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[G.R. No. 133964. February 13, 2002.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RAMIL PEÑA, Accused-Appellant.



Accused-appellant Ramil Peña was charged with murder in an Information which reads, thus:chanrob1es virtual 1aw library

That on or about the 8th day of December, 1995, in the municipality of Obando, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused armed with a firearm with intent to kill one Jimbo Pelagio y Ferrer, did then and there wilfully, unlawfully and feloniously; with evident premeditation and treachery, attack, assault and shoot the said Jimbo Pelagio y Ferrer, hitting the latter on the head thereby inflicting wound which directly caused the death of the said Jimbo Pelagio y Ferrer. 1

In the early morning of December 8, 1995, Accused-appellant hired Jimbo Pelagio, a tricycle driver working the night shift, to take him to Paco, Obando, Bulacan. When they reached their destination, he ordered Pelagio to get off the tricycle. Then, Accused-appellant robbed Pelagio of his money and repeatedly struck him on the head with a gun. Pelagio fell on the ground unconscious. Accused-appellant shot him on the head and fled on board his tricycle.

That same morning, SPO1 Froilan Bautista got a call from the Valenzuela Emergency Hospital stating that a man had been shot on the head and was in their hospital. SPO1 Bautista and SPO1 Jose Sta. Ana rushed to the hospital and found the still conscious Pelagio lying on a stretcher.chanrob1es virtua1 1aw 1ibrary

SPO1 Bautista took the statement of Pelagio in a question and answer method, which he took down on two sheets of yellow paper. After his statement was taken, Pelagio affixed his thumbmark on both sheets. In his statement, Pelagio related how accused-appellant inflicted his injuries on him.

The owner of the tricycle, Wilfredo Lampa, after being informed that Pelagio had been shot, proceeded to the hospital. There, Pelagio told him that it was accused-appellant who shot him and took away his tricycle.

Francisca Pelagio, Jimbo Pelagio’s mother, also rushed to the hospital. Upon advice of the doctors, Francisca brought her son to the Jose Reyes Memorial Hospital. On February 6, 1996, Jimbo Pelagio expired. According to Francisca, she spent P26,000.00 for his medical and funeral expenses.

For his part, Accused-appellant claimed that he was in San Isidro, San Luis, Pampanga together with his wife on the date of the incident. He went into hiding in the house of his uncle, Maximiano Guevarra, for nine (9) months because he allegedly killed a certain Roger Wininsala. He came to know that he was being accused of the murder of Pelagio, whom he did not know, only while he was in detention on a drug charge.

Accused-appellant’s testimony was corroborated by his uncle Maximiano Guevarra.

The trial court was not persuaded. On May 13, 1998, it rendered a decision, 2 the dispositive portion of which reads:chanrob1es virtual 1aw library

WHEREFORE, the foregoing considered, this Court hereby finds RAMIL PEÑA GUILTY beyond reasonable doubt of the crime of Murder under Article 248 of the Revised Penal Code and sentences him to suffer the penalty of Reclusion Perpetua and to pay the victim’s mother, Francisca Pelagio, the amount of P26,000.00 representing actual damages and the costs of suit.

Hence this appeal.

Accused-appellant claims that the trial court erred in finding that accused-appellant shot Pelagio because there is no evidence that a bullet was embedded in the skull of the victim. More specifically, the attending physicians were not presented to testify that the victim died of a gunshot wound in the head.

Accused-appellant next claims that the evidence relied upon by the trial court is hearsay and inadmissible. He argues that said evidence does not constitute res gestae. Particularly, he emphasizes that "it was imperative on the part of the lower court that it should have appreciated the principle of res gestae on the basis of the contents of Jimbo Pelagio’s statement reduced in handwritten form by SPO1 Bautista, and not on the dying declarations made by Jimbo Pelagio to SPO1 Bautista, Wilfredo Lampa and Francisca Pelagio because these prosecution witnesses had all the time to contrive and improvise on what was actually told them, allegedly by Jimbo Pelagio." 3

The pivotal issue is whether the statement of the victim Jimbo Pelagio as well as the testimonies of the prosecution witnesses on the victim’s declaration can be considered as part of the res gestae, hence, an exception to the hearsay rule.

