FIRST DIVISION

[G.R. No. 120646. February 14, 2000.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. APOLINAR

DANDO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Leonardo G. Ragaza for accused-appellant.

SYNOPSIS

Accused-appellant Apolinar Dando was found guilty by the Regional Trial

Court, Branch 33, Siniloan, Laguna, of the crime of murder. This appeal
principally assailed the testimony of prosecution witness, Aldwin Gemanel,
alleging that it was marred by inconsistencies and was incredible, therefore,
unworthy of belief. He also alleged that there was no proof showing that the
empty shells and slugs recovered at the scene of the crime were the same
empty shells and slugs submitted for ballistic examination. According to
appellant, the relatives of the victim tampered with the pieces of evidence
making the same tainted or polluted, therefore unreliable.

The Supreme Court affirmed the Decision of the trial court convicting
accused-appellant of the crime charged. The Court found the alleged
inconsistencies in the testimony of witness Aldwin Gemanel referred only to
inconsequential details and not to the crux of the case — that Gemanel saw
appellant gunned down the victim. The Court's perusal of the records showed
that Gemanel never wavered on that point even for a single moment and his
testimony cannot be discredited by a mere alibi and denial on the part of the
appellant. On the issue of evidence tampering, the Court upheld the
presumption of regularity of the ballistic examination report since appellant
failed to prove by convincing evidence any irregularity in the handling of the
evidence by the police officers of the particular pieces of evidence. The Court
concluded that the corpus delicti and the positive identification of the appellant
as the perpetrator of the crime are more than enough to sustain his conviction.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT

AFFECTED BY INCONSISTENCIES THAT REFER ONLY TO INCONSEQUENTIAL
DETAILS AND NOT TO THE CRUX OF THE CASE. — Well-settled is the rule that
"inconsistencies on minor and trivial matters only serve to strengthen rather
than weaken the credibility of witnesses for they erase the suspicion of
rehearsed testimony." Moreover, the alleged inconsistencies refer only to
inconsequential details and not to the crux of the case — that Gemanel saw
accused-appellant gun down Castro. Gemanel never wavered on this point even
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 for a single moment. The consistency on the part of Gemanel in identifying
accused-appellant as the perpetrator of the crime makes him a credible
witness. His testimony cannot be discredited by a mere alibi and denial on the
part of accused-appellant.

2. ID.; ID.; DEFENSE OF ALIBI; THE DISTANCE OF ONE-AND-A-HALF

KILOMETERS DID NOT RENDER IT PHYSICALLY IMPOSSIBLE FOR ACCUSED-
APPELLANT TO BE AT THE SCENE OF THE CRIME AT THE TIME IT WAS
COMMITTED. — Alibi is one of the weakest defenses in criminal cases and it
should be rejected when the identity of the accused is sufficiently and positively
established by the prosecution. Moreover, in order to overcome the evidence of
the prosecution, the accused must establish not only that he was somewhere
else when the crime was committed but also that it was physically impossible
for him to have been at the scene of the crime at the time it was committed. In
the present case, accused-appellant failed to show that it was physically
impossible for him to be at the scene of the crime when it was committed. He
even admitted that his house was only about one-and-a-half kilometers away
from the house of Millares, which was very near the place where Castro was
shot to death. Undoubtedly, the distance did not render it impossible for
accused-appellant to be at the scene of the crime at the time it was committed.
Accused-appellant's defense of alibi must necessarily fail.
3. ID.; ID.; TESTIMONY OF A CHILD OF SOUND MIND IS LIKELY TO BE
MORE CORRECT AND TRUTHFUL THAN THAT OF OLDER PERSONS. —
Confronted with the inconsistent statements of Millares and the straightforward
and categorical testimony of Gemanel, which was corroborated by that of
Susana Masacupan, this Court believes and gives credence to the latter. When
he testified in court, Gemanel was then only thirteen (13) years old and a
second year high school student at Siniloan Public High School. Indeed, "the
testimony of a child of sound mind is likely to be more correct and truthful than
that of older persons, so that once established that he has fully understood the
character and nature of an oath, his testimony should be given full credence."
4. CRIMINAL LAW; MURDER; ESTABLISHED IN CASE AT BAR; THE
CORPUS DELICTI AND THE POSITIVE IDENTIFICATION OF ACCUSED-APPELLANT
AS THE PERPETRATOR OF THE CRIME ARE MORE THAN ENOUGH TO SUSTAIN
HIS CONVICTION. — Accused-appellant failed to prove by convincing evidence
any irregularity in the handling by the police officers of these particular pieces
of evidence. The ballistic examination report is thus clothed with the
presumption of regularity. At any rate, the presentation of weapons (or the
slugs and bullets, as in this case) used and ballistic examination are not
prerequisites for conviction. The corpus delicti and the positive identification of
accused-appellant as the perpetrator of the crime are more than enough to
sustain his conviction.
5. ID.; ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; ATTENDED THE
COMMISSION OF THE CRIME, SINCE THE ATTACK, ALTHOUGH FRONTALLY, WAS
NO LESS THAN SUDDEN AND UNEXPECTED, GIVING THE VICTIM NO
OPPORTUNITY TO REPEL IT OR OFFER ANY DEFENSE OF HIS PERSON. — The
essence of treachery is that the attack comes without a warning and in a swift,
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 deliberate and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape. In this case, accused-
appellant, whose face was covered by a handkerchief, approached the victim,
who was merely standing by the gate in front of his house, and shot him. The
victim was undoubtedly caught unaware and had no chance of putting up any
defense. Clearly, treachery attended the commission of the crime since the
attack, although frontally, was no less sudden and unexpected, giving the
victim no opportunity to repel it or offer any defense of his person. HTAIcD

