SECOND DIVISION

[G.R. No. 132784. October 30, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONILO VILLARBA y BAUTISTA, WILFREDO MAGGAY SAQUING, and PETER MAGGAY Y FLORDELIZ, accused-appellants.

D E C I S I O N

MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 160, Pasig City, finding accused-appellants guilty of murder and sentencing each of them to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased the amounts of P50,000.00 as indemnity, P21,026.00 as actual damages, and P300,000.00 for loss of earning capacity.

The information charged -

That on or about the 12th day of March 1995, in the Municipality of Pateros, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another, armed with a dagger (bayonet), a fan knife and a piece of wood with metal wrapped on top, with intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and stab one Moises Pascua y Barrugo, as a result of which, the latter sustained stab wounds on the different parts of his body which directly caused his death.

CONTRARY TO LAW.[2]

Accused-appellants pleaded not guilty, whereupon trial ensued. Two eyewitnesses for the prosecution positively identified accused-appellants as the persons who attacked and killed Moises Pascua, a 26-year old tricycle driver, in the afternoon of March 12, 1995. The first was Reynaldo Pascua, himself a tricycle driver, who is the cousin of the deceased. He testified that at around 4 o clock in the afternoon of March 12, 1995, he and the deceased were plying their route on Masagana St., Pateros, Metro Manila. Moses Pascua was about three to four arms length ahead of him when his way was blocked by accused-appellants as they passed in front of the latters house on Masagana St. Wilfredo and Peter Maggay held the tricycle, then Leonilo Villarba stabbed Moises Pascua several times with a bayonet. Unable to endure seeing his cousin being stabbed, Reynaldo ran home, all the while shouting Si Ipot! Pinagsasaksak. (Ipot is being attacked and stabbed.) His children prevented him from going out, but he went back after 20 minutes to the place where Moises Pascua had been waylaid and he saw accused-appellants already under police custody. He then went to the police station and gave his statement.[3]

The second eyewitness was Rolando Membrera. He testified that at around 4:30 in the afternoon of March 12, 1995, he was on his way home after helping in the construction of an artesian well somewhere in the neighborhood. Near the corner of Masagana St. and another street going to the right, he saw three men, whom he identified to be accused-appellants, attacking Moises Pascua. The latter was cornered and was being stabbed by Wilfredo Maggay and Leonilo Villarba, who were armed with a fan knife and a bayonet respectively. On the other hand, he saw Peter Maggay hitting Moises Pascua with a metal-tipped wooden bar.[4] Moises Pascua fell to the ground but, as he tried to stand up, Leonilo Villarba, pulled him by the shirt and attacked him again. When his attackers finally released him, he fell face down on the ground and was left in that condition when accused-appellants fled. Moises Pascua managed to get up and walked toward Rolando Membrera, who stayed with him until other people arrived.[5] Rolando Membrera then went home. The next time he saw Moises Pascua was already during the latters wake.[6]

The prosecution presented other witnesses, namely, (1) Dr. Emmanuel Aranas, medico-legal officer of the PNP who conducted the postmortem examination on the body of Moises Pascua; (2) Cesar Calderon, who took Moises Pascua to the hospital; (3) Luzviminda Pascua, the victims wife who testified regarding the extent of accused-appellants civil liability; (4) Marilyn Pascual Lansangan, the victims sister who also testified in support of the claim for damages; (6) Jorge L. Nicdao, a barangay kagawad, who testified regarding the circumstances surrounding the arrest of accused-appellants; and (5) SPO1 Domingo Cosino, member of the Pateros Police, who also testified on the circumstances of accused-appellants arrest.

Accused-appellants then testified in their defense.

