FIRST DIVISION

[G.R. Nos. 102407-08. March 26, 2001.]

PEOPLE OF THE PHILIPPINES, plainti-appellee, vs. EDMUNDO
LUCERO y GACETA, accused-appellant.
DECISION
YNARES-SANTIAGO, J :
p

Four criminal informations were led against accused-appellant Edmundo Lucero

before the Regional Trial Court of Quezon City, Branch 88. In Criminal Case No. Q89-5349, accused-appellant was charged with murder for the death of Fernando
Jabol, while in Criminal Cases Nos. Q-89-5350, Q-89-5351 and Q-89-5352,
respectively, he was charged with Frustrated Murder.
The facts, as found by the trial court, are summarized as follows:
At around 4:00 o'clock in the afternoon of July 11, 1989, brothers Fernando and Joel
Jabol, Alex Tano and Ferdinand Alvero, together with others, were in the house of
Domingo Lipas located in Kalayaan, Gao, Quezon City. They were seated at a table
drinking rhum. It was the birthday of Domingo's daughter, Eva Lipas. Suddenly,
accused-appellant barged into the house and, from two and a half to three meters
away, fired six shots using his .38 caliber revolver.
The rst shot was aimed at Fernando Jabol and hit him on the waist and right thigh.
The second shot hit Alex Tano in the abdomen. Joel Jabol raised both his arms in
surrender, and the third shot hit his right ribcage. The fourth shot was again aimed
at Fernando. while the fth hit Ferdinand Alvero below his right eye. The sixth shot
was red in the air. All the victims jumped out of the window and proceeded to the
East Avenue Medical Center for treatment.
It appeared that accused-appellant was the victims' barrio mate in Malagicay,
Abuyog, Leyte, and that he shot them because he suspected them of stealing the
engine of his banca in Leyte. 1
At the East Avenue Medical Center, Fernando Jabol was pronounced dead on arrival,
due to gunshot wounds. 2
Patrolman Rolando Maniquiz of the Quezon City Police Force, who was assigned to
conduct the investigation, went to the East Avenue Medical Center to interview the
victims, but they were hesitant to talk. He then proceeded to the scene of the crime
where he learned from a witness that accused-appellant was the gunman. He went
back to the hospital, where Ferdinand Alvero nally narrated to him everything that
happened. Further investigation disclosed that accused-appellant was in Balibago,

Angeles City. On July 13, 1989, the Quezon City police, in coordination with the
Angeles City Police, arrested accused-appellant on Oak Street, Balibago, Angeles
City.
Accused-appellant was brought to the Quezon City police station, where he was
positively identied by all three victims as their assailant. Pat. Maniquiz also
discovered that accused-appellant was an escapee from the Davao Penal Colony. 3
After the inquest proceedings, four criminal informations were led against accusedappellant, who pleaded not guilty to all the charges. 4 The cases were consolidated
and tried jointly.
ECcTaS

In his defense, accused-appellant alleged that on July 6, 1989, he moved in with his
girlfriend, Ana Olvida, at 24 Bulacan Street, Mountain Dew, Balibago, Angeles City.
He was arrested in the evening of July 13, 1989, while he was sleeping in the said
house. He denied that his boat engine was stolen. He knew the victims because
they were his friends and barrio mates in Malagicay, Abuyog, Leyte. He admitted
having escaped from the Davao Penal Colony, where he was serving sentence for
robbery-holdup, but alleged that he was innocent of the crime for which he was
convicted. 5
Ana Olvida corroborated accused-appellant's testimony. She testied that they have
been live-in partners since 1987. Every day at 4:00 o'clock in the afternoon,
accused-appellant would take her to the Flying Machine Bar, where she worked as
cashier, and would fetch her at 4:00 o'clock in the morning. She averred that
accused-appellant did not leave the house on July 11, 1989. 6
On November 13, 1990, the trial court promulgated its judgment as follows:
WHEREFORE, premises considered, the Court nds and so holds accused
EDMUNDO LUCERO y GACETA Guilty beyond reasonable doubt of the crime
of MURDER committed against Fernando Jabol y Tolentino in Criminal Case
No. 89-5349 penalized under Art. 248 of the Revised Penal Code and hereby
sentences him to suer a penalty of Reclusion Perpetua; to pay
compensation to the heirs of Fernando Jabol in the amount of P30,000.00
and to pay the cost.
This Court also nds accused EDMUNDO LUCERO y GACETA Guilty beyond
reasonable doubt of the crime of FRUSTRATED MURDER committed against
Joel Jabol y. Tolentino in Criminal Case No. Q-89-5350 and therefore hereby
sentences him to suer a penalty of imprisonment from Ten (10) Years and
One (1) Day of Prision Mayor as minimum to Seventeen (17) Years and Four
(4) Months of Reclusion Temporal as maximum and to pay the cost.
Complainant Alex Tano y Lucero and Ferdinand Alvero y Visda in Criminal
Case No. Q-89-5351 and Crim. Case No. Q-89-5352 respectively failed to
appear during the hearing of these cases. No evidence was presented
showing the culpability of the accused. Therefore, in Criminal Case No. Q-895351 and Q-89-5352, accused EDMUNDO LUCERO y GACETA is ACQUITTED
for lack of evidence.