The statement or declaration made by Pelagio, taken by SPO1 Bautista, reads:chanrob1es virtual 1aw library

T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinukunan ka ng salaysay?

S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEÑA sa ulo at kinuha and tricycle kong minamaneho.

T: Taga saan itong si Ramil Peña?

S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.

T: Saan, kailan at anong oras nangyari ito?

S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika-4:15 ng umaga.

T: Sakay mo ba itong si Ramil Peña?

S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.

T: Dati mo bang kilala si Ramil Peña?

S: Opo.

T: Ano ba ang tatak ng tricycle mo?

S: Yamaha RS-100, kulay itim.

T: Sino and may-ari ng tricycle?

S: Si Rey Dagul.

T: Binaril ka ba ni Ramil?

S: Muntik na ho.

T: Bakit sa iyo ginawa ni Ramil and bagay na ito?

S: Ewan ko ho. 4

The trial court ruled that Pelagio’s statement was a dying declaration since it was uttered at the point of death and with consciousness of that fact due to the serious nature of his wounds. Thus, it admitted Pelagio’s statement in evidence as an exception to the hearsay rule.

The requisites for the admissibility of dying declarations have already been established in a long line of cases. An ante-mortem statement or dying declaration is entitled to probative weight if. (1) at the time the declaration was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein the declarant’s death is the subject of the inquiry. 5

The first element is lacking in the case at bar. It was not established with certainty whether Pelagio uttered his statement with consciousness of his impending death. While he was in pain when he made his statement, he expressly stated that accused-appellant only pistol-whipped him and almost shot him. 6

The significance of a victim’s realization or consciousness that he was on the brink of death cannot be gainsaid. Such ante mortem statement is evidence of the highest order because at the threshold of death, all thoughts of fabricating lies are stilled. The utterance of a victim made immediately after sustaining serious injuries may be considered the incident speaking through the victim. It is entitled to the highest credence. 7

Granting that Pelagio, after giving his statement, later on realized that he was dying, his statement still can not be considered a dying declaration. The crucial factor to consider is the contemporaneity of the moment when the statement was made and the moment of the realization of death. The time the statement was being made must also be the time the victim was aware that he was dying.chanrob1es virtua1 1aw 1ibrary

While it may not qualify as a dying declaration, Pelagio’s statement may nonetheless be admitted in evidence as part of the res gestae. In People v. Marollano, 8 this Court held:chanrob1es virtual 1aw library

The requisites for the admissibility of the victim’s ante mortem statement as part of the res gestae and also as a dying declaration are present in this case, hence the same should be admitted under both exceptions to the hearsay rule. (Citation omitted) While the admissibility thereof would naturally not be affected whether viewed under either or both considerations the advantage of resting the issue on the aforesaid dual bases is that its admission would be invulnerable to a theorized absence of an element of one of said exceptions This is particularly important in this case,, considering that the very identification of the assailant and the accuracy thereof are essentially based on the declaration of the victim. (Emphasis supplied)

A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances. 9

In People v. Naerta, 10 this Court held that:chanrob1es virtual 1aw library

The term "res gestae" comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content.

Pelagio’s declaration is admissible as part of the res gestae since it was made shortly after a startling occurrence and under the influence thereof. Under the circumstances, the victim evidently had no opportunity to contrive his statement beforehand. 11

In People v. Hernandez, 12 the infliction on a person of a gunshot wound on a vital part of the body should qualify by any standard as a startling occurrence. And the rule is that testimony by a person regarding statements made by another as that startling occurrence was taking place or immediately prior or subsequent thereto, although essentially hearsay, is admissible exceptionally, on the theory that said statements are natural and spontaneous, unreflected and instinctive, made before there had been opportunity to devise or contrive anything contrary to the real fact that occurred, it being said that in these cases, it is the event speaking through the declarant, not the latter speaking of the event.

