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451 Phil. 308

THIRD DIVISION

[ G.R. No. 138265, May 29, 2003 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROGER LAMASAN, ACCUSED-APPELLANT.

D E C I S I O N

CARPIO MORALES, J.:

On appeal is the Decision of October 6, 1998 of the Regional Trial Court of Iloilo City, Branch 23, in Criminal Case No. 48021 finding Roger Lamasan (appellant) guilty of murder for killing Rolando Parreñas, Jr. (the victim).

On August 29, 1997, appellant was, by Amended Information,[1] charged with murder allegedly committed as follows:
That on or about July 15, 1997, in the Municipality of Mina, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot Rolando Parreñas, Jr. with the use of an unlicensed firearm he was then provided, hitting the victim and inflicting upon said Rolando Parreñas, Jr. wounds in his stomach which caused his death thereafter. (Underscoring in the original).

Contrary to law.
The Office of the Solicitor General (OSG) presented the prosecution's version of the facts leading to the death of the victim as follows:
At around 8:00 o'clock in the evening of July 15, 1997, Gerardo Pasamanero was in his house at Del Pilar Street, Mina West, Mina, Iloilo when Rolando Parreñas, Jr. [the victim], barangay captain of Brgy. Agmanhaphao, Mina, Iloilo, and Gelacio Aloquiña, a barangay tanod, passed by.  Pasamanero invited the two to his house to drink beer. They talked about the forthcoming seminar of barangay captains and the project they were about to implement (pp. 4-5, TSN, October 21, 1997).  At that point, appellant . . . arrived, entered Pasamanero's house and provoked [the victim] and Aloquiña.  He shouted at them:  "If you are brave in your place, I am also brave.  If you are brave, you pull out your firearm."  To that, [the victim] answered:  "Pare, we know each other and we did not come here for trouble." Appellant, however, continued with his provocation and attempted to pull out his firearm.  When he was about to pull out his firearm, [the victim] immediately hugged him and Aloquiña grabbed the .38 caliber revolver from appellant's waist and then handed it to Pasamanero (pp. 6-8, ibid).  Pasamanero left [the victim] and Aloquiña with an instruction not to harm appellant while he went to the police station to report the incident.  He surrendered the revolver to P/Inspector Alex Velez (p. 9, TSN, November 4, 1997).

In a short while, Pasamanero came back with P/Insp. Velez and his two (2) men who conducted an investigation. The dispute, however, was settled with a dialogue between appellant and [the victim] and the latter agreed that appellant would be detained at the police station (pp. 9-11, TSN, October 21, 1997). [The victim] sustained a wound on his lips after appellant punched him (p. 16, ibid).

The police brought appellant to the Mina Police Station which was about fifty (50) meters away from Pasamanero's house, while [the victim] and Aloquiña proceeded to the house of one Mariano Parian in the same barangay to attend to the latter's wake (pp. 11-13, ibid).  It was already 9:00 o'clock in the evening (p. 18, TSN, November 4, 1997).  It turned out, however, that appellant managed to escape and ran towards the dark while he was being brought to the police station.  The policemen pursued him but failed to catch him (pp. 33-35, TSN, December 9, 1997).

That same evening, at around 11:00 o'clock, Edwin Reyna, a resident of Del Pilar Street, Mina West, Mina, Iloilo, went to the wake of Mariano Parian and, there, he met [the victim] and Gelacio Aloquiña. [The victim] showed to him his swollen lips which, according to him, was caused by his wrestling with appellant.  After half an hour, [the victim] and Aloquiña told him that they were going home.  Shortly after the two (2) walked out of the house, Edwin Reyna, who was then standing by the door, heard a gunshot and saw [the victim] fell (sic) down.  He immediately ran towards him and cuddled him. [The victim] told him:  "Bring me to the hospital x x x I'm going to die."  He also told him that appellant . . . shot him.  Reyna shouted for help and carried [the victim's] body to the police patrol car. [The victim] was brought to the Iloilo Provincial Hospital at Pototan, Iloilo where he died not long thereafter (pp. 4-10, TSN, November 25, 1997).

Gelacio Aloquiña, who was with [the victim] when the shooting took place, saw [appellant] standing about 4 meters away, facing him and holding a 15½-inch firearm.  When [appellant] saw him, he immediately walked away. Aloquiña was able to recognize [appellant] because of the light coming from the balcony of the house which was only about 5 to 6 meters away from [appellant] (pp. 14-17, TSN, December 2, 1997).

