to a paraffin test.Ruling of the Regional Trial Court
After trial on the merits, the trial court rendered judgment on September 9, 2009. The trial court found accused-appellant guilty, imposing upon him the penalty of reclusion perpetua
. The lower court held him liable to the heirs of the victim for P113,412.18 as actual damages; P50,000.00 as civil indemnity for death; and P50,000.00 as moral damages. The dispositive portion of the decision reads:chanRoblesvirtualLawlibrary
"WHEREFORE, finding the accused APOLONIO AVILA Y ALECANTE guilty beyond reasonable doubt of the crime of Murder, he is hereby sentenced to suffer the penalty of Reclusion Perpetua. The accused is likewise ordered to pay the heirs of Jan Joy Vasquez y Daganato the total amount of TWO HUNDRED THIRTEEN THOUSAND FOUR HUNDRED TWELVE PESOS AND EIGHTEEN CENTAVOS (P213,412.18), as civil liability.
Aggrieved, the accused sought to reverse the foregoing decision by pointing out the supposed glaring inconsistencies in the testimonies of the prosecution witnesses. The accused argued that Ryan Vasquez could not have witnessed the incident because it was only after he returned from the store that he saw his sister already bleeding. The accused-appellant insists that the eye witness testimony was seriously marred by the admission of Ryan that he only testified upon his mother's instructions. In addition, the accused-appellant dismissed the testimony of Jonalyn Vasquez as implausible, theorizing that his presence near the scene of the crime, as testified by Jonalyn, does not outrightly equate to his guilt. He further argues that his "nonchalance" about the incident certainly appears counterintuitive to how guilty persons normally react after committing a crime. He opined that while criminals often flee the crime scene, he, on the other hand, stayed put and cooperated with the police. Lastly, accused-appellant insists that Bryan Hermano's testimony actually exculpated him as it showed that he was somewhere else at the time of the commission of the crime.Ruling of the Court of Appeals
The CA found no merit in accused-appellant's arguments. The CA held that contrary to Avila's contention, the testimony of witness Ryan Vasquez was reasonably consistent in spite of his young age. The few dispensable ambiguities in the matter concerning his exact whereabouts at the time he witnessed the shooting was later clarified in his re-direct examination. In his cross-examination, the child became momentarily ambiguous when he stated that he discovered his sister already shot and bleeding after returning home from the store.11
Nonetheless, the CA found the ambiguities rather circumstantial, if not, completely understandable given that the line of questioning was leading, viz
So you went to the store and [bought] something?
And later on, after buying that something, you [returned]?
And you already discovered that your sister Jan Joy was shot when you [returned] from the store?
As a matter of fact, she was bleeding already at the time you [returned]?
The CA observed that the questions were all answerable by a "yes" and that it is only but natural that the child witness answered in the affirmative. Nonetheless, the witness managed to clarify his earlier statements during the re-direct examination. The witness also cooperated unhesitatingly when he was presented with the pictures of the crime scene. Not only did he identify the pictures, he also described them, in particular, where he hid at the time of the shooting, how he could make out the assailants from where he stood13
and where and how the accused and his companion were positioned shortly before committing the crime.14
The CA maintained that there is nothing in the testimony that may be considered irrevocably flawed. It is not uncommon during the trial that witnesses omit certain details, sometimes inadvertently, in the narration and in the process commit inconsistencies. More than anyone else, a 9-year-old child is susceptible to this.
With regard to Bryan Hermano's testimony, the CA ruled that any ambiguity as to his location between the time he heard of the plot and the time of the shooting was ironed out later in his testimony. Accused-appellant casts doubt on the testimony of Jonalyn Vasquez because it was in conflict with that of Ryan Vasquez's. Jonalyn recounted that she saw accused pass by the pathway between her house and that of the victim's; whereas Ryan initially told the court that accused and his companion rushed out of the scene after shooting the victim. The CA held that the manner of describing the action of the accused after the commission of the crime is generally a matter of observation, and thus, the perception of one witness may differ significantly from that of another's, especially in this case where witnesses were situated in separate locations, allowing them to witness the occurrences from different vantage points. Hence, the perceived contradiction in Jonalyn's testimony and that of Ryan should not be taken to mean that neither of the testimonies was truthful. If at all, the flimsy distinctions in their testimonies should be seen as badges of credibility instead of fabrication.
As for the testimonies of the other witnesses, the CA held that the supposed inconsistencies pointed out by the defense are simply ambiguities that can be deciphered after a more thorough reading. Moreover, the nature of their testimonies does not serve to prejudice the prosecution just because they do not point directly to the accused as the culprit of the crime. The testimonies were presented to shed light on such incidental matters.
