Republic SUPREME Manila THIRD DIVISION G.R. No.

138534

of

the

Philippines COURT

March 17, 2004 THE PHILIPPINES, appellee,

PEOPLE OF vs. SPO1 VIRGILIO G. BRECINIO, appellant. DECISION CORONA, J.:

This is an appeal from the decision1 dated October 15, 1998, of the Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case No. SC-6476, finding herein appellant, SPO1 Virgilio G. Brecinio, guilty beyond reasonable doubt of the crime of murder for the killing of one Alberto Pagtananan. Appellant Brecinio was originally charged with homicide thru reckless imprudence in the Municipal Trial Court of Pagsanjan, Laguna by the PNP Chief of Police of Pagsanjan, Laguna. 2 However, upon intervention of the National Bureau of Investigation (NBI) and after a re-investigation conducted by the Office of the Laguna Provincial Prosecutor, the charge against the appellant was upgraded to murder: 3 That on the 30th day of June 1996, more or less 6:00 oclock in the evening, inside the Municipal Jail, Municipality of Pagsanjan, Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, while conveniently armed with a service firearm Colt Caliber .45 with SN 531333, did then and there willfully, unlawfully and feloniously shoot ALBERTO PAGTANANAN, a jail inmate, who was then caught unaware and was hit on the upper quadrant medical clavicular line, resulting in his instantaneous death, to the damage and prejudice of his surviving heirs. That the crime was committed with the qualifying circumstances of treachery and evident premeditation. Contrary to law. Arraigned on May 21, 1997, appellant pleaded not guilty to the charge. 4 The version of the prosecution revolved basically around the testimonies of the two eyewitnesses, Robinson Arbilo5 and Filomeno Mapalad, Jr.,6 with supplementary testimonies from Dr. Levy Abad, 7 the municipal health officer of Pagsanjan, Laguna, Dr. Arsenio de Roma8 of the Laguna Provincial Hospital who examined the victim and declared him dead on arrival, Atty. Rogelio G. Munar 9 of the NBI and Elpidia Pagtananan-Barcelona,10 the sister of the victim. Robinson Arbilo testified that, at around 5:00 p.m., on June 30, 1996, he was with inmates Sammy Bolanos, Rafael Morales, Edwin Maceda, Filomeno Mapalad, Jr. and victim Alberto Pagtananan inside the Pagsanjan municipal jail, cell no. 1, when appellant SPO1 Virgilio Brecinio, who was drunk, arrived. Appellant entered their cell and asked for their names, and the reasons for their detention. After answering, each of them received a blow in the stomach from the appellant for no apparent reason. Thereafter, appellant ordered them to bring out all their belongings from their cell. While doing so, they were hit with whatever object the former could get hold of. Appellant proceeded to the comfort room and, as he emerged therefrom, he saw the victim Alberto Pagtananan also coming out. Appellant confronted the victim and asked him where he came from. The victim answered that he had just urinated. Apparently not believing him, appellant accused the victim of "hiding" and "making a fool of him." The victim innocently replied "hindi naman po." Irritated by the answer, appellant berated the victim and when the latter looked at him, he asked, "Bat ang sama mong tumingin?" The victim did not reply. Appellant punched the victim in the stomach but still the latter said nothing.

Appellant pulled out his .45 caliber pistol tucked on his right waist and fired it twice in succession. The first shot was directed upward; the second downward. The inmates inside the cell were all cowering in fear and were huddled together in one corner of the bed, covering their ears. Witness Arbilo who was merely one-and-a-half meters in front of the appellant then saw the latter aim his gun at the victim and fire the third shot, hitting the victim in the stomach. Seeing the victim lying prostrate on the ground, the inmates lifted and laid him on the bed. At that juncture, appellant, who was standing in front of the inmates, reholstered his gun on his waist and ordered them to get water for the victim. SPO1 Bayani Montessur then arrived and ordered the victim to be brought to a nearby hospital but the latter was declared dead on arrival. Filomeno Mapalad, Jr. corroborated the testimony of Robinson Arbilo. From a distance of only three meters behind the appellant, he saw the latter fire the third shot at the victim. He also declared that there was no truth to the statement in his Sinumpaang Salaysay dated June 30, 1996 that the appellant slipped on the floor, causing the gun to fall and fire accidentally, hitting Pagtananan in the stomach. SPO1 Montessur, a colleague of appellant, prepared the said affidavit and, after getting his name and address, forced him to sign it. He signed the affidavit out of fear of the appellant who threatened to kill him if he did not cooperate. After his release from detention, Mapalad went to the NBI and gave his statement on what actually transpired. Dr. Levy Abad, municipal health officer of Pagsanjan, Laguna, conducted the post-mortem examination on the body of the victim. He found that the victim sustained one gunshot wound in the stomach and that the cause of death was shock and severe internal hemorrhage. Atty. Rogelio G. Munar, Ballistician V and Chief of the Firearm Investigation Division of the NBI, testified on Report No. 411-10-796 submitted by his subordinate, Ireneo Ordiano, who could not testify in court as he had suffered a mild stroke and still encountered difficulty in speaking. He testified on the result of the ballistics examination which revealed that the slug recovered from the body of the victim Alberto Pagtananan was a .45 caliber copper-jacketed bullet. Elpidia P. Barcelona, the sister of the victim, testified on the expenses incurred by their family as a result of her brothers death. According to her, the family spent P25,000 for the funeral services and food served during the wake, P10,000 for the coffin and P50,000 for transportation expenses in going to the NBI, plus other expenses. Contrary to the prosecutions version, appellant claimed that the shooting was accidental. He declared that he had just gone out of the comfort room and was about to tuck his .45 caliber pistol in its holster on his waist when he slipped on the wet floor, causing the gun to drop and fire. After picking up the gun, Eric Garcia, an inmate, called his attention to the fact that one of the inmates had been hit. He immediately went to the detention cell and saw the victim, Alberto Pagtananan, lying down with a wound in his stomach. He called Filomeno Mapalad Jr. and ordered him to bring the victim to the hospital. He was not able to go with the group as he was immediately placed under arrest. On cross-examination, appellant testified that his pistol was in good condition and was always loaded and cocked. Appellant also testified that when his gun fired, it hit the cement wall. Appellant further testified that, in order to assuage the feelings of the victims relatives, his wife sent a cavan of rice, coffee and sugar. They also tried to amicably settle the case with the family of the victim but were turned down. 11 NBI forensic chemist Emilia Andro-Rosaldes was also presented by the defense to testify on the result of the paraffin examination conducted on the appellant on July 2, 1996, two days after the alleged shooting incident. She testified that it was Mrs. Gemma Orbeta who made the paraffin cast on the appellant and her only participation was the examination of the paraffin cast taken from the appellant. According to her, there are four factors that can affect the presence of gun powder residue in the hands of a person who fires a gun, namely, the length of the barrel of the gun, the wind velocity, the direction of the shot(s) and the type and caliber of ammunition. She also declared that the application of paraffin wax to make the paraffin cast can remove gunpowder residue. She did not know whether paraffin wax had been applied on the hands of the appellant before the paraffin cast was made.12 The trial court, after weighing the evidence presented by both sides, gave no credence to the version of the appellant. On October 15, 1998, a decision was rendered, convicting appellant of the crime of murder. The dispositive portion read:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the Court finds the accused SPO1 VIRGILIO BRECINIO y GASTON GUILTY beyond reasonable doubt of MURDER, defined and punished under Article 248 of the Revised Penal Code, as amended by the Death Penalty Law, but appreciating in his favor the mitigating circumstance of VOLUNTARY SURRENDER, hereby sentences him to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of the deceased-victim ALBERTO PAGTANANAN the sum of P50,000.00 as indemnity for his death and the sum of P25,000.00 as expenses during the wake and to pay the costs of the instant suit. The accused shall further suffer the accessory penalties of civil interdiction and perpetual absolute disqualification pursuant to Article 41 of the Revised Penal Code. SO ORDERED. Hence, this appeal. Appellant alleges that the trial court erred in convicting him of murder and that, if an offense was indeed committed, it was only reckless imprudence resulting in homicide. A careful evaluation of the records shows that the court a quo was correct in finding appellant guilty of killing the victim. We reiterate the familiar and well-entrenched rule that the factual findings of the trial court on the credibility of witnesses deserve great weight, given the clear advantage of the trial judge (an opportunity not available to the appellate court) in the appreciation of testimonial evidence. The trial judge personally hears the witnesses and observes their deportment and manner of testifying. Although the rule admits of certain exceptions, we find no reason to hold otherwise in the present case.13 As found by the trial court and we agree both prosecution witnesses were credible. They gave a steadfast and credible narration of what they witnessed in a manner reflective of a candid and unrehearsed testimony. Robinson Arbilo, who stood only one-and-a-half meters in front of the assailant, was very direct, clear and spontaneous in describing how the appellant shot the victim. His testimony was: TRIAL PROSECUTION: Q What happened next when you heard that second shot? A I saw that Brecinio poked his gun on Pagtananan and fired it. Q Tell us your relative position from Pagtananan when you saw Brecinio poked his gun at him and fired? A We were all seated on the bed, sir. Q On your side, who is the person on your left side? A Edwin Maceda, sir. Q On your right side? A Nobody because I was seated near the wall, sir. Q Who was at the left side of Edwin Maceda? A Sammy Bolanos, sir. Q How about the person on the left side of Sammy Bolanos? A Alberto Pagtananan, sir.