[On July 15, 2002], [the victim] died of hemorrhage secondary to multiple pellet wounds (p. 20, TSN, October 14, 1997).[2]
That appellant was "neither a licensed/registered firearms and ammunition holder of any kind or caliber nor ha[d] he applied to possess any firearms, much more an authority to carry firearms outside residence"[3] was established by the prosecution.

Denying the accusation and proferring alibi, the defense gave the following version, as related by the trial court:
[After consuming a glass of beer inside the house of Pasamanero, (appellant claimed as follows: He) asked permission to leave but as (the victim) was restraining him from leaving, an argument ensued in the course of which he saw Aloquiña holding a firearm on his waist.  Pasamanero soon left but returned 10 minutes later with P/Insp. Alex Velez and two (2) policemen. Not long after, Aloquiña threw his firearm under the table which Pasamanero recovered (Exh. "C-1").  The incident between him and [the victim] was eventually settled by P/Insp. Alex Velez following which he was conducted to Sitio Burot by P/Insp. Velez with PO3 Sotelo and PO2 Moises de Pablo on board a patrol vehicle.]

He thereafter took supper in his house and slept at about 11:00-11:30 o'clock in the evening. Past 12 o'clock midnight, however, [P]/Insp. Velez woke him up and told him to man the radio room at the police station where he worked as a radio man.  Upon reaching the police station, he was detained inside the cell where he was told that he was suspected of killing [the victim].  He claims that he does not own any firearm and that the testimony of Brgy. Captain Pasamanero concerning the recovery from his waist of a firearm is a big lie.  He denies having shot [the victim].  He never went to the house of Mariano Parian where [the victim] was shot. On cross-examination, he admitted that there was no previous quarrel between him and [the victim] nor Barangay Captain Gerardo Pasamanero.

[O]n his part, Dionisio Camino, a trisikad driver, averred that he was present at the house of Mariano Parian attending the wake on July 15, 1997.  While playing "pusoy" at the left side of the house, he heard one (1) gunshot at about 11:30 o'clock in the evening.  He saw [the victim] lying face up at the door of the house from a distance of about two (2) armslengths (sic).  Contrary to the testimony of Gelacio Aloquiña, he did not see Edwin Reyna at the crime scene and that nobody came near and talked with the victim during the time when the incident happened.

With corroboration, Pinky Lamasan averred that at about 10:00 o'clock in the evening of July 15, 1997, her husband[-appellant] arrived at their house situated at Sitio Burot, Mina East, Mina, Iloilo, with P/Insp. Alex Velez and two (2) other PNP members.  [Appellant] took his supper, rested and slept at about 11:00 o'clock in the evening.  At about 12:30 o'clock in the morning of July 16, 1997, [P]/Insp. Alex Velez returned and fetched [appellant] to man the radio.  She woke up at 5:00 o'clock in the morning of July 16, 1997 and went to the public market at 7:00 o'clock that same morning.  [Appellant] failed to return home.  Then, somebody told her that [he] was detained.  She went to the municipal jail and [he] told her that he is a suspect in the murder of [the victim].  She was stunned upon hearing it because he could not have murdered [the victim] as he never left the house that evening.

Victoria Caños, Forensic Chemist, National Bureau of Investigation, Regional Office VI, Iloilo City, conducted a paraffin examination on July 16, 1997 on [appellant] upon the request of [P/Insp.] Alex Velez, Chief of Police, PNP, Mina, Iloilo (Exh. "3", p. 304, rec.).  She prepared Chemistry Report No. C-97-46 (Exh. "4", p. 305, rec.) which yielded negative results for nitrates on the left and right hands of [appellant] (Exh. "4-C"). (Emphasis and underscoring supplied).[4]
Discrediting appellant's denial and alibi in favor of the positive and categorical declaration of prosecution witness Aloquiña that he saw appellant standing and holding a long firearm some four meters away from the victim, as well as the victim's dying declaration, as related by Aloquiña and Reyna, that appellant was the one who killed the victim, the trial court convicted appellant of murder by Decision of October 6, 1998,[5] the dispositive portion of which reads:
WHEREFORE, premises considered and in the light of the facts obtaining and jurisprudence aforecited, JUDGMENT is hereby rendered finding the accused Roger Lamasan GUILTY beyond reasonable doubt of the crime of Murder and there being no mitigating nor aggravating circumstance attendant in the commission thereof hereby sentences said accused to the penalty of Reclusion Perpetua pursuant to Section 6 of Republic Act 7659 amending Article 248 of the Revised Penal Code.

