G.R. No.

101215 July 30, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFREDO SALVADOR, ET AL., * accused, ALFREDO SALVADOR, accused-appellant.

The Solicitor General for plaintiff-appellee.

Froilan L. Valdez for accused-appellant.

BIDIN, J.:

Appellant Alfredo Salvador an co-accused Joey Adap, Augusto Alimurong, Jimmy Agustin and Armin
Aladdin were charged before the Regional Trial Court, Fourth Judicial Region, Branch 23, Trece
Martires City with the crime of Murder in an information allegedly committed as follows:

That on or about October 14, 1984, in the Municipality of Gen. Trias, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Court, the aforesaid
accused, conspiring together, acting jointly and assisting one another, with intent to
kill, with treachery and evident premeditation, did then and there, wilfully, unlawfully
and feloniously, assault and attack Orlando Grepo with the use of a piece of wood
commonly known as "dos por dos", hallow (sic) block, fist and foot blows causing the
victim to suffer injuries on his head and other parts of his body, resulting to his death,
to the damage and prejudice of the heirs of Orlando Grepo.

The aggravating circumstances of nighttime and abuse of superior strength were

present in the commission of the offense.

CONTARY TO LAW.

Only Alfredo Salvador was apprehended by the Cavite INP Command while his co-accused have
remained at large (Ibid., p. 34). Upon arraignment, Salvador pleaded not quilty to the offense
charged. After trial, judgment was rendered convicting appellant Salvador, the decretal portion of
which reads:

WHEREFORE, this court finds accused Alfredo Salvador GUILTY beyond

reasonable doubt of the crime of Murder and sentences him to suffer the penalty of
Life imprisonment; to indemnify the heirs of Orlando Grepo in the amount of
P30.000.00 without subsidiary imprisonment in case of insolvency; and to pay the
costs.

SO ORDERED.

Records disclose that at around 9:30 in the evening of October 14, 1984, prosecution witness Joel
Duran was walking with Alberto Villablanca on their way home from Bahay-Kubo in the town plaza of
Gen. Trias, Cavite. Along Prinza Street, they saw from a distance of about six meters, Orlando
Grepo being mauled by five persons. Through the light of the electric lamp post and the vehicles
passing by, Joel recognized these assailants as Joey Adap, Alfredo Salvador, Jimmy Agustin,
Augusto Alimurong and Armin Aladdin.
The sheer number of assailants deterred Joel and Alberto from helping their childhood friend
Orlando. The five attackers were boxing Orlando and when he fell with his face to the ground, they
kicked him. Then Joey Adap hit Orlando with a "dos por dos" (piece of wood ) and Alfredo Salvador
dropped a hollow block on his back. Joel and Alberto shouted for help and upon seeing them, the
assailants ran away. Councilor Leonardo Gozo, who responded to Joel's shouts for help, assisted
Joel and Alberto in bringing Orlando to the hospital in Pinagkatipunan (TSN, August 25, 1984, pp. 4-
9; 21-23).

Orlando was brought to the Medicare Community Hospital in Gen. Trias where Dr. Charito Maldos
Gozo attended to him. Dr. Gozo found him to be a "walking patient" but aside from his bruises and
contusions, Orlando was complaining of a headache (TSN, January 29, 1987, pp. 4; 8-13). In the
medical certificate she issued on October 15, 1984, Dr. Gozo stated that 17-year-old Orlando Grepo
had contusion, hematoma and abrasion on the 4th intercostal lateral side left, another contusion on
the right temporal parietal area and a third contusion and hematoma on the occipital region. Dr.
Gozo diagnosed that the healing period for these injuries would last from nine to fourteen days
"barring complications" (Exh. F). A neighbor of Orlando, Dr. Gozo knew that during the two-week
period after she treated him Orlando was complaining of severe headache and "off and on" fever
(TSN. January 29, 1987, p.13).

On November 4, 1984, Grepo was brought to the clinic of Dr. Jocelyn Tirol Dignos in Rosario,
Cavite. Grepo was perspiring a lot and had
cold, clammy skin specially on his left extremities. He had rolling eyeballs and was in an unconcious
shock-like state. Since he had high-grade fever running to 42.2 degrees Centigrade, he stayed in Dr.
Dignos' clinic for only two hours (TSN, September 26, 1986, p.5). In the medical certificate she
issued, Dr. Dignos also stated that Grepo had convulsive seizures and that he had "meningo-
encephalities of undetermined origin" (Exh. D).

According to Dr. Dignos, said diagnosis was actually made by Dr. Ovillo, a specialist to whom she
referred as the victim was showing signs and symptoms of brain damage. Because they were not
aware that Orlando had been a victim of a mauling incident two weeks ago and there was then an
epidemic of typhoid fever, they entertained typhoid as Grepo's possible ailment (TSN September 26,
1986, pp. 7-9). But upon learning of the mauling incident, they diagnosed Grepo's ailment as
"meningo encephalitis secondary to trauma" (Ibid., p. 16). Moreover, they learned that Dr. Apostol of
Gen. Trias, Cavite had given Grepo two grams of chloro ampenicol per day and therefore, if the
ailment was really typhoid. Grepo's fever would have then subsided (Ibid., pp. 15-17). They would
have conducted more tests but since Grepo had become bluish and had difficulty in breathing, they
decide to have him transferred to the Manila Medical Center (Ibid., p.17) where the victim finally
expired on November 5, 1984 (TSN, April 23, 1987 p.3).

