367 Phil. 344
VITUG, J.:
"That at past 12:00 o'clock midnight of December 31, 1993 and at dawn on the 1st day of January, 1994, or thereabouts, at barangay Cayambanan, municipality of Urdaneta, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, armed with a firearm, with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Perlita Ferrer y Mamorno, inflicting upon the latter fatal wounds in the head, which directly caused her death, to the damage and prejudice of her heirs.In Criminal Case No. U-7810 -
"Contrary to Article 249 of the Revised Penal Code."[1]
"That at dawn on the 1st day of January, 1994 and past 12:00 o'clock midnight of December 31, 1993, or thereabouts, at barangay Cayambanan, municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a firearm, taking advantage of nighttime and the sporadic burst of firecrackers on New Year's day, with evident premeditation, treachery and deliberate intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and shoot Gerardo Valdez y Torres, a 13-year old boy, inflicting upon him fatal wounds in the head, which directly caused his death, to the damage and prejudice of his heirs.In Criminal Case No. U-7811 -
"Contrary to Article 248 of the Revised Penal Code."[2]
"That at dawn on the 1st day of January, 1994 and past 12:00 o'clock midnight of December 31, 1993, or thereabouts, at barangay Cayambanan, Urdaneta, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control one (1) firearm with ammunitions without authority of law; which firearm he used in shooting Gerardo Valdez y Torres, a 13-year old boy, and Perlita Ferrer y Mamorno, on the above-cited date, time and place.After a joint trial that followed the arraignment and the plea of "not guilty" entered by the accused with the assistance of counsel, Judge Antonio M. Belen of the Regional Trial Court of Lingayen, Pangasinan, Branch 38, found the accused guilty as charged and so sentenced him, thusly:
"That accused is indicted in two (2) separate Informations for the crime of Murder for the fatal shooting of Gerardo Valdez y Torres and Homicide for the fatal shooting of Perlita Ferrer y Mamorno, before this Honorable Court.
"Contrary to P.D. No. 1866."[3]
"Wherefore, in the light of the considerations discussed above, the court hereby, renders judgment in the above-entitled cases as follows:The trial judge briefly narrated the evidence successively presented by the prosecution and the defense.
"In Criminal Cases Nos. U-7809 and U-7810, the court finds the accused Cipriano de Vera, Sr. alias Ambos, guilty beyond reasonable doubt of the complex crime of Murder with Homicide defined and penalized by Article 48 of the Revised Penal Code and conformable thereto, pursuant to law, hereby sentences said accused to suffer the penalty of death and to pay the costs.
"The court further orders the accused to indemnify the heirs of the deceased Gerardo Valdez, the sum of P20,285.00 as actual damages; P50,000.00 as death indemnity and moral damages of P20,000.00 without subsidiary imprisonment in case of insolvency. The court likewise orders the accused to indemnify the heirs of the deceased Perlita Ferrer the sum of P35,000.00 as actual damages; P50,000.00 as death indemnity and P2,040,000.00 as loss of earning capacity of the late Perlita Ferrer without subsidiary imprisonment in case of insolvency.
"In Criminal Case No. U-7811, the court likewise finds and holds the accused, Cipriano de Vera, Sr. alias Ambos, guilty beyond reasonable doubt of the crime of Illegal Possession of Firearm and Ammunitions, penalized under the provision of Presidential Decree No. 1866 as amended, and conformable thereto, pursuant to law, hereby sentences said accused to suffer the indeterminate prison term of twelve (12) years of prision mayor as minimum to eighteen (18) years and ten (10) months of reclusion temporal as maximum and to pay the costs of the proceedings.
"SO ORDERED."[4]
"I. THE TRIAL COURT'S DECISION IS INCONSISTENT WITH THE EVIDENCE.Well-settled is the rule that the factual findings of, including particularly the assessment on the credibility of witnesses made by, a trial court are accorded a great degree of respect and will not, absent strong cogent reasons, be disturbed on appeal. In this instance, the Court sees no justification to set aside the conclusions arrived at by the trial court and its holding that accused-appellant indeed is responsible for the death of the two victims.