Peter Maggay testified that he was 16 years old at the time of the incident and submitted his birth certificate[7] showing that he was born on April 15, 1978.[8] He stated that Moises Pascua, a drug-user, had stolen a fighting cock belonging to the Maggays for which reason they fenced their yard.[9] At 3:30 p.m. on March 12, 1995, however, as Moises Pascua tried to pass by their backyard, Peter forbade him from doing so. Moises got angry and pulled out a 29-inch fan knife, and threatened Peter with it. Upon seeing the knife, Peter ran and shouted for help. Responding to his cry, Peters grandfather, accused-appellant Leonilo Villarba (or Nilo), stopped Moises Pascua from running after Peter. When Peter reached their house, he found his father, accused-appellant Wilfredo Maggay, sleeping. Shortly afterwards, about 30 to 40 people who were mostly Moises Pascuas relatives, gathered in front of their house demanding the surrender of Leonilo Villarba. They hurled stones at their house causing damage to it. Then the police and the mayor of Pateros arrived and negotiated their surrender. He, his father, and his grandfather were then brought to the municipal hall.[10]

Accused-appellant Leonilo Villarba admitted that he stabbed Moises Pascua. He claimed, however, that he had acted in self-defense. He claimed that at around 2 oclock in the afternoon of March 12, 1995, he saw his grandson, Peter Maggay, running and shouting for help as the latter was being chased by Moises Pascua who was armed with a knife. Coming to the rescue of his grandson, he wrestled with Moises Pascua, who was about six inches taller and 24 years younger than he and succeeded in disarming him. He stabbed Moises Pascua several times and then ran to his house.[11] His testimony as to what transpired next corroborated that of Peter Maggay.

On the other hand, accused-appellant Wilfredo Maggay testified that between 3 to 4 oclock in the afternoon of March 12, 1995, he was sleeping in his home on Masagana St. When he woke up, he saw about thirty people gathered outside, hurling stones at their house and demanding to see Leonilo Villarba. Wilfredo said he then turned to his father, Leonilo Villarba, who was then holding two knives. The latter explained that there was an accident and that he had stabbed somebody.[12] They stayed inside the house for about thirty minutes until the barangay kagawad and the police arrived and took them to the police station.[13]

The defense presented two other witnesses. Salvadora Bismonte testified that when she went to accused-appellants house at around one p.m. on the day of the incident, he found Wilfredo Maggay sleeping.[14] Their last witness was 19-year old Jansen Moreno, who testified that, in the afternoon of March 12, 1995, while he was fetching water inside their compound, he heard someone shouting Saklolo! He looked out of the gate and saw Leonilo Villarba and Moises Pascua fighting. The two were grappling with each on the ground and were bloodied. He also saw Peter Maggay running away. Fear got the better of him and he immediately went inside their house.[15]

On May 5, 1997, the trial court rendered its decision finding accused-appellants guilty of the crime charged and sentencing each of them to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the amounts of P50,000.00 as death indemnity, P21,026.00 as actual damages, and P300,000.00 for loss of earning capacity. It ruled that the evidence for the prosecution, particularly the testimonies of the two eyewitnesses, convincingly established the guilt of accused-appellants.[16] It also held that the injuries sustained by the victim confirmed the accounts of Rolando Membrera that he had been stabbed at the back by Leonilo Villarba and hit with a bat by Peter Maggay.[17] It appreciated the qualifying circumstance of treachery, noting that the attack on Moises Pascua was so sudden that the latter had no opportunity to defend himself.[18]

Hence, this appeal.

Accused-appellants contend that the trial court erred: (1) in convicting accused-appellants of murder despite the alleged failure of the prosecution to establish that treachery attended the killing; (2) in finding that accused-appellants had conspired to commit the crime; (3) in failing to appreciate Leonilo Villarbas claim of self-defense, and Wilfredo and Peter Maggays defense of alibi; and (4) in awarding P21,026.00 as actual damages and P300,000.00 for loss of earning capacity despite the prosecutions failure to prove such claim for damages.[19]

First. Accused-appellants question the credibility of Reynaldo Pascua, who had allegedly admitted in open court that his eyesight was blurred and hazy.[20] They also contend that he gave a number of inconsistent statements. They cited how he had initially stated that the victims tricycle was behind his but later on claimed that it was in front.[21]

We are not persuaded. Reynaldo Pascua, a key eyewitness, testified that he saw Wilfredo and Peter Maggay blocking Moises Pascuas tricycle and Leonilo Villarba afterward stabbing the latter several times at the back. His alleged admission that his eyesight was poor was quoted out of context. His testimony is as follows:

Q I am showing to you this Salaysay what is the relation of this document to the affidavit that you mentioned?