DECISION

KAPUNAN, J : p

This is an appeal from a decision of the Regional Trial Court, Branch 33,
Siniloan, Laguna finding PO3 Apolinar E. Dando ("accused-appellant") guilty
beyond reasonable doubt of murder. cdphil

The Information filed against accused-appellant reads:

That on or about 6:19 o'clock in the evening of November 20,
1991 at Barangay M. Pandeño, Municipality of Siniloan, Province of
Laguna and within the jurisdiction of this Honorable Court, the above-
named accused while conveniently armed with a deadly weapon (cal.
45) with intent to kill, with treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack assault and
shoot several times one CESAR CASTRO y VALMONTE with the said
weapon, thereby inflicting upon him gunshot wounds on the vital parts
of his body which directly caused his death, to the damage and
prejudice of the surviving heirs of the victim.

That the qualifying and aggravating circumstances of treachery,

evident premeditation and abuse of superior strength attended the
commission of the crime.
CONTRARY TO LAW. 1

On the same date, accused-appellant filed a motion for inhibition and for
a change of venue of the case because several staff members of Branch 33,
RTC of Laguna were related to the victim. On February 12, 1992, Judge
Venancio M. Tarriela, the Presiding Judge of said branch, granted the motion. 2
On May 14, 1992, this Court approved the change of venue and designated
Judge Jose C. Mendoza of Branch 26, RTC of Sta. Cruz, Laguna, to try and decide
the case. 3

Accused-appellant filed a petition for bail 4 which was denied after hearing
on the ground that the evidence against accused-appellant is strong. 5 Accused-
appellant then went to the Court of Appeals via petition for certiorari
questioning the denial of his petition for bail.

Subsequently, on account of another motion for inhibition,6 filed by

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 accused-appellant alleging that a prosecution witness in the hearing for the
petition for bail was related to a staff member of Branch 26, the case was re-
raffled and transferred to Branch 28, RTC of Sta. Cruz, Laguna, presided by
Judge Fernando Paclibon, Jr.
On June 18, 1993, the Court of Appeals rendered its decision dismissing
accused-appellant's petition questioning the denial of his motion for bail, for
lack of merit. 7
During trial and after the prosecution witness had already rested its case,
the Presiding Judge of Branch 28, RTC of Sta. Cruz, Laguna, likewise, inhibited
himself from further hearing the case when accused-appellant questioned his
impartiality because of his refusal to grant accused-appellant's motion to recall
prosecution witness Susana Masacupan to the witness stand as a hostile
witness. 8 The case was transferred back to Branch 26, RTC of Laguna, then
presided by Judge Pablo Francisco. LLjur

On May 2, 1995, the trial court rendered its decision the dispositive
portion of which reads:
WHEREFORE, this Court finds the accused Apolinar Dando guilty
beyond reasonable doubt of the crime of murder as charged in the
information, qualified by treachery and committed with the
aggravating circumstances of use of craft or disguise and evident
premeditation and hereby sentences him to suffer the penalty of
reclusion perpetua and to pay the heirs of Cesar Castro as follows:
a.) the sum of P50,000.00 as death indemnity;
b.) the sum of P1,628,000.00 for loss of earning capacity; and

c.) the sum of P35,974.00 as reimbursement for expenses

incurred in the wake and burial of the victim; and to pay the costs.

