THIRD DIVISION
G.R. No. 226486, January 22, 2020
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. GLECERIO PITULAN Y BRIONES, ACCUSED-APPELLANT.
D E C I S I O N
LEONEN, J.:
In homicide, the prosecution's failure to present the weapon is not fatal to its case. An eyewitness' credible testimony on the fact of the crime and the assailant's identity is sufficient to prove the corpus delicti. Moreover, the prosecution's failure to conduct paraffin and ballistic testing has no effect on the evidentiary value of an eyewitness' positive identification of the accused as the assailant. The accused's bare denial, on its own, cannot outweigh the eyewitness' positive identification.
This Court resolves the Notice of Appeal1 assailing the Decision2 of the Court of Appeals, which affirmed the Regional Trial Court Decision3 finding Glecerio Pitulan y Briones (Pitulan) guilty beyond reasonable doubt of the complex crime of direct assault with murder.
Three (3) Informations were filed against Pitulan for direct assault with murder of police Officer 1 Aldy Monteroso (PO1 Monteroso), direct assault with attempted murder of police Officer 1 Alberto Cirilo Dionisio (PO1 Dionisio), and direct assault with frustrated murder of PO1 Benito De Vera (PO1 De Vera). The Informations read:
Pitulan was arraigned on all the charges, to which he pleaded not guilty. Trial thus ensued.5Criminal Case No. Q-03-116802 against Glecerio Pitulan y Briones for Direct Assault with Murder
"That on or about the 20th day of April, 2003 in Quezon City, Philippines, the said accused, conspiring, confederating with Eufemio Pitulan, Sergs Pitulan, Edward Pitulan, Felomino Pitulan and Augusto Torres, who were killed during the shootout with the apprehending police officers, and with another person whose name, identity and whereabouts has (sic) not yet been ascertained, and mutually helping each other, did then and there wilfully, unlawfully and feloniously with treachery, evident premeditation, and taking advantage of superior strength, attack, assault and employ personal violence upon the person of PO1 ALDY MONTEROSO y BELTRAN, a bonafide member of the PNP CPDO, assigned at police Station 3, Talipapa police Station, this City, and therefore an agent of a person in authority who was then engaged in the performance of his official duties, and the accused knew him to be such, by then and there shooting him, with intent to kill, with the use of a .38 cal. revolver, hitting him on the chest, thereby inflicting upon him fatal injury which was the direct cause of his death, to the damage and prejudice of the heirs of said PO1 Aldy B. Monteroso.
CONTRARY TO LAW."Criminal Case No. Q-03-116803 against Glecerio Pitulan y Briones for Direct Assault with Attempted Murder
That on or about the 20th day of April, 2003 in Quezon City, Philippines, the said accused, conspiring, confederating with Eufemio Pitulan, Sergs Pitulan, Edward Pitulan, Felomino Pitulan and Augusto Torres, who were killed during the shootout with the apprehending police officers, and with another person whose name, identity and whereabouts has (sic) not yet been ascertained, and mutually helping each other, did then and there wilfully, unlawfully and feloniously with treachery, evident premeditation, and taking advantage of superior strength, commence the commission of the crime of Murder directly by overt acts upon the person of one PO1 ALBERTO CIRILO DIONISIO y DELACRUZ, a bonafide member of the PNP, CPDO, assigned at police Station 3, Talipapa police Station, this City, and therefore an agent of a person in authority who was then engaged in the performance of his official duties, and the accused knew him to be such, by then and there shooting him, with intent to kill, with the use of a .38 cal. [r]evolver, but said accused was not able to perform all the acts of execution which should produce the crime of Murder by reason of some cause or accident other than his own spontaneous desistance, to the damage and prejudice of the said PO1 Alberto Cirilo Dionisio y Dela Cruz.