In this case, it is clear that the pistol-whipping and the gunshot on the head of Pelagio qualified as a startling occurrence. Notably, Pelagio constantly complained of pain in his head while his statement was being taken by SPO1 Bautista, so much so that there was no opportunity for him to be able to devise or contrive anything other than what really happened.chanrob1es virtua1 1aw 1ibrary

In People v. Putian, 13 the Court held that although a declaration does not appear to have been made by the declarant under the expectation of a sure and impending death, and, for that reason, is not admissible as a dying declaration, yet if such declaration was made at the time of, or immediately after, the commission of the crime, or at a time when the exciting influence of the startling occurrence still continued in the declarant’s mind, it is admissible as part of the res gestae.

Indeed the defense admitted as much when it stated, thus:chanrob1es virtual 1aw library

We should stress that Jimbo Pelagio’s handwritten statement, or his declarations therein, were made immediately after the res gestae or the principal act took place, and he had no time to contrive or devise, while his statements directly concerned the occurrence in question and its immediate circumstances. We should take note further that the handwritten statement’s contents are rather detailed in terms of the specifics of the circumstances before, during and after the subject incident which elicits guarded conclusion that notwithstanding Jimbo Pelagio’s physical condition at the Valenzuela Emergency Hospital, he was conscious and lucid enough to intelligently respond rather spontaneously on the questions propounded to him by SPO1 Bautista. These acts and statements made by Jimbo Pelagio definitely constitute part of res gestae and not the testimonies and/or written statements of the three prosecution witnesses in this case. 14

By stating, however, that the testimonies or the written statements of the three prosecution witnesses were taken into consideration by the trial court as part of the res gestae betrays a misapprehension of said principle. This Court agrees with the Solicitor General when it observed thus:chanrob1es virtual 1aw library

Since res gestae refers to those exclamations and statements made by either the participants, victims or spectators to a crime before, during or immediately after the commission of the crime, they should necessarily be the ones who must not have the opportunity to contrive or devise a falsehood but not the persons to whom they gave their dying declaration or spontaneous statement. In other words, the witness who merely testifies on a res gestae is not the declarant referred to in the second requisite whose statements had to be made before he "had the time to contrive or devise a falsehood." (Citation omitted)

Thus, even if there were intervening periods between the time the victim gave his account of the incident to the prosecution witnesses and the time the latter first disclosed what the victim told them, the same will not affect the admissibility of the victim’s declaration or statement as part of res gestae since it is sufficient that such declaration or statement was made by the victim before he had time to contrive or devise a falsehood. 15

In any case, there is no reason why SPO1 Bautista would contrive or devise a falsehood especially on the matter that Pelagio was shot on the head and that it was accused-appellant who shot him. As a police officer, he was duty-bound to investigate and unearth the facts of the case. There is a presumption that as an officer of the law, he sought only the truth. Besides, no motive was shown as to why he would contrive or devise a falsehood against Accused-Appellant.

In his Investigation Report, 16 SPO1 Bautista gathered that accused-appellant shot Pelagio from the Radiologic Report conducted at the Valenzuela District Hospital wherein the presence of metallic fragments was discovered. Moreover, the results of the C.T. Scan conducted on the victim showed the presence of metallic fragments in his skull. In Pelagio’s Death Certificate, 17 the underlying cause of death was indicated as gunshot wound to the head.

There is, therefore, no merit in accused-appellant’s contention that there was no evidence that Pelagio was shot in the head. It should be noted that accused-appellant pistol-whipped Pelagio repeatedly. The Solicitor General’s following submission would, therefore, make sense:chanrob1es virtual 1aw library

Given the probability that he was already unconscious or his head had become numb due to severe head injuries when accused-appellant shot him, it is not unlikely for the victim not to have known or felt being shot and hit by accused-appellant on the head. This was probably the reason why in his initial declaration, the victim merely stated that he was nearly shot by Accused-Appellant. 18

Regardless, Pelagio categorically declared that it was accused-appellant who caused his head injuries which eventually led to his death. SPO1 Bautista’s testimony as well as Wilfredo Lampa’s and Francisca Pelagio’s merely corroborated Pelagio’s statement that it was accused-appellant who caused his head injuries.