Q And on the left side of Alberto Pagtananan? A Rafael Morales, sir. Q Were you able to actually see Brecinio poked (sic) a gun where Pagtananan was sitting at that time? A Yes, sir. Q Tell us how you were able to see Brecinio poked (sic) that particular gun to Pagtananan A I was seated in a stooping position my hands in both ears but I was looking at Brecinio, sir. Q What happened next when you saw Brecinio poking a gun at Pagtananan and according to you heard a gun fire? A Pagtananan sl[u]mped on the floor, sir.14 Filomeno Mapalad Jr., who was merely three meters behind the appellant, also gave a positive, straightforward and unequivocal account of what happened. The pertinent portion of his testimony was: TRIAL PROSECUTOR: Q And what happened next when Brecinio went outside while Pagtananan went inside the comfort room? A Brecinio went out from the comfort room and proceeded inside the cell. Q And when he was already inside the cell what happened next? A It was on that occasion when Pagtananan went out coming from the comfort room. Q And what happened next after Pagtananan went outside coming from the comfort room? A Brecinio got mad at Pagtananan, sir. Q How did you come to know that Brecinio got mad at Pagtananan? A Brecinio said the words, "Niloloko mo ba ako?" Q And was there any reply from Pagtananan? A No reply, sir. Q And what happened when Pagtananan did not reply on the comment of Brecinio? A Brecinio pulled out a gun from his waist, sir. Q And what did he do with that gun that he pulled from his waist? A He fired it, sir. Q Towards what direction? A Upward direction, sir.

Q And after firing that first shot towards that upward direction, what else did he do? A He fired again downwards, sir Q To whom was that second shot aimed or pointed? A Downwards direction, sir. xxx xxx xxx

Q How about the third shot? A It was aimed at Pagtananan, sir? Q And what is the position of Pagtananan at that time? A He was just seated, sir. Q How did you come to know that that third shot was aimed and pointed to Pagtananan? A I saw it, sir.15 The appellant, in an attempt to impugn the credibility of prosecution witness Filomeno Mapalad, Jr., harps on the latters recantation of his affidavit supporting the defenses "accident" theory. We find that Mapalads recantation was satisfactorily explained. He testified that he was threatened by the appellant. As a detainee, he was completely vulnerable to the threats of the appellant, a police officer and presumably his jailer. He therefore signed the said affidavit (supporting appellants "accident" version) as he was ordered to do. However, immediately after his release from detention, he went to the NBI and narrated what really transpired. He stood firm in his testimony about the direct involvement of the appellant. In this connection, the defense never showed that Mapalad was motivated by any ill-motive in implicating the appellant in the crime. When there is no evidence of improper motive on the part of the prosecution witness to testify falsely against an accused or implicate him in the commission of a crime, the logical conclusion is that no such improper motive exists and the testimony is worthy of full faith and credence. 16 Likewise, while the paraffin test was negative, such fact alone did not ipso facto prove that the appellant was innocent. Time and again, we have held that a negative paraffin result is not conclusive proof that a person has not fired a gun. Stated otherwise, it is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards.17 Since appellant submitted himself for paraffin testing only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom. The trial court correctly appreciated the presence of treachery which qualified the offense to murder. For treachery to be considered, the accused must have deliberately and consciously adopted a means of execution that rendered the person attacked with no opportunity to defend himself or to retaliate.18 As described by the prosecution, the victim and his co-detainees were inside the cell when appellant, who was drunk, manhandled them and suddenly fired three successive shots. It was the third shot that killed the victim. The testimonies of the two eyewitnesses, co-inmates of the victim, showed that the suddenness and mode of attack adopted by the appellant placed not only the victim but also all of them in such a situation where it was not possible for them to resist the attack or defend themselves. Even frontal attack can be treacherous when unexpected and the unarmed victim is in no position to repel the attack or avoid it. 19 However, this Court finds that the trial court erred in considering the mitigating circumstance of voluntary surrender.

The fact that appellant did not resist arrest or deny his criminal act did not constitute voluntary surrender. A surrender, to be voluntary, must be spontaneous and must clearly indicate the intent of the accused to submit himself unconditionally to the authorities. Here, the appellant, after shooting the victim, was immediately disarmed and placed under arrest. There was, therefore no voluntary surrender to speak of because the appellant was in fact arrested. 20 We hold that the trial court did not err in convicting the appellant of murder. The penalty therefor under Article 248 of the Revised Penal Code, as amended by RA 7659 (The Heinous Crimes Law) is reclusion perpetua to death. There being neither mitigating nor aggravating circumstances, the lesser penalty of reclusion perpetua should be imposed in accordance with Article 63 of the Revised Penal Code. We sustain the award by the trial court of civil indemnity in the amount of P50,000, pursuant to prevailing jurisprudence and the policy of the Court.21 As to actual damages, we have ruled that, when actual damages supported by receipts amount to less than P25,000 (as in this case where only P10,00022 was duly receipted), the award of temperate damages for P25,000 is justified in lieu of actual damages. Moral damages cannot be awarded because no evidence, testimonial or otherwise, was presented by the prosecution to support it. 23] WHEREFORE, the appealed decision dated October 15, 1998 of the Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case No. SC-6476, finding SPO1 Virgilio G. Brecinio guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua, is hereby AFFIRMED. Appellant is ordered to pay the amount of P50,000 as civil indemnity and P25,000 as temperate damages to the heirs of Alberto Pagtananan. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

PEOPLE OF THE BASITE, appellant.