SO ORDERED. 9

The prosecution's account of the case as narrated in the brief of the

Solicitor General is as follows:
Prosecution witness Aldwin Gemanel testified that on November
20, 1991, he went to the house located at Pandiño Street, Siniloan,
Laguna of his uncle, Angelito Millares, Jr. (Junior Millares) to look for his
(Gemanel's) father. Junior Millares' house was about 100 to 150 meters
away from that of the victim, Cesar Castro. Upon arrival at his uncle's
place, a party was on-going as it was the birthday of the former (p. 3,
tsn, June 17, 1992). At the said party, gunshots were fired by appellant
and Junior Millares to celebrate the occasion (p. 4, tsn, October 20,
1992 and pp. 14-15, tsn, August 26, 1993). After a few hours at the
birthday party, Gemanel decided to go to his grandmother's house, a
mere three (3) houses away from his uncle's house (p. 5, tsn, June 17,
1992). On the way to his grandmother's house, he saw appellant
Apolinar Dando, sat on the side-car of a tricycle parked along Pandiño
Street in front of Junior Millares' house and placed a white handkerchief
over his face (p. 5-6, tsn, Ibid). Though puzzled by the action of
appellant, Gemanel proceeded to his grandmother's house and stayed
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 there for almost an hour (pp. 20-21, tsn, September 22, 1993). When
Gemanel went out of the house, he saw appellant get off the tricycle
with the handkerchief covering his face and walk towards the direction
of the town plaza (pp. 30-31, tsn, Ibid.). At that time, Gemanel followed
appellant and then he (Gemanel) entered a bakery to buy bread (pp.
28-29, tsn, Ibid). While inside the bakery, Gemanel heard a shot, so he
ran outside to look where the shot came from (p. 36, tsn, Ibid).
Thereupon, he saw appellant with the same white handkerchief
covering his face, firing three (3) more shots at Cesar Castro, who was
standing on the street in front of his (Castro's) house. After the fourth
shot appellant ran towards the "paraanan" or alley, to the direction of
the town plaza (pp. 37-43, tsn, Ibid).cdll

Gemanel rushed home and told his mother what he had just
witnessed (p. 53, tsn, September 22, 1993). His mother then went to
the crime scene while he was left to tend their store (p. 54, tsn, Ibid).
When his mother came back after about ten (10) minutes, he confided
to her that he saw appellant shoot Cesar Castro (p. 54, tsn, Ibid. ). His
mother then advised him not to tell anyone. Then he went to the crime
scene for a closer look of the victim (p. 55, tsn, Ibid. ).

The following day on November 21, 1991, Gemanel was fetched

by police officers from his school and was brought to the municipal
building for questioning. The day after, on November 22, 1991, he
executed a statement (Exhibit "A"; pp. 8-9, tsn, July 14, 1992).

Gemanel further testified that he was present when a slug was

recovered from the front yard of his uncle's (Millares') house (p. 11,
tsn, July 14, 1992). He personally saw the slug which was subsequently
handed to Celso Castro, son of Cesar Castro. He learned that the slug
found was one of those fired from the service pistol of appellant when
the latter fired his gun during the birthday party of his uncle (pp. 11-12,
tsn, Ibid. ).

Susan Masakupan, 29 years of age, married and a resident of

Pandiño Street, Siniloan, Laguna, corroborated the testimony of
Gemanel. She testified that on or about 6:00 o'clock in the evening of
November 20, 1991, while she was getting dry clothes hanging at their
clothesline located at their front yard, a man wearing a white polo shirt
with designs and a pair of khaki pants and had a handkerchief covering
his face passed by. Surprised with the man's covered face, her gaze
followed the man until the latter stopped by victim Cesar Castro.
Thereupon the man shot Cezar Castro and when the latter fell down,
the man continued on shooting at Cesar Castro two (2) or more shots.
After the additional shots, the man ran towards an alley (pp. 2-5, tsn,
July 21, 1992).
SPO4 Efren Palma, Deputy Station Commander of the PNP,
Siniloan, Laguna, testified that three (3) slugs and three (3) empty
shells were recovered from the crime scene on the night of November
20, 1991 (p. 6, tsn, October 5, 1992). LexLib

Josue Flores, property custodian of the PNP, Siniloan, Laguna,

testified that he issued to appellant, who is a member of PNP, Siniloan,
Laguna, (one 1) service firearm, which was a caliber .45 pistol,
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 Remington, with serial number 1945012 (pp. 3, 5 and 7, tsn, August
11, 1992).
Florentino Rañada, a member of the Central Intelligence Service
of Siniloan, Laguna, testified that he received from the Siniloan, Laguna
police station the following specimens:
— one (1) slug .45 caliber ammunition;

— three (3) pieces slug for .45 caliber ammunition;

— three (3) pieces empty shells for a .45 caliber ammunition;

— one (1) piece caliber Remington pistol with serial number

1945012.
and issued a receipt for them (Exhibits "E" and "E-1"; pp. 17-20,
tsn, August 11, 1992).

Rañada further testified that one (1) slug of a .45 caliber pistol
recovered from the body of the victim, which was turned over to him
by Arvee Castro, brother of the victim (pp. 27-28, tsn, Ibid. ) has [sic]
sent together with the above specimens to the PNP crime laboratory
for ballistic examination (p. 30, tsn, Ibid. ).
Susan R. Jalla, PNP officer and criminologist, testified that she
conducted a ballistic examination on the specimens submitted
(Exhibits "H", "I", "J" and "K"; pp. 11-13, tsn, Ibid. ).
She issued a certification (Exhibit "N") stating: ". . . microscopic
examination, MS-1, MRS-1, MRS-15 revealed the same individual
characteristics as the test bullets and test cartridges, respectively fired
from the above-mentioned firearm" (p. 17, tsn, Ibid. )
Dr. Priscilla Realeza, Rural Health Physician of Pakil, Laguna,
testified that she conducted a postmortem examination on the cadaver
of Cesar Castro. She issued an Autopsy Report (Exhibit "R" and "R-1")
finding that the victim sustained eleven (11) gunshot wounds (pp. 6-7,
tsn, Ibid. ) and that one (1) bullet slug was extracted from his body (p.
12, tsn, Ibid. ). 10