(Witness going over said document).

A I could not read it clearly, sir.

Q Why can you not read it clearly?

A Because I have blurred vision, sir.

(Witness is trying to decipher the contents of the document)

Q Do you need a reading glass in order to read all of them?

A No, I will just go over and I will try to decipher (witness going over the documents).

Well, yes, this is it.[22]

From his testimony, it is evident that while he may have had some difficulties in reading his sworn statement, Reynaldo Pascua did not need reading glasses to accomplish this task. This shows that although his vision is imperfect, it is not so impaired as to prevent him from recognizing Moises Pascuas attackers. Indeed, if he could not see very well and recognize people, he would not have worked as a tricycle driver. During cross-examination, the defense tried to capitalize on Reynaldo Pascuas admission that his eyesight was blurred, but his answers to the question removed any doubt that he could recognize people. He said:

ATTY. PIO:

Q Mr. Witness, you said that youve blurred vision, how blurred is your vision?

A Only slightly blurred, I could also read if I look at it.

Q You do not use any eyeglass?

A None, maam.

Q Could you see the number of the watch?

A Yes, maam.

Q What is the time now?

A 11:10 in the morning, maam.

Q May we put on record that the clock which the witness made to read, registered the time of 11:10.[23]

Turning now to accused-appellants contention regarding the alleged inconsistencies in Reynaldo Pascuas testimony, the Court finds them to be insufficient to destroy his credibility. That he had initially claimed that Moises Pascuas tricycle was behind his was clearly an oversight which he himself quickly corrected. The transcripts of his testimony are quoted below:

Q You said that the victim Moises Pascua is also driving the tricycle. Is he driving his tricycle for passengers?

A Yes, maam.

Q And during that time when this incident happened, was there a passenger inside the tricycle of Moises Pascua?

A None, maam.

Q And you also do not have any passenger during that time?

A None, maam.

Q You said that you are just very near Moises Pascua when both of you were driving your respective tricycles, am I not right?

A Yes, maam.

Q And who was ahead?

A He was ahead and I was tailing him.[24]

That Moises Pascua had been driving in front of him and not behind him at the time of the incident was also clearly stated in the statement he gave the police immediately after the incident. This strongly supports the Courts observation that his initial statement was a mere error which should not affect his credibility.

Indeed, other than this, his testimony is clear and straightforward such that the trial court found it credible. It is well-settled that the assessment of the credibility of a witness and his testimony is a matter best left to the trial judge.[25] Unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment of the credibility of witnesses must be respected.[26] Here, we are unable to find that the trial court overlooked facts of substance so as to justify this Court in evaluating the evidence. The trial judges assessment must be upheld.

Second. The other eyewitness, Rolando Membrera, testified that he saw Leonilo Villarba and Wilfredo Maggay stabbing Moises Pascua and Peter Maggay hitting the latter with an improvised bat.

Accused-appellants say that if there was any evidence marshalled by the prosecution that would be most damaging to the cause of the defense, it would be the testimony of the second eyewitness, Rolando Membrera.[27] Nonetheless, they attack his credibility on the ground that he failed to witness the events that preceded the assault upon the person of Moises Pascua.

The contention has no merit. Other than his failure to witness the events that preceded the attack, accused-appellants present no other substantial argument to discredit Rolando Membreras testimony. On the other hand, the nature and number of the wounds sustained by the victim show that there was more than one assailant. The medico-legal report[28]of the postmortem shows that the victim suffered multiple wounds:

(1) Lacerated wound, frontal region, measuring 4 cm. long, 3 cm. right of the anterior midline.

(2) Lacerated wound, parietal region, measuring 2.5 by 0.5 cm. long, along the midsagittal line.

(3) Lacerated wound, right parietal region, measuring 6 cm. long, cm. from the midsagittal line, with 5 stitches applied.

