614 Phil. 589


[ G.R. No. 178485, September 04, 2009 ]



For automatic review is the Decision[1] dated July 19, 2006 of the Court of Appeals, in CA-G.R. CR No. 01018, affirming with modification the Decision[2] dated July 28, 1999 of the Regional Trial Court (RTC) of Urdaneta City, Branch 46, in Criminal Case No. U-5035, finding appellant Mariano Sapigao, Jr. guilty beyond reasonable doubt of the crime of murder.

The facts of the case, culled from the records, are as follows:

In an Information[3] dated January 4, 1989, appellant Mariano Sapigao, Jr. and Melvin Sublingo, who remains at large, were accused of the crime of murder with the use of unlicensed firearms, as follows:

That on or about the 22nd day of September 1987, in the afternoon, at Barangay Carosucan Sur, municipality of Asingan, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with Cal. .45 and Cal. .38 Handguns, conspiring, confederating and mutually helping each other, with deliberate intent to kill, and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously, attack, assault and shoot one Alexander Turalba, inflicting upon him, the following injuries: Gunshot wound - ¾ cm. pt. of entrance passing between the 8th and 9th thorasaic vertebrae, lacerating the right ventricle of the heart [bullet lodged between the 6th left and right ribs, at the sternum]; Gunshot wound - ¾ pt. of entrance, left parietal bone, traversing the brain with 1 inch ill-defined edges pt. of exit, fracturing the right maxillary bone, which caused the death of said Alexander Turalba, as a consequence, to the damage and prejudice of his heirs.

CONTRARY to Art. 248, Revised Penal Code.

A Warrant of Arrest[4] was issued against appellant and Sublingo on October 12, 1987, but the two allegedly eluded arrest. An Alias Warrant of Arrest[5] was issued on December 1, 1987. Another Warrant of Arrest[6] was issued on January 18, 1989 by the RTC of Urdaneta, Pangasinan, Branch 46.

Appellant was arrested on February 8, 1993.[7] His lawyer filed a petition for bail[8] which was opposed by the government prosecutor.[9] The RTC, acting on the opposition of the government prosecutor, increased the bail bond from P30,000.00 to P50,000.00.[10] Thereafter, the government prosecutor, Atty. Monte P. Ignacio, filed a motion for consolidation[11] of the case which had been docketed as Criminal Case No. U-5035 with another criminal case docketed as Criminal Case No. U-4963 for illegal possession of firearms against the appellant and Sublingo arising out of the same incident. The motion was unacted upon and when called for arraignment, appellant was absent and out on bail.[12] Warrants of arrest were again issued against him and he was finally arrested on January 27, 1999. During his arraignment on February 9, 1999, appellant pleaded not guilty.[13] Previously, the RTC, on March 18, 1993, consolidated Criminal Case No. U-5035 with Criminal Case No. U-4963 for illegal possession of firearms against the same accused.[14]

The prosecution presented the testimonies of Dr. Leonardo Guerrero, Cecilio Fabro, SPO4 Rodrigo Escaño, and Apolonia Turalba, the victim's grandmother. For its part, the defense presented the testimonies of eyewitness Jesus Ballesteros, the appellant himself, Ballistician and Chief of the Firearms and Explosives Unit of the National Bureau of Investigation (NBI) Rogelio Munar, and NBI Medico-Legal Officer Dr. Arturo Llavore.

The autopsy of the victim was conducted by Dr. Irenio G. Agapito, Rural Health Physician of Asingan, Pangasinan. The autopsy report states the following findings on the victim:


Fairly developed, fairly nourished, adult male, weighing around 130 lbs., height - 5['] 4"; Lon[g] black hair, brown complexion and wearing maong long pants, green t-shirt, white brief[s] soaked with blood.


  1. ¾ cm. Pt. of entrance passing between the 8th and 9th thorasaic vertebrae lacerating the right ventricle of the heart and the bullet was lodged between the 6th left and right ribs, at the sternum.


  2. ¾ pt. of entrance - left parietal bone traversing the brain with 1 inch ill-defined edges of pt[.] of exit fracturing the right maxillary bone.

