FIRST DIVISION

G.R. No. 116196 June 23, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
PABLO ADOVISO, defendant-appellant.

KAPUNAN, J.:

Pablo Adoviso appeals from the Joint Judgment 1 of the Regional Trial Court of
Camarines Sur2 declaring him guilty beyond reasonable doubt for two counts of
Murder.

Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit

(CAFGU), was originally charged with four unidentified persons who have,
however, remained at large. The information 3 charging appellant with the Murder
of Rufino Agunos under Criminal Case No. P-2079 alleges:

That on or about the 18th day of February 1990 at about 8:00 o'clock
[sic] in the evening at Sitio Tan-agan, Barangay Casugad, Municipality
of Bula, Province of Camarines Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, while
armed with assorted long firearms, conspiring, confederating and
mutually helping one another, with intent to kill and with treachery and
evident premeditation, did then and there willfully, unlawfully and
feloniously shoot one Rufino Agunos several times with said firearms
hitting the latter on the different parts of his body which were the direct
and immediate cause of his death, to the damage and prejudice of the
heirs of said Rufino Agunos.

That the crime complained of against the accused is not service

connected.

ACTS CONTRARY TO LAW.

Except for the name of the victim, the information in Criminal Case No. P-2080
with respect to the killing of Emeterio Vasquez, contains the same allegations. 4
Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case
Nos. P-2079 and P-2080, the prosecution presented their version of the events
that transpired on the evening of February 18, 1990, as follows:

The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio
Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the houses was
actually a camalig where they stored harvested rice. The spouses preferred to
live there because it was cooler. The living area of the camalig had walls of
bamboo called salsag. This area was elevated from the ground. Three steps led
down to an awning (suyab) walled with bamboo slats. These slats were placed
horizontally approximately four to six inches apart. A portion of the awning was
used as a kitchen but another portion had a papag where the Vasquez'
grandson, Rufino Agunos, son of their daughter Virginia, would sleep whenever
he tended the irrigation pump. The spouses son Bonifacio occupied the other
house eight (8) meters from the camalig with his own son Elmer.

At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was
preparing coffee as his wife was about to retire for the night. Their grandson
Rufino had already gone to sleep in the papag. Anastacia had just finished
spreading the sleeping mat when she heard three or four gunshots. Emeterio
then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, "Why
should you not be hit when infact there are guns in front of you." Anastacia saw
the "protruding edge of the gun" on the wall near the stairs where Emeterio went
down. A lamp near the stairs where Emeterio drank coffee illuminated
the camalig but Anastacia failed to recognize the persons who fired their guns at
her husband.

The Vasquez' son Bonifacio was in the bigger house when he heard the
gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the
engine of the irrigation pump. Bonifacio was still talking when he noticed that
Rufino had fallen asleep, the latter's back against the bamboo wall. Bonifacio left
Rufino snoring in the papag and went to the other house. Only a minute had
passed after he had gone up when Bonifacio heard the gunshots. He and his 16-
year-old son Elmer immediately went down the front yard to investigate.

Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From
a distance of eight (8) meters, Bonifacio saw Rufino, who was inside the camalig,
being shot by several persons from the outside. Looking through the bamboo
slats of the camalig wall. Bonifacio recognized one of the assailants, with a large
built and long hair, as appellant Pablo Adoviso because of the gas lamp that was
lighted inside the camalig. Of Rufino's assailants, only appellant was not wearing
a mask. Appellant was holding a long firearm wrapped inside a sack with its
muzzle protruding and directed where Rufino was sleeping. Appellant then fired
hitting Rufino. At that moment, Bonifacio heard his father Emeterio shout "Pino,"
(referring to his grandson Rufino) and saw his father go down the stairs carrying
a gas lamp. Appellant fired again, hitting Emeterio at the stomach.