(4) Stab wound, left axillary region, measuring 1 by 0.6 cm., 11 cm. from the anterior midline, thru the muscle tissue.

(5) Abrasion, left suprascapular region, measuring 2 by 1 cm., 14 cm. from the posterior midline.

(6) Stab wound, left scapular region, measuring 3 by 0.6 cm., 16 cm. from the posterior midline, thru the muscle tissue.

(7) Stab wound, left lumbar region measuring 1.8 by 0.7 cm., 13 cm. from the posterior midline, thru the muscle tissues.

(8) Stab wound, right scapular region, measuring 3 by 0.8 cm., 3 cm. from the posterior midline, thru the muscle tissues.

(9) Stab wound, right scapilar region, measuring 3 by 0.8 cm., 3 cm. from the posterior midline, 8 cm. deep, directed anteriorwards, downwards and medialwards, fracturing the 3rd right thoracic rib, lacerating the upper lobe of the right lung.

(10) Stab wound, right infrascapular region, measuring 2.8 by 0.6 cm., 5.5 cm. from the posterior midline, 10 cm. deep, directed anteriorwards, downwards and medialwards, lacerating the lower lobe of the right lung.

(11) Stab wound, right knee, measuring 3.3 by 0.7 cm., 5 cm. medial to its anterior midline thru the muscle tissue.

(Emphasis supplied.)

Dr. Emmanuel Aranas, the medico-legal officer who conducted the postmortem examination, testified that the lacerated wounds, three of which are located in the head, and the contusion in the chest could have been caused by a hard and blunt object.[29] The picture, Exhibit C,[30] also shows the fan knife and bayonet recovered by the police from accused-appellants and the wooden bat recovered by the police from the scene of the crime. All the items were bloodstained. Biochemical examinations conducted on them confirmed that the stain was type A human blood.[31] Dr. Emmanuel Aranas testified that Moises Pascuas blood type is A.[32]

The foregoing evidence confirms Rolando Membreras testimony that accused-appellants all took part in the assault and killing of Moises Pascua.[33]

Third. Accused-appellants further contend that treachery could not be appreciated against them because Rolando Membrera did not see how the attack commenced and treachery cannot be presumed.[34] They point out that the attack was made frontally and treachery cannot be inferred from the lone circumstance that the fatal stab wounds were all found on the victims back.[35]

It is true that where treachery is alleged, the manner of attack must be conclusively proven[36]and that treachery cannot be considered in the present case based solely on the testimony of Rolando Membrera who did not see the commencement of the assault.[37] However, based on the unrebutted testimony of Reynaldo Pascua, Moises Pascua was driving his tricycle along Masagana St. when suddenly and unexpectedly, he was waylaid by accused-appellants. Wilfredo and Peter Maggay held the victims tricycle while Leonilo Villarba repeatedly stabbed him on the back with a bayonet. The stab wounds perforated his lungs and proved to be fatal. The manner of the attack completely rendered him defenseless. He was thus left at the mercy of his attackers. As recounted by Rolando Membrera, Wilfredo Maggay, armed with a fan knife, and his son, Peter Maggay, armed with a bat, joined Leonilo Villarba in assaulting Moises Pascua. The victim was taken by surprise because, as Wilfredo and Peter Maggay stopped him, he was suddenly attacked from behind by Leonilo Villarba.

Accused-appellants contention that the attack on Moises Pascua was made frontally must therefore fail. Even with a warning, this Court has appreciated treachery in several cases.[38] The essence of treachery, after all, is the suddenness of the assault without the slightest provocation on the part of the person attacked.[39] For that matter, even if the attack was frontal, if it was sudden and unexpected, as it was in this case, thus giving the victim no opportunity to prepare in self-defense, there was treachery.[40]

Indeed, the manner by which the assault was carried out in the present case not only establishes treachery; it also proves that accused-appellants acted deliberately and pursuant to a plan. They waited in ambush for the victim, and each of them had a particular role during the assault. Under these circumstances, accused-appellants clearly conspired to commit the offense. Conspiracy need not be established by direct proof.[41] It has been held that where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident.[42]

Fourth. Nor are we persuaded by accused-appellants contention that the trial court erred in rejecting their story of self-defense.