CAUSE OF DEATH: Fatal gunshot wounds.[15]

Prosecution witness Cecilio Fabro claimed that on September 22, 1987, at about 3 p.m., he was with the victim Alexander Turalba at the basketball court located at Carosucan Sur in front of the health center of the school, forming a team to play basketball. While they were in the process of forming the team, Melvin Sublingo arrived and immediately shot Alexander Turalba once at the back with a .38 caliber firearm. Turalba fell, face down. Melvin Sublingo fired once more, hitting Henry Osias. Then appellant Mariano Sapigao, Jr., shot Alexander Turalba with a .45 caliber firearm while the latter was lying down. After the shooting, Sublingo ran towards the eastern direction while appellant ran towards the western direction. After Sublingo and appellant left, Fabro lifted Turalba, placed the latter in a jeep and brought him to the Urdaneta Sacred Heart Hospital where he was declared dead on arrival.[16]

For the defense, Jesus Ballesteros, a resident of Carosucan Sur, Asingan, Pangasinan, testified that on September 22, 1987, at about 3 p.m., he was with the appellant, who was his cousin, and several other cousins near a basketball court at Carosucan Sur. Suddenly, Melvin Sublingo appeared. Sublingo at first tried to shoot Cecilio Fabro but a cousin of Fabro, Orlan Fabro, shouted "You run, Manong, because Melvin is there already." Cecilio ran towards the south. Alexander Turalba, who was at the midcourt, was then shot by Melvin Sublingo with a .38 caliber firearm. Appellant was beside Ballesteros at the time Sublingo shot Turalba twice hitting the back and head of Turalba. Sublingo shot the head of Turalba first. When Turalba fell down, he was shot again at the back by Sublingo. Sublingo then ran towards the east where he met Osias. He also shot Osias. Ballesteros denied that appellant shot Turalba. He attributed the shooting by Sublingo to revenge because Turalba mauled Sublingo in the morning of September 22, 1987 and while Sublingo was being mauled by Alexander Turalba, Cecilio Fabro had poked a knife at the head of Sublingo.[17]

Appellant denied shooting Alexander Turalba. He claimed that it was Melvin Sublingo who shot Turalba twice, the first shot hitting Turalba in the head and the second hitting Turalba at the back.[18]

NBI Ballistician Rogelio Munar testified that based on the gunshot wounds of Turalba described in the autopsy report, the wound was produced by a .32 or .38 caliber pistol.[19]

Dr. Arturo Llavore testified that after examining the autopsy report, he concluded that the gunshot wounds were inflicted by a .38 caliber firearm.[20]

On July 28, 1999, the RTC rendered a decision finding appellant guilty beyond reasonable doubt of murder. It, however, dismissed the charges against him for illegal possession of firearms, appreciating treachery as an aggravating circumstance in the crime of murder. The dispositive portion of the RTC decision reads:

WHEREFORE, JUDGMENT of CONVICTION beyond reasonable doubt is rendered against MARIANO SAPIGAO, JR. of the crime of aggravated Murder (appreciating treachery as qualifying circumstance) with the use of firearms and the Court sentences Mariano Sapigao, Jr. to suffer the penalty of Reclusion Perpetua; to indemnify the heirs of the victim the sum of P38,600.00 as actual damages; plus P50,000.00 as moral damages and P20,000.00 as exemplary damages.

Mariano Sapigao, Jr. is ACQUITTED in Crim. Case No. U-4963 (Illegal Possession of Firearm).

The Branch Clerk of Court is hereby ordered to prepare the mittimus.

The Jail Warden, Bureau of Jail Management and Penology is hereby ordered to deliver the person of Mariano Sapigao, Jr. to the National Bilibid Prisons, Muntinlupa City, [within] 15 days from receipt of this Decision.


Appellant appealed before this Court. Pursuant to the decision in People v. Mateo,[22] the case was transferred to the Court of Appeals for intermediate review.

On July 19, 2006, the Court of Appeals affirmed with modification the trial court's decision, as follows:

WHEREFORE, in view of the foregoing, the [D]ecision dated July 28, 1999 of the Regional Trial Court of Urdaneta City, Branch 46, in Criminal Case No. U-5035 is AFFIRMED with modification. Accused-appellant MARIANO SAPIGAO, JR. is found GUILTY beyond reasonable doubt of the crime of murder, qualified by treachery, and is hereby sentenced to suffer the penalty of reclusion perpetua, and ORDERED to pay the heirs of the victim Alexander Turalba the following amounts: P50,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages and P25,000.00 as exemplary damages.


Hence, this appeal where appellant raises the following issues in his Supplemental Brief:







The primordial issue is: Has appellant's guilt for the crime of murder been proven beyond reasonable doubt?