For his part, Elmer, who rushed towards the camalig with his father Bonifacio,
saw five (5) persons aiming their firearms at the camalig. Except for appellant,
each of these persons had a cover over their faces. Three (3) of them were
positioned in a ditch near the camalig while two (2) others were near its door.
Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on
the papag. Although his back was hit, Rufino was able to crawl under the papag.
Elmer's grandfather was also hit on the stomach but he managed to up
the camalig. When appellant and his companion by the camalig door saw Elmer,
they fired at him then, with the three others at the ditch, escaped to the banana
plantation Elmer, on the other hand, fled towards the coconut plantation.

Upon returning to the camalig, Elmer saw his father carrying his grandfather
Emeterio. He also found Rufino at the foot of a coconut tree near the river, lying
on his side with his body curled. Rufino told Elmer that he had been hit and,
when Elmer failed to locate his wound, Rufino took Elmer's hand and put it on his
back. Elmer then moved Rufino "sidewise." Upon returning to the camalig, Elmer
carried his grandfather and bandaged his stomach with diapers.

In the meantime, Bonifacio went to the municipal building of Bula to fetch the
police. Inspector Antonio Lopez and Senior Police Officer 1 Claro Ballevar
returned to the scene of the crime with him. The police brought Emeterio and
Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both
Emeterio and Rufino died early the next morning.

The certification5 dated March 7, 1990 and signed by Dr. Janice Nanette Estrada,
resident physician of the Bicol Regional Hospital in Naga City, states that 35-
year-old Rufino Agunos died of four (4) gunshot wounds: at the inguinal area, the
sacral area, the thigh and the abdomen. The wounds at the inguinal area and the
thigh bore contusion collars. The same physician certified that Emeterio
Vasquez, 88 years of age, sustained seven (7) gunshot wounds at the
paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right
forearm, anteromedial aspect of the right forearm, anteromedial aspect left arm
and anterolateral aspect of the left arm. Four (4) of these gunshot wounds had
contusion collars — at the paraumbilical area, the hypogastrium, the right
forearm and the left arm.6

Appellant Adoviso interposed alibi and denial as his defense.

Appellant claimed that he was a member of the CAFGU whose headquarters
was located in Barangay Palsong, Bula, Camarines Sur. At around 7:00 in the
evening of February 18, 1990, he was in Sitio Durabod, Palsong, about a
kilometer away from the CAFGU headquarters. He, together with Francisco
Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the
store of Honoria Tragante until around 11:00 p.m.

Honoria Tragante and Francisco Bislombre corroborated appellant's alibi. Antero

Esteron likewise testified that from 7:00 until past 11:00 that night of February 18,
1990, he and appellant had a drinking spree at the Tragante store. He distinctly
remembered that date because it was the fiesta of Balatan.

To support his denial appellant presented Lt. Antonio Lopez, the deputy chief of
police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez identified
a police certification7 prepared by Pfc. Ramon N. Canabe to the effect that the
shooting incident was perpetrated "by unidentified armed men." Lopez said that
he (Lopez) was one of those who brought the victims to the hospital who were
then still conscious. The victims told him that they did not know who shot them or
why they were shot.

SPO2 Claro Ballebar, however testified that in the follow-up investigation he

conducted several days after the incident, Bonifacio Vasquez revealed to him
that he (Bonifacio) "vividly saw the incident and recognized" appellant as one of
the perpetrators of the crime and that the killings had some something to do with
land dispute between Bonifacio's parents and the Galicia family.

The defense also offered in evidence the testimony of Ernesto A. Lucena,

Polygraph Examiner II of the National Bureau of Investigation (NBI) in Manila,
who conducted a polygraph test on appellant. In Polygraph Report No.
900175, 8 Lucena opined that appellants ''polygrams revealed that there were no
specific reactions indicative of deception to pertinent questions relevant" to the
investigation of the crimes.