"A. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES THE ALLEGED EYEWITNESSES
"B. THE TRIAL COURT ERRED IN HOLDING THE APPELLANT LIABLE FOR PERLITA FERRER'S DEATH.
"II. THE TRIAL COURT'S DECISION IS INCONSISTENT WITH LAW AND JURISPRUDENCE.
"A. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF A COMPLEX CRIME CONSTITUTING CRIMES ALLEGED IN SEPARATE INFORMATIONS.
"B. THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY.
"C. THE TRIAL COURT ERRED IN NOT DETERMINING MOTIVE AS IMPORTANT FOR CASES IN WHICH THE IDENTIFICATION OF THE ACCUSED IS DOUBTFUL.
"D. THE TRIAL COURT ERRED IN DISREGARDING THE APPELLANT'S DEFENSE OF ALIBI.
"E. THE TRIAL COURT ERRED IN NOT APPRECIATING VOLUNTARY SURRENDER AS A MITIGATING CIRCUMSTANCE.
"F. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF VIOLATION OF P.D. No. 1866.
"G. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF SEPARATE OFFENSES.
"III. THE TRIAL COURT VIOLATED THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE AS IT RESOLVED ALL DOUBTS AGAINST THE APPELLANT.
"IV. THE TRIAL COURT VIOLATED THE RIGHT OF THE APPELLANT TO A PRELIMINARY INVESTIGATION.
"V. THE SENTENCE OF DEATH IMPOSED BY THE TRIAL COURT IS AN UNCONSTITUTIONAL PENALTY AND THUS VOID.
"A. MURDER AS DEFINED BY R.A. NO. 7659 IS NOT A HEINOUS CRIME.
"B. THERE IS NO COMPELLING REASON TO REIMPOSE THE DEATH PENALTY FOR MURDER.
"C. THE RULING IN PEOPLE VS. ECHEGARAY DESERVES REEXAMINATION."[5]
The witness did not waver during the cross-examination. He went on to respond to questions thusly:
"Q Do you know Gerardo Valdez y Torres, the victim in Criminal Case No. U-7810? "WITNESS: "A Yes, sir. "Q Where is he now? "A Already dead, sir. "Q What age when your brother, Gerardo Valdez, died? "A He was 13 years old, sir. "Q Do you know also the accused in these three (3) cases, Cipriano de Vera? "A Yes, sir. "Q Why do you know Cipriano de Vera? "A He is my uncle and a neighbor, sir. "Q Why is he your uncle? "A Because the father of Cipriano de Vera and the father of my father are brothers, sir. "Q How is Cipriano de Vera properly called in your place? "A Alias `Ambos,' sir. "Q You said you are neighbors, how far is your house to his house? "A It is around fifteen (15) meters away, sir. "Q Now, during the midnight of December 31, 1993, do you know where you were? "A Yes, sir. "Q Where were you? at about midnight of December 31, 1993? "A I was beside my brother, Gerardo Valdez, lighting firecrackers, sir. "Q Why were you lighting firecrackers? "A It was eve of New Year or New Year's eve, sir. "Q At what particular place were you near your brother, Gerardo Valdez, at that time? "A Infront of our house, sir.
"Q What barangay? "A Cayambanan, Urdaneta, Pangasinan, sir. "Q Now, as you were infront of your house lighting firecracker near your brother, do you observe any unusual incident that took place thereat? "A I noticed the accused Ambos went to the road and then returned under the mango tree and thereafter, he held a shot bang and I saw my brother, Gerardo Valdez fell down and when I looked around I saw Cipriano de Vera holding a long firearm and pointed to the direction of my brother, Gerardo Valdez, sir."Q Kindly describe this long firearm which you saw pointed by the accused at your brother?