Accused-appellant, on the other hand, gave the following version of the

incident: On November 20, 1991; he was a member of the Philippine National
Police (PNP) with the rank of PO3 and detailed as security to the mayor of
Siniloan, Laguna. At around one o'clock in the afternoon of that day, he arrived
at the house of Junior Millares who was then celebrating his birthday. He
participated in a drinking spree up to three o'clock in the afternoon. On that
occasion, there was no firing of a gun. He did not bring his gun to the birthday
party because he was not in a habit of bringing his gun when he attended such
occasions. 11 When he left the party, he went straight home and slept. He woke
up at around midnight because of an upset stomach and vomited. He went
back to sleep and woke up the second time in the morning of November 21,
1991, changed his clothes, ate his breakfast and went to work at around eight
o'clock in the morning. 12 It was only on November 22, 1991 that he learned
from his wife that the Chief of Police and the Mayor were looking for him and
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 that he was a suspect in the killing of Castro. After eating his supper, he went
to the municipal building where the Chief of Police informed him that he was a
suspect in the killing of Castro and was placed under technical arrest. He
surrendered his firearm for ballistic examination to show that he had nothing to
do with the killing. Thereafter, he did not know what happened to the said
firearm. 13

The testimony of accused-appellant as to his whereabouts during the time

the crime was committed was supported by his wife Herminia Dando who
testified before the trial court that on November 20, 1991 she went home at 4
o'clock in the afternoon to cook their supper. Less than an hour later, her
husband arrived, went to the sala and slept until the next morning. They had
breakfast together and after that they went to their respective places of work.
14

Accused-appellant assigns the following errors committed by the trial

court to wit:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE
TESTIMONY OF PROSECUTION WITNESS ALDWIN GEMANEL THAT
ACCUSED APPELLANT APOLINAR DANDO WAS THE ASSAILANT WHO
SHOT THE VICTIM CESAR CASTRO.
II
THE TRIAL COURT ERRED IN FINDING THAT THE EMPTY SHELLS AND
SLUGS SUBMITTED FOR BALLISTIC EXAMINATION WERE THOSE
RECOVERED FROM THE SCENE OF THE CRIME AND ONE SLUG FROM
THE BODY OF THE VICTIM AND CAME FROM THE SERVICE FIREARM OF
THE ACCUSED APPELLANT.
III

THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE PHYSICAL

EVIDENCE CONSISTING OF EMPTY SHELLS AND SLUGS PRESENTED BY
THE PROSECUTION AS TAINTED OR POLLUTED, AND HIGHLY
UNRELIABLE.
IV
THE TRIAL COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF
ALDWIN GEMANEL AND THE BALLISTIC EXAMINATION OF THE SERVICE
FIREARM OF ACCUSED APPELLANT CONSTITUTED PROOF BEYOND
REASONABLE DOUBT OF THE GUILT OF THE ACCUSED FOR THE CRIME
OF MURDER. cda

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND IN
SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION PERPETUA
AND TO PAY THE HEIRS THE SUM OF P1,620,000.00 FOR LOSS OF
EARNING CAPACITY OF THE VICTIM, AND OTHER DAMAGES. 15

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 The first and third issues shall be dealt with together as they are
interrelated.
Accused-appellant assails the testimony of Aldwin Gemanel alleging that
it was marred by inconsistencies and was incredible, therefore, unworthy of
belief. Among these inconsistencies, according to accused-appellant, are:
1. Gemanel testified that there was a birthday party attended
by accused-appellant in the house of his (Gemanel's) uncle,
Junior Millares, and there he saw accused-appellant pull out
his gun and fire a shot downward on the floor. However,
Millares himself testified that accused-appellant merely gave
to him the gun and it was he (Millares) who fired two shots.
Then he handed the gun to another guest, Agustin Salinas,
who likewise fired said gun twice and then it was returned to
accused-appellant. 16
2. Gemanel testified that moments before the shooting of
Castro, he saw accused-appellant in front of the house of
Millares putting a handkerchief to cover his face and then
going inside the tricycle to rest. However, during the
summary examination by the Municipal Judge who conducted
the preliminary investigation, he testified that he saw
accused-appellant on board the tricycle sleeping. 17
3. Gemanel testified that he was barely one house away from
the place of the shooting when he heard a shot. When he
looked at the place where the shot came from, he saw a man
already sprawled on the ground and the man, whose face
was covered by a handkerchief, fired two (2) more shots at
the victim and left passing through a pathway. In other
words, there were three (3) shots fired. Later, he changed
his, testimony stating that there were four (4) shots fired. 18