PHILIPPINES, appellee, DECISION

vs.

EDDIE

BELLOSILLO, J.:

EDDIE BASITE was convicted by the trial court of simple rape, sentenced to reclusion perpetua and ordered to pay complaining witness P50,000.00 as civil indemnity and P50,000.00 as moral damages. He now appeals his conviction.
[1]

Sonia Pa-ay, a polio victim, was at the time of the rape nineteen (19) years old and a student of midwifery at the Cordillera College, Buyagan, La Trinidad, Benguet. On 1 September 1996 at around 10:30 in the morning, Sonia was in Natuel, Buguias, Benguet, on her way to her parents home in Tinoc, Ifugao, to get her allowance. As she was walking, she met Eddie Basite who was headed towards the opposite direction. They passed by each other. A few seconds later, Sonia heard footsteps behind her. When she looked back she saw Eddie Basite following her. He reached her, held her by both hands and told her to go down with him. Sonia resisted. But the accused Eddie Basite pulled out a knife from his waistband, thrust it at her neck and threatened to stab her if she continued to resist. He ordered her to lie down on the ground and out of fear she obeyed. The accused undressed himself and forcibly removed Sonias pants and underwear. He placed himself on top of her, inserted his penis into her vagina and made a push and pull movement. Sonia felt pain in her vagina. She resisted but the accused threatened to stab her. When he was through with the sexual assault, he warned her not to relate the incident to anyone or else he would stab her. Sonia pleaded with the accused to allow her to go home. Upon seeing that the accused had laid down his knife beside her head while he was putting on his clothes, Sonia grabbed the knife and stabbed him on the left shoulder. Wounded, the accused ran away. Sonia tried to put on her clothes, but losing her balance she rolled down the cliff and lost consciousness. When she recovered, she felt pain all over her body and could not find her bearings in her weakened state. She fell asleep and woke up at around midnight. She made her way up the mountain by the light of the moon. She reached the place where she was raped and rested for a while until she decided to continue on her way to her parents house in Tinoc, Ifugao.

Along the way she passed by a house where she was offered camote to eat. While she was eating some soldiers arrived and offered to accompany her home. On their way they met four (4) men, one of whom turned out to be a brother of the accused who identified Eddie Basite as the person described by Sonia. He proposed that they go to the place where the rape allegedly took place. When they reached the crime scene Sonia found her bag and retrieved it. The brother asked Sonia to go with him to Abatan to see Eddie and talk to him and their relatives but she refused. Sonia proceeded instead to Monsoyohoy to wait for her uncle Nazario Habungan who, she learned earlier, was going home and would pass by Monsoyohoy. As she was walking towards Monsoyohoy she met her uncle Nazario and other relatives on the way and she narrated her ordeal to them. Together with some companions they proceeded to the Abatan Police Station to report the incident and to file a complaint. As they were passing through Bot-oan on their way to Abatan they saw Eddie alighting from a yellow Ford Fiera. He appeared to have injured his right hand. Nazario approached the accused and held him by the shoulder and told him to go with them to Abatan. Eddie pushed Nazarios arm and ran away. Nazario and his companions gave chase and caught up with the accused.
[2]

Gilbert Sacla, testifying for the prosecution, said that he saw Nazario and his companions run after the accused. Since he was then the Barangay Captain of Bot-oan, Gilbert called a stop to the commotion. He learned that Eddie was being accused of having molested Sonia. Gilbert brought Eddie to the police station. The accused went with him willingly.
[3]

At the police station, Sonia was advised to undergo medical examination. She went to the Abatan Emergency Hospital for the physical examination, and to the Lutheran Hospital for the laboratory tests. She was issued a medical certificate. The following day, 3 September 1996, Sonia filed her Sworn Statement and a criminal complaint was formally lodged with the Fiscals Office against Eddie Basite.
[4] [5]

On 2 October 1996 an Information for Rape was filed against the accused who pleaded not guilty when arraigned. A Motion for Bail was filed but it was denied.
[6] [7]

The prosecution presented Dr. Relante Raper of the Abatan Emergency Hospital who testified on the medical findings he made upon examination of Sonia Pa-ay. When Sonia presented herself for examination, Dr. Raper observed that her clothes were muddy. He found mud on her right breast and on her pubic hair. There were multiple healing scratches and contusions on her arms, legs and inner thighs which could have been caused by the

application of an external force or the impact of a fall. Internal examination revealed that there were no lacerations, scratches or bleeding on the perineal area and her hymen was intact. The vagina admitted one (1) finger with difficulty. A whitish mucoid discharge found over the labia minora was sent to the Lutheran Hospital for microscopy. Examination of the discharge yielded negative for sperm. Dr. Raper clarified that it was possible, even for a married woman, to have an intact hymen since there are some hymen that are very elastic.
[8] [9] [10]

The accused denied having raped Sonia. To support his defense, the accused presented two (2) witnesses, Lidot Lacbao and Dr. Ronald Bandonill. Lidot Lacbao recalled that in the early morning of 2 September 1996 he received complainant Sonia Pa-ay in his home and offered her camote to eat. The girl was limping. She had scratches on her arms and legs and her clothes were muddy. The girl told him that she had slept in the forest and that she met a man who accosted her but that she stabbed him. Lidot asked her if she had been raped. She replied that she had not been raped since she stabbed the man and if she did not, he would have done something to her.
[11]

The accused presented Dr. Ronald Bandonill of the NBI-CAR, Baguio City, as an expert witness to dispute the findings of prosecution witness Dr. Relante Raper. Based on Dr. Rapers findings that there was no bleeding or scratches inside the genitalia and that the injuries were only outside the genital area and on the upper and lower extremities of Sonia, Dr. Bandonill opined that there was no insertion into the vagina and there was no physical contact or sexual intercourse. Otherwise, the genital area would have shown signs of trauma such as inflammation, redness, swelling and even bleeding if the hymen was the type that was easily lacerated. Dr. Bandonill added that the Medico-Legal Certificate issued by Dr. Raper was incomplete and incomprehensive and not compatible with standard Medico-Legal Reports of the NBI in rape cases.
[12] [13]

The trial court agreed with Dr. Bandonill that the Medico-Legal Certificate issued by Dr. Raper was insufficient to conclude that sexual intercourse actually took place, since it failed to indicate whether the labia and vagina of private complainant were thoroughly examined to determine sexual contact. However, it still found the accused guilty beyond reasonable doubt of the crime charged based on Sonias spontaneous, forthright and positive testimony identifying the accused as the person who raped her.
[14]

