Republic of the Philippines

Court of Appeals
Cagayan de Oro City

TWENTY-FIRST DIVISION

THE PEOPLE OF THE PHILIPPINES, CA-G.R. CR HC NO. 00968-MIN

Plaintiff-Appellee,
Members:

- versus - BORJA, J., Ch.,

BADELLES, &
SINGH, JJ.

EDWIN OPEÑA, Promulgated:

Accused-Appellant.
November 17, 2014

DECISION

SINGH, J.:*

Appealed to Us is the Decision1 dated May 26, 2011 of the

Regional Trial Court, Kabacan, Cotabato, Branch 22, in Criminal Case
No. 01-43, finding accused-appellant Edwin Opeña guilty beyond
reasonable doubt of the crime of murder, defined and penalized under
Article 248 of the Revised Penal Code.

Accused-Appellant was formally charged with murder under an

Information dated April 18, 20012 that reads:

“That on or about January 29, 2001, in the

Municipality of Matalam, Province of Cotabato,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with intent to kill,
armed with gun, did then and there, wilfully,
unlawfully, feloniously and with treachery and evident
premeditation, attack, assault and shot the person of
PRUDENCIO DELENA, thereby hitting and inflicting
upon the latter gunshot wound on his stomach, which
caused his instantaneous death.

With aggravating circumstance that the crime

* This case was only assigned to the Ponente by re-raffle on July 15, 2014.
1 Rollo, pp. 28-46; Record pp. 263-279.
2 Records, p. 3.
CA-G.R. CR NO. 00895-MIN Page 2 of 10
Decision

was committed at nighttime to facilitate the commission

of the offense.

CONTRARY TO LAW.”

Accused-Appellant pleaded “not guilty” to the crime charged in the

Information when he was arraigned on July 10, 2001. 3 Trial ensued
thereafter.

The evidence of the prosecution consisted of (1) the testimonies of

Clarita Mantilla, Rocky Delena, and Major Salome delos Reyes Jose; and
(2) Exhibit “B” with sub-markings, the Regional Crime Laboratory Office
12 Chemistry Report No. C-007-2001.4

The prosecution's version of events, as summarized by the Office of

the Solicitor General (OSG), is as follows:5

At about midnight on January 29, 2001, Clarita

Mantilla (Clarita), together with her common-law husband,
Prudencio Delena (Prudencio), and their son Rocky Pejay
Delena (Rocky), was at their store located in Central
Malamote.6 The store is about 6 x 6 feet with an opening
facing the road and its door near the front. 7 Beside the store
is the gate to their house.8

At that time, Prudencio was arranging/collecting the

bottles of beer outside the store while Rocky was helping
him.9 Thereafter, Prudencio closed the gate when suddenly
he was shot by appellant, the latter using his left hand. 10
Clarita attempted to go outside the store but she was
prevented by appellant by poking the gun at her. 11 Prudencio
fell to the ground as Clarita called for help. 12 Prudencio was
then brought to a hospital but he unfortunately died.13 At
about 4:00 in the morning, appellant, with his other
companions, was arrested by the police.14

3 Records, p. 18 (Order dated July 10, 2001).

4 TSN, June 20, 2002; Exhibits Folder
5 Rollo, pp. 63-64 (Brief for the Plaintiff-Appellee).
6 TSN, October 9, 2001; TSN, December 6, 2001, p. 6.
7 TSN, October 9, 2001, p. 12.
8 TSN, October 9, 2001, p. 13.
9 TSN, October 9, 2001, p. 9; TSN December 6, 2001, pp. 7-8.
10 TSN, October 9, 2001, pp. 9-10; TSN December 6, 2001, pp 4, 5, 6, 7.
11 TSN, December 6, 2001, p. 15.
12 TSN, October 9, 2001, p. 10.
13 TSN, October 9, 2001, p. 10.
14 TSN, August 1, 2002, p. 12.
CA-G.R. CR NO. 00895-MIN Page 3 of 10
Decision

After the incident, P/Insp. Salome delos Reyes Jose

(P/Insp. Jose) performed a paraffin test on both hands of
appellant and a certain Erwin Layagan (Erwin). 15 After
examination, the left hand of appellant tested positive for the
presence of gun powder nitrate while that of Erwin tested
negative.16 The test result was reduced in Chemistry Report
No. C-007-2001 (Exh. B).17"

The defense, on the other hand, presented the following witnesses,

namely: Danny Opeña, Zenaida Camaong and accused-appellant himself.

The Brief for Accused-Appellant18 filed by the Public Attorney’s

Office (PAO) submitted the version of the accused of the facts, to wit:

"At around 6:00 o'clock in the evening of January 28,

2001, appellant was in his house taking his supper. After
that, appellant went to his aunt's house and watched
television. He then proceeded to the house of his employer
Romilito Camaong at around 8:00 o'clock in the evening
where they had a drinking session for about two (2) hours.
With him at that time were Marlon Tikang, Erwin Layagan
and Elmer Cagang. After drinking, they had a short talk and
then they went to sleep in the house of Romilito.