4. Gemanel testified that after the shooting, he approached the

victim then he went to his mother telling her that Castro was
shot without naming the assailant. He later testified that
after the shooting, he went home to his mother and revealed
to her the identity of the assailant as Apolinar Dando. Then
he went back to the scene of the crime and saw that
policemen were already investigating the incident. When
asked by the police investigator, he told him right then and
there that it was accused-appellant who shot the victim. 19
The foregoing inconsistencies are but minor details and they do not
discredit the positive identification of accused-appellant as the perpetrator of
the crime. The testimony of Gemanel on the events that transpired on
November 20, 1991 was clear, straightforward and consistent. Thus:
DIRECT-EXAMINATION BY FISCAL:

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 Q: On November 20, 1991, where were you?
WITNESS:
A: I was on Pandeño Street, Siniloan, Laguna, sir.

Q: In what particular place in Brgy. Pandeño? prLL

A: About the middle of that area, sir.

Q: You were at the middle part of that area. Will you kindly tell to
this Honorable Court your point of reference as to the place
where you were at the time?

A: What I am saying is that I am at the middle of Pandeño Street,

sir.

FISCAL:
Q: And when you said you were at the middle portion of Pandeño
Street, will you tell this Honorable Court the nearest house where
you were at the time?

WITNESS:
A: Cesar Castro's house, sir.
Q: And what are you doing then?
A: None, Sir, I was then going to my grandmother's house.
Q: And were you able to proceed to the house of your
grandmother?
A Yes, sir.

Q: But prior to proceeding to the house of your "lola" did you go to

any place?
A Yes, sir.

Q: Where?
A. To my uncle Junior's house, sir, where there was a drinking
spree.
Q: Do you know why there were a during spree at the time?
A: Yes, sir, it was my uncle Junior's birthday.
Q: What was your purpose in going to the place of your uncle's
birthday?
A: I was going to look for my father, sir. cdasia

Q: Did you . . . while you were there, by the way, where is the
house of your uncle located?
A On Pandeño Street, sir.

Q: How far from your house, how many houses apart?

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 A: About 15 houses, sir.
Q: What is the full name of your uncle Junior?
A: Junior Millares, sir.
Q: While you were there at the birthday celebration of your uncle
Junior, what did you notice thereat?
WITNESS:

A: There was a firing of gun, sir.

Q: Do you know the person who fired his gun at the time?
A: Yes, sir, Polly Dando.
Q: Do you know Polly Dando personally?
A: Yes, sir.

Q: Do you know the real name of Polly Dando?

A: Yes, sir, Apolinario Dando.
Q: Where did you see Apolinario Dando fired his gun?
A: Under the table pointing downwards, sir.
Q: Do you know the caliber used by Dando?

ATTY. RAGAZA:
Incompetent your Honor.
COURT:
Objection noted, if he knows.

WITNESS:
A: Yes, sir.
Q: Will you tell this Honorable Court the caliber? cdphil

A: A .45 caliber, "yung lapad", sir.

Q: Have you already seen a gun of that caliber?

A: Yes, sir.
Q: Where?
A: On TV and on posters, sir.
xxx xxx xxx
Q: After that, where did you go?

A: I went to my grandmother, sir.

Q: Where is the house of your grandmother located?

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 A: Also on Pandeño Street sir.
Q: How far from the house of your uncle Junior?
A: Three houses away, sir.
Q: What did you do in the house of your lola?
A: I entered the house, sir.

Q: After that, what else happened?

A: I went out, sir.
Q: Where did you go?
A: On the street, sir.
Q: Were you alone at the time? LLphil

A: Yes, sir.
Q: While you were on the street, did you notice of any unusual
incident?
A: Yes, sir.

Q: What was that incident?

A: I saw Polly boarded a tricycle, sir.

Q: When you said Polly Dando boarded a tricycle, you mean to say
Dando went somewhere else?
WITNESS:

A: No, he merely sat on board a tricycle which was parked there,

sir.
Q: This tricycle have a driver?

A: None, sir.

Q: What else did you notice?

A: I saw Polly Dando placed a handkerchief over his face, sir.

xxx xxx xxx

FISCAL:

Q: Do you know the color of the handkerchief?

A. Yes, sir, white with small drawings.

Q: Will you tell this Honorable Court the attire used by the accused
Apolinario Dando?

A: He was wearing a white polo shirt, sir, and a khaki pants.

Q: After you saw Apolinar Dando sat on a tricycle and put a
handkerchief on his face, what else happened?
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 WITNESS:

A: He merely rested for a short while, sir.

Q: After that, what happened? llcd

A: I left, sir.

Q: You mean to say after you saw Apolinar sat on a tricycle and put
a handkerchief on his face and rested for a while, you went to
your lola's house?'

A: Yes, sir.

Q: After that, where did you proceed?

A: I merely stayed on the street, sir.

Q: And again, while there on the street, did you again notice any
unusual incident?
A Yes, sir.

Q: What was that incident?

A: Polly Dando got off the tricycle, sir.

