328 Phil. 93
HERMOSISIMA, JR., J.:
"That on or about May 21, 1984, in the City of Manila, Philippines, the said accused conspiring and confederating with ROBERTO OLAZO y FAJARDO, also charged with the same offense before RTC, Manila docketed as Criminal Case No. 84-27552 and with Pat. Noel Palada y Santos, charged with the same offense before the JAGO, together with the others whose true names, identities and present whereabouts are still unknown and mutually helping one another, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of ARLENE ROSE LORENZANA DE ALBERTO, by then and there shooting her with a firearm, hitting her at the left chest, thereby inflicting upon her mortal and fatal gunshot wound which was the direct and immediate cause of her death.On the other hand, the following Information in Criminal Case No. 87-55983 (Frustrated Murder) was also filed against him:
Contrary to law."[1]
"That on or about May 21, 1984, in the City of Manila, Philippines, the said accused, conspiring and confederating with Roberto Olazo y Fajardo, already charged with the same offense under Criminal Case No. 84-27753, RTC, Manila, Pat. Noel Palada y Santos, also charged with the same offense before the JAGO, together with others whose true names identities and present whereabouts are still unknown and helping one another, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of Raymundo Roque y Lubigan, by then and there shooting him with a firearm hitting him at the left side of his back and boxing him on the face thereby inflicting upon the latter physical injuries which are necessarily fatal and mortal thus performing all the acts of execution which should have produced the crime of murder, as a consequence, but nevertheless did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to said Raymundo Roque Lubigan which saved his life.Upon arraignment, appellant, with the assistance of counsel, pleaded not guilty. These two related criminal cases were consolidated and tried jointly. After trial, the court a quo rendered judgment of conviction on November 11, 1987, the dispositive portion of which reads:
Contrary to law."[2]
Pallor, marked, generalized.The Medico-Legal Certificate with regard to the injuries sustained by Raymundo Roque stated:
Contusions: thigh, left, middle third, antero-lateral aspect, 10.0 x 7.0 cm; leg, left, upper third, anterior aspect, 2.0 x 1.5 cm.
Wound, gun shot, entrance, oval, edges inverted, 0.9 x 1.0 cm. in size including a contusion collar widest (0.1 cm) at its infero-lateral border, located at the chest, left side, 20.0 cm from the anterior median line, 107.0 cm above the left heel, directed slightly forward, slightly upward and from left to right, involving the skin and underlying soft tissues, penetrating the 7th left interspace and grazing the lower border of the 7th rib, perforating the lower lobe of the left lung, the left and right ventricles of the heart and the lower lobe of the right lung, fracturing the 6th right rib, making an exit, roughly oval in shape, edges everted, 1.4 x 1.8 cm in size, located at the chest, right side, 16.5 cm from the anterior median line, 108.5 cm. above the right heel.
Hemothorax, left, about 500 c.c., and right, about 400 c.c.
Heart chambers contain a small amount of dark fluid blood.
Other visceral organs, pale.
Stomach, almost full of partially digested rice and other food particles.
CAUSE OF DEATH: Hemorrhage, severe, secondary to gunshot wound of the chest.[7]
"On May 21, 1984, in the afternoon, the Accused was in the store of his girlfriend. Pat. Noel Palada arrived and invited the Accused to celebrate the birthday of the former and have a drinking spree. The accused agreed. The two policemen thereupon proceeded to the Native Restaurant at Otis Street, Mendiola Extension, Paco, Manila, and arrived thereat at about 5:00 o'clock that afternoon. Aside from the Accused and Pat. Noel Palada, the Nava brothers, Roberto Olazo and William Payumo and other friends of the Nava brothers were in attendance. Pat. Noel Palada brought along with him his revolver with Serial Number 769675. The group partook of the many bottles of beer and food offered by the celebrant. The Accused first ate and consumed about three (3) bottles of beer. In the process, however, Pat. Noel Palada became drunk, tipsy and groggy. In his condition, Pat. Noel Palada asked the Accused to keep his gun, which the Accused did. At about 8:00 o'clock that evening, while the party was going on, the Nava brothers suggested to and invited the group that they continue their drinking spree in their room at No. 903-B Apacible Street, Paco, Manila. The Accused, Roberto Olazo, the Nava brothers and two other friends of the Nava brothers agreed. The others opted to remain in the restaurant. They then boarded a taxicab and proceeded to No. 903-B Apacible Street, Paco, Manila. The Accused was seated in front of the taxicab, beside the driver. The Accused brought with him the revolver of Pat. Noel Palada. The group of the Accused arrived in Apacible Street at about 8:50 o'clock that evening. The companions of the Accused alighted from the taxicab and