"A One (1) meter long and the barrel is iron pipe, sir. "Q Do you know what is the popular name of that firearm which you saw in the possession, control and custody of the accused? "A They called `sumpak,' sir, or called `Pasoot.' "Q What is the ammunition used in that `sumpak' or `palsoot?' "A Gauge 12, sir. "Q What is the gauge 12 bullet called for, what kind of firearm? "A Bullet of a shotgun, sir. "Q What did you see the accused do as he was holding that `sumpak' directed to your brother at the time? "A When I lighted firecracker there was a big `bang' and I saw the accused pointed direct to my brother and when I looked at my brother, he fell down, sir. "Q How far were you from the accused when you saw directed the firearm towards your brother and shot him? "ATTY. EVANGELISTA: We will object, Your Honor. There is not testimony as to the shooting by the accused to his brother. This witness testified on he light firecracker and he heard a big `bang' and saw holding iron bar. He did not say, he shot, Your Honor."COURT: "Q How far were you when you saw the accused pointing that `sumpak' towards your brother? "WITNESS: "A Eight (8) to nine (9) meters away, sir. "FISCAL: "Q Will you demonstrate how the accused held the long firearm (sumpak) directed to your brother and heard this loud sound `bang?' "WITNESS: "A Like this, sir (Witness now demonstrating to the Court extending his right hand at the right side and the left is extended forward as if holding something). "Q What further action did the accused, if any, while he was holding that firearm? "A I saw the accused pushed something on the `sumpak' and my brother was hit, sir. "Q As the accused has made that motion pushing forward with his right hand, what did you see as a result of that action made by the accused on the gun, if any? "A The gun fired, sir. "Q Now, when you saw your brother hit by the action of the accused firing the gun, what more, if any, did you observe? "ATTY. EVANGELISTA:
We object, Your Honor. There is no such fired the gun. What he said, he pushed something. He did not fire any trigger, Your Honor. "COURT: The accused pushed something. "Q What else did you observe, if any? "WITNESS: "A After the gun fired, I saw my brother fell down and when I embraced him he was injured on his head, sir. "FISCAL: "Q Simultaneously, when you saw your brother was hit, what more did you observe in the surroundings, if any? "WITNESS: "A Then, I also heard shouts because somebody was hit nearby, sir. "Q Can you tell where did these shouts originate in relation to the place of your brother, Gerardo Valdez was? "A On the West direction, sir. "Q About how many meters did you hear the shout to the place where you were? "A Forty (40) to fifty (50) meters away, sir. "Q Can you tell us what were the shouts about? "A They said Perlita died, sir. "Q Did you come to know why Perlita died? "A He was also hit on the left side of the forehead just above the left eye, sir.
"Q Do you know the reason why this Perlita was hit on her left forehead? "A According to the information, I heard that Perlita was facing towards our direction and perhaps an extra bullet hit her, sir. "ATTY. EVANGELISTA: We move to strike out the answer of the witness on the ground that it is hearsay. Aside from being hearsay, it is based on conjection. "COURT: As part of narration, the answer stay on the record. "FISCAL: "Q How many times did you see the accused made this motion firing the long firearm (sumpak)? "WITNESS: "A Only once, sir. "Q Now, what happened next when you saw your brother, Gerardo Valdez hit and nearby he fell down? "A Yes, sir. My brother was hit and fell down and I embraced him and I saw the accused ran, sir. "COURT: "Q Where? "WITNESS: "A Towards the East direction, sir. When I tried to chase him he ran farther, so, I did not continue chasing him. "FISCAL: "Q How far in meters have you gone in chasing the accused Eastward? "WITNESS: "A When I saw him he was around seventy (70) meters around because it was bright, so, I recognized him because there was moonlight and it was bright, sir. "Q How many meters did you take this chase to the accused? "A I chased the accused up to the place where he entered there were concrete fence, so, we lighted the place with flashlight and thickly populated and there were thick grasses, sir.
"Q How many meters from the place where you chased the accused to the place where you stopped when the accused entered in that place? "A A distance of One Hundred (100) meters, sir, from the place where we were. "Q Now, after you were not able to chase the accused, what transpired next?
"A After he went to the East direction, sir.
"Q By the way, who were your companions in chasing this accused as you said earlier `we?'
"A My uncle Victorino Valdez and no more, sir.
"Q What more transpired when you went Eastward? "A I called for my father and told him that my brother died, sir.