CONTRARY TO LAW."Criminal Case No. Q-05-133382 against Glecerio Pitulan y Briones For Direct Assault with Frustrated Murder
"That on or about the 20th day of April, 2003 in Quezon City, Philippines, the said accused, conspiring, confederating with Eufemio Pitulan, Sergs Pitulan, Edward Pitulan, Felomino Pitulan and Augusto Torres, who were killed during the shootout with the apprehending police officers, and with another person whose name, identity and whereabouts has (sic) not yet been ascertained, and mutually helping each other, did then and there wilfully, unlawfully and feloniously with treachery, evident premeditation, and taking advantage of superior strength, attack, assault and employ personal violence upon the person of (sic) commence the commission of the crime of Murder directly by overt acts upon the person of one PO1 BENITO DE VERA y JOPSON, a bonafide member of the PNP, CPDO, assigned at police Station 3, Talipapa police Station, this City, and therefore an agent of a person in authority who was then engaged in the performance of his official duties, and the accused knew him to be such, by then and there shooting him, with intent to kill, with the use of a .38 cal. [r]evolver, hitting him on the different parts of his body, thereby inflicting upon him fatal injuries, the offender performing all the acts of execution which would produce death as a consequence but which nevertheless did not produce it by reason of some causes independent of the will of the perpetrator, to the damage and prejudice of the said PO1 Benito De Veyra (sic) y Jopson.
CONTRARY TO LAW."4
WHEREFORE, judgment is hereby rendered finding the accused Glecerio Pitulan y Briones in Criminal Case No. Q-03-116802 GUILTY beyond reasonable doubt of the crime of Direct Assault with Murder and he is hereby sentenced to suffer the penalty of reclusion perpetua.Pitulan appealed his case. However, the Court of Appeals, in ·its August 12, 2015 Decision,25 affirmed his conviction. It found the police officers' testimonies clear that it was Pitulan who fired successive shots at PO1 Monteroso, the same one who drove off only to be arrested by PO3 Cortez's team.26 It also affirmed the trial court's findings that the killing of PO1 Monteroso was attended with treachery, qualifying the complex crime to direct assault with murder.27
Accused Glecerio Pitulan y Briones is hereby further ordered to pay the heirs of PO1 Aldy Monteroso y Beltran the following amounts:
1) Php75,000.00 as civil indemnity;
2) Php50,000.00 as moral damages;
3) Php30,000.00 as exemplary damages;
4) Php30,000.00 as temperate damages; and
5) costs of suit.
In Criminal Case No. Q-03-116803 and Criminal Case No. Q-03-116804, judgment is hereby rendered ACQUITTING the accused Glecerio Pitulan y Briones of the offenses of Direct Assault with Attempted Murder and Direct Assault with Frustrated Murder, for lack of evidence.
SO ORDERED.24
Q: (Prosecutor Luis Maceren)Moreover, PO3 Cortez testified that the driver of the van whom they arrested was none other than accused-appellant himself. PO3 Cortez stated:
Mr. Witness, you said that you responded to a shootout. When was this when you responded to a shootout?
A: (PO1 Benito De Vera, Jr.) Responded to an alarm, sir.
Q: Alright, responded to an alarm, when was that?
A: April 20, 2003, sir.
Q: You mentioned that you responded to an alarm, what was that alarm about?
A: A Hyundai van was parked with persons inside the van and some were outside the van with 'may nakabukol' and looking suspiciously, sir.
Q: No[w], Mr. Witness, when you received this alarm, what did you and Mobile Patrol QC 15 do?
A: We proceeded to the place, sir.
Q: By the way, Mr. Witness, you mentioned that your Mobile Patrol QC 15 is a marked vehicle, could you tell us what was the attire of the group including yourself at the time that you were in the performance of your duty as a member of the mobile group?
A: We were in complete uniform, sir.
Q: You said that you, together with your fellow officers proceeded to or responded to this alarm, where did you proceed to?
A: General Avenue near Road 20, sir.
Q: Were you able to arrive at this area?
A: No, sir because we met the van.
Q: Where did you encounter or meet the van?
A: Along Road 20, sir.
Q: Now, when you saw the van along Road 20, what happened then?
A: We chased the van and we asked them to pull over but they did not stop, Sir.
Q: You said that you chased the van and asked them to pull over, how did you ask them to pull over?
A: We sounded the siren, sir.
Q: You said that they did not stop, what did you do?
A: Our driver overtook the van, sir.
Q: After over taking (sic) the van, what happened then?
A: They were forced to stop, sir.
Q: Where were they forced to stop, what particular place where (sic) they forced to stop?
A: Along Road 20 in front of House No. 126, sir.
Q: Where is this Road 20, what city is it located, Mr. Witness?