Q: Where did he go?

A: Towards the plaza, sir.

Q: And what did you do?

A: I followed Polly, sir.

Q: Up to what point did you follow him?'

A: About 2 houses, sir.

Q: While following Dando, what happened next?'

A: I entered a bakery, sir.

Q: What was your purpose in going to that bakery?

A: I was going to buy bread, sir.

Q: Were you able to buy bread?

A: No, sir.
FISCAL:

Q: Where did you proceed after that? prLL

A: I heard a shot, sir.

Q: What did you do. . .

ATTY. RAGAZA:
I moved to strike out the answer for not being responsive.
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 COURT:
Sustained.

FISCAL:
Q: While you were at the bakery, what else happened?

WITNESS:

A: I heard a shot, sir.

Q: What shot did you hear?

A: A gun shot, sir.

Q: When you heard that gunshot, what did you do?

A: I went beside the street, sir.

Q: What did you find out?

A: I saw Cesar Castro already sprawled on the ground, sir.

Q: Was Cesar Castro alone at the time?

A: Yes, sir.

Q: And do you know what was the cause of Cesar's falling to the
ground?

ATTY. RAGAZA:
Incompetent, your Honor, he already saw Cesar already sprawled
on the ground. LibLex

COURT:
May answer. We will see the answer.

WITNESS:
A: No, sir.

FISCAL:

Q: At that precise moment when you heard the gunshot and you go
(sic) to the street to find out where the shot came from, where
was Apolinar Dando at the time?

ATTY. RAGAZA:

There is no testimony that Apolinar Dando was present at the

time.

COURT:

There was no testimony that Apolinar Dando was there. The

fiscal was asking where was Apolinar at the time. He was not
asking why he was there. He did not assume.

WITNESS:
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 A: I saw him walked a few steps and then fired his gun at Cesar, on
his side, sir.
xxx xxx xxx

Q: After you saw Apolinar for the second time at the sprawled body
of Cesar, what else happened?

A: He ran and went towards an alley, "paraanan", sir. 20

On cross-examination, Gemanel gave substantially the same testimony:

Q: In answer to the question of the Court in the last hearing, you
said you saw Dando going to the plaza and you followed him for a
distance of about 2 houses, during the time you were following,
did you meet any person? LLjur

Q: None, sir.

A: And during all the time that you were following Dando, was he
wearing a handkerchief over his face?

Q: Yes, sir.

A: But you did not have much interest, that is why you stop
following him and stopped at a bakery?
Q: Yes, sir.

ATTY. RAGAZA:
Q: And then you heard a shot?

WITNESS:

A: Yes, sir.
Q: Exactly, where were you when you heard the first shot?

A: In the bakery about to buy bread, sir.

Q: Where were you facing?

A: Towards the bakery, sir.

Q: Was there anybody attending to you in the bakery?

A: Yes, sir.

Q: Now, you were merely waiting for bread that you would buy in
that bakery?
A: Yes, sir, when suddenly I heard a shot.

Q: How many shots did you hear while you were in the bakery?
A: First, I heard one shot so I went out of the bakery and I saw Ka
Cesar being shot, sir.

Q: How many shots in all did you hear?

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 A: Three, sir. Cdpr

Q: What was the interval between the first and the second shot?

A First, I was inside the bakery when I heard a shot so I

immediately went out and saw Dando firing two shots on Ka
Cesar who was already lying on the ground, sir. 21

xxx xxx xxx

ATTY. BALCE:
Q: You heard a shot and you went out and stopped at this point
marked by an "x"?

A: Yes, sir.
Q: And it was only a gunshot that you heard?

A: On that moment, one.

Q: Just after the shot, did you not hear any person crying out in
panic?

A: Nobody, sir.

COURT:
Q: After that first shot, did you hear any other shot?

A: I heard, Your Honor.

COURT:

Q: How many shots did you hear after hearing the first shot?

A: Three to four shots, Your Honor.

ATTY. BALCE:

I move that the last answer be placed in tagalog.

A: "Mga tatlo o apat ".

Q: What did you say?

A: "Tatlo po o apat".
ATTY. BALCE:

But your first answer that I heard was "tatlo bale apat." dctai

A: Yes, sir.

COURT:

Q: Did you know where the shots came from?

A: Yes, Your Honor.

Q: Where?

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 A: From the house of Ka Cesar.
COURT:

Q: After hearing those shots, what did you observe, if any?

A: The person with his handkerchief covering his face, was running
and entered an alley, "paraanan." 22

Well-settled is the rule that "inconsistencies on minor and trivial matters

only serve to strengthen rather than weaken the credibility of witnesses for
they erase the suspicion of rehearsed testimony." 23 Moreover, the alleged
inconsistencies refer only to inconsequential details and not to the crux of the
case — that Gemanel saw accused-appellant gun down Castro. Gemanel never
wavered on this point even for a single moment. The consistency on the part of
Gemanel in identifying accused-appellant as the perpetrator of the crime
makes him a credible witness. His testimony cannot be discredited by a mere
alibi and denial on the part of accused-appellant.