In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the
police, he did not identify appellant as one of the culprits because he was afraid
of appellant who was a member of the CAFGU. Nevertheless, Bonifacio did
mention to the police that he recognized appellant as one of the perpetrators of
the crime although he told them that he did not recognize appellant's four (4)
companions. He did not mention to Lopez and Canabe appellant's identity
because he was "confused" about what had happened in their house.
On March 25, 1994, the trial court rendered a Joint Judgment finding appellant
guilty beyond reasonable doubt for two (2) counts of murder and disposing of
Criminal Case Nos. P-2079 and P-2080 as follows:

WHEREFORE, in view of all the foregoing, joint judgment is hereby

rendered:

In Criminal Case No. P-2079, finding the accused PABLO ADOVISO

guilty beyond reasonable doubt of the crime of MURDER and
imposing upon him the penalty of RECLUSION PERPETUA and to
pay the legal heirs of Rufino Agunos, consisting of the widow, Evelyn
T. Agunos and their four (4) children the sum of FIFTY THOUSAND
PESOS (P50,000.00) Philippine Currency;

In Criminal Case No. P-2080, likewise finding said accused PABLO

ADOVISO guilty beyond reasonable doubt of the crime of MURDER
and imposing upon him another penalty of RECLUSION
PERPETUA and to pay the legal heirs of the late EMETERIO
VASQUEZ, consisting of Anastacia Vasquez and Bonifacio Vasquez,
another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine
Currency with all the accessory penalties provided therefore in both
cases and to pay the costs in both instances.

SO ORDERED.9

Appellant hinges his bid for exoneration on whether he was properly identified by
the two (2) eyewitnesses as one of the killers of the victims. He contends that
eyewitnesses Bonifacio and Elmer Vasquez presented an "incredible" story
because it is "highly improbable" that they could have "distinctly and positively
recognized accused-appellant as one of the perpetrators of the
crimes." 10 According to appellant, Bonifacio, who was in the dark portion of the
yard hiding behind a coconut tree, could not have identified appellant by the light
emanating from gas lamp inside the camalig where Emeterio Vasquez and
Rufino Agunos were staying at the time of the incident. Neither could Elmer
Vasquez, who declared that he saw his grandfather shot by appellant, could have
identified appellant because of the poor lighting coming from the gas lamp being
carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's
grandfather was "a small can about two (2) inches tall and the wick is smaller
than a cigarette" and the lamp inside the camalig "was placed inside a bigger can
so that the direction of the light emanating therefrom was upwards and not
sidewise." 11
Visibility is indeed a vital factor in the determination of whether or not an
eyewitness could have identified the perpetrator of a crime. However, it is settled
that when conditions of visibility are favorable, and the witnesses do not appear
to be biased, their assertion as to the identity of the malefactor should normally
be accepted. 12 Illumination produced by kerosene lamp or a flashlight is
sufficient to allow identification of persons. 13 Wicklamps, flashlights, even
moonlight or starlight may, in proper situations be considered sufficient
illumination, making the attack on the credibility of witnesses solely on that
ground unmeritorious. 14

In this case, not one (1) but two (2) gas lamps illuminated the place — the one
placed inside the camalig and that held by Emeterio as he descended from the
stairs after the first volley of gunfire. Appellant's contention therefore that one
particular gas lamp could not have lighted the place because it was placed inside
a can is puerile. Besides, Elmer was not describing either of the gas lamps
during the incident. The defense counsel at the trial and appellant's counsel
misunderstood the testimonies of Elmer and his grandmother on that matter.
Thus, Elmer testified:

ATTY. CORTES:

Q Is it not that the lamp you said placed along the door,
which is already marked as lamp, is that not this lamp was
placed inside a kerosene can as testified to by your
grandmother so that the cat could not cause it to fall?

A It was placed just on the floor not inside the

can. 15 (Emphasis supplied.)

For her part, Anastacia testified as follows.

ATTY. CORTES:

x x x           x x x          x x x

Q Because you were already about to retire, the doors and

windows were already closed, is that correct?

A Yes, sir.