Accused-appellant assails the decision of the trial court. He argues that the trial court already entertained reasonable doubt as to his guilt when it ruled that the Medico-Legal Certificate issued by Dr. Raper was

incomprehensive and inconclusive as to the occurrence of sexual contact between him and complainant. Accused-appellant reasons that the court a quo should have taken this point in his favor and acquitted him. Furthermore, the credibility of private complainant is suspect as her testimony is inconsistent with the testimonies of the other witnesses, particularly Lidot Lacbao and Dr. Raper. Sonias testimony, if related to the testimonies of these two witnesses, would supposedly establish the untrustworthiness of her version of the events. Sonia allegedly confessed to Lidot Lacbao that she had not been raped by accused-appellant, and that she had stabbed her assailant before he could do anything wrong to her. Sonias declarations that she felt pain and blood in her vagina are belied by the medical finding that her hymen is intact. Dr. Raper also found that there were multiple healed scratches and contusions on her arms and legs which may have been caused by her fall, but it is doubtful that these wounds would have been healed the very next day when she was examined by the doctor. The trial court allegedly erred in not taking these testimonies into consideration and relying solely on the declarations of Sonia, and in disregarding Dr. Bandonills expert testimony, especially in view of its ruling that the Medico-Legal Certificate was inadequate to prove the alleged sexual intercourse. The accused fails to persuade us. In rape offenses, the lone testimony of the complainant, if credible, straightforward, convincing and otherwise consistent with human nature and the ordinary course of things, may stand to convict the accused. The credibility of the complainants testimony is of utmost significance. In this case the trial court gave credence and full probative weight to the testimony of Sonia Pa-ay.
[15]

We have consistently held that this Court will not disturb the findings of the trial court as to the credibility of witnesses. The trial court can best evaluate the credibility of witnesses and their testimonies because of its opportunity to observe the witnesses and their demeanor, conduct and attitude especially under cross-examination. Its assessment is respected unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case.
[16]

There is nothing on record that would impel us to deviate from the findings and conclusion of the trial court. Sonia Pa-ay testified in a categorical, straightforward and consistent manner. As observed by the trial court, she tearfully narrated the details of the sexual abuse she suffered at the hands of accused-appellant and the circumstances leading and subsequent

thereto. She unwaveringly and positively identified Eddie Basite as her defiler without any purpose other than to seek justice for the crime committed against her. Accused-appellant failed to impute any motive against complainant that would tarnish her credibility at the witness stand.
[17] [18]

Accused-appellant harps on the fact that the trial court discounted the Medico-Legal Certificate issued by Dr. Raper. This allegedly shows reasonable doubt as to the fact of sexual intercourse between accusedappellant and private complainant. On this matter, jurisprudence holds that even without a medical examination, the accused may still be convicted of rape as long as the testimony of the complainant meets the test of credibility and resolutely points to the accused as the author of the crime. A medical certificate is not indispensable to prove rape.
[19]

The defense further avers that Sonias testimony of rape is inconsistent with the findings of Dr. Raper that there were no lacerations in her vagina and that her hymen was intact. But the absence of fresh lacerations in the vagina does not prove that private complainant was not sexually abused. For rape to be consummated, rupture of the hymen is not necessary, nor is it essential that the vagina sustains a laceration. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. In this case, Sonia categorically testified that accused-appellant inserted his penis into her vagina and she felt pain when he did so.
[20] [21]

Sonias testimony is also alleged to be inconsistent with Lidot Lacbaos statement that she denied having been abused by the man who accosted her. If we look at the records however, Lidot Lacbaos statement would be inconsistent with the attitude of disclosure that Sonia so far had with the other people she met after the rape incident. Sonia related what had happened to her, i.e., she had been raped by accused, to the soldiers who came to the house and who offered to accompany her home to report the incident to the barangay, and to the four (4) men she and the soldiers met while on their way. One of the four (4) men was accuseds brother, who himself identified the accused and offered to bring Sonia to his relatives to talk things over. She later met her uncle and told him she had been raped. Lidot Lacbaos testimony becomes doubtful when viewed against the whole of complainants behavior after the rape and her testimony during trial.
[22] [23] [24]

As to the opinions of defense expert witness Dr. Bandonill, it is important to note that the testimony of expert witnesses must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the

court in the determination of the issue before it. It has been said of expert testimonies [25]

Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.
[26]

Dr. Bandonills expertise in the medical examination of rape victims was displayed in court. He clearly explained the external and internal changes that happen to a womans body after consensual intercourse and rape, and what findings may be had in the examination of a rape victim. Dr. Bandonills opinion on the rape case is based on the findings made by Dr. Raper in his Medico-Legal Certificate. He did not personally examine private complainant. Based on the Medico-Legal Certificate alone, Dr. Bandonill surmised that there was no sexual contact between accused-appellant and complainant. He was however also of the view that the physical examination and Medico-Legal Certificate of Sonia Pa-ay were incomplete and not comprehensive as compared to the required Medical Report of the NBI. As the trial court found, the Certificate failed to indicate whether the labia and vagina of the private complainant were thoroughly examined to determine if sexual contact took place.
[27] [28]

That the trial court considered Dr. Bandonills expert testimony to rule on the sufficiency of the Medico-Legal Certificate issued by Dr. Raper does not mean that the court a quo doubted accused-appellants guilt. The trial court merely used Dr. Bandonills testimony to determine for itself if that MedicoLegal Certificate would satisfactorily show the results of a complete and thorough physical examination of Sonia Pa-ay, consistent with the physical examinations being conducted by the NBI and Dr. Bandonill. Accused-appellant finally contends that the trial court should have considered the mitigating circumstance of voluntary surrender in his favor. He

explains that he voluntarily surrendered to then Barangay Captain Gilbert Sacla, and willingly went with him and complainants relatives to the police station in Abatan. We are not persuaded. A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. If none of these two (2) reasons impelled the accused to surrender, because his surrender was obviously motivated more by an intention to insure his safety, his arrest being inevitable, the surrender is not spontaneous.
[29]

The conduct of accused-appellant after the commission of the offense, of running away after having been stabbed by private complainant and of fleeing from complainants relatives when they tried to bring him to the authorities, do not show voluntary surrender as contemplated under the law. It appears that accused-appellant willingly went to the police authorities with Gilbert Sacla only to escape the wrath of private complainants relatives who were pursuing him and who appeared to be thirsting for his blood. In the instant case, the guilt of accused-appellant Eddie Basite has been proved beyond reasonable doubt. Paragraph 1 of Art. 335 of The Revised Penal Code punishes with reclusion perpetua an accused who has carnal knowledge of a woman with the use of force or intimidation. The use of a deadly weapon, which would otherwise have qualified the crime, is not alleged in the Information, hence even if proved, may not be appreciated against accused-appellant. WHEREFORE, the assailed Decision of the court a quo finding accusedappellant EDDIE BASITE guilty of simple rape and sentencing him to reclusion perpetua and to pay complaining witness Sonia Pa-ay the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages is AFFIRMED. Costs against accused-appellant. SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, CORTEZANO y PAJO, accused-appellant. DECISION