Appellant, in his Supplemental Brief,[25] argues the prosecution failed to prove that he shot the victim because: (1) Prosecution witness Cecilio Fabro testified that the handgun used by him in shooting the victim was a .45 caliber handgun, but the diameters at the point of entry of the two wounds sustained by the victim were that of wounds caused by a .38 caliber firearm;[26] (2) Fabro testified that he shot the victim at the back while the Autopsy Report stated that the wounds of the victim were in the thoracic area and the left parietal area;[27] (3) The expert witnesses, Ballistician Munar and Dr. Llavore, are impartial witnesses while Fabro had a motive to falsely testify against him;[28] (4) The reliance by the Court of Appeals on the rule that the trial court is in the best position to assess the credibility of witnesses is not applicable in this case;[29] (5) Ballistician Munar and Dr. Llavore are expert and impartial witnesses and their testimonies are based on physical evidence and scientific fact;[30] (6) The other accused, Melvin Sublingo, caused both wounds of the victim;[31] (7) The path of the bullet wound that caused the wound on the head of the victim belies the testimony of Fabro that he shot the victim while the latter was lying face down on the ground;[32] (8) He had no motive to shoot the victim;[33] (9) For more than ten years, the authorities did not arrest him;[34] (10) The burden of proof that he shot the victim with a .45 caliber handgun rests with the prosecution and he does not have the burden to prove that he did not shoot the victim.[35]

The prosecution, through the Office of the Solicitor General, opted not to file a supplemental brief, explaining that its arguments on the issues invoked had already been discussed in the brief it had previously filed.[36]

After review, we uphold the ruling of the Court of Appeals affirming the guilty verdict of the trial court.

Findings of facts of the trial court, its calibration of the testimonies of witnesses, its assessment of their credibility and the probative weight of their testimonies, as well as its conclusions anchored on the said findings, are accorded by the appellate court high respect if not conclusive effect, unless the trial court ignored, misunderstood, or misconstrued facts and circumstances of substance which, if considered, would warrant a reversal of the outcome of the case.[37]

In this case, the Court of Appeals and the RTC gave credence to the testimony of prosecution witness Cecilio Fabro whose testimony directly contradicts that of defense witness Jesus Ballesteros. We see no reason to deviate from this finding.

It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination. These are important in determining the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies.[38] For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness' credibility, and the trial court has the opportunity and can take advantage of these aids. These cannot be incorporated in the record so that all that the appellate court can see are the cold words of the witness contained in transcript of testimonies with the risk that some of what the witness actually said may have been lost in the process of transcribing. As correctly stated by an American court, "There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by the appellate court."[39]

Cecilio Fabro testified:

Mr. Witness, at about 3:00 o'clock in the afternoon of September 22, 1987, do you remember where you were?
Yes, sir.

Where were you?
We were at the basketball court, sir.

Where is that basketball court?
In front of the Health Center of the school, sir.

Where is that school?
Caros[u]can Sur sir.

Why were you there at that precise time and date in that basketball court at Brgy. Caros[u]can Sur, Asingan, Pangasinan?
Because we are going to play basketball sir.

Aside from you who are your companions or who are present in that basketball court?
Our [t]eammate and our barangaymate but Melvin Sublingo arrived and [began shooting], sir.

Who are [those] present at the basketball court?
Melvin Sublingo, Mariano Sapigao, Jr. and our teammate, sir.

How about Alexander T[u]ralba?
He was there sir.

While you [were] forming that basketball team in the afternoon of September 22, 1987, what happened Mr. Witness?
Melvin Sublingo drew a gun and shot Alexander T[u]ralba sir.

How far were you then at that time when Melvin Sublingo [shot] Alexander T[u]ralba?
Three (3) meters sir.

[What] part of Alexander T[u]ralba's body was hit?
[The] heart sir.

Do you know what firearm was used by Melvin Sublingo?
.38 Calibre sir.

What happened to Alexander T[u]ralba when he was hit with a .38 Calibre?

A He died sir.

[After] Alexander T[u]ralba was hit, what happened to Alexander T[u]ralba?
He fell down on the ground, sir, facing down.

You mean when Alexander T[u]ralba fell down, his face [was] facing down?
Yes sir.

How about Melvin Sublingo, what did he do when Alexander T[u]ralba was shot?
He again fired his gun, sir.

Who fired that gun?
Melvin Sublingo sir.

Was Alexander T[u]ralba hit?
No more because the place where he fired the gun is the place where he ran and Osias was hit, sir.

You said the first time that Melvin Sublingo shot Alexander T[u]ralba, [the latter] fell down and was hit, what did Melvin Sublingo do after that?
Melvin Sublingo ran sir.

To what direction did Melvin Sublingo run?
[Towards] the eastern direction sir.

When Melvin Sublingo ran and you saw Alexander T[u]ralba [fall] down, what happened after that?
I saw Mariano Sapigao, Jr. [shoot] Alexander T[u]ralba while [the latter was] lying down facing the ground sir.