At around 12:00 midnight, Zenaida Camaong, wife of

appellant's employer, was awakened from her sleep by her
mother alleging that the latter heard a gun shot and that
somebody was shouting. Not long after, Zenaida heard the
shouts too and so she called for her husband they went down
to check the appellant and his companions. After being
satisfied that appellant and his companions were just
sleeping inside a room in their newly built house, she and
her husband returned to sleep.

At about 4:00 o'clock in the morning, appellant and

his companions were awakened because of the arrival of the
police looking for somebody wearing black jacket and a
bonnet. This is upon the information relayed by Clarita that
the one who shot her husband was wearing a black jacket
and a mask. The police brought appellant and Erwin
Layagan to their station leaving behind Marlon Tikang and
Elmer Cagang. They were then subjected to an interrogation

15 TSN, April 23, 2002, p. 5.

16 TSN, April 23, 2002, p. 6-7.
17 TSN, April 23, 2002, pp. 5, 10-11.
18 Rollo, pp. 20-21.
CA-G.R. CR NO. 00895-MIN Page 4 of 10
Decision

relative to the death of Prudencio Delena."

The RTC Decision

The trial court rendered the questioned Decision dated May 26,
19
2011 and disposed of the case as follows:

“WHEREFORE, the Court finds the accused

EDWIN OPEÑA, guilty of the crime of Murder, as
principal, and sentences him to suffer the penalty of
reclusion perpetua and its accessory penalties.

Further, accused is ordered to pay the heirs of

Prudencio Delena the following:

1. Php50,000.00 by way of civil indemnity;

2. Php50,000.00 by way of moral damages; and,
3. Php25,000.00 by way of exemplary damages.

SO ORDERED."

Issue

The lone issue raised is whether or not the guilt of the accused-
appellant was established beyond reasonable doubt.20 Accused-Appellant
assails the credibility of the prosecution's witnesses, challenges the result
of the paraffin test, and posits that his decision not to flee should have
been considered by the trial court in determining his innocence or guilt.

The Court's Ruling

The applicable law.

Article 248 of the Revised Penal Code provides:

"Art. 248. Murder. – Any person who, not falling

within the provisions of Article 246, shall kill another, shall
be guilty of murder and shall be punished by reclusion
perpetua to death if committed with any of the following
attendant circumstances:

1. With treachery, taking advantage of superior

strength, with the aid of armed men, or employing means to
19 Rollo, pp. 33-46.
20 Rollo, p. 21.
CA-G.R. CR NO. 00895-MIN Page 5 of 10
Decision

weaken the defense or of means or persons to insure or

afford impunity;

2. In consideration of a price, reward, or promise;

3. By means of inundation, fire, poison, explosion,

shipwreck, stranding of a vessel, derailment or assault upon
a railroad, fall of an airship, by means of motor vehicles, or
with the use of any other means involving great waste and
ruin;

4. On occasion of any of the calamities enumerated

in the preceding paragraph, or of an earthquake, eruption of
a volcano, destructive cyclone, epidemic, or any other
public calamity;

5. With evident premeditation;

6. With cruelty, by deliberately and inhumanly

augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse."

To be liable for murder, the prosecution must prove that: (1) a person
was killed; (2) the accused killed him; (3) the killing was attended by any
of the qualifying circumstances mentioned in Article 248; and (4) the
killing is neither parricide nor infanticide.21

The first and last elements are clearly present in this case. The fact of
death of Prudencio was undisputed and was stipulated on by the
prosecution and the defense.22 Also, the killing is neither parricide nor
infanticide.

The testimonies of the prosecution

eyewitnesses are worthy of credence.

On the second element, accused-appellant denies responsibility for

the killing of Prudencio. He argues that he was only tagged as the gunman
on mere suspicion. He pointed out that prosecution witnesses Clarita and
Rocky could not have seen the shooting incident. Clarita could not have
seen who shot her husband because she was inside the store, and was busy
counting money while she was sitting on the floor. Further, the gate where
Prudencio was standing at that time is located beside the store and there is a
21 People of the Philippines vs. Mark Joseph Zapuiz y Ramos @ “Jaymart”, G.R. No. 199713, February
20, 2013; People of the Philippines vs. Diosdado Camat and Mamerto Dulay, G.R. No. 188612, July 30, 2012.
22 TSN, June 20, 2002, p. 3.
CA-G.R. CR NO. 00895-MIN Page 6 of 10
Decision

wall made of wood blocking her view. As for Rocky, accused-appellant

contends that Rocky was at the back of his father, focused on collecting
bottles of beer, so he could not have seen who shot his father.