YNARES-SANTIAGO, J.:

vs. JOB

Accused-accused-appellant Job Cortezano y Pajo was charged with Murder in Criminal Case No. RTC 98-266 before the Regional Trial Court of Calabanga, Camarines Sur, Branch 63. At his arraignment, accused-appellant entered a plea of not guilty. Trial on the merits proceeded and thereafter, a judgment was rendered by the trial court convicting accused-appellant of the crime charged. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of the accused beyond reasonable doubt, accused Job Cortezano is here found GUILTY of the offense of Murder. He is ordered to suffer the penalty of Reclusion Perpetua and to pay the heirs of Roderick Valentin the following amounts: 1. actual damages in the amount of P16,520.00; 2. P50,000.00 for the death of the victim; 3. P30,000.00 for moral damages; and 4. to pay the costs.[1] Accused-appellant is now before this Court, raising the following errors:
I

THE COURT A QUO GRAVELY ERRED IN GIVING CREDENCE TO THE IDENTIFICATION OF THE ACCUSED BY PROSECUTION WITNESS JERNY VALENTIN.
II

THE COURT A QUO GRAVELY ERRED IN CONSIDERING THE ALLEGED DYING DECLARATION OF THE DECEASED IN THE IDENTIFICATION OF THE ACCUSED.
III

THE COURT A QUO ERRED IN NOT GIVING CREDENCE TO THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED.[2]

The events of this fateful incident, according to the prosecution, unraveled at 7:00 in the evening of May 30, 1998, when the unsuspecting victim, Roderick Valentin, and his younger brother,Jerny, were on their way to fetch fresh water from a well in Daligan, Bonawon on board a banca. The darkness and silence of the early evening were shattered when a flashlight beam originating from some point along the shore fell on Roderick and a gunshot rang out. The bullet hit Roderick in the chest. Within seconds, the light shifted and focused on Jerny. Another shot was fired, but it missed him. The gunman extinguished his light and approached the banca. Jerny, recovering from the shock of the unexpected attack, got hold of his flashlight and beamed it on the approaching shooter. From a distance of about six (6) meters, both Jerny and the wounded Roderick immediately recognized accused-appellant Job Cortezano. Despite the shock and pain, Roderick asked Cortezano why he had shot him (Roderick). Alarmed that he had been recognized and identified, Cortezano hurriedly left the scene. Jerny then started paddling the banca towards the direction of their house to get help for Roderick. Jimmy Valentin, father of Roderick and Jerny, heard Jerny repeatedly screaming that Roderick had been shot by Cortezano. They immediately transferred Roderick to a rented motorizedbanca to bring him to the nearest hospital. On the way to the hospital, Roderick kept crying from the pain and muttering that he was shot by Cortezano. Roderick never reached the hospital alive. He expired at 10:00 that very night cradled in the arms of his mother, Tita Valentin. At the time of his death, Roderick was only 25 years old, and was the eldest child. His P200.00 daily wage as a fishpond worker helped support his parents and siblings. The material loss of the family compounded the emotional trauma that it suffered from Rodericks untimely demise. These events and circumstances were narrated by Jerny, Jimmy and Tita Valentin on direct- and cross-examination. Jesus Alonzo, barangay captain of Daligan, Tinambac, Camarines Sur, testifying for the prosecution averred that the day after Roderick was shot, Job Cortezanos father informed him that his son wanted to surrender. Upon Alonzos questioning, Cortezano admitted having shot Roderick with a gun which he turned over to a certain Victor Pelicia, a CAFGU member from Siruma,Camarines Sur. Alonzo turned over Cortezano to the police authorities at the PNP Tinambac Headquarters. Another prosecution witness, PNP Investigator Crescencio Arganda, testified that the crime was reported by Jimmy Valentin and entered in the

police blotter on May 31, 1998, the day after the shooting. He also recorded therein the surrender and detention of Cortezano.
[3]

The last witness for the prosecution was Dr. Salvador Betito, Jr., who conducted the post-mortem examination of Rodericks remains. His medicolegal autopsy report showed that the bullet entered Rodericks back, piercing his chest, then exiting 3 inches away from the right nipple. Rapid internal and external hemorrhage secondary to the gunshot wound was the reported cause of death. Judging from the bullets trajectory and the location of the entrance and exit wounds, Dr. Betito explained that the victims back was turned to his assailant who was standing not too far to the left and rear of the victim. The evidence for the defense consisted of the testimonies of Job Cortezano himself, his father Hannibal Cortezano, and that of Jovenal Agbones, an acquaintance. Accused-appellantCortezano denied that he shot Roderick, alleging he was nowhere near the scene of the crime at the time that it was supposed to have been committed. He narrated that he was at the house of his parents in downtown Daligan, Tinambac, Camarines Sur, from 7:00 in the evening of May 30, 1998 until 7:00 in the morning of the following day. He came from the fiesta celebration of their barangay and was feeling inebriated, so he decided to sleep at his parents house. Later, Victor Pelicia, a relative of his mother, woke him up and told him that he (Pelicia) had shot somebody. Accused-appellant did not bother to ascertain who had been shot and where it occurred, as he was still in a drunken stupor. He went back to sleep. The next day, he met the elder Valentins and they told him Roderick had been shot. It was only then that he remembered what Pelicia told him the night before. Accused-appellant Cortezano described Pelicia as a member of the CAFGU who had the same build, height and countenance as him. On the night the shooting took place, Pelicia went to the Cortezanos house for a drinking session. He brought with him, and even publicly displayed, a .38 caliber handgun. The following day, Cortezano stated, he was threatened by Pelicia when the latter learned that Cortezano was related to the Valentins. Cortezano also denied having confessed to Barangay Captain Jesus Alonzo that he was the one who shot Roderick. He alleged that Alonzo came to the Cortezano residence upon the request of accused-appellants father. The elder Cortezano had wanted his son to be escorted to the Tinambac Police Station because they were afraid of Pelicias threats.

However, on cross-examination, accused-appellant admitted that he confessed to having shot Roderick, but only because of Pelicias threats against him. He also described his relations with the Valentin family prior to the incident as harmonious, such that they had no reason to testify falsely against him. Hannibal Cortezano, accused-appellants father, corroborated his sons testimony. He narrated that in the late afternoon of May 30, 1998, his son and a certain member of the CAFGU, later identified as Pelicia, arrived at the Cortezano residence. Pelicia wanted to take a bath, so his son gave him directions to the well where the local residents fetched fresh water. Some thirty minutes later, Pelicia returned from the well. Hannibal overheard Pelicia say to the accused, Even if that person will be brought to the hospital, he will not survive. Then Pelicia removed the gun tucked into the waistband of his pants, and took out two (2) bullets from the chamber of the gun. Pelicia dared the people around him to take the gun, but they were all intimidated by his threatening stance. Pelicia warned them not to say anything or something bad would happen to them. He left Cortezanos house the following day, May 31, 1998, at around 2:00 in the afternoon. Hannibal further denied that he facilitated his sons surrender before Barangay Captain Alonzo, but admitted asking Alonzo to accompany Job to the police headquarters at Tinambac since he had been informed by police investigator Crescencio Arganda that Job was the primary suspect. Jovenal Agbones testified that at about 7:30 of that fateful evening, he was at the Cortezano residence to attend the barangay fiesta celebration. While there, he heard Pelicia remark that a certain person would not survive even if he were brought to the hospital. After hearing these words, he got scared so he left and went home. He described Pelicia as having the same build as accused-appellant, but a little bit taller than the latter. In convicting accused-appellant, the trial court lent much weight to Jerny Valentins eyewitness account of the events and his identification of Cortezano as the perpetrator. The trial court held that Jerny Valentin, who was then 13 years old, delivered a straightforward, unshaken and convincing narrative of the incident about the shooting of his brother, Roderick Valentin by accused-appellant. Secondly, Jernys testimony was corroborated by the dying declaration of the victim, Roderick. More particularly, the trial court found:

