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G.R. No. 218250, July 10, 2017




This is an appeal from the Decision1 dated December 12, 2014 of the Court of Appeals (CA) of Cebu City, in CA-G.R. CR-H.C. No. 00418, sustaining the accused-appellants' conviction for the crime of murder by the Regional Trial Court (RTC) of Tagbilaran City, Branch 2, in its Decision2 dated May 28, 2006 in Criminal Case No. 12230.

Factual and Procedural Antecedents

Accused-appellants Gio Cosgafa y Clamocha (Gio), Jimmy Sarceda y Agang (Jimmy), and Allan Vivo y Aplacador (Allan) were charged with murder in an Information dated April 28, 2004 as follows:
That on or about the 26th day of October 2002 in the municipality of Tubigon, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, with intent to kill, treachery and abuse of superior strength, by suddenly attacking the victim Nathaniel Asombrado, Sr. without affording the latter an opportunity to defend himself with the use of Batangas knives and icepick, hitting him on the different parts of his body, arms and head, thus inflicting upon the latter mortal wounds which caused his instantaneous death; to the damage and prejudice of the heirs of the said victim in the amount to be proved during the trial.

Acts committed contrary to the provisions of Article 248(1) of the Revised Penal Code, as amended by Republic Act 7659.3
Upon arraignment on May 28, 2004, accused-appellants pleaded not guilty. Pre-trial and, thereafter, trial ensued.

The prosecution presented the following witnesses, to wit: (1) Ronald Manatad (Ronald); (2) Panfilo Baura (Panfilo); (3) Rosbill Manatad (Rossbill); (4) Police Officer 3 Vincent Russam Mascariñas (PO3 Mascariñas); (5) Dra. Adoracion L. Torregosa (Dra. Torregosa); (6) Ruben Asombrado (Ruben); and (7) Senior Police Officer 1 Joel Sabang (SPO1 Sabang).4

At around 6:30 p.m. of October 25, 2002, brothers Ronald and Rosbill, Panfilo, a certain Joseph Mantahinay (Joseph) and Joseph Bryan Mendez (Bryan) were at the victim's house for the fiesta. After dinner, they finished half a gallon of Bahalina, an aged native coco-wine. At around 1:00 a.m. the following day, the group decided to go to the disco held at a nearby school.5

On their way thereto, the group stopped by a sari-sari store owned by a retired police officer Pedrito Lapiz (Lapiz) to talk to a certain person who called the victim. While waiting, Rosbill, Joseph, and Panfilo proceeded to the bridge, about seven meters away, and sat on the railings. When they got there, accused-appellants were already sitting on the railings across them. Suddenly, Gio approached Rosbill and tried to box him but he did not connect. Rosbill, Joseph, and Panfilo then ran back to where they left the rest of the group and told them what happened.6

Upon learning what happened, the victim proceeded to the bridge to confront Gio. When he got there, accused-appellants took turns in holding and stabbing the victim. When the victim fell on the ground, the accused­-appellants ran away. Seeing that the accused-appellants had deadly weapons and they had none, the victim's group failed to come to his rescue.7

The victim was then brought to the hospital but was declared dead therein. Dra. Torregosa, Muncipal Health Officer of Tubigon, Bohol, examined the victim's body and found that the victim sustained nine stab wounds, four incised wounds, and one contusion, succumbing thus to "Hypovolemia due to severe intra-abdominal hemorrhage, secondary to multiple stab wounds, abdomen, and chest" as reflected in the Post Mortem Findings.8

During Dra. Torregosa's testimony in court, she declared that wounds 1 to 6, which were circular in shape and one centimeter in diameter, could have been inflicted by a sharp pointed instrument like an ice pick; wounds 7 and 8 located at the hypochondriac region, which could have been inflicted by a sharp pointed weapon such as a Batangas knife, were deeply penetrating and pierced the liver; also, wounds 9 to 13 could have been inflicted by a Batangas knife; while the contusion, wound 14, on the victim's forehead could have been inflicted by a fist or any hard object such as the handle of a screwdriver.9

PO3 Mascariñas and SPO1 Sabang testified that while posted as security in the school where the disco was being held, around 2:30 a.m. of October 26, 2002, they responded to a report by Barangay Tanod Nicandro Cabug-os (Barangay Tanod Cabug-os) about a stabbing incident nearby. The victim was already brought to the hospital when they arrived at the crime scene. Upon inquiry around the area, they learned from Lapiz that accused-appellants were the ones responsible for the crime. They immediately conducted a hot pursuit, which resulted to the accused­ appellants' arrest.10