Q That you also shut down or closed the light, is that

correct?
 A No, sir, we even placed the kerosene lamp inside a can.

Q You said, you placed the lamp inside a can so that the
light is going up, is that correct?

A Yes, sir.

Q So, the light was not illuminating sidewise because it was

inside a can?

A When we left, I got the kerosene lamp and brought it with

me.

ATTY. CORTES:

I think, the witness did not get the question right, Your
Honor.

COURT:

Repeat the question.

ATTY. CORTES:

Q My question Madam Witness is, when you were about to

retire?

A The lamp was placed on the floor where my husband

was drinking coffee.

COURT :

Q Who are the persons you are referring to as having left

when you placed the light inside the can?

A My son, Bonifacio, and the policemen, Your Honor, when

the(y) brought Emeterio and Rufino to the
16
hospital.   (emphasis supplied).

Clearly then, the lamp inside the camalig was placed on the floor and a can was
placed over it only after the incident when Anastacia left with her son and the
police to bring the victims to the hospital.
The bamboo slats of the camalig could not have effectively obstructed the
eyewitnesses' view of appellant, considering that the slats were built four (4)
meters apart. Besides, it is the natural reaction of relatives of victims to strive to
observe the faces and appearance of the assailants, if not ascertain their
identities, and the manner in which the crime is committed. 17 A relative will
naturally be interested in identifying the malefactor to secure his conviction to
obtain justice for the death of his relative(s). 18 It must remembered that appellant
was not a complete stranger to the eyewitnesses. Bonifacio had known him for
ten (10) years 19 while Elmer had been acquainted with him for four (4) years.
Elmer recalled that appellant used to join the rabuz at the barracks. 20 Familiarity
with appellant's face and appearance minimized if not erased the possibility that
they could have been mistaken as to his identity.

Appellant's allegation that it was "improbable" for him to have committed the
crimes without a mask, unlike the other participants, deserves scant
consideration. It is not contrary to human experience for a person to commit a
crime before the very eyes of people who are familiar to them. Indeed, some may
even take pride in their identification as the perpetrator of a criminal act.

Appellant also considers as a "positive sign," Bonifacio's failure to immediately

identify him as the perpetrator of the crime to the police. 21 The delay in reporting
his participation to the police was however sufficiently explained by Bonifacio.
Bonifacio was afraid of appellant since the latter was a member of the CAFGU
and, as such, was provided with a gun. He was also hesitant in identifying
appellant immediately lest he got wind of his impending arrest and posthaste
escaped the clutches of the law. The failure of a witness to reveal at once the
identity of the accused as one of the perpetrators of the crime does not affect,
much less, impair his credibility as a witness. 22 The general or common rule is
that witnesses react to a crime in different ways. 23 There is no standard form of
human behavioral response to a strange, startling and frightful event, and there is
no standard rule by which witnesses to a crime must react. 24

There is no merit in appellant's contention that Bonifacio had a motive in

implicating him. According to appellant, Bonifacio suspected that he was hired by
the Galicia family to kill Bonifacio's father who had earlier won in a land dispute
with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio
inasmuch as to credible witnesses had positively identified appellant as one of
the participants in the killing of Emeterio Vasquez and Rufino Agunos.

Appellant's alibi thus crumbles in the face of his positive identification as one of
the perpetrators of the crimes. 25 For an alibi to prosper, moreover, there must be
proof that the defendant was not only somewhere else when the crime was
committed but that he could not be physically present at the place of the crime or
its immediate vicinity at the time of its commission. 26 Appellant did not prove the
physical impossibility of his being in Sitio Tan-agan which is not exactly remote
from Sitio Palsong where he claimed to be when the incident happened. Both
places are within the Municipality of Bula. Appellant admitted that the distance
between the two sitios could be negotiated in three hours even without any
means of transportation. 27 On the other hand, his alleged companion in Sitio
Palsong, Antero Esteron, testified that the distance could be traveled in thirty-five
(35) minutes by "trimobile" or private vehicle. 28

Apart from the fact that appellant's alibi was inherently weak, he was not even
sure where he was and who were his companions at the time the crimes were
committed. We quote the observation of the trial court on this point:

On the premise that the trial court rendered the judgment of conviction on the
basis of "mere conjectures and speculations," 29 appellant argues that the
negative result of the polygraph test should be given weight to tilt the scales of
justice in his favor.