It is claimed that Leonilo Villarba acted in defense of his grandson, Peter Maggay, because the latter was being chased by Moises Pascua who was allegedly armed with a knife. This is incredible considering that Leonilo Villarba allegedly was able to wrest a knife from the victim who was 24 years his junior and about six inches taller than he. Not only is this improbable but the number of wounds sustained by the victim clearly refutes the claim of self-defense of accused-appellants. The victim sustained 11 wounds, most of which were stab wounds, while the rest were lacerations caused by a hard and blunt object. It is obvious that Moises Pascua had more than one attacker.

The foregoing establishes the guilt of accused-appellants beyond reasonable doubt. Under Art. 248 of the Revised Penal Code, murder is punishable by reclusion perpetua to death. There being no aggravating or mitigating circumstance, the trial court correctly sentenced accused-appellants to suffer the penalty of reclusion perpetua. Considering the privileged mitigating circumstance in favor of accused-appellant Peter Maggay, however, the maximum of the penalty to be imposed on him should be reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, the minimum of the penalty should be within the range of prision mayor.

Fifth. Finally, we turn to the trial courts award of damages. Accused-appellants object to the award of P300,000.00 for unearned income and P21,026.00 as actual damages.

With regard to the award for loss of earning capacity, they contend that the testimony of Luzviminda Pascua, the victims wife, that at the time of his death, her husband was earning P200.00 a day as a tricycle driver is inadmissible for being hearsay evidence.

The contention has no merit. Although, in general, testimonial evidence is insufficient to substantiate a claim for damages for loss of earning capacity,[43] we have allowed claims for unearned income to prosper when documentary evidence is unavailable such as when the deceased is self-employed and earning less than the minimum wage, and the amount claimed is reasonable. In People v. Verde,[44] where the victim was also a tricycle driver, we awarded unearned income based solely on the testimony of the victims wife that her husband had an average daily income of P200.00. Thus, award of unearned income based on the testimony of Luzviminda Pascua is proper. The formula[45]for unearned income is as follows:

Life expectancy x [Gross Annual Income (G.A.I.) less

Living expenses (50% G.A.I.)]

where life expectancy = 2/3 x (80 - age of the deceased )

Since Moises Pascua was 26 years old at the time of his death, his life expectancy is 36 years. Considering that his average daily income was P200.00 a day, his Gross Annual Income would be P48,000.00. Using the above formula, the victims unearned income would thus be P864,000.00.

With regard to the award of P21,026.00 for actual damages, accused-appellants argue that this item should be disallowed because Marilyn Pascua-Lansangan, the victims sister and the custodian of the receipts presented to prove the amount of actual damages, is incompetent to testify on the same since she was not the one who actually made these payments. That Marilyn Pascua- Lansangan is merely a custodian is of no consequence. What is decisive is that receipts evidencing expenses actually incurred by the heirs of the deceased were duly presented in evidence. Based on the summary of expenses,[46] however, we find that only the amount of P9,026.20 was duly receipted. The award of actual damages should, therefore, be reduced to that amount.

WHEREFORE, the decision of the Regional Trial Court, Branch 160, Pasig City, is AFFIRMED with the following modifications:

(1) On account of his minority at the time of the incident, accused-appellant Peter Maggay is hereby sentenced to an indeterminate prison term from eight (8) years of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum.

(2) The award for loss of earning capacity is increased to P864,000.00.

(3) The award of actual and compensatory damages is reduced to P9,026.20

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.



[1] Per Judge Mariano M. Umali.

[2] RTC Records, p. 1.

[3] TSN, pp. 1-10, May 11, 1995.

[4] TSN, pp. 1- 6, May 18, 1995.

[5] Id. at 7-9.

[6] TSN, pp. 1-5, June 22, 1995.

[7] Exh. 1.

[8] TSN, p. 25, May 22, 1996.

[9] TSN, pp. 8-10, June 26, 1996.

[10] TSN, pp. 1-24, May 22, 1996.