In the instant case, the declaration of Roderick Valentin that he was shot by accused Job Cortezano as told by him to his father and mother is considered by this Court as a dying declaration and an exception to the hearsay rule. He stated until that time that he died that it was Job Cortezano who shot him and while he was telling his father and mother that it was Job Cortezano who shot him, he further told them that he could not bear it anymore. In other words, he knew of his impending death. Under such circumstances, knowing that his injuries were fatal and being aware that he would die soon, he could be expected to tell the truth. There was no motive for him to tell falsehood because of his awareness that he will soon die, as a matter of fact, immediately after and he did not even reach the hospital, he died on their way to the hospital. So that his dying declaration as narrated by him to his parents is entitled to the highest credence because knowing his impending death, he would not make any careless and false accusation. All the requisites as narrated above in order that a dying declaration may be an exception to the hearsay rule has been complied with.[4] The trial court refused to give credence to accused-appellants defense of alibi and denial, considering that he was positively identified as the one who shot Roderick Valentin. It found the attendance of the aggravating circumstance of treachery and rejected accused-appellants claim of the mitigating circumstance of voluntary surrender. Accused-appellant assails the eyewitness testimony of Jerny Valentin as being riddled with inconsistencies and implausibilities. Firstly, he posits that it is contrary to normal human behavior for a perpetrator to come near his victim after shooting, when the natural instinct of a gunman would be to flee and escape detection or identification. Secondly, accused-appellant points out that while Jerny testified in court that he recognized accused-appellant from the beam of his flashlight, in his earlier sworn statement, Jerny averred that he recognized accused-appellant when the latter ran towards the forested area near the seashore. Considering that it was dark and Jerny was about six meters away from where the gunman stood, the solitary illumination from Jernysflashlight could not have been sufficient for both Jerny and Roderick to identify the gunman with utmost certainty. We do not agree. There is no standard form of behavior among perpetrators of crimes. Some may flee from the crime scene, while others may approach the fallen victim to check on his condition or to see the job done. Still others go to take a look at the victim out of sheer morbid curiosity. There is nothing that precludes a gunman from going to his prey after shooting, especially when he does not expect resistance from the victim. In the instant case, after having fired two shots, one for each of the Valentin brothers, in quick succession, it would not be contrary to known

human behavior for accused-appellant to go to thebanca, perhaps to ensure the success of his handiwork. Except for the Valentin brothers and accusedappellant himself, the place was deserted. It was dark, and therefore, he had no fear of being identified, much less apprehended. He only fled after Jernys flashlight beamed on him and he realized his intended victims were not only alive, but were well enough to recognize him. Accusedappellants actuations, as testified to by Jerny, are much in accordance with the behavior of most assailants. There is nothing implausible or incredible in Jernys testimony on this matter. It is of no moment that it was dark and that accused-appellant was about six (6) meters away from the Valentin brothers. We are aware of the fact that in a dark place, the brightness of a single lamp, or in this case a flashlight, is magnified. And when there are no obstructions, the beam of that flashlight can be as effective as the beacon of a lighthouse piercing the fog. Thus, we have repeatedly pronounced that flashlights, even mere moonlight or starlight, provides fair and sufficient illumination to identify an assailant. Accusedappellants assault on the credibility of the witness testimony on that ground is therefore unmeritorious.
[5] [6]

There is no doubt that the Valentin brothers and accused-appellant knew each other very well. They are practically neighbors, residing in the same barangay. Accused-appellant even claims to be related to the Valentin brothers. Their ability to identify each other, even in unusual circumstances, cannot be easily impaired. Having gained familiarity with one another through the years, identification becomes a relatively easy task even from a considerable distance. It is no wonder, then, that both Roderick and Jerny immediately recognized accused-appellant. Jurisprudence acknowledges that victims of criminal violence have the propensity for seeing, recognizing and remembering the faces and features of their attackers. There is thus no compelling reason to doubt the accuracy of their identification of accused-appellant as their attacker.
[7] [8]

Accused-appellant also points out that Jerny gave a different account of the events that fateful night in his sworn statement, casting doubt on the veracity of his testimony in court. Again, we find no merit in accusedappellants contention. It is well-established that inconsistencies between testimony given in open court and sworn statements given to investigators do not necessarily discredit the witness since ex-parte affidavits are seldom complete.
[9]

Moreover, it appears in the records of this case that Jerny was never allowed to explain the inconsistencies between his testimony and the sworn statement. The records attest to this:
Q: When you focused your flashlight to (sic) Job Cortezano on May 30, 1998, Mr. Witness, you agree with me that a flashlight was focused on his face that is why you were able to recognize him along the shore, am I right? A: I was able to focus the flashlight on the entire body of Job Cortezano.

Q: You mean to say that you were able to focus the flashlight entirely at one flash of your light? A: Yes, sir.

Q: Immediately, you saw him, he was already running when you flash your flashlight? A: When I focused the flashlight at him, he was looking at us and after a while, he ran away.

Q: But can you still remember, Mr. Witness, that you executed a sworn statement in connection with this case? A: Yes, sir.

Q: Now, I am showing this to you, a Sworn Statement now attached to the record of the case appearing to be signed and duly executed by one, Jerny Valintin (sic), will you please go over it and tell the honorable court if this is the one which you executed? A: This is the one.

xxx xxx

xxx

Q: Of course, in this Sworn Statement you can still remember that you made this statement when you were asked of (sic) this question. I am referring to question number 7 and I quote: Q: How did you recognize said Job Cortezano who shot your brother inspite of nighttime. And your Answer, which I quote: I have with me a flashlight and I saw his face while running towards the forested area of seashore after he shot us. Do you remember when you made that answer in your Sworn Statement? A: Yes, sir.

