THIRD DIVISION
G.R. No. 213832, December 07, 2015
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GILBERT MERCADO A.K.A. "BONG", Accused-Appellant.
R E S O L U T I O N
REYES, J.:
Subject of this appeal1 is the Decision2 dated November 29, 2013 of the Court of Appeals (CA) in CA-GR CR-HC No. 00941-MIN, which affirmed with modification the Decision3 dated March 28, 2011 of the Regional Trial Court (RTC) of Zamboanga City, Branch 16, in Criminal Case Nos. 18497 and 18498, convicting accused-appellant Gilbert Mercado a.k.a. "Bong" (Mercado) for two counts of Murder.
Mercado was charged in separate informations with two counts of Murder for the deaths of Victor Dulap y Vargas (Victor) and Charlie Dulap y Vargas (Charlie) on October 31, 2001 in Zamboanga City, specifically:
During the arraignment, Mercado pleaded "not guilty" to both charges. After pre-trial, trial on the merits ensued.6IN CRIMINAL CASE NO. 18497
That on or about October 31, 2001, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, armed with a handgun, by means of treachery and with intent to kill, did then and there willfully, unlawfully and feloniously, suddenly and without any warning, assault, attack and shoot with the use of said weapon that he was then armed with, at the person of [Victor], thereby inflicting mortal gunshot wound on the fatal part of the latter's body which directly caused his death, to the damage and prejudice of the heirs of said victim; furthermore, there being present an aggravating circumstance in that the weapon used in the commission of the crime is an unlicensed firearm.4IN CRIMINAL CASE NO. 18498
That on or about October 31, 2001, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, armed with a handgun, by means of treachery and with intent to kill, did then and there willfully, unlawfully and feloniously, suddenly and without any warning, assault, attack and shoot with the use of said weapon that he was then armed with, at the person of [Charlie], thereby inflicting mortal gunshot wounds on the fatal part of the latter's body which directly caused his death, to the damage and prejudice of the heirs of said victim; furthermore, there being present an aggravating circumstance in that the weapon used in the commission of the crime is an unlicensed firearm.5ChanRoblesVirtualawlibrary
WHEREFORE, the Court finds accused GILBERT MERCADO y CABUCOS GUILTY beyond reasonable doubt, as principal, of the crimes of Murder charged in Criminal Case No. 18497 and Criminal Case No. 18498, with the aggravating circumstance in both cases of use of an unlicensed firearm, and SENTENCES said accused as follows:chanRoblesvirtualLawlibraryUpon appeal, the CA affirmed with modification the RTC's judgment. The CA affirmed Mercado's conviction for two counts of murder; however, it ruled that the ciggravating circumstance of use of an unlicensed firearm was wrongly considered by the RTC. It explained:
1. In Criminal Case No. 18497 for Murder, in connection with the untimely death of VICTOR DULAP y VARGAS, to suffer the penalty of RECLUSION PERPETUA and its accessory penalties, without eligibility for parole; to pay the heirs of Victor Dulap y Vargas Php 75,000.00 as indemnity for his death; Php 75,000.00 as moral damages; Php 50,000.00 as exemplary damages; Php 30,000.00 as temperate damages in lieu of actual damages and to pay the costs; and
2. In Criminal Case No. 18498 for Murder, in connection with the untimely death of CHARLIE DULAP y VARGAS, to suffer the penalty of RECLUSION PERPETUA and its accessory penalties, without eligibility for parole; to pay the heirs of [Charlie] Dulap y Vargas Php 75,000.00 as indemnity for his death; Php 75,000.00 as moral damages; Php 50,000.00 as exemplary damages; Php 30,000.00 as temperate damages in lieu of actual damages and to pay the costs.