"Q Can you point this Cipriano de Vera, alias `Ambos' whom you saw that night carrying that `sumpak' aimed at your brother and hit on his back of his head? "A He is there, sir (Witness pointing to the accused)."[6]
The above testimony of Neil Valdez was bolstered by an account of the incident given by Jesusa Valdez. Jesusa declared:
"ATTY. EVANGELISTA: "Q Mr. Witness, at the time of the incident you testified to here, were you facing your brother? "FISCAL" At what particular time? "ATTY. EVANGELISTA: The alleged shooting. "FISCAL: We object, that is misleading. "COURT: Answer. "WITNESS:
"A I was not facing him directly, sir. He was on my side, sir. "COURT:
"Q What side? "WITNESS:
On my left side, sir. "Q To what direction? "A North direction, sir. "Q So, your brother was North of you at the time he was shot, correct? "A Yes, sir. "Q How far was he from you? "A Around three (3) meters away, sir. "COURT: Go ahead.
"ATTY. EVANGELISTA: "Q And where was he facing at that time? "WITNESS: "A He was facing North towards the road, sir. "Q And you say that the accused was allegedly on the Eastern side of the place where you were? "A Yes, sir. "Q At that moment therefore, Mr. Witness, you were facing towards the Northeast, direction? "FISCAL: What moment? "ATTY. EVANGELISTA: At that time of the shooting. "COURT: Answer. "WITNESS: "A I was facing the suspect, sir. "ATTY. EVANGELISTA: "Q Mr. Witness, why are you facing the East direction the suspect? "WITNESS: "A I was facing the firecrackers, sir. "Q You mean to say, you are throwing the firecrackers infront of the accused? "A No, sir, within our compound. "Q But it is towards its direction? "A It is far from him and those are just small firecrackers, sir.
"Q How far is it from him the firecrackers being thrown to you? "A Six (6) meters away, sir. "Q Will you point to any particular point that is six (6) meters away? "A From here up to the place of the accused where he was sitted, sir. (Estimated to be five (5) meters). "Q Mr. Witness, and how far were you throwing of your firecrackers? "A About two (2) meters away from me, sir. "Q And how far was it from the place of you are standing? "A From here up to the stenographer, sir. "Q Mr. Witness, do you have to throw the firecrackers towards the direction of the accused? "A At the time we throw those firecrackers the accused was not yet there. There were no persons before he shot my brother, sir. "Q When you saw your brother allegedly shot, were you lighting a firecracker at that time? "A I was waiting the last firecracker which I lighted to exploid, sir. "Q In other words, your attention was towards the firecracker which you have just thrown? "FISCAL: Misleading, Your Honor. "COURT: Answer. "WITNESS: "A At the time, I was waiting for the firecracker to exploid. My attention was on that direction and I saw the accused fire his gun, sir."[7]
Cipriano De Vera, Jr., the son of the accused, tried hard to discredit Neil Valdez by asserting that the latter was with him on the night of the incident and left only after he had learned of the death of his brother. This assertion, however, was convincingly rebutted by Isagani Pagaduan, a former secretary of the Iglesia ni Cristo, who attested to the fact that Neil had left the chapel at around 10:00 p.m. and never returned that evening.
"Q Now, at about 12:05 in the early morning of January 1994, do you still recall where you were? "A Yes, sir. I was in our terrace and I was watching my brothers, Gerardo Valdez, and Neil Valdez lighting firecrackers infront of our house, sir. "Q while you were there in your terrace watching your brothers lighting firecrackers, do you remember having noticed unusual incident that happened at that time? "A I saw the accused shot my brother, Gerardo Valdez, while the accused was under the mango tree, sir.
"Q Now, can you describe that weapon used by the accused in shooting your brother, Gerardo Valdez?