The said accused is further condemned to indemnify the heirs of the deceased Rolando Parreñas, Jr. the sum of P129,530.00 by way of actual damages, P30,000.00 moral damages and P50,000.00 death compensation.

The Warden, Iloilo Rehabilitation Center, is ordered to commit the person of the accused to the National Penitentiary at the earliest opportunity.

SO ORDERED.[6]
Hence, the present appeal which ascribes the following errors to the trial court:
I.

THE LOWER COURT ERRED IN RULING THAT THE QUALIFYING CIRCUMSTANCE OF TREACHERY ALLEGEDLY ATTENDED THE COMMISSION OF THE ALLEGED CRIME OF MURDER. ON THE BASIS OF THE PROSECUTION EVIDENCE, THE ALLEGED CRIME COMMITTED IS ONLY HOMICIDE.

II.

THE LOWER COURT ERRED IN NOT UPHOLDING THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF THE ACCUSED AND IN BASING CONVICTION MERELY BY DRAWING STRENGTH FROM THE WEAKNESS OF THE EVIDENCE FOR THE DEFENSE.
The second assigned error shall first be dwelt upon for if it is meritorious discussion of the first is rendered unnecessary.

Contrary to appellant's claim, the prosecution prima facie overcame his constitutional presumption of innocence.  Prosecution witness Reyna clearly pierced such presumption as his following testimony shows, quoted verbatim:
[ATTY. ALIM for the prosecution:]
Q
:
So what happened next after [the victim] asked permission from you to go home?
 
 
A
:
After he had asked permission from me, I told them to just go ahead first.
 
 
Q
:
And what happened next after that?
 
 
A
:
After a while I heard the gunshot.
 
 
Q
:
What did you do after hearing that fire of the gun?
 
 
A
:
I saw [the victim] as if falling down.
 
 
Q
:
:What did you do then?
 
 
A
:
After that Gelacio Aloquiña ran to him and I also ran to him.
 
 
Q
:
What did you do in running going to the place where [the victim] fell?
 
 
A
:
We cradled him.
 
 
Q
:
What was your distance from the place where [the victim] fell?
 
 
A
:
Three (3) or four (4) meters.
 
 
Q
:
Now, what happened next Mr. Witness after you cradled [the victim]?
 
 
A
:
He told us, "You bring me to the hospital."
 
 
    
x x x x x
 
 
Q
:
What did [the victim] say?
 
 
A
:
Bring me to the hospital as if I'm going to die.
 
 
Q
:
Have you seen the wounds, if any, of [the victim]?
 
 
A
:
I saw.
 
 
Q
:
On what part of his body?
 
 
A
:
At the stomach.
 
 
Q
:
What else did [the victim] tell you?
 
 
A
:
He pointed to [appellant] as the one responsible of shooting him.
 
 
COURT
:
What did he exactly tell you?
 
 
A
:
I was shot by [appellant].
 
 
Q
:
You are sure that that is what he said?
 
 
A
:
Yes, Your Honor. (Emphasis supplied).[7]


While prosecution witness Aloquiña did not, like Reyna, see appellant shoot the victim, he corroborated Reyna's testimony on material points as his following testimony reflects:
[ATTY. ALIM for the prosecution:]
Q
:
What happened next after [the victim] asked permission to leave the house?
 
 
A
:
He went out of the house.
 
 
Q
:
What about you?
 
 
A
:
I followed him.
 
 
Q
:
How about Edwin Re[y]na?
 
 
A
:
He was near the door.
 
 
Q
:
What happened next after [the victim] was already outside of the house?
 
 
A
:
There was a shot.
 
 
Q
:
Shot of what?
 
 
A
:
12 gauge.
 
 
Q
:
What happened next after you heard that fire of gun?
 
 
A
:
I looked where the shot emanated and I saw [appellant].
 
 
Q
:
The same [appellant], the accused in this case?
 