proceeded to said address. The Accused, on the other hand, was left behind because he was paying their taxi fare. However, when the Accused was about to enter the sala of the house, he already saw that there was a melee going on inside the sala. He saw Glicerio Alberto running to their room, being chased by Boy Nava. However, Glicerio Alberto was able to enter their room. Boy Nava tried to push the door to the room of Glicerio Alberto. The Accused also saw Allan Nava going out of the sala, and saw his head injured. The lights inside the sala were off but the Accused could see the events in the sala because of the light which emanated from outside the sala. The Accused approached Boy Nava and said: 'Pare, ano ito?'In People vs Amaguin,[11] we held that as in an alibi, a denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters. In the case at bar, witness for the prosecution Raymundo Roque positively identified in open court appellant Elmer Belga as the person who shot him, viz:
Nevertheless, the Accused went inside the sala, and when he was about two and one-half meters away from the main door, he was met by Raymundo Roque and another person whom the Accused did not know, holding broken bottles and threatened to hit him with the said bottles. The Accused pulled out his gun from his waist and fired his gun to the floor of the sala to scare off and warn Raymundo Roque and his companion. Momentarily, the Accused heard another gunshot in the sala. Afraid that another person who was not with their group might also have a gun, the Accused, with his companions, scampered towards the main door of the house. Outside the house, the Accused heard another gunshot from inside the sala of the house. The Accused saw Roberto Olazo and Allan Nava inside a taxicab. He boarded the taxi and, together with Roberto Olazo and Allan Nava, proceeded to the store of his girlfriend in the Sta. Mesa Rotonda. The Accused was blaming Allan Nava for the incident. However, Allan Nava said nothing and appeared sorry for what happened."[10]
"Q: You said that you filed this case of Frustrated Murder against the Accused Elmer Belga, is it not?Likewise, Glicerio Alberto, husband of the deceased Arlene Rose, on direct examination pointed to Elmer Belga as the one who killed his wife, to wit:
A: Yes, sir.
Q: If you will see him again, will you be able to identify him?
A: Yes, sir.
Q: Please look around the Courtroom and if he is here please point to him?
Q: There, sir. (At this juncture, the witness pointed to a person and when asked of his name, he answered the name of Elmer Belga).[12]
"Q: Now, can you tell us if you know who is responsible for the killing of your wife, if you know?Prior to their respective testimonies in court, both Glicerio Alberto and Raymundo Roque, in like manner, positively identified the appellant as the person who shot Arlene Rose and Raymundo Roque when the appellant was placed in a police line-up together with Roberto Olazo, Pat. Noel Palada, William Payumo and Eugenio Javar after he was apprehended on June 13, 1984.[14]
A: I can point to him now.
Q: Now, will you kindly look around and tell the court if that person whom you know the accused who kill (sic) your wife, is he in court?
A: Yes, sir.
Q: Will you kindly point to him if he is in this court?
A: He is the one. (Witness pointing the person whom who (sic) asked his name Elmer Belga, the killer)."[13]
"Q: Did you have any misunderstanding with Glicerio Alberto and Arlene Alberto before the incident?The only reason appellant could give as to why of all the six persons implicated in the crime he was the one pointed to by the prosecution witnesses, is that he was the only one arrested. He maintains that had all of them been apprehended, the real culprit would have been properly identified.
A: None, sir.
Q: Did you have any misunderstanding with Raymundo Roque before the incident?
A: None, sir."[18]
"Q: You told the Court that the reason why Glicerio Alberto and Raymundo Roque pointed to you is that, you were the only one arrested, did I get you right?Finally, appellant's guilty conscience is shown by the fact that, immediately after the shooting, appellant did not surrender to the police authorities with his firearm. Instead, he returned the gun to Pat. Noel Palada and proceeded to the house of his girlfriend in Manila. After staying in Manila for two (2) days, he fled to Iloilo City and stayed there for more than three (3) weeks, allegedly because he had to consult his brother, who is also a policeman, about the incident. The appellant could have surrendered to the police authorities in Iloilo City but he did not. When he came back to Manila, he did not again surrender to the authorities, but was instead arrested by the police.
A: Yes, sir.
Q: But then the records show that, aside from you, Pat. Palada, Olazo were also arrested, do you confirm that?
A: Palada was arrested first but they did not go to the complainant, Your Honor.
Q: Yes, but Olazo was arrested later, is it not?
A: Yes, Your Honor.
Q: And yet, neither Glicerio and Raymundo point (sic) to Olazo as the person who shot Arlene and Raymundo, did they?