At the police station, accused-appellants admitted that they were the ones who stabbed the victim. Jimmy even led the police officers to his house to surrender the Batangas knife that he used on the victim. It was wrapped in a white shirt with brownish blood-like stains when recovered. A Batangas knife was also recovered from Allan upon arrest. An unidentified person also handed to the police officers an ice pick (screwdriver with sharpened tip) found at the crime scene.11

Ruben, the victim's brother, testified as to the expenses incurred due to the victim's death, to wit: (1) PhP20,000 for the embalming per O.R. No. 3036; (2) PhP15,000 for the novena of the dead; (3) burial expenses such as PhP5,000 for the coffin and PhP3,000 for the tomb; (4) PhP13,000 attorney's fees for the preliminary investigation; (5) PhP18,000 for court hearings in the RTC; (6) PhP6,000 as miscellaneous expenses and food for the witnesses; (7) PhP13,500 for Tagbilaran City hearings, amounting to PhP93,500 altogether. An amount of PhP1 Million was also claimed for moral damages.12

Only the accused-appellants testified for the defense.

Gio and Jimmy admitted in open court that they stabbed the victim but interposed self-defense. They, however, averred that Allan had no participation in killing the victim.13

Gio admitted that he used the screwdriver/ice pick, while Jimmy admitted that he used the Batangas knife in stabbing the victim.14

All three accused-appellants admitted that past 12 midnight of October 26, 2002, they were in the alleged area for the fiesta. They dined and consumed drinks in several houses. On their way home, they stopped at the bridge to wait for Gio and a certain Vito Babad to exchange pants when the victim's group arrived and sat on the opposite railings fronting Jimmy and Allan. Jimmy averred that one person from the victim's group stood up and asked them "What are you looking Bay?". Jimmy responded that they were just waiting for their companion. The victim's group then approached accused-appellants' group, which prompted Jimmy to push and box Rosbill although the latter did not get hit.15

The victim's group then ran back to where the rest of their group were. On the other hand, accused-appellants' group ran towards the disco place when suddenly, they found the victim running after them. According to the accused-appellants, the victim was bigger and taller in built than them. When the victim gained upon them, he held Jimmy's shirt and kicked him, causing Jimmy to fall down. Jimmy then was able to get a hold of a tree branch and hit the victim with it. Gio then came to Jimmy's rescue and fought with the victim. According to Gio, however, he was no match to the victim as the latter was not only bigger and taller than him but also trained in martial arts. Hence, they were forced to stab the victim to defend themselves. At that moment, Gio and Jimmy did not notice where Allan went. When the victim finally fell on the ground, Gio and Jimmy ran towards the creek.16

RTC Ruling

The RTC found the accused-appellants guilty beyond reasonable doubt of murder, rejecting Gio and Jimmy's uncorroborated claim of self­-defense, as well as their claim that Allan had no participation in the perpetration of the crime. The trial court appreciated the qualifying circumstance of superiority in number in killing the victim, who was unarmed and alone, with the use of deadly weapons. Thus:
WHEREFORE, IN THE LIGHT OF THE FOREGOING, the Court finds accused Gio Cosgafa y Clamocha, Jimmy Sarceda y Agang, and Allan Vivo y Aplacador, guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 (1) of the Revised Penal Code, as amended by R.A. 7659, as embraced in the foregoing Information and hereby sentences each of the said accused to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties of the law, to indemnify the heirs of Nathaniel Asombrado, Sr., the sum of Php50,000.00 funeral expenses and litigation expenses in the sum of Php40,000.00 and attorney's fees in the amount of Php10,000.00 and to pay the costs.

The three accused who are detention prisoners are hereby credited in full of the period of their preventive imprisonment in accordance with Article 29 of the Revised Penal Code, as amended.