 
A
:
Yes, sir.
 
 
Q
:
Why do you know that it was [appellant]?
 
 
A
:
Because I saw him.
 
 
COURT
:
What was he doing when you saw him?
 
 
A
:
Standing, facing me.
 
 
Q
:
What was his attire?
 
 
A
:
I can not recall the shirt.
 
 
Q
:
Was he holding any weapon?
 
 
A
:
Yes, sir.
 
 
Q
:
What firearm?
 
 
A
:
12 gauge.
 
 
Q
:
Is it long or short?
 
 
A
:
Like this (Witness demonstrating the length of 15½ inches.)
     
ATTY. ALIM    :     How do you know it is a 12 gauge shotgun?
 
 
A
:
From the appearance and from the shot I heard.
 
 
Q
:
You saw [appellant] after the gun was fired?
 
 
A
:
Yes, sir.
 
 
Court
:
How far was he from where the victim was situated?
 
 
A
:
More or less 4 meters.
 
 
ATTY. ALIM : What did he do then after that?
 
 
A
:
When he saw me he immediately walked.
 
 
Q
:
  In what part of the house of Parian?
 
 
A
:
If you enter the house it is on the right side.
 
 
COURT
:
About what time was that when you saw him standing?
 
 
A
:
11:30 in the evening.
 
 
Q
:
How would you have seen him at a distance of 4 meters away when it was night time?
 
 
A
:
Because the light coming from the balcony of the house reaches the door.
 
 
Q
:
How far was the light in relation to [appellant] when you saw him holding a firearm?
 
 
A
:
Maybe about 5 or 6 meters, more or less.
 
 
ATTY. ALIM    :     Was that a fluorescent lamp?
 
 
A
:
One (1) fluorescent lamp and the light used in the coffin.
 
 
ATTY. ALIM :  What did you do then after you heard that fire of the gun?
 
 
A
:
I cuddled [the victim] and asked him who shot him and he answered, [appellant].
 
 
Q
:
What else did he tell you?
 
 
A
:
He asked me to bring him immediately to the hospital because his wound is fatal.
 
 
Q
:
What about Edwin Re[y]na?
 
 
A
:
Two of us cuddled him.
 
 
Q
:
What did you do then after you have [the victim] cuddled? (sic)
 
 
A
:
He was brought to the hospital and we followed him.
 
 
Q
:
To what hospital?
 
 
A
:
Pototan Provincial Hospital.
 
 
Q
:
And what happened to [the victim] after that?
 
 
A
:
He died.[8] (Emphasis supplied).
No person who knows of his impending death would make a careless or false accusation, hence, a dying declaration is entitled to the highest credence.  Thus, it has been held that when a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.[9]

Under Section 37 of Rule 130 of the Rules of Court, the requisites for the admissibility of ante mortem statements are:  (1) the statement concerns the crime and the surrounding circumstances of the declarant's death; (2) at the time it was made, the declarant was under the consciousness of an impending death; (3) the declarant would have been competent as a witness had he survived; and (4) the declaration was offered in a criminal case for homicide, murder, or parricide in which the declarant was the victim.[10]

All four requisites are present in the case at bar.  Thus, from the evidence of the prosecution, it is clear that the victim identified appellant as his killer; and the victim made the declaration in contemplation of his impending death and he died shortly as a result of his fatal wounds. Had the victim survived, it cannot be gainsaid that he was competent to testify in court.  Lastly, the dying declaration was offered in a criminal prosecution for murder in which the declarant was the victim.

That Reyna gave an account of what he witnessed only after ten days from the commission of the crime was adequately explained by him when he testified that he was initially reluctant to get involved in a case but felt that he had to break his silence for justice to prevail.[11] The delay of Reyna in reporting what he had witnessed does not thus impair his credibility nor destroy the probative value of his testimony.

Contrary to appellant's claim, there is no discrepancy between Reyna's testimony and his declarations in his sworn statement.  While Reyna declared at the witness stand that the victim had told him that he was punched by appellant, whereas in his sworn statement no categorical statement about a punching incident was mentioned, Reyna did actually refer to such incident in his sworn statement when he declared that the victim's swelling lips "resulted from grappling with [appellant] for the possession of a firearm."[12]

In any event, sworn statements, being taken ex parte, are almost always incomplete and often inaccurate for various reasons, sometimes from partial suggestion or for want of suggestions and inquiries.[13]

In fine, the prosecution prima facie established appellant's guilt beyond reasonable doubt.