Alibi is one of the weakest defenses in criminal cases and it should be

rejected when the identity of the accused is sufficiently and positively
established by the prosecution. 24 Moreover, in order to overcome the evidence
of the prosecution, the accused must establish not only that he was somewhere
else when the crime was committed but also that it was physically impossible
for him to have been at the scene of the crime at the time it was committed. 25
In the present case, accused-appellant failed to show that it was physically
impossible for him to be at the scene of the crime when it was committed. He
even admitted that his house was only about one-and-a-half kilometers away
from the house of Millares, 26 which was very near the place where Castro was
shot to death. Undoubtedly, the distance did not render it impossible for
accused-appellant to be at the scene of the crime at the time it was committed.
Accused-appellant's defense of alibi must necessarily fail.
As to the alleged inconsistency between the testimonies of Gemanel and
that of Millares, we find the testimony of Gemanel to be more credible since the
inconsistency lies in the affidavit and testimony of Millares himself. In his
affidavit, Millares averred that he fired the gun first and then accused-appellant
fired the gun twice. 27 In his testimony in court however, he (Millares) claimed
that after firing the gun, he gave the gun to Agustin Salinas. 28 Confronted with
the inconsistent statements of Millares and the straightforward and categorical
testimony of Gemanel, which was corroborated by that of Susana Masacupan,
this Court believes and gives credence to the latter. Cdpr

When he testified in court Gemanel was then only thirteen (13) years old
and a second year high school student at Siniloan Public High School. Indeed,
"the testimony of a child of sound mind is likely to be more correct and truthful
than that of older persons, so that once established that he has fully
understood the character and nature of an oath, his testimony should be given
full credence." 29

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 In the second and third issues raised in his brief, accused-appellant opines
that there is no proof showing that the empty shells and slugs recovered at the
scene of the crime were the same empty shells and slugs submitted for ballistic
examination. According to accused-appellant, the relatives of the victim
tampered with these pieces of evidence making the same tainted or polluted,
therefore, unreliable.

Other than these bare allegations, however, accused-appellant failed to

prove by convincing evidence any irregularity in the handling by the police;
officers of these particular pieces of evidence. The ballistic examination report
is thus clothed with the presumption of regularity. At any rate, the presentation
of weapons (or the slugs and bullets, as in this case) used and ballistic
examination are not prerequisites for conviction. 30 The corpus delicti and the
positive identification of accused-appellant as the perpetrator of the crime are
more than enough to sustain his conviction.

Anent the first issue, accused-appellant contends that the trial court erred
in convicting him for murder and awarding in favor of the victim's heirs the sum
of P1,620,000.00 for his loss of earning capacity and other damages.
Article 248 of the Revised Penal Code reads:
ARTICLE 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 temporal in its maximum period to
death 31 if committed with any of the following circumstances:

1. With treachery, taking advantage of superior strength, with

the aid of armed men, or employing means to weaken the defense or of
means or persons to insure or afford impunity. cdtai

xxx xxx xxx

5. With evident premeditation.

xxx xxx xxx

The essence of treachery is that the attack comes without a warning and
in a swift, deliberate and unexpected manner, affording the hapless, unarmed
and unsuspecting victim no chance to resist or escape. 32 In this case, accused-
appellant, whose face was covered by a handkerchief, approached the victim,
who was merely standing by the gate in front of his house, and shot him. The
victim was undoubtedly caught unaware and had no chance of putting up any
defense. Clearly, treachery attended the commission of the crime since the
attack although frontally, was no less sudden and unexpected, giving the victim
no opportunity to repel it or offer any defense of his person. 33

The trial court further established that there was evident premeditation
and that accused-appellant used "craft, fraud or disguise" in committing his
dastardly act:
. . . When DANDO (accused-appellant) boarded the tricycle
parked in front of the residence of Angelito Millares, Jr., he did so not to
rest or sleep there. He was there, with a handkerchief over his face,
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 lying in wait for Cesar Castro to come out and stand by the gate of his
house as he customarily did while taking a rest. And DANDO stayed
inside the tricycle for a couple of hours, like an eagle waiting for its
prey. From the parked tricycle, DANDO could clearly see the gate of
Cesar Castro's house, 100 to 150 meters away. DANDO'S stay inside
the tricycle lasted for about two (2) hours, a sufficient time for him to
reflect on the consequences of his plan to kill Cesar Castro. And when
Cesar Castro did finally come out, and stood there unarmed by the
gate of his house, DANDO swiftly swooped down on his prey and
triggered the burst from his service firearm which snuffed the life of his
victim. 34

Given the foregoing attendant aggravating circumstances, the trial court

properly sentenced accused-appellant to suffer the penalty of reclusion
perpetua. However, the amount it awarded in favor of the heirs of the victim
should be modified in accordance with prevailing jurisprudence. LLjur