The trial court found, thus:chanrob1es virtual 1aw library

The straightforward and consistent testimonies of the three vital prosecution witnesses bear the earmarks of credibility. Further, there exists no ill motive on their part to prevaricate. This absence of evidence as to an improper motive actuating the principal witnesses for the prosecution strongly tends to sustain that no improper motive existed and their testimony is worthy of full faith and credit (Citation omitted), for witnesses do not generally falsely impute to an accused a serious criminal offense were it not the untarnished truth. (Citation omitted)

Settled is the rule that in the absence of any fact or circumstance of weight and influence which has been overlooked or the significance of which has been misconstrued to impeach the findings of the trial court, the appellate courts will not interfere with the trial court’s findings on the credibility of the witnesses or set aside its judgment, considering that the trial court is in a better position to decide the question for it had heard the witnesses themselves during the trial. The evaluation of the credibility of witnesses is a matter that particularly falls within the authority of the trial court. 19

However, this Court cannot agree with the trial court that the crime should be murder. While evident premeditation and treachery were alleged in the information, the trial court did not state why the killing was qualified to murder. The prosecution failed to establish the attendance of the qualifying circumstances with concrete proof. The crime proved was only homicide.

In accordance with Article 249 of the Revised Penal Code, Accused-appellant should be sentenced to reclusion temporal. There being no mitigating or aggravating circumstance, the penalty to be imposed shall be the medium period of reclusion temporal, ranging from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, Accused-appellant shall be entitled to a minimum penalty, to be taken from the penalty next lower in degree or prision mayor, in any or its periods, ranging from six (6) years and one (1) day to twelve (12) years.

As to the matter of damages, we hold that the trial court should have awarded civil indemnity in the amount of P50,000.00 in line with prevailing jurisprudence. 20 The award of P26,000.00 as actual damages is upheld, being duly proven with receipts. 21

WHEREFORE, in view of the foregoing, the decision is MODIFIED. Accused-appellant Ramil Peña is found guilty beyond reasonable doubt of homicide and sentenced to suffer an indeterminate sentence of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, and to pay the heirs of the victim Jimbo Pelagio the amount of P50,000.00 as civil indemnity and P26,000.00 as actual damages.chanrob1es virtua1 1aw 1ibrary

Costs against Accused-Appellant.


Davide, Jr., C.J., Puno, and Kapunan, JJ., concur.


1. Rollo, p. 7.

2. Penned by Judge Gregorio S. Sampaga, Branch 78 of the Regional Trial Court of Malolos, Bulacan.

3. Rollo, pp. 43-44.

4. Exhibit "A", Records, pp. 93-94.

5 People v. Templo, G.R. No. 133569, December 1, 2000.

6. Exhibit "A", Records, pp. 93-94.

7. People v. Lao-as, G.R. No. 126396, June 29, 2001.

8. 276 SCRA 109 [1997], citing Justice Florenz D. Regalado’s Separate Opinion in People v. Israel.

9. People v. Bituon, G.R. No. 142043, September 13, 2001.

10. 74 Phil. 8 [1942].

11. People v. Lao-as, supra.

12. 205 SCRA 213 [1992].

13. 74 SCRA 139 [1976].

14 Appellant’s Brief, Rollo, pp. 28-49.

15. Brief for Plaintiff-Appellee, Rollo, pp. 93-94.

16. Records, p. 132.

17. Exhibit "B", Records, p. 95.

18. Rollo, p. 90.

19. People v. Gallo, G.R. No. 133002, October 19, 2001.

20. People v. Reyes, G.R. Nos. 137494-95, October 25, 2001.

21. People v. Olita, G.R. No. 140347, August 9, 2001.

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