A polygraph is an electromechanical instrument that simultaneously measures

and records certain physiological changes in the human body that are believed to
be involuntarily caused by an examinee's conscious attempt to deceive the
questioner. 30 The theory behind a polygraph or lie detector test is that a person
who lie deliberately will have rising blood pressure and a subconscious block in
breathing, which will be recorded on the graph. 31 However, American courts
almost uniformly reject the results of polygraphs tests when offered in evidence
for the purposes of establishing the guilt or innocence of one accused of a crime,
whether the accused or the prosecution seeks its introduction, for the reason that
polygraph has not as yet attained scientific acceptance as a reliable and
ascertaining truth or deception. 32 The rule is no different in this jurisdiction. Thus,
in People v. Daniel, 33 stating that much faith and credit should not be vested
upon a lie detector test as it is not conclusive. Appellant, in this case, has not
advanced any reason why this rule should not apply to him.

Appellant was therefore correctly adjudged guilty of two counts of Murder.

Treachery qualified the killing to murder. There is treachery when the offender
commits any of the crimes against the person, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which offended party
might make. 34 In other words, there is treachery when the attack on an unarmed
victim who has not given the slightest provocation is sudden, unexpected and
without warning. 35 The victims in this case were totally unaware of an impending
assault — Rufino was sleeping and Emetario was going down the stairs when
they were shot.

WHEREFORE, the Joint Judgment of the trial court is hereby

AFFIRMED.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Melo, Pardo and Ynares-Santiago, JJ., concur.

Footnotes

1 Penned by Judge Martin P. Badong, Jr.

2 Branch 31.

3 Records, p. 1, Criminal Case No. P-2079.

4 Id., at 3.

5 Id., at 35, Exh. D.

6 Id., at 34, Exh. C.

7 Id., at 370, Exh. 6.

8 Id., at 47, marking Exh. 8.

9 Id., at 422.

10 Rollo, p. 204.

11 Id., at 205-206.

12 People v. Cogonon, 262 SCRA 693 (1996).

13 People v. Fabrigas, Jr., 261 DVTS 436 (1996); People v. Penillos,

205 SCRA 546 (1992); People v. Loste, 210 SCRA 614 (1992).

14 People v. Villaruel, 330 Phil. 79, 89 (1996).

15 TSN, July 30, 1993, p. 5.

16 TSN, August 9, 1993, pp. 15-16.

17 People v. Ramos, 260 SCRA 402 (1996).

18 People v. Sotes, 260 SCRA 353 (1996).

19 TSN, April 8, 1992, p. 3.

20 TSN, July 13, 1993, pp. 25-26.

21 Rollo, p. 208.

22 People v. Mendoza, 223 SCRA 108, (1993).

23 People v. Paynor, 261 SCRA 615 (1996).

24 People v. Teves, 321 Phil. 837 (1995).

25 People v. Santos, 270 SCRA 650 (1997).

26 People v. Alshaika, 261 SCRA 637 (1996).

27 TSN, September 4, 1992, p. 3.

28 TSN, July 30, 1993, pp. 26-27.

29 Rollo, p. 214.

30 WEST'S LEGAL THESAURUS/DICTIONARY, Special Deluxe

Edition (1986).

31 WORDS AND PHRASES, "Lie Detector."

32 26A Am Jur 2d Evidence § 1007.

33 86 SCRA 511 (1978).

34 Art. 14 (16), Revised Penal Code.

35 People v. Abapo, 239 SCRA 469 (1994).