CA Ruling

The CA sustained the conviction of the accused-appellants. It rejected Gio and Jimmy's claim of self-defense and found that the prosecution evidence was sufficient to prove Allan's participation in the crime. The appellate court, however, modified the civil liability awarded to the heirs of the victim. It added awards for civil indemnity, moral damages, and temperate damages. The said court also found it proper to award temperate damages,. in lieu of the actual damages, considering that some pecuniary expenses were definitely incurred by the victim's family albeit not proven. Lastly, it imposed an interest rate of six percent (6%) per annum for all the monetary awards from the date of finality of the decision until the same are fully paid. It disposed, thus:
WHEREFORE, premises considered, the Decision dated January 24, 2013 [sic] of the Regional Trial Court, Branch 35 of Iloilo City [sic] in Criminal Case No. 48928 [sic] is hereby AFFIRMED with MODIFICATION that appellants Gio Cosgafa y Clamocha, Jimmy Sarceda y Agang and Allan Vivo y Ap1acador are jointly and severally ORDERED to pay the following:
(1) Php75,000.00 as civil indemnity;

(2) Php50,000.00 as moral damages;

(3) Php50,000.00 as temperate damages;

(4) Php40,000.00 as litigation expenses;

(5) Php10,000.00 as attorney's fees.
Appellants are further ORDERED to pay the heirs interest on all damages (sic) awarded at the legal rate of six percent (6%) per annum from the date of finality of this judgment. No pronouncement as to costs.

Hence, this appeal.

The Court gave the parties the opportunity to file their supplemental briefs but both parties manifested that they no longer intend to file the same, having already discussed all of their arguments in their respective briefs before the CA.19


(1) May Gio and Jimmy properly invoke self-defense?
(2) Was Allan's participation in the crime sufficiently proven?
(3) Does the circumstance of abuse of superior strength exist?

This Court's Ruling

Gio and Jimmy basically assert that they cannot be adjudged criminally liable for the resulting death of the victim as they only stabbed the latter in self-defense. Allan, on the other hand, faults the trial court for convicting him of the crime charged despite the categorical statement of his co-accused that he had no participation in the criminal act. Accused­ appellants also argue that abuse of superior strength cannot be appreciated to qualify the killing to murder as there is no gross disparity of forces to speak of since it was admitted that the victim was bigger and taller in size compared to the accused-appellants.

We find no merit in the instant appeal.

At the outset, let it be stated that absent any showing that the lower court overlooked circumstances which would overturn the final outcome of the case, due respect must be made to its assessment and factual findings. Such findings of the RTC, when affirmed by the CA, are generally binding and conclusive upon this Court.20

Now for the charge of murder to prosper, the prosecution must prove that (1) a person is killed; (2) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the Revised Penal Code (RPC); and (4) the killing is not parricide or infanticide.21

First. The fact of victim's death is undisputed.

Second. The fact that accused-appellants were the ones responsible for the victim's death was also established. Gio and Jimmy, in fact, admitted in open court that they stabbed the victim, which resulted to the latter's death, albeit they interposed self-defense to justify the killing. Jurisprudence is to the effect that when self-defense is pleaded, the accused thereby admits being the author of the death of the victim, that it becomes incumbent upon him to prove the justifying circumstance to the satisfaction of the court.22

The accused must discharge the burden of proving his affirmative allegation with certainty by relying on the strength of his own evidence, not on the weakness of that of the prosecution, considering that the prosecution's evidence, even if weak, cannot be disbelieved in view of the admission of the killing.23

It bears stressing that self-defense, like alibi, is an inherently weak defense for it is easy to fabricate.24 Thus, it must be proven by satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it.25 The following elements must thus be proved by clear and convincing evidence, to wit: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending himself.26

After a careful review of this case, the Court is satisfied that the RTC, as affirmed by the CA, correctly ruled that the above-enumerated elements are not present in this case.

The first element - unlawful aggression on the part of the victim - is the primordial element of the justifying circumstance of self-defense.27 Without unlawful aggression, there can be no justified killing in defense of oneself.28 Case law is replete with discussions on what unlawful aggression is contemplated by the law on this matter. Basically, this Court has ruled that there is unlawful aggression when the peril to one's life, limb, or right is either actual or imminent.29 The test for the presence of unlawful aggression under the circumstances is whether the aggression from the victim put in real peril the life or personal safety of the person defending himself; the peril must not be imagined or an imaginary threat.30

In this case, accused-appellants' self-serving assertion that the victim was the aggressor when the latter, without provocation on their part, chased them and held Jimmy's shirt and kicked him until he fell on the ground, cannot prevail over the positive and consistent testimonies of the prosecution witnesses, found credible by the RTC and the CA, as to what actually transpired. The prosecution witnesses clearly and categorically testified that the victim, alone and unarmed, went to the accused-appellants merely to confront them on why Gio boxed his companion.