[11] TSN, pp. 1-5, July 11, 1996.

[12] TSN, pp. 1-3, Aug. 14, 1996.

[13] Id. at 4.

[14] TSN, p. 2, Nov. 13, 1996.

[15] TSN, pp. 3-4, Jan. 9, 1997.

[16] RTC Decision, pp. 5-8; Rollo, pp. 177-181.

[17] Id. at 182.

[18] Id. at 188.

[19] Accused-appellants Brief, pp. 1-2; Rollo, pp. 62-63.

[20] Id. at 72.

[21] Id. at 74.

[22] TSN, p. 9, May 11, 1995 (Emphasis supplied).

[23] Id. at 10 (Emphasis Supplied).

[24] Id. at 11.

[25] People v. Pili, 289 SCRA 118 (1998); People v. Balmoria, 287 SCRA 687 (1998); People v. Quitorio, 285 SCRA 196 (1998); People v. Cabiles, 284 SCRA 199 (1998); People v. Magpantay, 284 SCRA 96 (1998); People v. Dansal, 275 SCRA 549 (1997).

[26] People v. Viovicente, 286 SCRA 1 (1998); People v. Agbayani, 284 SCRA 315 (1998); People v. Maalat, 275 SCRA 206 (1997); People v. Ortega, Jr., 276 SCRA 166 (1997).

[27] Accused-appellants Brief, p. 14; Rollo, p. 75.

[28] Exh. H; Records, p. 114.

[29] TSN, p. 19, July 12, 1995.

[30] Records, p. 109.

[31] Medico-Legal Report No. S-003-95, Exh. M; Records, p. 127.

[32] TSN, p. 5, Dec. 20, 1995.

[33] People v. Nepomuceno, Jr., 298 SCRA 450 (1998); People v. Sancholes, 271 SCRA 527 (1997); People v. Navales, 266 SCRA 569 (1997).

[34] Accused-appellants Brief, p. 14; Rollo, p. 75.

[35] Id. at 76.

[36] See People v. Albao, 287 SCRA 1129 (1998); People v. Asis, 286 SCRA 64 (1998).

[37] People v. Simbulan, 289 SCRA 500 (1998).

[38] People v. Villonez, 298 SCRA 566 (1998); People v. Molina, 292 SCRA 742 (1998); People v. Javier, 269 SCRA 181 (1997); People v. Tobias, 267 SCRA 266.

[39] People v. Reyes, 287 SCRA 229 (1998); People v. Pallarco, 288 SCRA 151 (1998); People v. Sumalpong, 284 SCRA 464 (1998); People v. Lascota, 275 SCRA 591 (1997).

[40] See People v. Abria, 300 SCRA 556 (1998); People v. Noay, 296 SCRA 292 (1998); People v. Feloteo, 290 SCRA 627 (1998); People v. Reyes, 287 SCRA 229 (1998); People v. Aranjuez, 285 SCRA 466 (1998); People v. Dansal, 275 SCRA 549 (1997); People v. Dinglasan, 267 SCRA 26 (1997).

[41] Fernandez v. National Labor Relations Commission, 281 SCRA 423 (1997); People v. Salvador, 279 SCRA 164 (1997); People v. Sion, 277 SCRA 127 (1997); People v. Gayon, 269 SCRA 587 (1997); People v. Tabag, 268 SCRA 115 (1997).

[42] People v. Andal, 279 SCRA 474 (1997); People v. Mercado, 275 SCRA 581 (1997); People v. Sancholes, 271 SCRA 527 (1997); People v. Javier, 269 SCRA 181 (1997).

[43] People v. Cotas, G.R. No. 132043, May 31, 2000, citing People v. Villanueva, 302 SCRA 380 (1999).

[44] 302 SCRA 690 (1999); see also People v. Dizon, G.R. No. 129893, Dec. 10, 1999.

[45] People v. Sirad, G.R. No. 130594, July 5, 2000; People v. Go-od, G.R. No. 134505, May 9, 2000; People v. Pascual, G.R. No. 127761, April 28, 2000.

[46] Exh. J; Records, p. 116.