Atty. Tayer: We likewise marked, just like the previous marking, for the purpose of the defense in this particular question and answer no. 7 be bracketed and marked as our Exhibit I-B. With that, your honor, I am through with my question.[10]

It is clear that while the pertinent portion of his sworn statement was read to Jerny, counsel for the defense failed to call his attention to the alleged discrepancy in order to elicit a response from him. Considering that the sworn statement was written in English, a language that Jerny admittedly could not understand, a cursory reading of that portion of the sworn statement naturally failed to impress upon Jerny the fact that his testimony differed from his

extrajudicial statement. Moreover, the defense counsel never asked him to explain the inconsistency. We have uniformly held that previous extrajudicial statements cannot be employed to impeach the credibility of a witness unless his attention is first directed to the discrepancies, and he must then be given an opportunity to explain them. It is only when the witness cannot give a reasonable explanation that he shall be deemed impeached.
[11]

Besides, there may not even be a conflict at all. Jerny testified that he focused the flashlight on accused-appellants face and body, after which the latter ran away. In his sworn statement,Jerny narrated that he saw accusedappellants face while he was running towards the mangrove trees along the seashore. These two accounts do not necessarily conflict, but rather clarify further the chronology of events as witnessed by Jerny. He focused the light on accused-appellant, enabling him and Roderick to recognize the latter. When accused-appellant fled, Jerny trained the flashlight on accusedappellant, following his hasty flight towards the mangrove trees. Contrary to accused-appellants postulation, there is no inconsistency or discrepancy between Jernystestimony and sworn statement, at least none that would negate his creditworthiness. The trial court correctly appreciated the testimony of Jerny who, at that time, was only thirteen (13) years old. It is the trial court that has the primary opportunity to observe the child-witness as he testifies and to weigh his apparent possession or lack of intelligence, as well as his understanding of the obligation of an oath. The honesty and candor of Jerny is reflected in his testimony before the trial court. Thus, his competence and credibility to testify were properly considered by the trial court. Not only was Jerny a reliable eyewitness; his testimony itself was straightforward and worthy of credence. We find nothing in this appeal that would compel us to rule otherwise.
[12] [13]

Accused-appellant also assails the trial courts reliance on Rodericks dying declaration. He insists that the dying declaration is a mere product of the Valentins afterthought, considering that when Jimmy reported the crime to the police authorities on May 31, 1998, he stated that the assailant was unidentified. Jimmys reason, that he had a headache at that time, is a lame excuse, according to accused-appellant. He claims that the dying declaration is a mere concoction employed to implicate him just because he closely resembles the real perpetrator. Accused-appellants contentions are bereft of merit. In the parallel case of People v. Lapay, we held that delay in revealing the names of the
[14]

malefactors does not, by itself, impair the credibility of the prosecution witnesses and their testimonies. Time and again, this Court has ruled that the nondisclosure by the witness to the police officers of accused-appellants identity immediately after the occurrence of the crime is not entirely against human experience.
[15]

In his testimony, Jimmy Valentin explained his lapse in making an identification at the time he reported the crime to the police thus:
A: What I can say about that sir, is that I did not tell the police about the truth that I saw the one who shoot because I know the one who shoot because during that time I was asked by the police I had a headache. In addition I dont want my family to be involved in case I tell the truth to the police regarding the person that I know the one who shoot.[16]

We find nothing unusual in this explanation of Jimmy Valentin. It is of judicial notice that family members of victims of violent crimes react to an unnatural occurrence in diverse ways. Some, if they have any information about the incident, would waste no time in telling the police everything they know. Others would rather choose, or are forced, to clam up and refuse to divulge any information they may possess. And then, there are the majority of family members who would first hesitate before they reveal what they know. This hesitation can be attributed to various circumstances, some of them attendant in this case. First, it is understandable that at the time Jimmy reported the crime to the police, he was still reeling from extreme shock and grief due to the unexpected and gruesome death of his son. We note that he had had no rest from the time he heard from Jerny that Roderick had been shot, going through the trauma of watching his son die before his very eyes and hearing his sons cries of pain and despair up to the last breath. After all of that, he had to attend to the preparations for the wake and burial of Rodericks remains. That Jimmy must have suffered a terrible headache when talking to the police the following day is a fact that cannot be dismissed as a lame excuse. We are not unaware that headaches arising from traumatic or stressful events can be debilitating and may even affect a persons perception and judgment. On the other hand, Jimmy knew that the killer of his son was still on the loose, and he had a very real fear that accused-appellant might turn his ire on the rest of the Valentin family should he point to accused-appellant as the killer. In fact, his other son, Jerny, had already been shot at by accusedappellant. Fear for ones life and that of his loved ones explains the failure on the part of a witness to immediately notify the authorities and identify the culprit.
[17]

In People v. Santos, we have ruled that the revelation by a widow a week later of her deceased husbands ante-mortem statement identifying his killer was a delay that was not without reason. This Court recognizes the inevitable fact that fear was the reason that compelled the victims wife not to divulge the identity of the assailant when the police first investigated her. Thus, the delay does not detract from the credibility of her testimony in court.
[18]

For a man who eked out a meager living for himself and his family from fishing, Jimmy Valentin could only think of the safety of the rest of his family as his primary concern. The idea that failing to name accused-appellant as his sons assailant immediately to the police authorities might jeopardize the case against accused-appellant would not have crossed his mind at that very instant. He needed time to process the events in his mind, to weigh the consequences, to consider the welfare of his family, even as he had to deal with the grief and pain from the sudden and violent death of his son. Be that as it may, it did not take him long to come to the realization that positively identifying accused-appellant as the killer repeatedly named by his son at the point of death would be the best thing to do. In fine, when confronted with his omission, the reasons forwarded by Jimmy Valentin satisfactorily explained why he failed to disclose the name of the accused-appellant as the assailant. What is important is that he identified him as the person mentioned by Roderick in his dying declaration, when he testified in court. His delay in revealing the information that accused-appellant was the killer does not, by itself, impair his credibility, nor does it make Rodericks dying declaration a mere figment of Jimmys imagination. As we held in the Santos case:
[19]

Well-settled is the rule that delay in reporting the ante mortem declaration does not automatically render the testimony doubtful. Failure to reveal or describe the assailants identity at once does not necessarily affect, much less impair, the credibility of said witness.[20] It is equally established that an ante-mortem statement or a dying declaration is evidence of the highest order and is entitled to the utmost credence because no person who knows of his impending death would make a careless and false accusation. At the brink of death, all thoughts of concocting lies are banished.
[21] [22]

The same declaration may even be considered as part of the res gestae. Rodericks declaration was made spontaneously after a startling occurrence; his statements were made before he had time to contrive or devise; and his statement concerned his attacker and the immediately

attending circumstances of the attack. Thus, the statements of Roderick, uttered shortly after he was shot and hours before his death identifying the accused-appellant as the gunman qualifies both as a dying declaration and as part of the res gestae.
[23] [24]

The trial court did not err in relying on Jimmys and Tita Valentins testimonies concerning Rodericks dying declaration. The trial court had the opportunity to observe the said witnesses firsthand and to determine if they were telling the truth or not. Even if it were said that the Valentins are biased witnesses on account of their relationship with the victim, in the absence of a showing of improper motive on their part, their testimonies are not affected by the fact that the victim was their son. It is a fundamental precept that relationship per se does not give rise to a presumption of bias, or ulterior motive, nor does it ipso facto impair the credibility or tarnish the testimony of a witness.
[25] [26] [27]

Accused-appellant himself testified that he had harmonious relations with the Valentins prior to the incident; that he and Roderick were like brothers. He admitted that the Valentins had no reason to implicate him for they were relatives. There was no shred of evidence to indicate that the witnesses for the prosecution were impelled by any improper motive. It is evident that they had no reason to falsely testify and thereby cause damnation to accused-appellant. Thus, their positive identification of accused-appellant as the perpetrator must prevail over accused-appellants bare denials and contrived alibi.
[28] [29]

Anent accused-appellants defense of alibi, we find no reason to depart from the well-entrenched rule that alibi is unavailing as a defense where there is positive identification, or when there is an ante-mortem declaration received in evidence either as a dying declaration or as part of the res gestae or both.
[30]