Clarita and Rocky categorically testified that they saw the accused-
appellant shoot Prudencio about midnight on January 29, 2001. Both
witnesses positively identified accused-appellant as the one who shot and
killed Prudencio when they separately testified. Both knew the accused-
appellant even before the subject shooting as they are neighbors.

It is jurisprudential that the findings of fact of the trial court are

entitled to great weight on appeal and should not be disturbed except for
strong and valid reasons since the trial court is in a better position to
examine the demeanor of the witnesses while testifying. 23 After a review of
the records, We find no reason to deviate from this rule in the case before
Us.

The defense of alibi.

Accused-Appellant's defense of alibi cannot outweigh the

eyewitnesses' positive identification of him as the culprit. For the defense
of alibi to prosper, “the accused must prove (a) that he was present at
another place at the time of the perpetration of the crime, and (b) that it was
physically impossible for him to be at the scene of the crime” during its
commission. “Physical impossibility refers to distance and the facility of
access between the crime scene and the location of the accused when the
crime was committed. He must demonstrate that he was so far away and
could not have been physically present at the crime scene and its immediate
vicinity when the crime was committed.”24

The ruling of the RTC on this matter is worth noting:

"As far as accused's alibi, it does not prosper for he

miserably failed to prove, with clear and convincing evidence, that
he was in a place other than the place where Prudencio was shot to
death such that it was physically impossible for him to have
committed the crime. The house of Zenaida where accused claimed
to have slept on the night of January 29, 2001 is only meters away
from the crime scene in Malamote, Matalam, Cotabato. Therefore,
it was not physically impossible for the accused to be at the crime
scene at midnight of January 29, 2001, where Clarita and Rocky

23 People vs. Villarta, G.R. No. 205610, July 30, 2014.

24 People vs. Rogelio Ramos and Marisa Intero Ramos, G.R. No. 190340, July 24, 2013.
CA-G.R. CR NO. 00895-MIN Page 7 of 10
Decision

saw him shot (sic) Prudencio, who was unarmed at that time." 25
(underlining supplied)

Result of the paraffin test.

Accused-Appellant argues that the result of the paraffin test should

have been disregarded since no less than the prosecution admitted that even
a positive result is not conclusive proof that accused-appellant fired a gun.

It is worth mentioning that the testimony of P/C Insp. Salome delos

Reyes was not the sole basis of the trial court’s conclusion that accused-
appellant was guilty. It was merely corroborative. Rather, it relied more on
the direct and positive testimonies of two eyewitnesses who had personally
and directly seen the shooting incident and identified accused-appellant as
the shooter.

In any event, the testimony of an expert witness 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, and is for the
court to adopt or not to adopt depending on its appreciation of the attendant
facts and the applicable law.26 In the instant case, even without admitting
the assailed expert testimony, the trial court would still have arrived at the
same conclusion convicting the accused-appellant.

Non-flight of accused-appellant is not

necessarily an indication of innocence.

Accused-Appellant contends that since he never fled after the

shooting incident, the trial court should have believed in his innocence.

The accused-appellant's contention is devoid of merit.

As correctly pointed out by plaintiff-appellee, while flight is deemed

as an indication of guilt in criminal cases, non-flight is not an accepted
indication of innocence. Unlike flight of an accused, which is competent
evidence against the accused as having a tendency to establish the
accused's guilt, non-flight is simply inaction, which may be due to several
factors. Since accused-appellant failed to adduce evidence to prove any of
these possible reasons, the Court will not speculate.

25 Rollo, p. 41.
26 Edwin Tabao y Perez vs. People of the Philippines, G. R. No. 187246, July 20, 2011.
CA-G.R. CR NO. 00895-MIN Page 8 of 10
Decision

While it has been ruled that an accused’s decision not to flee after the
crime despite an opportunity to do so is not characteristic of a guilty
person, the opposite has also been upheld in some cases. “Non-flight is not
proof of innocence” as ruled in People v. Del Castillo.27 Thus, the fact that
appellant did not flee may be a badge of innocence, nevertheless, it is not a
sufficient ground to exculpate him from his proven criminal liability.28

Treachery cannot be presumed, it must be

proved by clear and convincing evidence.

With regard to the third element, the Court finds that the prosecution
failed to prove the qualifying circumstance of treachery in the killing of
Prudencio. Accused-Appellant should be held guilty of homicide only,
instead of murder.

The RTC erred when it found that the killing of Prudencio was
attended by treachery since the victim, Prudencio, was, without warning,
shot by the accused-appellant which caused his instantaneous death.
Although Clarita and Rocky's testimonies positively identified accused-
appellant as the one who shot Prudencio on January 29, 2001, they failed to
provide a clear picture of why the killing took place. We find nothing in the
record that shows the reason or motivation for the killing or how the attack
had been initiated.