As aforesaid, the trial court rendered a judgment of conviction against Salvador specifically finding
him to be "one of those instrumental in inflicting the fatal wounds which resulted in the death of
Orlando Grepo."

Appellant claims that he was with his family at home watching television at the time the mauling
incident took place. His alibi was corroborated by his sister, Edita Santores, who testified that
appellant watched TV until 10:00 p.m. and immediately went to bed thereafter.

Previous to his testimony in open court, however, appellant executed an affidavit stating that at
around 9:00 o'clock in the evening of October 14, 1984, he was walking from the school with his
friend Willy Buclatin when they saw Orlando Grepo walking with three persons and when they
reached Prinza St., there was a melee ("bigla na lamang nagkagulo").
The Court is therefore presented with two contradictory statements of the accused. One involving
alibi and the other which is practically denial.

Aggrieved by the decision, Salvador interposed this appeal making the following assignments of
errors:

THE COURT A QUO ERRED IN NOT GIVING CREDENCE TO THE EVIDENCE

PRESENTED BY THE DEFENSE.

II

THE COURT A QUO ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT

ON THE GROUND OF INSUFFICIENCY OF EVIDENCE OF THE PROSECUTION.
(Appellant's Brief, p.1)

A finding of sufficiency of the evidence to establish guilt by proof beyond reasonable doubt is one
fact. As such, its review by the appellate court must be guided by the principle that, unless arbitrary
or without sufficient basis, the findings of the trial court on question of fact are accorded the highest
respect on appeal if not regarded as conclusive (People vs. Alitao, 194 SCRA 120 [1991]; People vs.
Millarpe, 134 SCRA 555 [1985]; People vs. Lopez, 132 SCRA 188 [1984]. In the same manner, the
credibility of witnesses is the province of the trial court who is in a better position to examine real
evidence as well as observe the demeanor of the witnesses (People vs. Lardizabal, 204 SCRA 320
[1991]; People vs. Vinas, 202 SCRA 720 [1991]). After a review of the records, We find no reason to
depart from these principles in the instant appeal.

Anchored on denial and alibi, the defense had not overcome the prosecution's solid proof beyond
reasonable doubt of appellant's complicity in the fatal mauling of Orlando Grepo. In the first place,
the defense had not shown that it was physically impossible for Salvador to be at the scene of the
crime at the time it was committed (People vs. Bicog. 187 SCRA 556 [1990]; People vs. Pio
Cantuba, 183 SCRA 289 [1990]; People vs. Tamayo, 183 SCRA 375 [1990]; People vs. Andres, 155
SCRA 290 [1987]; People vs. Ornoza, 151 SCRA 495 [1987]; People vs. Tuando, 150 SCRA 8
[1987]); People vs. Petil, 149 SCRA 92 [1987]. While Salvador was on the witness stand, the
defense counsel understandably did not ask him about the distance of the scene of the crime from
the Salvador residence where he was allegedly watching TV. Neither had the prosecution ferreted
this information from Salvador on cross-examination. For her part, all that Editha Santores could say
was that the scene of the crime was "far from us" when asked by the prosecution if the distance
between the two places was about fifty meters (TSN, September 30, 1987, p.12). Considering,
however, that appellant Salvador was himself a resident of Prinza St. (TSN, August 28, 1987, p.2)
where the crime occurred, his alibi must fail. Alibi is unconvincing when the distance from the place
where the accused was and the scene of the crime can be negotiated within minutes (People vs.
Marmita, Jr., 180 SCRA 723 [1989]).

But what sealed appellant's conviction is the fact that he was recognized by Joel Duran as one of the
five persons who ganged up on Grepo. Denial and alibi cannot prevail over the prosecution witness'
positive identification of the accused as a perpetrator of the crime (Collado vs. IAC, 206 SCRA 207
[1992]; People vs. Bocatcat, SR., 188 SCRA 175 [1990]; People vs. Cirilo, Jr., 156 SCRA 397
[1987]; People vs. Danes, 131 SCRA 286 [1984]; People vs. Cortez, 57 SCRA 308 [1974]; People
vs. Esmael, 37 SCRA 601 [1971]). Worth nothing is the fact that the defense did not even try to
discredit prosecution witness Joel Duran whose damaging testimony was the principal foundation of
the prosecution theory. Unsullied, Duran's testimony must therefore be given its due weight and
credit.