"A It is a long firearm about 2 and 1/2 foot long, sir, and it is adjustable and bullet is like a pipe. "Q Can you demonstrate how the accused shot your brother? "A The accused pointed his gun towards my brother with his right hand lower and his left hand about 45 degree by the gun with his right 45 degrees, sir. "FISCAL: To make the demonstration better, this witness be given a long object to represent. "WITNESS: (continuing) "A First, the accused held the butt of the gun with his right hand as if pulling something while the left hand holding the middle extended forward pulled then pushed the gun, sir, the mechanism of the gun."FISCAL: "Q How far were you from the accused when you saw him shot your brother? "WITNESS: "A More or less, eight (8) meters away, sir. "Q What transpired next after that? "A After the shooting, I approached my brother and I went near him while there I heard shouts coming from the West direction saying that someone was shot in that place, sir."Q When you went near your brother, Gerardo, who fell down after he was shot, what did you do? "A I embraced my brother and I saw the accused going towards the East direction, sir."[8]
Appellant brings up the alleged violation of his right to preliminary investigation. The right to preliminary investigation, however, may be waived, and it will be deemed to have been waived by failing to invoke it prior to, or at least at the time of, the arraignment.[15] The question of whether there has been a preliminary investigation, or whether it has been properly conducted, should be interposed prior to the plea of the accused.[16] The Office of the Solicitor General is correct in contending that it would now be late in the day for appellant to raise the issue for the first time in this appeal before the Court.
"Q And Mr. witness, in Manila, do you know what happened? "A When I arrived, I worked as a masonry, sir. "COURT "Q Cementing what? "A I worked as a masonry in a construction of a house, sir. "ATTY. EVANGELISTA "Q After working, what did you do? "A I went home to the house of my elder sister in Makati, sir. "Q And what did you find out when you went home? "A I came upon my daughter, Grace, sir. "Q What day was that?
"A January 1, 1994 in the afternoon and asked why was she there, sir. She told me that I had a warrant of arrest, sir. "Q What else did you inquire regarding the warrant of arrest from your daughter, Grace? "A It was a warrant of arrest regarding my pending case for Rape, sir. "Q And what did you tell her, if any? "A I told her to go home ahead because I will follow since I still have work to do, sir. "Q Mr. witness, you said you were to follow Grace, where were you to follow her? "A Here in Urdaneta, Pangasinan, sir. "Q Did you follow Grace in Urdaneta, Pangasinan? "A Yes, sir. "Q What day did you follow her? "A It was in January 6, 1994, sir. "Q And where did you proceed that day? "A I dropped by the chapel, sir. "Q What chapel are you referring to? "A The Church of Christ (INK), sir. "Q What time was that? "A I arrived at the INK chapel 2:30 in the afternoon, sir. "Q And what did you do there? "A I attended the religious service, sir. "Q And how long did you stay there? "A After the church service, I proceeded to Paurido, Urdaneta, Pangasinan, sir, to sleep there. "Q The following day, January 7, 1994, what did you do next, if any? "A I still helped working in Paurido, Urdaneta, Pangasinan, sir. "Q Did you not inquire on the reported warrant of arrest against you, Mr. witness? "A I asked them about it but I was the one who personally went to the police station of Urdaneta, Pangasinan, sir, on January 8, 1994. "Q Upon reaching the police station of Urdaneta, Pangasinan, what happened there? "A They informed me that I have a pending case in the police station and told me that I will be incarcerated, sir. "Q And you were incarcerated? "A Yes, sir. "Q And do you know why you were incarcerated that day? "A Because of the Rape case filed against me, sir. "Q Mr. witness, did you come to know that incident that transpired in Brgy. Cayambanan, Urdaneta, Pangasinan about 12:05 of January 1, 1994? "A I was only informed when I was already jailed, sir."[14]
along with the fact that Perlita would appear to have fallen at just about the same time as Gerardo did after the shot was delivered, are circumstances that all point just to the contrary.