Even if the defense's version of the story would be believed, the CA correctly observed that the alleged attack coming from the victim, where the latter chased them and grabbed and kicked Jimmy, is not the kind of attack that would put the person of the accused-appellants in peril. Indeed, despite the victim's bigger physical built, the fact that Gio, who was armed with an ice pick, already came to Jimmy's rescue, who notably was also armed with a Batangas knife and who had already hit the victim with a tree branch, indicates that the threat from the supposed aggression already ceased to exist. More so, when Gio already stabbed the victim with the ice pick causing the latter to fall on the ground, there was no more aggression to prevent or repel. It, thus, became unnecessary for the accused-appellants to continue to inflict injuries and/or to stab the fallen victim, which caused his death.

Moreover, the perceived threat to their lives due to the victim's bigger built and alleged knowledge of martial arts, is merely based on accused­ appellants' speculation and imagination, not proven to be real nor imminent.

More importantly, as clearly shown by the evidence on record, the severity, location, and the number of wounds and injuries suffered by the victim belie the accused-appellants' claim of self-defense. On the contrary, this evidence is indicative of a serious intent to inflict harm on the part of the accused-appellants for purposes of retaliation and not merely for the purpose of defending themselves from an imminent peril to life.

Retaliation is not the same as self-defense. In retaliation, the aggression that was begun by the injured party already ceased when the accused attacked him; while in self-defense, the aggression still existed when the aggressor was injured by the accused.31

From the foregoing, Gio and Jimmy's self-defense plea necessarily fails.

As to Allan, despite the statement made by his co-accused that he had no participation in the killing, We are one with the RTC and the CA in finding that his participation in the crime was established by the prosecution. This is through credible and sufficient circumstantial evidence that led to the inescapable conclusion that Allan indeed participated in the killing of the victim.

Section 4, Rule 133 of the Rules of Court states that circumstantial evidence is sufficient for conviction if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.32 In this case, We do not find any cogent reason to deviate from the findings of fact made by the RTC, as affirmed by the CA, viz.: (1) Allan was with Gio and Jimmy before and during the incident; (2) prosecution witnesses identified him as one of the assailants; (3) he fled immediately after the incident; and (4) the police intercepted him near a creek and a Batangas knife was found in his possession. These circumstances constitute an unbroken chain, which constrain Us to conclude that Allan, with his co-accused, participated in the killing of the victim.

Notably, he did not deny any of these facts during his testimony. Instead, Allan imputes error on the part of the trial court in upholding the admissibility of the knife recovered from him despite its being a product of an invalid search considering that the police officers had no personal knowledge that he was one of the perpetrators of the crime when he was arrested without warrant. We do not agree.

As can be gleaned from the factual backdrop of this case, the arrest of Allan and his co-accused resulted from a hot pursuit, immediately conducted by the police officers in the area upon learning, through a report from Barangay Tanod Cabug-os, and investigating about the incident that just occurred. Thus, the arresting officers had personal knowledge of the facts indicating that the persons to be pursued and arrested are responsible for the crime that had just been committed. Indeed, the arresting officers had probable cause to pursue the accused-appellants based on the information from witnesses in the area that they gathered from their immediate investigation. This is in accord with Section 5(b) of Rule 113 of the Revised Rules of Criminal Procedure on valid warrantless arrest.33 It is, thus, readily apparent that the knife seized from Allan is admissible in evidence, the same having been recovered from him incidental to a lawful arrest, contrary to the defense's argument.

Deduced from the foregoing, therefore, Allan's participation in the killing of the victim cannot be doubted.

Third. Anent the qualifying circumstance of abuse of superior strength, We find that the same is clearly present in this case. Abuse of superior strength is present when the attackers cooperated in such a way as to secure advantage of their combined strength to perpetrate the crime with impunity.34 Such qualifying circumstance was perpetrated by the accused­-appellants when they took turns to stab and maul the victim, who was alone and unarmed. Indeed, they purposely used such excessive force out of proportion35 considering that they consistently averred that they feared the victim's bigger built and his knowledge of martial arts.

As to the penalty, the RTC and the CA correctly sentenced the accused-appellants to suffer the penalty of reclusion perpetua, there being no aggravating or mitigating circumstances that attended the commission of the crime.