However, one other aspect of the crime which the defense, even in the instant appeal, has failed to
argue in favor of appellant is the fact that the appellant had been charged with and convicted of, the
crime of murder for the killing of Orlando Grepo. Art. 248 of the Revised Penal Code provides that to
be liable for murder, an accused must be proven to have committed the killing of another person
under the attendant circumstances specified therein. Of these circumstances, the information alleges
treachery and evident premeditation to qualify the killing to murder.

It is unfortunate that the trial court failed to discuss the presence or absence of these qualifying
circumstances. However, from the evidence on record, treachery cannot be appreciated. Sole
eyewitness Joel Duran testified that while he and Alberto Villablanca were walking along Prinza
Street, they saw Grepo being mauled by five persons. While Duran may have witnessed the incident
in progress, he did not testify as to how it began. As the Court held in People vs. Tiozon (198 SCRA
368 [1991]), treachery cannot be considered where the lone witness did not see the commencement
of the assault. The importance of such testimony cannot be overemphasized considering that
treachery cannot be presumed nor established from mere suppositions.

In the same manner, evident premeditation cannot be appreciated to qualify the killing to murder in
the absence of direct evidenct of the planning and preparation to kill or when the plan was conceived
(People vs. Wenceslao, 212 SCRA 560 [1992]). Thus, in the absence of any qualifying
circumstance, the crime committed is homicide under Art 249 of the Revised Penal Code and not
murder.

As to aggravating circumstances, the information alleges nighttime and abuse of superior strength.
To be appreciated as an aggravating circumstance, there must be a convincing showing that the
accused had purposely sought nighttime in order to facilitate the commission of the crime or to
prevent its discovery or to evade the culprit's capture (People vs. Rodriguez, 193 SCRA 231 [1991]).
There is, however, no proof at all, much more a convincing one, to warrant appreciation of nighttime
as an aggravating circumstance.

Abuse of superior strength, a qualifying circumstance in murder, was alleged in the information as an
aggravating circumstance only. ** Mere numerical superiority does not always mean abuse of
superiority to qualify the killing to murder.

Appellant is liable for the crime even if he had not intended to kill Orlando Grepo. This is because he
participated in the concerted effort of mauling the victim, which was proven beyond reasonable
doubt, in furtherance of a common design to inflict physical harm on Grepo. But where the attack
commenced, the fact there are four assailants would constitute abuse of superiority (Aquino, The
Revised Penal Code, Vol. I, 1987 ed., p. 377, citing, among others, U.S. vs. Banagale, 24 Phil. 69
[1913]). Thus, the homicide committed in this case is attended by the aggravating circumstance of
abuse of superiority as five persons mauled the unarmed and defenseless victim Orlando Grepo
(People vs. Ocimar, 212 SCRA 646 [1992]).

Art. 4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person
committing a felony (delito) although the wrongful act done be different from that which he intended."
The essential requisites of Art. 4 are: (a) that an intentional felony has been committed, and (b) that
the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony
committed by the offender (People vs. Iligan, 191 SCRA 643, 651 [1990] citing People vs.
Mananquil, 132 SCRA 196, 207 [1984]). All these requisites are present in this case. The intentional
felony was the mauling of Grepo and, in the case of appellant, his dropping of the hollow block on
the fallen and hapless victim. The latter's death had been the direct, natural and logical consequence
of the felony as shown by the evidence provided by the doctors who testified for the prosecution.

Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. In view of
the presence of the aggravating circumstance of abuse of superior strength, which is not offset by
any mitigating circumstance, the penalty shall be imposed in its maximum period (Art. 64 (3),
Revised Penal Code). Parenthetically, the lower court erroneously imposed the penalty of "life
imprisonment" for murder. The proper penalty for murder under Art. 248 is reclusion perpetua and
not "life imprisonment." The need to apply the correct penalty is dictated by the fact that in
appropriate cases, a penalty under the Revised Penal Code carries with it accessory penalties (See:
People vs. Cruda, 212 SCRA 125 [1992]).

Hence, the appropriate penalty prescribed by law for the crime of homicide in the case at bar is the
maximum period of reclusion temporal which is 17 years, 4 months and 1 day to 20 years. Applying
the Indeterminate Sentence Law, the imposable penalty is ten (10) years and one (1) day of prision
mayor maximum as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal as maximum.

Wherefore, the decision appealed from is hereby MODIFIED to the extent that appellant Alfredo
Salvador is hereby declared guilty of the crime of homicide and is hereby ordered to suffer the
indeterminate sentence of ten (10) years and one (1) day of prision mayor as minimum to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal as maximum. The civil indemnity is
hereby increased to P50,000.00 in line with current jurisprudence.

SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ., concur.

# Footnotes

* Actual title.

** If not alleged as a qualifying circumstances, abuse of superior strength would be

treated as a generic aggravating circumstance if proven at the trial (Aquino, The
Revised Penal Code, Vol. I, 1987 ed., p. 376 citing People vs. Acusar, 82 Phil. 490
[1948] and People vs. Peje, 99 Phil. 1052 [1956].

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