Appellant failed, however, to rebut the prima facie evidence against him. His alibi is inherently weak, he having failed to demonstrate that it was physically impossible for him to have been at the scene of the crime.[14] That appellant's house is within the vicinity of Mina East, Iloilo where the crime occurred is undisputed, hence, it was not physically impossible for him to leave his house and repair to the house of Pari-an, shoot the victim, and then return to his house where he was found and later haled into the local police station.

It is, however, non sequitur to conclude, and that brings the discussion to the first assigned error, that the attack was tainted with treachery because it was sudden.

For alevosia to be considered to have attended the killing, it was necessary for the prosecution to establish that: (1) the employment of means of execution gave the victim no opportunity to defend himself or to retaliate, and (2) the means of execution were deliberately or consciously adopted.[15] This, the prosecution failed to do.

Neither did the prosecution prove that there was evident premeditation, for it failed to prove: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit had 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, the essence of premeditation being that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.[16]

The presence of the qualifying circumstances of treachery and evident premeditation having been ruled out, the crime for which appellant should be faulted must thus be modified from murder to homicide.  Accordingly, the penalty to be imposed on appellant must correspondingly be lowered. There being one aggravating circumstance of using an unlicensed firearm in the commission of homicide, the proper imposable penalty should be reclusion temporal in its maximum period.

As to the civil aspect of the case, the award of actual damages for the funeral expenses in the total amount of P129,330.00, itemized as follows: P40,000.00 for coffin; P1,530.00 for burial services; P10,000.00 for 12 sacks of rice; P30,000.00 for 6 pigs; P13,800.00 for 1 truckload of soft drinks; and P34,000.00 for 2 cows, is affirmed, it being supported by undisputed evidence.[17]

The award of P50,000.00 as civil indemnity is also affirmed, as is that of moral damages which is increased to P50,000.00 in line with current jurisprudence.

WHEREFORE, the decision on review is AFFIRMED with MODIFICATION.

As modified, appellant Roger Lamasan is found GUILTY beyond reasonable doubt of the crime of homicide, aggravated by the use of an unlicensed firearm, and is hereby sentenced to suffer an indeterminate sentence of Twelve (12) Years of prision mayor, as minimum and Seventeen (17) Years, Four (4) Months and One (1) Day of reclusion temporal, as maximum.

Appellant is also ORDERED to pay the heirs of Rolando Parreñas the amount of P129,330.00 as actual damages,  P50,000.00 as civil indemnity, and P50,000.00 as moral damages.

SO ORDERED.

Puno, (Chairman) Acting C.J., and Panganiban, JJ., concur.

Sandoval-Gutierrez, and Corona, JJ., on leave.



[1] Rollo, p. 11.  This Information amended the August 1, 1997 Information, Rollo, p. 9.

[2] Appellee's Brief, Rollo, pp. 131-135.

[3] TSN, December 9, 1997, pp. 8-10.  See also Exhibit "I," Roll of Exhibits, p. 9.

[4] Rollo, pp. 35-37.

[5] Rollo, pp. 25-44.

[6] Id. at 43-44.

[7] TSN, November 25, 1997, pp. 6-8.

[8]  TSN, December 2, 1997, pp. 14-17.

[9]  People v. Molina, G.R. No. 129051, July 28, 1999,  311 SCRA 517, 525.

[10] People v. Atrejenio, G.R. No. 120160, July 13, 1999, 310 SCRA 229, 240.

[11] TSN, November 25, 1997, p. 32.

[12] Exhibit "G," Roll of Exhibits, p. 7.

[13] People v. Seduco, G.R. No. 130643, January 16, 2001, 349 SCRA 147, 158.

[14] Vide People v. Templo, G.R. No. 133569, December 1, 2000, 346 SCRA 626, 639-640.

[15] People v. Llanda, G.R. No. 133386, November 27, 2002, p. 11.

[16] Vide People v. Bautista, G.R. No. 111149, September 5, 1997, 278 SCRA 613, 628.

[17] TSN, December 9, 1997, pp. 92-107.  See also Exhibits "P" to "T" and "U-3", Roll of Exhibits, pp. 16-19.

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