The CA affirmed the decision of the RTC and denied the appeal. The dispositive portion of the decision reads:chanRoblesvirtualLawlibrary
"WHEREFORE, premises considered, the appeal is hereby DISMISSED for lack of merit. Accordingly, the assailed Decision of the Regional Trial Court (RTC) of Quezon City, Branch 219 dated September 9, 2009 is AFFIRMED in toto.
The case was certified and elevated to this Court by the CA pursuant to Section 13 of Rule 124 of the Revised Rules of Court after it has reviewed and affirmed the decision of the RTC.Our Ruling
We adopt the CA decision and affirm accused-appellant's conviction. Accused-appellant's contentions are bereft of merit.The defense of denial cannot be given more weight over a witness' positive identification
The CA appropriately did not give credence to accused-appellant's defenses of alibi and denial; more so when it is pitted against the testimony of an eye witness. The child witness in this case positively identified the accused several times during the trial as the person who killed his sister. Such resoluteness cannot be doubted of a child, especially of one of tender age. The testimony of a single witness, when positive and credible, is sufficient to support a conviction even of murder.16
The defense failed to destroy the credibility of the child witness during the questioning. The defense of denial of the accused cannot be given more weight and credence over that of the child's positive identification. It is established jurisprudence that denial cannot prevail over the witnesses' positive identification of the accused-appellant; more so where the defense did not present convincing evidence that it was physically impossible for accused-appellant to have been present at the crime scene at the time of the commission of the crime.17
A defense of denial which is unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserving no weight in law, and cannot be given greater evidentiary value over convincing, straightforward and probable testimony on affirmative matters.18
Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-culpability to merit credibility.19ChanRoblesVirtualawlibraryInconsistencies in testimonies with respect to minor details may be disregarded without impairing witness credibility
As consistently ruled by the Court, the testimony of children of sound mind is likely to be more correct and truthful than that of older persons, so that once established that they have understood the character and nature of an oath, their testimony should be given full credence.20
The trivial inconsistencies in Ryan's eye witness narration of details are understandable, considering the suddenness of the attack, the dreadful scene unfolding before his eyes, and the imperfection of the human memory. It is for this reason that jurisprudence uniformly pronounces that minor inconsistencies in the testimony of a witness do not reflect on his credibility. What remains important is the positive identification of the accused as the assailant.21
Ample margin of error and understanding must be accorded to young witnesses who, much more than adults, would be gripped with tension due to the novelty of the experience of testifying before the court.22ChanRoblesVirtualawlibrary
In People v. Crisostomo
this Court held that the discordance in the testimonies of witnesses on minor matters heightens their credibility and shows that their testimonies were not coached or rehearsed, especially where there is consistency in relating the principal occurrence and positive identification of the assailant.24
It is well settled that when the main thrust of the appeal is on the credibility of the prosecution witnesses, and appellant fails to demonstrate why this Court should depart from the cardinal principle that the findings of the trial court on the matter of credibility should not be disturbed, the same should be respected on appeal.25
The trial court has the superior advantage in observing the conduct and demeanor of the witness while testifying unless some fact or circumstance which could affect the result of the case may have been overlooked.26
We have gone through the records of this case and We find no cause which would justify rejecting the trial court's findings or prevent the CA from relying thereon.Evident premeditation, abuse of superior strength and treachery as qualifying circumstances in the crime of Murder
Murder is the unlawful killing of a person, which is not parricide or infanticide, provided that any of the attendant circumstances enumerated in Article 248 of the Revised Penal Code is present. The trial court ruled that treachery and abuse of superior strength were attendant in the commission of the crime and that the prosecution foiled to establish the qualifying circumstance of evident premeditation. Before a qualifying circumstance may be taken into consideration, it must be proved with equal certainty as that which establishes the commission of the crime. It is not only the central fact of killing that must be proved beyond reasonable doubt; every qualifying or aggravating circumstance alleged to have been present and to have attended such killing, must similarly be shown by the same degree of proof.27
As with the finding of guilt of the accused, any doubt to its existence should be resolved in favor of the accused.28
This Court finds that only the circumstance of treachery should be appreciated, qualifying the crime to Murder.
To establish evident premeditation, there must be proof of (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 lapse 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 had he desired to hearken to its warnings.29
The essence of premeditation is that the execution of the act was preceded by reflection during a period of time sufficient to arrive at a calm judgment.30
When it is not shown as to how and when the plan to kill was hatched or what time had elapsed before it was carried out, evident premeditation cannot be considered. It must be based on external acts and must not be merely suspected. There must be a demonstration of outward acts of a criminal intent that is notorious and manifest.31
The prosecution failed to satisfy the requisites of evident premeditation. The records contain no evidence regarding the planning and preparation of the killing of Janjoy. It was likewise not shown that accused-appellant clung to his detemiination to kill Janjoy. In fact, the only thing established by the prosecution witness' testimony was accused-appellant's plan to kill Rovic Vasquez, not Janjoy Vasquez.32
Thus, it cannot be said that accused-appellant had a preconceived plan to kill Janjoy.