A: Brgy. Bahay Toro, Project 8, Quezon City.
Q: Now, Mr. witness, after you said that your driver was able to stop, what happened when you were able to stop them?
A: We ordered them to get off the van, sir.
Q: Where were you when this order for them to alight from the van was made?
A: We also alighted from the Mobile Patrol car, sir.
Q: Let us go directly to you, Mr. witness. Where were you then standing at that time when they were being asked to alight from their van?
A: I was behind our Mobile Patrol car, sir.
Q: What happened when ... who m particular who was ordering the occupants of the van to alight?
A: All of us, sir shouting [at] them to alight from the van.
Q: Then what happened?
A: Some alighted but some remained inside the van, sir.
Q: When some of the occupants [in that] van alighted, what happened then, while others remained inside the van, what happened then?
A: We asked those who remain inside the van to also alight from the van, sir.
Q: When you were asking them to ... those who remain inside to alight, what happened then?
A: The rest alighted except for one, sir.
Q: When this one person did not alight from the van, what happened next?
A: We ordered them to raise their hands, sir.
Q: What happened when you asked them to raise their hands?
A: They didn't raise their hands, sir.
Q: What did PO1 Alvin (sic) Monteroso do when you said one of the person (sic) did not alight from the van?
A: He opened the door of the van on the right sir.
Q: By the way, Mr. Witness, where was this person who did not alight from the van seated?
A: At the driver's seat, sir.
Q: You said that PO1 Alvin (sic) Monteroso opened the van on the right, what do you mean on the right?
A: The door on the right side opposite the driver, sir.
Q: What happened then when Officer Monteroso opened the said door?
A: That's when he was shot at, sir.
Q: What happened to Officer Monteroso when he was shot at?
A: What I saw was when he was shot at he stepped back and started turning around (nagpaikot-ikot), sir.
Q: Who shot at Officer Monteroso?
A: That person, sir.
Interpreter:
Witness pointing to a person seated inside the court room when ask (sic) to identify himsel[f] he gave his name as Glecerio Pitulan.
Q: After Officer Monteroso was shot, what happened then?
A: "Kinuyog niya kami", his gun was taken from them [him], sir.
Q: You said "kinuyog," what do you mean by "kinuyog," Mr. Witness?
A: He was attacked and his gun was taken from him, sir.
Q: Who attacked him?
A: The companions of Pitulan, sir.47
TSN dated March 21, 2006.As the trial court aptly noted, there is no dispute as to where accusedappellant was at the time of the incident. He categorically admitted during trial that he was inside the van when the shootout happened:
PO3 Eric Cortez
Prosecutor Andres
Q: So after receiving that radio message from your radio operator regarding that gun battle and after you were directed to proceed to Road 20, Project 8, Quezon City, what did you and your companions do, if any?
A: We proceeded and while we were approaching Mindanao Avenue we received a radio message coming from CPD-Pre[c]inct 3 regarding the description of the vehicle.
....
Q: And while you were already approaching the target area, what transpired there?
A: While we were approaching Congressional Avenue at the time, we spotted the said vehicle, Hyundai van, so we got close to it and after that we ordered the driver to stop, sir.
Q: After ordering the driver of that Hyundai van with Plate No. PVT-701 as you said to stop, what is the reaction of the driver, if any to your order?
A: The driver fired [at] our mobile patrol car C-172, sir.
Q: So, after your group was fired upon, what were (sic) you and your companions do, if any?
A: We retaliated, and shot the rear left wheel of the said van, Sir.
Q: After hitting the rear left wheel as you said of the Hyundai van, what happened next, if any?
A: The Hyundai van hit an island near the stop light at the intersection of Visayas Avenue and Congressional Avenue.
Q: After the said Hyundai van hit the island near the stop light at the intersection of Visayas Avenue and Congressional Avenue, what else happened, if any?