You mean Mariano Sapigao, Jr. shot Alexander T[u]ralba while the latter was lying down?
Yes sir.

[What part of Alexander Turalba's body] was hit when Mariano Sapigao, Jr. shot him?
Head sir.

How many times?
Once only sir.

How far were you [from] the accused Mariano Sapigao, Jr. when the latter fired towards Alexander T[u]ralba?
Five (5) meters sir.

What kind of gun was used by Mariano Sapigao, Jr.?
.45 Caliber sir.

How do you know that it was .45 caliber?
Because I can identify guns sir.[40] (Emphasis supplied.)

The RTC correctly ascertained that moved by common design and unity of purpose, Melvin Sublingo first shot Alexander Turalba at the back, and as a result thereof, Turalba fell to the ground, face down. While Turalba was lying face down, wounded, and in order to ensure that Turalba was dead, the appellant fired at him once using a .45 caliber firearm and hit Turalba's head. The autopsy report conformed with the testimony of Fabro. The RTC noted that Fabro is credible since he narrated in details and without hesitation. It was not inclined to take seriously the defense's assertion that Melvin Sublingo alone, without the participation of the appellant, shot Turalba, after finding that the testimony of Fabro is more credible than the testimonies of Ballesteros and the appellant who are first cousins. We affirm this finding. Ballesteros' testimony that Sublingo first shot the victim on the head and then afterwards on the back appears illogical since the first shot on the head already ensured the death of the victim. Fabro's testimony that the victim was first shot on the back and then afterwards on the head to ensure his demise, appears more accurate.

The Court of Appeals, after carefully and assiduously examining the records of the case, supported the conclusion reached by the RTC. It ruled that although the accused sought to denigrate the testimony of Fabro by alleging that they were previous rivals over the love of the same woman, the defense failed to present compelling evidence to support the imputation of ill motive. It further ruled that although the defense capitalized on the testimony of Dr. Leonardo Guerrero, who testified on the possibility that only one kind of firearm was used since the wounds are of similar diameter, and the testimonies of NBI Ballistics Expert Rogelio G. Munar and NBI Medico-Legal Officer Dr. Arturo G. Llavore to prove that the diameter of the gunshot wounds sustained by the victim, which is ¾ or .75 centimeter, could not have been produced by a .45 caliber pistol, the appellate court held that the gun allegedly seen as held and used by the appellant was never presented as evidence and no expert witness was able to physically examine the same. Hence, there was no way of knowing the size of the wound it would have produced. The appellate court also found that even the testimonies of the expert witnesses of the defense were inconclusive. The NBI ballistics expert, Munar, although admitting that he is not well versed on sizes of wounds, testified that the difference in size of gunshot wounds produced by .38 and .45 caliber guns is negligible. Dr. Llavore, the NBI medico-legal expert, testified that the entrance of the wound caused by a caliber .45 handgun is similar to that of a wound caused by a .38 caliber handgun, except in the cross-diameter thereof where the wound is smaller in case of a .38 caliber gun and larger in case of a .45 caliber.

To put to rest the question of whether the .45 caliber handgun allegedly used by the appellant in shooting the victim on the head could produce an entrance wound with a ¾ or .75 centimeter diameter, we have held that the diameter of the entrance of gunshot wounds could be smaller or larger, depending on certain factors. The factors which could make the wound of entrance bigger than the caliber include: (1) shooting in contact or near fire; (2) deformity of the bullet which entered; (3) a bullet which might have entered the skin sidewise; and (4) an acute angular approach of the bullet. Where the wound of entrance is smaller than the firearm's caliber, the same may be attributed to the fragmentation of the bullet before entering the skin or to a contraction of the elastic tissues of the skin.[41] Thus, it is not impossible for a .45 caliber handgun to produce an entrance wound smaller than expected. The appellant's defense of denial therefore crumbles. In the face of the positive testimony of prosecution witness Fabro, as corroborated by the autopsy report, there is no doubt that appellant is guilty of the crime charged. Truly, what stands out from the evidence on record is the fact that to ensure the death of the victim, the appellant shot him on the head while the victim was already lying down.

In view of the foregoing, the Court is convinced that the prosecution has established by proof beyond reasonable doubt the criminal culpability of the appellant.

As for the penalty and civil liability, the Court of Appeals correctly held:

Under Article 248 of the Revised Penal Code, the essential elements of murder are: (1) a person was killed; (2) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) the killing is neither parricide nor infanticide. All the elements of murder, as alleged in the Information, have been sufficiently established by the prosecution in the present case.