For the award of damages, when death occurs due to a crime, the following may be recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in proper cases.36

In this case, the civil indemnity amounting to PhP75,000 and temperate damages, in lieu of actual damages, amounting to PhP50,000 awarded are proper, hence, We sustain the same. Pursuant, however, to prevailing jurisprudence, We increase the award of moral damages from PhP50,000 to PhP75,000.37

In addition, the award of exemplary damages is warranted when the commission of the offense is attended by an aggravating circumstance, whether ordinary or qualifying, as in this case.38 Thus, We find it proper to award PhP75,000 exemplary damages in accordance with prevailing jurisprudence.39

While We find the grant of attorney's fees proper due to the award of exemplary damages,40 We, however, find no basis on the award of PhP50,000 litigation expenses. We, thus, delete the same.

The imposition of an interest at the rate of six percent (6%) per annum on all the monetary awards from the date of finality of this judgment until fully paid was likewise proper.41

WHEREFORE, premises considered, the Decision dated December 12, 2014 of the Court of Appeals of Cebu City, in CA-G.R. CR-H.C. No. 00418 is hereby AFFIRMED with MODIFICATION, thus:
WHEREFORE, premises considered, the Decision dated May 28, 2006 of the Regional Trial Court, Branch 2 of Tagbilaran City in Criminal Case No. 12230 is hereby AFFIRMED with MODIFICATION that appellants Gio Cosgafa y Clamocha, Jimmy Sarceda y Agang and Allan Vivo y Aplacador are jointly and severally ORDERED to pay the following:
(1) Php75,000 as civil indemnity;

(2) Php75,000 as moral damages;

(3) Php75,000 as exemplary damages;

(4) Php50,000 as temperate damages;

(5) Php10,000 as attorney's fees.
Appellants are further ORDERED to pay the heirs interest on the civil indemnity and all damages awarded at the legal rate of six percent (6%) per annum from the date of finality of this judgment until fully paid. No pronouncement as to costs.


Velasco, Jr., (Chairperson), Bersamin, Mendoza,* and Martires,**JJ., concur.


* Designated additional Member per Raffle dated February 27, 2017 vice Associate Justice Francis H. Jardeleza.

** Designated Fifth Member of the Third Division per Special Order No. 2461 dated July 10, 2017 vice retired Associate Justice Bienvenido L. Reyes.

1 Penned by Associate Justice Ramon Paul L. Hernando, with Associate Justices Ma. Luisa C. Quijano-Padilla and Marie Christine Azcarraga-Jacob concurring; rollo, pp. 4-23.

2 Penned by Presiding Judge Baudilio K. Dosdos, CA rollo, pp. 83-91.

3Rollo, p. 5.

4 Id. at 6.

5 Id.

6 Id.

7 Id. at 7.

8 Id.

9 Id.

10 Id. at 7-8.

11 Id. at 8.

12 Id.

13 Id. at 9.

14 Id.

15 Id. at 9-10.

16 Id.

17 CA rollo, p. 91.

18Rollo, pp. 22-23.

19 Id. at 32-35, 37-40.

20People v. Roman, G.R. No. 198110, July 31, 2013.

21People v. Dela Cruz, G.R. No. 188353, February 16, 2010.

22People v. Roman, supra note 20, citing People v. Del Castillo, G.R. No. 169084, January 18, 2012.

23 Id.

24 Id.

25 Id.

26 Id.

27People v. Casas, G.R. No. 212565, February 25, 2015.

28People v. Roman, supra note 20, citing People v. Nugas, G.R. No. 172606, November 23, 2011.

29 Id.

30 Id.

31People v. Gamez, G.R. No. 202847, October 23, 2013.

32People v. Galo, et al., G.R. No. 187497, October 12, 2011.

33 Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person;

x x x x

(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;

x x x x.

34People v. Arbalate, et al., G.R. No. 183457, September 17, 2009.

35Fantastico, et al. v. Malicse, Sr., et al., G.R. No. 190912, January 12, 2015.

36People v. Gutierrez, G.R. No. 188602, February 4, 2010.

37People v. Jugueta, G.R. No. 202124, April 5, 2016.

38People v. Gutierrez, supra note 36.

39People v. Jugueta, supra note 37.

40Mendoza, et al. v. Spouses Gomez, G.R. No. 160110, June 18, 2014.

41Tan et al. v. OMC Carriers, Inc., et al., G.R. No. 190521, January 12, 2011.
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