A: We ordered the driver of the van to surrender. When we were approaching to (sic) the said vehicle with maximum precaution, the drive of the said van surrendered peacefully and we confiscated to (sic) his possession and control a .38 revolver sir.48
There is no dispute that there was a gun battle between the group of the police officers-complainants and the group of the accused. The accused himself admitted this, in addition to the fact that he and his companions (his four brothers and one Rudy Pagador and Augusto Torres) were on board a blue Hyundai Besta/Grace Van, qualifying his statement only by asserting that he was not driving the said van and he was asleep when he woke up to the sound of gunfire, but he never shot at anybody and he lost consciousness, waking up much later already confined in a hospital.49To this, accused-appellant only denied his involvement in the shooting and claimed that he was knocked unconscious from the wounds he allegedly sustained. This bare denial, without substantial evidence, cannot controvert the clear and positive identification of PO1 De Vera that he saw accused-appellant shoot PO1 Monteroso.
In a recent case, we reiterated the rule that paraffin test is inconclusive. We held: "Scientific experts concur in the view that the paraffin test has ... proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalta (sic). A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder.55 (Citations omitted)Similarly, ballistic testing establishes only a likelihood that a bullet was fired from a specific weapon. By itself, it is not enough to prove when the weapon was fired and who fired the weapon. In Lumanog,56 this Court held that ballistic testing, along with the presentation of the weapon and bullets used, are indispensable if there is no credible eyewitness to the shooting. To sustain a conviction, it is sufficient that the corpus delicti is established and the eyewitness, through a credible testimony, identifies the accused as the assailant. This Court held:
As this Court held in Velasco v. People -Finally, in People v. Casanghay,58 this Court ruled that the absence of paraffin and ballistic testing is not fatal to the prosecution's case. It has no effect on the evidentiary value of an eyewitness testimony positively identifying the accused as the assailant:
As regards the failure of the police to present a ballistic report on the seven spent shells recovered from the crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a guide for the courts in considering the ultimate facts of the case. It would be indispensable if there are no credible eyewitnesses to the crime inasmuch as it is corroborative in nature. The presentation of weapons or the slugs and bullets used and ballistic examination are not prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as the perpetrator of the crime are more than enough to sustain his conviction. Even without a ballistic report, the positive identification by prosecution witnesses is more than sufficient to prove accused's guilt beyond reasonable doubt. In the instant case, since the identity of the assailant has been sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioner's guilt beyond reasonable doubt.57 (Emphasis in the original)
The absence of a ballistic examination comparing the bullets fired from the fatal gun with the deformed slug recovered at the scene of the crime cannot nullify the evidentiary value of the positive identification of the appellant by prosecution eyewitnesses. Likewise, the failure of the police to conduct a paraffin test on the appellant is not fatal to the case of the prosecution. Scientific experts agree that the paraffin test is extremely unreliable. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites is the discharge of a firearm.59 (Citation omitted)With the identity of accused-appellant as PO1 Monteroso's assailant established, the only issue left is whether he was properly convicted of direct assault with murder.
Article 148. Direct assaults. - Any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding 500 pesos shall be imposed.Direct assault may be carried out in two (2) modes: (1) through committing an act equivalent to rebellion or sedition, but without public uprising; and (2) through employing force and resisting any person in authority while engaged in the performance of duties. The elements of the second mode of direct assault are as follows:
Appellants committed the second form of assault, the elements of which are: 1) that there must be an attack, use of force, or serious intimidation or resistance upon a person in authority or his agent; 2) the assault was made when the said person was performing his duties or on the occasion of such performance; and 3) the accused knew that the victim is a person in authority or his agent, that is, that the accused must have the intention to offend, injure or assault the offended party as a person in authority or an agent of a person in authority.61 (Citation omitted)In this case, accused-appellant was identified as the driver of the van and the shooter who attacked and killed PO1 Monteroso. When the shooting happened, PO1 Monteroso and his team were responding to a report of a suspicious group of men aboard a van. He was also in complete uniform and aboard a police mobile.62 When accused-appellant shot PO1 Monteroso, he knew that he was a person of authority in the exercise of official duties. Thus, all the elements of direct assault are present.
Endnotes:
1Rollo, pp. 20-23.
2 Id. at 2-19. The Decision dated August 12, 2015 and docketed as CA-G.R. CR-HC No. 06017 was penned by Associate Justice Edwin D. Sorongon and concurred in by Associate Justices Ricardo R. Rosario and Eduardo B. Peralta, Jr. of the Sixteenth Division, Court of Appeals, Manila.