The trial court correctly awarded the amount of P50,000 as indemnity for
the death for Cesar Castro. Said amount is awarded, without need of further
proof other than the death of the victim. 35 In addition, the heirs are also
entitled to receive a compensation for the loss of earning capacity of the victim.
The formula for computing the same as established in decided cases 36 is as
follows:
Gross Necessary
Net Earning = Life x Annual - Living
Capacity Expectancy Income Expenses

The life expectancy is equivalent to two thirds (2/3) multiplied by the

difference of 80 and the age of the deceased. 37 Since Castro was 47 years old
at the time of his death, his life expectancy was 22 more years. 38 Celso Castro
testified that his father earned P3,000.00 monthly or P36,000.00 annually from
the sash factory. In addition, the victim's annual income from farming as found
by the trial court was P53,000.00. The gross annual income of the deceased
was P89,000.00. Allowing for necessary living expenses of fifty percent (50%)
of his gross earnings, his total net earning capacity amounts to P979,000.00. 39

As to the expenses actually incurred by the family of the victim for the
wake and burial, Celso Castro was able to prove during trial that they incurred
the sum of P39,974.00. The amount of P35,974.00 awarded by the trial court as
reimbursement of funeral expenses is, accordingly, increased to P39,974.00.

WHEREFORE, premises considered, the decision of the trial court is

hereby AFFIRMED with MODIFICATION that accused-appellant shall pay the
heirs of the victim the following amounts:
1. death indemnity in the amount of P50,000.00;

2. compensation for loss of earning capacity in the amount of

P979,000.00; and cdll

3. reimbursement of funeral expenses in the amount of

P39,974.00.
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 SO ORDERED.

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

Footnotes

1. Records, p. 59; Rollo , p. 18.

2. Id., at 69.
3. Id., at 72.
4. Id., at 74-77.
5. Id., at 173.
6. Id., at 176-177.
7. C.A. G.R. SP No. 30077 penned by then Court of Appeals (now Supreme
Court) Associate Justice Minerva Gonzaga-Reyes and concurred in by then
Court of Appeals (now Supreme Court) Associate Justices Consuelo Ynares-
Santiago and then Court of Appeals (now Supreme Court) Associate Justice
Bernardo P. Pardo, Rollo , pp. 202-208.

8. Id., at 100.
9. Decision, dated May 2, 1995, pp. 30-31; Rollo , 79-80.

10. Appellee's Brief, pp. 4-10; Rollo , pp. 208-214.

11. TSN, dated March 2, 1994, pp. 15-16.

12. Id., at 17-18.

13. Id., at 20-26.
14. TSN, dated October 22, 1992, pp. 3-5.

15. Accused-appellant's Brief, pp. 21-22; Rollo , pp. 119-120.

16. Id., at 120-121.
17. Id., at 122-123.
18. Id., at 127.
19. Id., at 128-129.
20. TSN, dated June 17, 1992, pp. 2-10.

21. TSN, dated July 14, 1992, pp. 2-3.

22. TSN, dated August 27, 1993, pp. 51-53.

23. People vs. De Guia, 280 SCRA 141 (1997); People vs. Padilla , 242 SCRA 629
(1995).
24. People vs. Salvador, 279 SCRA 164, [1997].
25. People vs. Belo, 299 SCRA 654 (1998); People vs. Dadles, 278 SCRA 393,
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 [1997]; People vs. Navales , 266 SCRA 569, [1997].

26. TSN, dated March 2, 1994, p. 43.

27. Records, p. 9.
28. TSN, dated October 20, 1992, pp. 4-9.

29. Marco vs. Court of Appeals, 273 SCRA 276 (1997); People vs. Vitor, 245
SCRA 392 (1995).
30. People vs. Florida, 214 SCRA 227 (1992).
31. This provision was subsequently amended by Republic Act No. 7659
increasing the penalty for murder to reclusion perpetua to death. Said law
took effect on December 31, 1993 while the crime in this case was
committed on November 20, 1991. Being unfavorable to accused-appellant,
R.A. 7659 cannot be given retroactive effect.

32. People vs. Aranjuez, 285 SCRA 466 (1998); People vs. Zamora, 278 SCRA
60 (1997).
33. Id.; People vs. Apongan, 270 SCRA 713 (1997).
34. See Note 9 at 27; Rollo , p. 76.

35. People vs. Floro , G.R. No. 120641, October 7, 1999; People vs. Suplito, G.R.
No. 104944, September 16, 1999.

36. Negros Navigation Co., Inc. vs. Court of Appeals, 281 SCRA 534 (1997);
Metro Manila Transit Corporation vs. Court of Appeals, G.R. No. 116617, 298
SCRA 495 (1998); Fortune Express, Inc. vs. Court of Appeals, et al., G.R. No.
119756, March 18, 1999.
37. Villa Rey Transit, Inc. vs. CA, 31 SCRA 511 (1970).
38. 2/3(80-47) = 22.
39.

P89,000 P44,500.00
x .50 x 22
———— —————
P44,500.00 net annual P979,000.00 net earning
income capacity

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