A: They did no point them, Your Honor."[19]
"x x x There was no genuine need for the Accused to still consult his brother. After all the Accused was a policeman himself. More, the Accused knew of a relative - a lawyer from the NBI no less, Atty. Federico Opinion whom he could have called and consulted about the incident. More, Col. Romeo Odi[22] was already in the Philippines and the Accused could have talked to him and consulted him about the incident. Assuming, gratia arguendi, that the Accused need to consult his brother, and his relatives, there was no reason for him to stay in Iloilo for more than three weeks for said purposes. The Accused could have come back to Manila immediately and contacted Col. Romeo Odi. As aforesaid, the Accused tarried in Iloilo for three weeks."[23]While we affirm the judgment of conviction of the trial court, we however find that the qualifying circumstance of treachery cannot be appreciated against appellant Belga for the shooting of Roque and Arlene Rose.
"As the couple were grappling for the door, and after the accused had shot Raymundo Roque twice, the accused and Boy Nava and their companions scampered towards the main door. It was the accused who ran to the door last. But as he was running towards the main door, the accused saw the door to the room of Glicerio Alberto and Arlene Rose open and moving because the couple were still grappling for it The accused aimed his gun at the door and fired his gun. The door, was hit but the bullet pierced the door and hit Arlene Rose on the left side of her chest, the bullet from he right chest, piercing her lungs and hitting her heart.Clearly, the manner by which Arlene Rose was shot cannot be said to be consciously or deliberately adopted by the appellant in order to facilitate the perpetration of the killing without risk to himself. The shooting was made upon the impulse of the moment as a sequence of the unexpected turn of events when the group was scurrying towards the main door on their way out. To reiterate, the mere location of the bullet wound at the back - as is the case here - by itself, does not prove treachery. Even if the purpose was to kill, so long as the decision was sudden and the victim's position accidental, no treachery attaches to the killing.[30]
x x x x x x x x x"[29]
"Arlene Rose must have violently closed their room because Raymundo Roque, who was then studying inside their room, heard a loud bang of the door, went out of his room to find out what the noise was all about and as he went out of his room, he was boxed by Boy Nava on the left eye. Raymundo Roque fell. Again, an exchange of blows ensued between Raymundo Roque on the other hand, and Boy Nava and his companions on the other. All the time, the Accused was holding his gun and pointing the same to Raymundo Roque. The latter must have realized that he was outnumbered by the group of the Accused and Boy Nava that he ran to the kitchen adjacent to the bathroom and took hold of a chair and broken empty bottle. Raymundo Roque hit Boy Nava with the chair and hit another with the empty broken bottle. The person whom Raymundo Roque hit with the bottle must have been Allan Nava because the latter was seen by the Accused going out of the sala with injuries on his head. Raymundo Roque wanted to hit Boy Nava again with the chair and, as he lifted the chair and slanted his body to the left, as he did so, the Accused, who was then at the left of Raymundo Roque, shot the latter, hitting Raymundo Roque on the left chest, at the back. The bullet pierced the chest of Raymundo Roque and exited from his left front chest. Raymundo Roque again fell. As he attempted to stand up, covering his face with the chair, the Accused again shot him, but missed this time. At this point of time, the Accused, seeing Raymundo Roque injured, scampered away, together with his companions."[31]From the foregoing chronicle of facts, it is evident that prior to the shooting in the kitchen, Roque was not caught completely unaware and was not deprived of the chance to ward off the assault, but, in fact, was able to defend himself as shown by the initial encounter in the sala. There could thus be no treachery since, prior to the first gunshot that hit him, the victim had been forewarned of the danger to his life and had even attempted, albeit unsuccessfully, to overcome his attackers. Moreover, there was absolutely no evidence to show that appellant consciously and deliberately employed a particular method or manner of killing the victim that would eliminate any risk to himself, for it was not until Roque stepped back and lifted the chair he was holding to strike anew at his attackers that appellant was accorded the instant opportunity to shoot Roque with facility.
"The shooting was also attended by evident premeditation. The evidence shows that, as early as March, 1994, the mother of the Nava brothers threatened Arlene Rose with liquidation before the next scheduled trial of their case on May 25, 1984. The Accused and the Nava brothers met at the Native Restaurant at 5:00 o'clock that afternoon of May 21, 1984. At about 8:50 or 8:40 o'clock that evening, the Accused, the Nava brothers, Roberto Olazo and their companions proceeded to Apacible Street. The Accused had, therefore, about four (4) hours to reflect on the consequences of their plan to do away with Raymundo Roque and Arlene Rose Alberto, notwithstanding which the Accused proceeded to Apacible Street. "[34]While it would seem that the main target of the malefactors were Alberto and Arlene Rose, this does not negate the presence of evident premeditation on the physical assault on the person of Raymundo Roque. We have established jurisprudence to the effect that evident premeditation may be considered as present, even if a person other than the intended victim was killed (or wounded, as in this case), if it is shown that the conspirators were determined to kill not only the intended victim but also anyone who may help him put a violent resistance.[35] Here, Raymundo Roque provided such violent resistance against the conspirators, giving the latter no choice but to eliminate him from their path.