SO ORDERED.

Accused-appellant filed a Notice of Appeal, 8 to which the trial court gave due course.
9

Subsequently, counsel de parte entered his appearance for accused-appellant and

led a Motion for New Trial, 10 arguing that contrary to the constitutional
requirement, accused-appellant was not assisted by competent and independent
counsel during his investigation. On January 8, 1991, the trial court denied the
Motion for New Trial on the ground that it has lost jurisdiction over the case after
accused-appellant led his notice of appeal. 11 The Motion for Reconsideration was
likewise denied on February 7, 1991. 12
The appeal was led directly with this Court, considering the imposition of the
penalty of reclusion perpetua. Accused-appellant, through counsel de parte, led the
Brief for Accused-Appellant, 13 while the Solicitor General, on behalf of the
prosecution, filed the Brief for Appellee. 14
Subsequently, accused-appellant, through the Public Attorney, informed the Court
that he could not le his Reply Brief because the records of the case do not contain
the transcript of the testimony of Joel Jabol, the only eyewitness who testied for
the prosecution. Thus, this Court directed that the trial court retake the testimony
of said witness. 15 However, Joel Jabol failed to appear at the hearings set by the
trial court. On May 31, 1999, counsel for accused-appellant led a Manifestation
that he was dispensing with the ling of the Reply Brief. 16 He also prayed that the
testimony of Joel Jabol be disregarded since the same is probably ctitious and nonexistent.
It appears from the records of the trial court that the testimony of Joel Jabol was
completed on September 28, 1989, 17 which means that either he was crossexamined by the defense or the latter was given an opportunity to cross-examine
him. In fact, the factual ndings of the trial court were based largely on the
testimony of Joel Jabol. 18 In the absence of any showing that the same were
reached arbitrarily or without sucient basis, this Court accords the highest respect
to the findings of fact by the trial court. 19
In his Brief, accused-appellant raises the following assignments of error:
FIRST ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN NOT FINDING THAT THE EVIDENCE OF
PROSECUTION TRANSGRESSED THE CONSTITUTIONAL DUE PROCESS
CLAUSE.
SECOND ASSIGNMENT OF ERROR
THE LOWER COURT ERRED
APPELLANT. 20

IN

NOT ACQUITTING

THE

ACCUSED-

Accused-appellant argues that during his custodial investigation, he was not assisted

by competent and responsible counsel, invoking Article III, Section 12 (1) of the
Constitution, which provides:
(1)
Any person under investigation for the commission of an oense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot aord the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of
counsel.

Reading further, the consequence of a violation of the foregoing constitutional

guarantee can be found in the ensuing subparagraph (3) of the same Article III,
Section 12, to wit:
(3)
Any confession or admission obtained in violation of this or Section
17 hereof shall be inadmissible in evidence against him.