The offense in the present case was committed on September 22, 1987, prior to the enactment of Republic Act No. 7659 (The Death Penalty Law) on December 13, 1993. The applicable penalty for murder prior to the enactment of R.A. 7659 is reclusion temporal maximum to death. There being no aggravating or mitigating circumstances, the penalty imposable on accused-appellant in accordance with Art. 64(1) of the Revised Penal Code should be the medium period, which is, reclusion perpetua. The penalty of reclusion perpetua being indivisible, the Indeterminate Sentence Law does not apply.

Civil Liability

The trial court awarded the heirs of the victim Alexander Turalba the sum of P38,600.00 as actual damages, P50,000.00 as moral damages and P20,000.00 as exemplary damages.

We delete the award of actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence obtainable. Since the prosecution did not present receipts to prove the actual losses suffered, such actual damages cannot be awarded.

However, while no actual damages may be awarded because no competent evidence in the form of receipts was presented, temperate damages may be recovered under Article 2224 of the Civil Code as the Court finds that some pecuniary loss has been suffered but its amount cannot be proved with certainty. Consistent with current jurisprudence, the amount of P25,000.00 is awarded to the victim's heirs as temperate damages considering that it is not disputed that the family incurred expenses for the wake and burial of the victim.

Consistent with prevailing jurisprudence, We award P50,000.00 by way of indemnity ex delicto to the heirs of Alexander Turalba. When death occurs as a result of the crime, the heirs of the deceased are entitled to such amount as civil indemnity for death without need of any evidence or proof of damages.

The award of P50,000.00 as moral damages is sustained, being consistent with recent cases. Moral damages are awarded without further proof other than the death of the victim.

The victim's heirs are likewise entitled to exemplary damages in the amount of P25,000.00, given the presence of treachery which qualified the killing to murder. Under Article 2230 of the Civil Code which allows the award of exemplary damages as part of the civil liability when the crime was committed with one or more aggravating circumstances, the term aggravating circumstance as used therein should be construed in its generic sense since it did not specify otherwise.[42]

WHEREFORE, the assailed Decision dated July 19, 2006 of the Court of Appeals in CA-G.R. CR No. 01018 affirming with modification the judgment of conviction of the Regional Trial Court of Urdaneta City, Branch 46 is AFFIRMED. Appellant Mariano Sapigao, Jr. is hereby found GUILTY of the crime of murder, qualified by treachery, and sentenced to suffer the penalty of reclusion perpetua with the accessory penalties provided for by law. He is further ORDERED to pay the heirs of the victim Alexander Turalba P50,000 as civil indemnity, P50,000 as moral damages, P25,000 as temperate damages, and P25,000 as exemplary damages.


Carpio Morales, Brion, Del Castillo, and Abad, JJ., concur.

[1] Rollo, pp. 3-18. Penned by Associate Justice Rosalinda Asuncion-Vicente, with Associate Justices Jose L. Sabio, Jr. and Sesinando E. Villon concurring.

[2] Records, pp.171-179. Penned by Judge Modesto C. Juanson.

[3] Id. at 1.

[4] Id. at 24.

[5] Id. at 27.

[6] Id. at 40.

[7] Id. at 41.

[8] Id. at 45.

[9] Id. at 47.

[10] Id. at 48.

[11] Id. at 49.

[12] Id. at 57.

[13] Id. at 78.

[14] Id. at 50.

[15] Id. at 11.

[16] TSN, February 22, 1999, pp. 4-8.

[17] TSN, March 16, 1999, pp. 2-15.

[18] TSN, April 5, 1999, p. 6.

[19] TSN, June 16, 1999, p. 7.

[20] TSN, July 6, 1999, pp. 5-6.

[21] Records, p. 179.

[22] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

[23] Rollo, p. 17.

[24] Id. at 55-56.

[25] Id. at 52-92.

[26] Id. at 57.

[27] Id. at 66.

[28] Id. at 67.

[29] Id. at 68.

[30] Id. at 69.

[31] Id. at 72.

[32] Id. at 74.

[33] Id. at 75.

[34] Id. at 76.

[35] Id. at 78.

[36] Id. at 196-197.

[37] People v. Dela Cruz, G.R. Nos. 138931-32, July 17, 2003, 406 SCRA 439, 446-447.

[38] Maandal v. People, G.R. No. 144113, June 28, 2001, 360 SCRA 209, 222.

[39] Id. at 223.

[40] TSN, February 22, 1999, pp. 4-7.

[41] People v. Abriol, G.R. No. 123137, October 17, 2001, 367 SCRA 327, 343-344.

[42] Rollo, pp. 15-17.

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