(1) the slug extracted from the right parietal lobe of Perlita's brain is similar to the pellets extracted from the head of Gerardo; (2) the wounds sustained by the two victims were caused by gunshot and the ammunitions used are pellets, like the ones used in a shotgun; (3) Perlita was standing on the same line of direction as Gerardo when accused-appellant fired his sumpak -
"The record of the case will show that three separate informations were filed against appellant, one for the murder of Gerardo Valdez, the second for homicide for the death of Perlita Ferrer, and the third for illegal possession of firearms. This Honorable Court has held that `while the trial court can hold a joint trial of two or more criminal cases and can render a consolidated decision, it cannot convict the accused of a complex crime consisting of the various crimes alleged on the two informations' (People vs. Legaspi, 246 SCRA 206, 213). Thus, appellant cannot be held liable for the complex crime of murder with homicide but should be held liable separately for these crimes."[21]In People vs. Legaspi,[22] abovecited by the Solicitor General, the appellants were charged with two separate informations, one for double murder (Criminal Case No. C-28760 [87] and the other for violation of R.A. No. 6539 (Criminal Case No. C-28761 [87]). The Court there held:
"x x x Their conviction can only be limited to the crime alleged or necessarily included in the allegations in the separate informations. What controls is the description of the offense, as alleged in the information (Santos vs. People, 181 SCRA 487 [1990]). While the trial court can hold a joint trial of two or more criminal cases and can render a consolidated decision, it cannot convict the accused of a complex crime constitutive of the various crimes alleged in the two informations. Thus, the accused were deprived of their constitutional right to be informed of the nature and cause of the accusation against them (1987 Constitution, Art. III, Sec. 14[2])."[23]There is, nevertheless, a need to modify the award of damages awarded by the trial court to the heirs of the victims. In People vs. Alberto Nullan, et al.,[24] the Court had occasion to restate the rules; viz:
"With respect to damages, the recovery of actual damages must be premised upon competent proof and best evidence obtainable by the injured party showing the actual expenses incurred in connection with the death, wake or burial of the victim. Courts cannot simply assume that damages are sustained by the injured party, nor can it rely on speculation or guesswork in determining the fact and amount of damages. In the case at bench, the Court accepts as having been incurred the amount of P52,851.96 for doctor fees, hospital bills, funeral cremation, burial services and the cost of the tomb of the victim for which supporting receipts are on record. The alleged reasonable miscellaneous expenses of P40,000.00 are disallowed for not having been sufficiently proved. The actual damages awarded by the trial court should be thus reduced to only P52,851.96. Relative to the amount of damages for loss of earnings, the trial court has fixed the amount of P1,000,000.00 based on the victim's life expectancy of 65 years. This Court has consistently used the formula: [2/3 x (80 - age of victim at time of death)] in determining life expectancy. The victim in this case therefore can be said to have had a life expectancy of [2/3 x (80 - 46)] 23 years. The trial court has aptly estimated his annual income to be close to P120,000.00 from which amount should be deducted the necessary and incidental expenses which the victim would have incurred if he were alive, estimated at 50%, to about a balance of P60,000.00 net annual income. In computing the loss of earning capacity of the victim, several factors are considered besides the mathematical computation of annual income times life expectancy. Allowances are also made for circumstances which could reduce the computed life expectancy of the victim like the nature of his work, his lifestyle, age and state of health prior to his death, and the rate of loss sustained by the heirs of the victim. All taken, the sum of P1,000,000.00 for loss of earning capacity of the deceased victim awarded by the trial court must be increased to P1,380,000.00. The award of moral damages of P100,000.00 arising from the mental anguish suffered by the surviving spouse, Julie Gotanci, and testified to by her, is reasonable."Angelita Ferrer, mother of Perlita, said that she had spent a total of P31,995.00 for the vigil and funeral expenses of her daughter. The trial court awarded her the sum of P35,000.00. Only the amount of P15,000.00 for funeral expenses, however, was duly receipted. Renato Valdez, father of Gerardo, stated that the family had spent a total of P19,085.30 for Gerardo's wake and funeral. The trial court awarded him P20,285.00 but the receipted amount, however, totaled only P7,785.30. The awards made by the court a quo must thus be reduced correspondingly. Relative to the award of damages for loss of earning capacity to the heirs of Perlita Ferrer, using the formula in People vs. Nullan, the entitlement thereto should be modified by reducing it to the amount of P1,632,000.00 from P2,040,000.00. The award of moral damages by the trial court in favor of the heirs of Gerardo, being justified, can be sustained.