SO ORDERED.18ChanRoblesVirtualawlibrary
The aggravating circumstance must be proved with equal certainty as the commission of the crime charged. The prosecution is burdened to prove that [Mercado] used an unlicensed firearm to perpetrate the crime of murder. Unfortunately, the prosecution failed to discharge such burden. It has offered no documents which would prove such allegation when it could have easily secured a certification from the Philippine National Police to the effect that no firearm license was issued to [Mereado] to possess and carry the gun used in the killing.19 (Citation omitted)Given the prosecution's failure to establish the aggravating circumstance, the CA likewise modified the amount of damages due the victims' heirs, through the deletion of the award of exemplary damages. Thus, the dispositive portion of its Decision dated November 29, 2013 reads:
WHEREFORE, premises considered, the appeal is DENIED. The appealed joint Decision dated March 28, 2011 of the [RTC], Branch 16 of Zamboanga City, in Criminal Case Nos. 18497 and 18498 is hereby AFFIRMED with modification as to the damages awarded, such that [Mercadoj is ORDERED to pay the heirs of Victor Dulap y Vargas, in Criminal Case No. 18497, the following: 1) Moral damages of P75,000.00; 2) Civil indemnity of P75,000.00[;] and 3) Temperate damages in the amount of P30,000.00. Moreover, he is ORDERED to pay the heirs of Charlie Dulap y Vargas, in Criminal Case No. 18498, the following: 1) Moral damages of P75,000.00; 2) Civil indemnity of P75,000.00[;] and 3) Temperate damages of P30,000.00.Hence, this appeal.
SO ORDERED.20ChanRoblesVirtualawlibrary
For the defense of alibi to prosper, "the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime" during its commission. "Physical impossibility refers to distance and the facility of access between the situs criminis and the location of the accused when the crime was committed. He must demonstrate that he was so far away and could not have been physically present at the scene of the crime and its immediate vicinity when the crime was committed."28 (Citations omitted)Such physical impossibility was not established in this case, given the RTC's finding that Barangay Tetuan, where Mercado claimed to be at when the killings happened on the evening of October 31, 2001, was a mere seven kilometers away from Barangay San Roque. As the Court ruled in People v. Adallom29 "denial and alibi are self-serving negative evidence; they cannot prevail over the spontaneous, positive, and credible testimonies of the prosecution witnesses who pointed to and identified the accused-appellant as the malefactor."30
Endnotes:
* Additional Member per Raffle dated September 10, 2014 vice Associate Justice Francis H. Jardeleza.
1Rollo, pp. 14-15.
2 Penned by Associate Justice Kenato C. Francisco, with Associate Justices Romulo V. Horja and Oscar V. Badelles concurring; id. at 3-13.
3 Rendered by Judge Jesus C. Carbon, Jr.; CA rollo, pp. 44-62.
4 Id. at 44-45.
5 Id. at 45.
6 Id.
7 Id. at 46-50.
8 Id. at 46-47.
9Rollo, p. 6.
10 CA rollo, pp. 47-50.
11 Id. at 53-54.
12 Id. at 51.
13 Id. at 45.
14 Id. at 54-55.
15Rollo, p. 10.
16 CA rollo, pp. 55-57.
17 Id. at 44-62.
18 Id. at 61-62.
19Rollo, pp. 10-11.
20 Id. at 12-13.
21People v. Mamaruncas, et al., 680 Phil. 192, 211 (2012).
22People v. Sanchez, 681 Phil. 631, 635 (2012).
23Kummer v. People, G.R. No. 174461, September 11, 2013, 705 SCRA 490, 500.
24See Lazaro, et al. v. Agustin, et al., 632 Phil. 310, 322 (2010).
25People v. Dadao, G.R. No. 201860, January 22, 2014, 714 SCRA 524, 535.
26 CA rollo, pp. 47-48.
27People v. Jacinto, 661 Phil. 224, 246 (2011).
28People of the Philippines v. Virgilio Amoray Viscarra, G.R. No. 190322, November 26, 2014; See also People v. Jumawan, G.R. No. 187495, April 21, 2014, 722 SCRA 108, 169; People v. Ramos, G.R. No. 190340, July 24, 2013, 702 SCRA 204, 217.
29 683 Phil. 618 (2012).
30 Id. at 644.
31 AN ACT PROHIBITING THE IMPOSITION OF DEATI1 PENALTY IN THE PHILIPPINES.
32People v. Del Castillo, et al., 679 Phil. 233, 258 (2012).
33See People v. Alfredo, 653 Phil. 435, 454 (2010).
34People of the Philippines v. Randy Bañez y Baylon and Ramil Bañez y Baylon, and Felix Rufino (at large), G.R. No. 198057, September 21, 2015.
35People v. Dadao, supra note 25, at 541.
36Guevarra v. People, G.R. No. 170462, February 5, 2014, 715 SCRA 384, 397; People v. Zulieta, G.R. No. 192183, November 11, 2013, 709 SCRA 202, 212.
37Guevarra v. People, id. at 398; People v. Zulieta, id.