Abuse of superior strength is present whenever there is notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor selected or taken advantage of by him in the commission of the crime.33
The fact that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength, there being no proof of the relative strength of the aggressors and the victim. Mere superiority in numbers is not indicative of the presence of this circumstance.34
The evidence must establish that the assailants purposely sought the advantage, or that they had the deliberate intent to use this advantage.35
The prosecution failed to adduce evidence of a relative disparity in age, size and strength, or force, except for the showing that there were two assailants present when the crime was committed.
There is treachery when the offender commits any of the crimes against the persons, employing means, methods, or forms in the execution thereof, which tend directly and (specially to ensure its execution, without risk to himself arising from the I defense which the offended party might make.36
The requisites of treachery are: (1) The employment of means, method, or manner of execution which will ensure the safety of the malefactor from defensive or retaliating acts on the part of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (2) deliberate or conscious adoption of such means, method or manner of execution. A finding of existence of treachery should be based on "clear and convincing evidence".37
The prosecution, through the eyewitness testimony of Ryan Vasquez, was able to prove the treacherous manner of killing the victim. Ryan testified that the accused-appellant and his companion were peeping inside the house before the first shot was fired.38
The first shot was fired from behind a closed door, catching the victim by surprise.39
The second shot to the victim's head was fired immediately after the door was forced open by the accused-appellant.40
Such manner of execution of the crime ensured the safety of accused-appellant from retaliation and afforded the victim no opportunity to defend herself. Thus, We hold that the circumstance of treachery should be appreciated, qualifying the crime to Murder.Damages and civil liability
Anent the damages awarded, We find that modification is in order. In awarding actual damages amounting to P113,412.18, the RTC relied on a hand written receipt (Exhibit F), which was merely executed by the victim's father. Such document is self-serving and does not hold weight. Time and again, this Court has held that only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victims may be allowed.41
It is necessary that the claimant produce competent proof to justify an award for actual damages. Only substantiated expenses and those which appear to have been genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the courts.42
This Court has repeatedly held that self-serving statements of account are not sufficient basis for an award of actual damages. Corollary to the principle that a claim for actual damages cannot be predicated on flimsy, remote, speculative, and insubstantial proof, courts are, likewise, required to state the factual bases of the award.43ChanRoblesVirtualawlibrary
A close examination of the records reveals that the prosecution only submitted the following evidence to substantiate the claim for actual damages:chanRoblesvirtualLawlibrary
|Provisional receipt dated Oct. 29, 2002 issued by La Funeraria Paz (Exhibit D)|
Official Receipt dated Oct. 21, 2002 issued by La Funeraria Paz (Exhibit D-1)
|Provisional Receipt dated October 28, 2002 issued by La Funeraria Paz (Exhibit D-2)|
|Handwritten receipt dated October 28, 2002 issued by Pafaiso Memorial Park (Exhibit D-5)|
Based on the foregoing, the RTC erred in granting P8,400.00 in actual damages for food and beverage expenses incurred during the wake as the records are wanting of any receipt that substantiates such expenses. The RTC likewise erred in including college tuition fee expenses in the computation of actual damages granted; said expenses were not incurred in connection with the death, funeral or burial of the victim. Thus, accused-appellant shall be liable for P77,000.00 as actual damages.
The prosecution pointed out that the victim, Janjoy was 18 years old and at the time of her death, a second year college student at AMA College. Article 2206 of the Civil code provides that in addition to the indemnity for death caused by a crime or quasi delict
, the defendant shall be liable for the loss of the earning capacity of the deceased and the indemnity shall be paid to the heirs of the latter. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money.44
It necessarily follows that evidence must be presented that the victim, if not yet employed at the time of death, was reasonably certain to complete training for a specific profession. In People v. Teehankee, Jr.
this Court did not award any compensation for loss of earning capacity to the heirs of a college freshman because there was no sufficient evidence on record to show that the victim would eventually become a pilot. In said case, the prosecution merely presented evidence to show the fact of the victim's graduation from high school and the fact of his enrollment in flying school. Whereas, in Metro Manila Transit Corporation v. CA
the Court granted compensation for loss of earning capacity resulting from the death of a minor who has not yet commenced employment for the reason that the victim's parents did not content themselves with simply establishing the victim's enrollment in a university. They presented evidence to show that the victim was a good student, promising artist, and obedient child. They showed that the victim consistently performed well in her studies since grade school. Several professors testified that the victim in said case had the potential of becoming an artist. The professors' testimonies were more than sufficiently established by the numerous samples of the victim's paintings and drawings submitted as exhibits by the heirs of the victim. In the case at bar, Rovic Vasquez, father of the victim, only testified as to the fact that Janjoy was a second year college student of AMA College at the time of her death. No mention was made of the victim's course in college, more so of her desired or perceived profession in the future. Unlike in Metro Manila Transit Corporation v. CA
where evidence of good academic record, extra-curricular activities and varied interests were presented in court, claimants in this case offered no such evidence. Hence, there is no basis for awarding compensation for loss of capacity.