It is settled that treachery cannot be presumed, but must be proved by

clear and convincing evidence as conclusively as the killing itself. To
appreciate treachery, two (2) conditions must be present, namely, (a) the
employment of means of execution that give the person attacked no
opportunity to defend himself or retaliate, and (b) the means of execution
were deliberately or consciously adopted. This Court has also previously
held that where treachery is alleged, the manner of attack must be
proven. Where no particulars are shown as to the manner in which the
aggression was made or how the act which resulted in the death of the
deceased began and developed, treachery cannot be appreciated as a
qualifying circumstance.29

All that the record evidences is that accused-appellant shot Prudencio

once. The why and how were never established. Accused-Appellant's act
was therefore not qualified by treachery. He may only be penalized for the
commission of homicide.
27 G.R. No. 180925, August 20, 2008, 562 SCRA 752, 760.
28 People of the Philippines vs. SPO1 ALfredo Alawit, G.R. No. 187731, September 18, 2013.
29 People of the Philippines vs, Jessie Ballesta, G.R. No. 181632, September 25, 2008; People of the
Philippines vs. Ricardo Latag alias "Cardo", G.R. No. 153213, January 22, 2004.
CA-G.R. CR NO. 00895-MIN Page 9 of 10
Decision

Award of damages.

Jurisprudence is exact.

"Based on Article 100 of the Revised Penal Code, every person

criminally liable for a felony is also civilly liable. Thus, when death occurs
due to a crime, the following damages may be awarded: (1) civil indemnity
ex delicto for the death of the victim; (2) actual or compensatory damages;
(3) moral damages; (4) exemplary damages; (5) attorney’s fees and
expenses of litigation; and (6) interest, in proper cases. In cases of murder
and homicide, civil indemnity of PhP75,000.00 and moral damages of
PhP50,000.00 are awarded automatically. Indeed, such awards are
mandatory without need of allegation and proof other than the death of the
victim, owing to the fact of the commission of murder or homicide."30

In the instant case, the trial court awarded the amounts of

Php50,000.00 as civil indemnity ex delicto, Php50,000.00 as moral
damages, and Php25,000.00 as exemplary damages. To comply with
prevailing jurisprudence,31 the award of Php50,000.00 as civil indemnity ex
delicto must be increased to Php75,000.00. The award of Php25,000.00 as
exemplary damages is likewise increased to Php30,000.00.

The Court further deems it proper to award Php25,000.00 as

temperate damages to the heirs of Prudencio in lieu of actual or
compensatory damages. The award of Php25,000.00 for temperate damages
in homicide or murder cases is proper when no evidence of burial and
funeral expenses is presented in the trial court. Under Article 2224 of the
Civil Code, temperate damages may be recovered, as it cannot be denied
that the heirs of the victim suffered pecuniary loss, although the exact
amount was not proven.32

WHEREFORE, the Decision dated May 26, 2011 of the Regional

Trial Court, Kabacan, Cotabato, Branch 22, in Criminal Case No. 01-43 is
MODIFIED and the accused-appellant EDWIN OPEÑA is instead
declared guilty beyond reasonable doubt of HOMICIDE, and sentenced
to suffer the indeterminate sentence of 10 years of prision mayor, as
minimum, to 14 years, eight months, and one day of reclusion temporal, as
maximum.

30 People of the Philippines vs. Joel Aquino y Cendena @ "Akong", G.R. No. 201092, January 15, 2014;
People of the Philippines vs. Rodriguez Lucero y Paw-As alias "Kikit", G.R. No. 179044, December 6, 2010.
31 People of the Philippines vs. Ricardo Medina. Jr. y Oriel, G.R. No. 161308, January 15, 2014; People
of the Philippines vs. Joel Aquino y Cendena @ "Akong", G.R. No. 201092, January 15, 2014.
32 People of the Philippines vs. Rosendo Rebucan y Lamsin, G.R. No. 182551, July 27, 2011.
CA-G.R. CR NO. 00895-MIN Page 10 of 10
Decision

Further, the accused-appellant EDWIN OPEÑA is ordered to pay the

Heirs of Prudencio Delena the following:

1. Php75,000.00 by way of civil indemnity ex delicto;

2. Php50,000.00 by way of moral damages;
3. Php30,000.00 by way of exemplary damages;
4. Php25,000.00 by way of temperate damages; and
5. interest on all damages awarded at the legal rate of six
percent (6%) per annum from the date of finality of
this judgment until full payment.

SO ORDERED.

ORIGINAL SIGNED
MARIA FILOMENA D. SINGH
Associate Justice

WE CONCUR:

ORIGINAL SIGNED ORIGINAL SIGNED

ROMULO V. BORJA OSCAR V. BADELLES
Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of
the Court.

ORIGINAL SIGNED
ROMULO V. BORJA
Associate Justice
Chairperson, Twenty-first Division