3 CA rollo, pp. 51-66. The decision dated January 21, 2013 and docketed as Criminal Case Nos. Q-03-116802 to 116804 was penned by Acting Presiding Judge Maria Filomena D. Singh.
4 Id. at 51-53.
5 Id. at 53.
6 Id.
7 Id. at 81.
8 Id. at 56-57 and 104.
9 Id. at 81.
10 Id.
11 Id. at 105.
12 Id. at 112-113.
13 Id. at 82.
14 Id. at 51-53.
15 Id. at 106.
16 Id.
17 Id. at 45.
18 Id. at 51-66.
19 Id. at 55.
20 Id. at 55-60.
21 Id. at 61.
22 Id.
23 Id. at 62-64.
24 Id.
25 Id. at 107-118.
26 Id. at 113-114.
27 Id. at 114-115.
28 Id. at 115-116.
29 Id. at 116.
30 Id. citing People v. Casanghay, 440 Phil. 317 (2002) [Per J. Corona, Third Division].
31 Id. at 128-131.
32Rollo, pp. 1 and 24.
33 Id. at 26-27.
34 Id. at 50-51.
35 CA rollo, pp. 38-50.
36 Id. at 46-47.
37 Id. at 47.
38 Id. at 75-95.
39 Id. at 89-90.
40 434 Phil. 224 (2002) [Per J. Quisumbing, Second Division].
41 CA rollo, p. 92.
42 320 Phil. 158 (1995) [Per J. Puno, Second Division].
43 644 Phil. 296 (2010) [Per J. Villarama, Jr., En Banc].
44People v. Gerola, 813 Phil. 1055, 1064 (2017) [Per J. Caguioa, First Division] citing People v. Gahi, 727 Phil. 642 (2014) [Per J. Leonardo-De Castro, First Division].
45People v. Buclao, 736 Phil. 325, 339 (2014) [Per J. Leonen, Third Division] citing People v. Alvero, 386 Phil. 181 (2000) [Per Curiam, En Banc].
46People v. Magallanes, 457 Phil. 234, 257 (2003) [Per Curiam, En Banc] citing People v. Villaver, 422 Phil. 207 (2001) [Per J. Vitug, Third Division] and People v. Basquez, 418 Phil. 426 (2001) [Per J. Panganiban, Third Division].
47 CA rollo, pp. 55-60, TSN dated September 16, 2004 as cited by the Regional Trial Court.
48 Id. at 112-113.
49 Id. at 55, TSNs of accused-appellant.
50 624 Phil. 345 (2010) [Per J. A bad, Second Division].
51 Id. at 351 citing People v. Cabodoc, 331 Phil. 449, 509-510 (1996) [Per J. Davide, Jr., Third Division].
52 CA rollo, p. 14, Index of Exhibits, Exhibit "I" to "I-2" of the Prosecution.
53 Id. at 55.
54 320 Phil. 158 (1995) [Per J. Puno, Second Division].
55 Id. at 169-170.
56 644 Phil. 296 (2010) [Per J. Villarama, Jr., En Banc].
57 Id. at 403.
58 440 Phil. 317 (2002) [Per J. Corona, Third Division].
59 Id. at 329.
60People v. Vibal, G.R. No. 229678, June 20, 2018, 867 SCRA 370, 387 [Per J. Peralta, Second Division].
61 Id. at 392.
62 CA rollo, pp. 56-58.
63 G.R. No. 229678, June 20, 2018, 867 SCRA 370, 393 (Per J. Peralta, Second Division] citing People v. Abalos, 328 Phil. 24, 36 (1996) [Per J. Regalado, Second Division].
64 Id. at 393-394 citing People v. Escote, Jr., 448 Phil. 749 (2003) [Per J. Callejo, En Banc].
65People v. Ordona, 818 Phil. 670, 681 (2017) [Per J. Leonen, Third Division] citing People v. Abadies, 469 Phil. 132, 105 (2002) [Per J. Callejo, Sr., Second Division].
66People v. Feliciano, 418 Phil. 88, 105 (2001) [Per J. Quisumbing, En Banc].
67 783 Phil. 806 (2016) [Per J. Peralta, En Banc].
68Nacar v. Gallery Frames, 716 Phil. 267 (2013) [Per J. Peralta, En Banc].