Moreover, while accused-appellant was unable to prove that it was physically impossible for him to be at the scene of the crime at the time of its commission, several material points in his version of the events do not dovetail with that of his fathers testimony. Accused-appellant stated that he arrived at his parents house, drunk and alone, at around 7:00 in the evening of May 30, 1998. He then fell asleep and even missed eating dinner. On the other hand, his father, Hannibal Cortezano, testified that accused-appellant arrived at his house with a member of the CAFGU, later identified as Victor Pelicia, at 5:00 in the afternoon of the same day. After resting for a while, Hannibal narrated, accused-appellant directed Pelicia to the well because the latter wanted to take a bath. Pelicia returned thirty minutes later and stayed in the kitchen, where he had a drinking spree with several other
[31]

persons. It was then that Hannibal overheard Pelicia say that even if the victim was to be brought to the hospital, he would not survive. Hannibal further testified that accused-appellant went to sleep at around midnight at the end of the drinking session.
[32] [33]

In contrast, accused-appellant testified that Pelicia arrived at his parents house at about 7:30 that night. He also categorically stated that only his parents, apart from himself, learned that night that Pelicia had shot someone, and that no one else knew or heard about the incident.
[34]

While Hannibal Cortezano denies that he knew Pelicia before the incident, accused-appellant was aware that Pelicia was the relative of his mother and that he was an occasional guest at his parents home during fiesta celebrations.
[35]

The apparent discrepancies in their testimonies bore gaping holes in accused-appellants defense of alibi. One did not corroborate the other. These are material because they failed to establish accusedappellants true whereabouts and his activities on that night. Furthermore, the alleged participation of a certain Victor Pelicia in the commission of the crime is laden with doubt due to their conflicting depictions of his character and actuation. The testimony of Jovenal Agbones did not help accused-appellant either. Whereas accused-appellant said he was sleeping, Jovenal narrated that accused-appellant was not yet drunk but was among those having a drinking session at the Cortezano house that night. He did state hearing someone say that even if the victim were brought to the hospital, he would not survive. Jovenal hurriedly left after hearing that remark because he got scared. His testimony does not in any way bolster accused-appellants claim that it was Victor Pelicia who shot Roderick. In fact,Jovenals testimony only highlights accused-appellants futile attempt to escape culpability by using alibi as a defense.
[36]

The easiest excuse accused-appellant can concoct is to claim that he was asleep when the crime was committed. Unfortunately for accused-appellant, his corroborating witnesses both declared that he was very much awake and was seen drinking with others before and after the crime occurred. It is, therefore, obvious that accused-appellants alibi is not only inherently weak, but is also a potent fabrication.
[37]

Furthermore, accused-appellant failed to prove that it was physically impossible for him to be at the scene of the crime or within its immediate vicinity. The records show that the Cortezanos house was less than one (1)

kilometer way from the place where the crime was committed. Apart from saying that he was asleep at that time, accused-appellant presented no other credible evidence to prove that he was not at the locus delicti or scene of the crime when it was committed and that it was physically impossible for him to be at the crime scene at the proximate time of its commission. The law dictates that the requirement of time and place must be stringently complied with.
[38] [39] [40]

Where accused-appellants alibi is established only by himself, his family and friends, his denial of culpability should pass the strictest scrutiny. In this case, the defense dismally failed to establish any plausible alibi. Hence, it cannot prevail over the testimonies of the more credible witnesses for the prosecution.
[41] [42]

The trial court correctly appreciated the aggravating circumstance of treachery against accused-appellant. It held: In the instant case, the victim Roderick Valentin was shot while on board a motorboat (sic). The assailant who was identified as the accused in this case was on the shore. The attack was so sudden which shows a treacherous execution of the criminal act. The unexpected and sudden attack by the accused rendered the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack, which constitutes alevosia. The evidence shows that when Roderick Valentin was attacked, he was on board the boat while his assailant was on the shore. So that with that situation, he could not defend himself and the assailant, the accused in this case employed means and method of execution which will insure the offenders safety from defensive or retaliatory act on the part of the offended party, which means that no opportunity is given the latter to defend himself or to retaliate. Furthermore, the severity and the location of the injuries as testified to by Dr. Betito shows that the attack was sudden. Such act of the accused, the means or method of execution was deliberately chosen by him, considering that the victim was on board the boat so he could not really defend himself which the assailant was on the shore. The qualifying circumstance of treachery having been proven by the prosecution, qualifies this case to the offense of murder as charged.[43] On the other hand, the trial court rejected the mitigating circumstance of voluntary surrender, as claimed by accused-appellant. We quote with approval the trial courts ruling in this regard: In the instant case no mitigating nor aggravating circumstances have been proven. In order that voluntary surrender can be considered as a mitigating circumstance, the following requisites must be present:

a) the offender has not been actually arrested; b) the offender surrendered himself to a person in authority or to the latters agent; and c) the surrender was voluntary. For a surrender to be voluntary, it must be spontaneous and show the intent of the accused to submit himself unconditionally to the authorities, either: 1) because he acknowledges his guilt; or 2) because he wishes to save them the trouble and expense incidental to his search and capture. (People vs. Disu, G.R. No. 109617, August 11, 1997).

The accused had testified that he voluntarily surrendered not because he has acknowledged his guilt but because there was a threat made by the person whom he alleged to be the real assailant. However, this alibi of the accused was not considered by the court. As enunciated in the above ruling of the Supreme Court, in order for a voluntary surrender to be considered as a mitigating circumstance, it must show the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expense incidental to his search and capture. This was not the main purpose of the accused when he surrendered, as a matter of fact, he denied in his defense that he had committed the crime charged. Because of such denial, his voluntary surrender cannot be considered a mitigating circumstance in his favor. There being no mitigating and no aggravating circumstances proven by the parties, the penalty to be imposed in accordance with Article 63 of the Revised Penal Code is the lesser penalty of what is provided for under Article 248 of the Revised Penal Code.[44] Lastly, the trial courts award of P30,000.00 as and for moral damages should be increased to P50,000.00, in accordance with prevailing jurisprudence.
[45]

The prosecution has also amply demonstrated that Roderick was 25 years old and was earning a daily wage of P200.00. Because Roderick was the eldest child and he was the familys source of financial support, it is but just that the family be compensated for his loss of earning capacity. The formula for computing loss of earning capacity is 2/3 x [80 - age of the victim at the time of death] x [reasonable portion of the annual net income which would have been received as support by the heirs]. Hence, the lost earnings of the deceased Roderick Valentin is computed as follows:
[46]

= [2/3 x (80-25)] x [P36,000.00] = P1,320,000.00 WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Calabanga, Camarines Sur, Branch 63, finding accusedappellant guilty beyond reasonable doubt of the crime of Murder, and

sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with MODIFICATION. As modified, accused-appellant is ordered to pay the heirs of the deceased, Roderick Valentin, the increased amount of P50,000.00 as moral damages and the amount of P1,320,000.00 for loss of earning capacity, in addition to the actual damages of P16,520.00 and civil indemnity of P50,000.00 awarded by the trial court. No pronouncement as to costs. SO ORDERED.