The argument is specious. Assuming arguendo that the above constitutional

proscription was not observed, no confession or admission was taken from accusedappellant. To be sure, his conviction was not based on his own statements which, as
he claims, were allegedly without the benet of counsel. In fact, it does. not appear
that he even gave a statement. His conviction was anchored on the separate and
independent testimonies of Joel Jabol and Pat. Rolando Maniquiz.
Accused-appellant takes exception to the trial court's admission of the prosecution's
documentary exhibits which, he contends, are inadmissible under the rules on
evidence. Specically, he enumerates the Certication of the Inmates Prison Record
Oce that he escaped from the Davao Penal Colony, marked as Exhibit "B"; the
Arrest and Booking Report pertaining to accused-appellant's arrest for the murder of
Police Corporal Romulo Abad, marked as Exhibit "C"; and the Autopsy Request,
marked as Exhibit "D". He argues that these exhibits are irrelevant and hearsay,
considering that the persons who executed the documents were not presented in
court. Further, he alleges that some questions propounded to him on crossexamination referred to matters not covered during his direct examination.
Accused-appellant's contentions may be correct. It is true that evidence is admissible
when it is relevant to the issue and is not excluded by the law or these rules. 21 On
the other hand, hearsay testimony or evidence is inadmissible and, whether
objected to or not, has no probative value and cannot be given credence. 22
Likewise, a witness may only be cross-examined as to any matters stated in the
direct examination, or connected therewith. 23 However, these principles do not
come into play in this case, because the documents now being objected to, or the
testimony elicited from him during the cross-examination, were not considered by
the trial court in rendering the judgment of conviction. Hence, accused-appellant's
protestations on this score have no bearing whatsoever to his appeal.

Similarly, accused-appellant's contention on the credibility of Joel Jabol must fail.

According to him, since Joel Jabol was drinking rhum when the incident occurred, his
version of the events must not be given credence. First of all, there was no positive
showing that he was in such a state of inebriation at that time as to distort his
memory of the events. More importantly, his ability to accurately recall the incident
was tested by the trial court. In this connection, it bears stressing that this Court
will not disturb the ndings of the trial court on matters relating to the credibility of
witnesses. The evaluation of testimonial evidence by trial courts is accorded great
respect precisely because of its chance to observe rst-hand the demeanor of the
witnesses, a matter which is important in determining whether what has been
testied to may be taken to be the truth or falsehood. Absent any showing that
certain facts of substance and signicance have been plainly overlooked or that the
trial court's ndings are clearly arbitrary, the conclusions reached by the trial court
must be respected and the judgment rendered affirmed. 24
An appeal in a criminal case throws the whole case wide open for review and the
reviewing tribunal can correct errors, though unassigned in the appealed judgment,
or even reverse the trial court's decision on the basis of grounds other than those
that the parties raised as errors. 25 Thus, although the following issues are not
assailed by accused-appellant, we deem it prudent to pass upon the same if only to
validate the findings of the trial court.
The trial court held that the crimes committed by accused-appellant against
brothers Fernando Jabol and Joel Jabol were, respectively, murder and frustrated
murder, the same being qualied by treachery. We agree. The victims were sitting
around a table inside the house of Domingo Lipas when, suddenly and without
warning, accused-appellant barged into the house and instantly red his gun at
them. As a result, the Jabol brothers suered mortal wounds. The suddenness of the
attack aorded the victims no opportunity to put up a defense. Joel survived, but
Fernando was not as fortunate. As consistently held by this Court, an unexpected
and sudden attack which renders the victim unable and unprepared to defend
himself by reason of the suddenness and severity of the attack constitutes alevosia
or treachery. Its essence lies in the adoption of ways that minimize or neutralize
any resistance which may be put up by the unsuspecting victim. 26
Anent the crime committed against Joel Jabol, the trial court was likewise correct
when it found that it was frustrated murder. The gunshot hit Joel on the right
subcostal area, 27 i.e., below the right rib. This was a mortal wound which could
have caused Joel Jabol's death, considering the vital organs in that part of the body.
But due to timely medical attention, he survived. The intervention of medical
treatment was independent of accused-appellant's will. A felony is frustrated where
the oender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator, 28 such as prompt medical aid. 29
We also agree with the trial court that accused-appellant's defense of alibi cannot
prosper. As it correctly found, and as testied to by defense witness Ana Olvida, the
distance between Angeles City and Quezon City can be traversed by bus in one and
a half hours. 30 For the defense of alibi to prosper, an accused should prove, not only