In accordance with People v. Gambao
wherein this Court increased the amounts of indemnity and damages where death is the penalty warranted by the facts but is not imposable under present law, accused-appellant shall also be liable for P100,000.00 as civil indemnity, P100,000.00 as moral damages and P100,000.00 as exemplary damages.WHEREFORE
, the decision of the Court of Appeals in CA-G.R. CR-H.C. No. 04311 is hereby AFFIRMED WITH MODIFICATION
. Accused-appellant Apolonio "Totong" Avila is found GUILTY
beyond reasonable doubt of Murder and sentenced to suffer the penalty of reclusion perpetua
without eligibility for parole and ordered to pay the heirs of Janjoy Vasquez the amounts of P100,000.00 as civil indemnity, P100,000.00 as moral damages, P100,000.00 as exemplary damages, and P77,000.00 as actual damages. All monetary awards for damages shall earn interest at the legal rate of 6% per annum from the date of finality of this judgment until fully paid.SO ORDERED.chanroblesvirtuallawlibraryVelasco, Jr., (Chairperson), Peralta
, and Reyes, JJ.
, wellness leave.
* Designated as Additional Member in lieu of Justice Francis H. Jardeleza per raffle dated May 18, 2016.
1Rollo, pp. 2-14; penned by Associate Justice Stephen C. Cruz; with Associate Justices Isaias P. Dicdican and Socorro B. Inting, concurring.
2 Records, p. 1.
4 Id. at 257-280; penned by Judge Bayani V. Vargas.
5 CA rollo, pp. 151-170.
6 TSN, February 20, 2003, p. 12.
7 Id. at 11.
8 TSN, February 6, 2003, p. 8.
9 CA rollo, pp. 103-118.
10Rollo, p. 5.
11 Supra note 6 at 5.
13 TSN, March 20, 2003, p. 6.
14 Id. at 7-8.
15Rollo, p. 13.
16People v. De la Cruz, 358 Phil. 513, 523 (1998).
17People v. Salcedo, et al., 667 Phil. 765, 775-776 (2011); citing Lumanog, et al. v. People, 644 Phil. 296, 404-405 (2010).
18People v. Mateo, 582 Phil. 369, 384 (2008).
19People v. Tamolon, et al., 599 Phil. 542, 552 (2009).
20People v. Tenoso, et al., 637 Phil. 595, 602 (2010).
21People v. Lagota, 271 Phil. 923, 931-932 (1991).
22People v. Abaño, 425 Phil. 264, 278 (2002).
23 354 Phil. 867, 876 (1998).
24Sumalpong v. CA, 335 Phil. 1218, 1223-1224 (1997).chanrobleslaw
25People v. Custodio, 274 Phil. 829, 835-836 (1991).
26People v. Cantuba, 428 Phil. 817, 829 (2002)
27People v. Derilo, 338 Phil. 350, 364 (1997).
28Cirera v. People, G.R. No. 181843, July 14, 2014, 730 SCRA 27, 48; citing People v. Ayupan, 427 Phil. 200, 218 (2002).
29People v. Gravino, 207 Phil. 107, 116 (1983).
30People v. Ariola, G.R. No. L-38457, October 29, 1980, 100 SCRA 523, 530.
31People v. Narit, 274 Phil. 613, 626 (1991).
32 TSN, June 7, 2005, p. 5.
33People v. Beduya, et al., 64 1 Phil. 399, 410 (2010).
35People v. Escoto, 313 Phil. 785, 799 (1995).
36 REVISED PENAL CODE, Art. 14 (16).
37Cirera v. People, supra note 28; citing People v. Felix, 357 Phil. 684, 700 (1998).
38 TSN, February 20, 2003, p. 12.
39 Id. at 11.
40 TSN, February 6, 2003, p. 8.
41People v. Salibad, G.R. No. 210616, November 25, 2015.
42People v. Jamiro, 344 Phil. 700, 722 (1997).
43Oceaneering Contractors (Phils) Inc. v. Barretto, 657 Phil. 607, 617 (2011).
44Metro Manila Transit Corporation v. CA, 359 Phil. 18, 38 (1998).
45 319 Phil. 128, 208 (1995).
46 Supra note 44 at 39.
47 718 Phil. 507, 531 (2013).