that he was at some other place at the time of the commission of the crime, but
that also it would have been physically impossible for him to be at the locus delicti
or within its immediate vicinity. 31
At the time of its commission, the penalty for murder was reclusion temporal
maximum to death. 32 There being three distinct penalties, each one shall form a
period. 33 Since no aggravating or mitigating circumstance was alleged or proved in
this case, 34 the penalty shall be imposed in its medium term. Thus we are not in
period. Thus, the trial court was correct in sentencing accused-appellant to suffer
the penalty of reclusion perpetua for the murder of Fernando Jabol.
On the other hand, frustrated murder is punishable by the penalty next lower in
degree, 35 which is prision mayor maximum to reclusion temporal medium. Again,
there being neither aggravating nor mitigating circumstance, the penalty shall be
imposed in its medium period, 36 i.e. , reclusion temporal minimum, consisting of
twelve (12) years and one (1) day to fourteen (14) years and eight (8) months.
Applying the Indeterminate Sentence Law, accused-appellant is entitled to a
minimum term to be taken within the range of the penalty next lower to that
prescribed by the Revised Penal Code for the oense, 37 which is prision correccional
maximum to prision mayor medium, or four (4) years, two (2) months and one (1)
day to ten (10) years: The trial court, therefore, erred in xing the penalty for
frustrated murder. Instead, accused-appellant should be sentenced to suer the
indeterminate penalty of six (6) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal, as
maximum.
AIaHES

Finally, the civil indemnity in the amount of P30,000.00 awarded by the trial court
should be increased to P50,000.00, in line with prevailing jurisprudence. 38
WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal
Case No. Q-89-5349, nding accused-appellant guilty beyond reasonable doubt of
the crime of murder and sentencing him to suer the penalty of reclusion perpetua,
is AFFIRMED with the MODIFICATION that he is ordered to pay the heirs of
Fernando Jabol the amount of P50,000.00 as civil indemnity.
The judgment in Criminal Case No. Q-89-5350, nding accused-appellant guilty
beyond reasonable doubt of the crime of frustrated murder, is AFFIRMED with the
MODIFICATION that accused-appellant is sentenced to suer an indeterminate
penalty of six (6) years and one (1) day of prision mayor, as minimum, to twelve
(12) years and one (1) day of reclusion temporal, as maximum. Costs de officio.
SO ORDERED.

Davide, Jr., C.J ., Puno, Kapunan and Pardo, JJ ., concur.

Footnotes
1.

Record, p. 64.

2.

Exhibits "E" & "G."

3.

TSN, September 29, 1989, pp. 2-3.

4.

Record, pp. 5-8.

5.

TSN, October 16, 1989, pp. 2-4.

6.

TSN, January 18, 1990, pp. 3-4.

7.

Record, p. 67; penned by Judge Tirso D' C. Velasco.

8.

Ibid., p. 71.

9.

Id., p. 72.

10.

Id., pp. 76-80.

11.

Id., p. 85.

12.

Id., p. 100.

13.

Rollo, pp. 45-55.

14.

Ibid., p. 106.

15.

Id., p. 179.

16.

Id., pp. 215-218.

17.

Record, p. 38.

18.

Ibid., p. 64.

19.

People v. Dano, G.R. No. 117690, September 1, 2000.

20.

Rollo, p. 48.

21.

RULES OF COURT, Rule 128, Section 3.

22.

Judge Caa v. Gebusion , A.M. No. P-98-1284, March 30, 2000; Cristobal v. Court
of Appeals , G.R. No. 124372, March 16, 2000.

23.

RULES OF COURT, Rule 132, Section 6.

24.

People v. Ramos , G.R. No. 120280, April 12, 2000.

25.

People v. Listerio, G.R. No. 122099, July 5, 2000.

26.

People v. Molina, G.R. Nos. 134777-78, July 24, 2000.

27.

Exhibit 'A.'

28.

REVISED PENAL CODE, Article 6, 2nd par.

29.

People v. Jarandilla, G.R. Nos. 115985-86, August 31, 2000.

30.

TSN, January 18, 1990, p. 4.

31.

People v. Catuiran, Jr., et al., G.R. No. 134768, October 17, 2000.

32.

REVISED PENAL CODE, Article 248.

33.

REVISED PENAL CODE, Article 77.

34.

REVISED PENAL CODE, Article 64 (1).

35.

REVISED PENAL CODE, Article 50.

36.

REVISED PENAL CODE, Article 64 (1).

37.

Act No. 4103, as amended, Section 1.

38.

People v. Piamonte , 303 SCRA 577, 590 (1999); People v. Gatchalian , 300 SCRA
1, 19 (1998).