Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVISION

ENGR. CARLITO PENTECOSTES, G.R. No. 167766

JR.,
Petitioner, Present:

CORONA, J., Chairperson,

VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.

versus -

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. April 7, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PERALTA, J.:
Assailed before Us is the Decision[1] of the Court of Appeals (CA),
datedFebruary 18, 2005, in CA-G.R. CR. No. 27458, which affirmed with
modification the Decision[2] of the Regional Trial Court (RTC) of Aparri, Cagayan,
Branch 6, in Criminal Case No. VI-984, finding petitioner Engr. Carlito Pentecostes,
Jr. guilty of the crime of less serious physical injuries instead of attempted murder,
and the Resolution[3] dated April 19, 2005, denying the motion for reconsideration.
The antecedents are as follows:

On September 2, 1998, Rudy Baclig was drinking with his brother-inlaw.After consuming bottle of gin, he left and went to the house of a certain Siababa
to buy coffee and sugar. He was accompanied by his four- year-old son. On their
way there, a gray automobile coming from the opposite direction passed by
them. After a while, he noticed that the vehicle was moving backward towards
them. When the car was about two arms length from where they were, it stopped and
he heard the driver of the vehicle call him by his nickname Parrod. Rudy came
closer, but after taking one step, the driver, which he identified as the petitioner,
opened the door and while still in the car drew a gun and shot him once, hitting him
just below the left armpit.Rudy immediately ran at the back of the car, while
petitioner sped away. After petitioner left, Rudy and his son headed to the
seashore. Rudy later went back to the place where he was shot and shouted for
help.[4]
The people who assisted him initially brought him to the Municipal Hall of
Gonzaga, Cagayan, where he was interrogated by a policeman who asked him to
identify his assailant. He informed the policeman that petitioner was the one who
shot him. After he was interrogated, he was later brought to
the Don Alfonso PonceMemorial Hospital at Gonzaga, Cagayan. The following
day, he was discharged from the hospital.[5]
On June 1, 1999, an Information[6] was filed by the Provincial Prosecutor of
Aparri, Cagayan, charging the petitioner of frustrated murder, the pertinent portion
of which reads:
That on or about September 2, 1998, in the [M]unicipality of Gonzaga,
[P]rovince of Cagayan, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a gun, with intent to kill, with evident
premeditation and with treachery, did then and there willfully, unlawfully and
feloniously assault, attack and shoot one Rudy Baclig, inflicting upon the latter
gunshot injuries.

That the accused had performed all the acts of execution which would have
produce[d] the crime of Murder as a consequence, but which, nevertheless, did not
produce it by reason of causes independent of his own will.
That the same was aggravated by the use of an unlicensed firearm.
CONTRARY TO LAW.

Duly arraigned, petitioner pleaded Not Guilty to the crime as charged.[7]

During the trial, it was established that at the time the incident occurred,
petitioner was employed by the National Irrigation Administration (NIA) as
Irrigation Superintendent assigned at the Baua River Irrigation System
(BRIS).Petitioner vehemently denied any involvement in the incident, alleging that
he was inQuezon City at the time the crime was being committed. He contended that
he was following-up the funding for one of the projects of NIA in Gonzaga,
Cagayan. He insisted that he reported at the NIA Central Office on September 1,
1998 and stayed in Manila until the afternoon of September 4, 1998. To buttress his
allegations, the petitioner presented a Certificate of Appearance[8] issued by Engr.
Orlando C. Hondrade, then NIA Deputy Administrator, who testified thru a
deposition that he indeed signed the document. Engr. Hondrade testified that he
specifically remembered that petitioner personally appeared before him on the
1st and 4th days of September for a duration of 10 to 15 minutes. Petitioner also
submitted his daily time record to prove that he was not at their office in Cagayan
from the afternoon ofAugust 31, 1998, claiming that he traveled to Quezon
City pursuant to a travel authority issued by his superior. [9]
On February 27, 2003, after presentation of the parties respective evidence,
the RTC rendered a Decision[10] finding petitioner guilty of the crime of attempted
murder. The decretal portion of the Decision reads:
WHEREFORE, the Court finds accused Engr. Carlito Pentecostes, Jr.
guilty beyond reasonable doubt as principal of the crime of Attempted Murder and
sentences him the penalty of four (4) years, two (2) months and one (1) day
ofprision correccional, as minimum, to eight (8) years of prision mayor, as

maximum.Further, the accused is ordered to pay private complainant Rudy Baclig

the amount of Two Thousand Pesos (P2,000.00).
SO ORDERED.[11]

The RTC concluded that Rudy positively identified the petitioner as the one
who shot him there was sufficient lighting for Rudy to identify the perpetrator and
he knew petitioner ever since he attained the age of reason. As to petitioners defense
of alibi, the RTC ratiocinated that when petitioner personally appeared before Engr.
Hondrade on September 1, 1998, it would not be impossible for him to immediately
return to Gonzaga, Cagayan that afternoon and commit the crime in the evening
ofSeptember 2, 1998.[12]
Petitioner then sought recourse before the CA, arguing that the RTC
committed serious errors in finding that he was guilty of attempted murder and that
the RTC failed to consider the testimonies of his witnesses and the documentary
evidence presented in his favor.[13]
On February 18, 2005, the CA rendered a Decision affirming with
modification the decision of the RTC, the dispositive portion of which reads:
WHEREFORE, the Decision of the Regional Trial Court dated 27 February
2003 is AFFIRMED with MODIFICATION that accused-appellant Pentecostes
is only found GUILTY OF LESS SERIOUS PHYSICAL INJURIES and is
hereby sentenced to suffer imprisonment of six (6) months of arresto mayor, there
being one aggravating and no mitigating circumstance to offset it.
SO ORDERED.[14]

In convicting the petitioner to a lesser offence, the CA opined that it was not
established that petitioner intended to kill Rudy when he shot him. Petitioners act of
shooting Rudy once was not followed by any other assault or any act which would
ensure his death. Considering that petitioner was driving a car, he could have chased

Rudy if he really intended to kill the latter, or run him over since Rudy went to the
rear of the car. Petitioners desistance displayed his nonchalance to cause the death
of Rudy. Moreover, Rudy only sustained a gunshot wound on the arm, which
required only 10 days of medical attendance.[15]
Not satisfied, petitioner filed a Motion for Reconsideration,[16] but was denied
in a Resolution dated April 9, 2005.
Hence, this petition which raises the following issues:
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT,
COMMITTED A GRAVE ABUSE OF DISCRETION WHEN IT GIVES
CREDENCE
TO
THE
STATEMENT
OF
THE
PRIVATE
COMPLAINANTPRESUMING THAT THE PETITIONER-APPELLANT IS
THE ASSAILANTALLEGEDLY DUE TO HIS VOICE AND HIS ALLEGED
OWNERSHIP OF THE VEHICLE, AND CONSIDERING THAT THE PRIVATE
COMPLAINANT WAS THEN INTOXICATED, AND THE CRIME WAS
COMMITTED AT NIGHTTIME, SUCH CONCLUSION IS ENTIRELY
GROUNDED ON SPECULATIONS, SURMISES AND CONJECTURES.
THE HONORABLE FOURTEENTH DIVISION COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT FAILED TO GIVE WEIGHT, DISCUSS
AND CONSIDER THE ARGUMENTS AND DEFENSES MADE THE
PETITIONER-APPELLANT
IN
OUR
BRIEF,
VIS--VIS
THE
MANIFESTATION AND MOTION OF THE SOLICITOR GENERAL.
THE HONORABLE FOURTEENTH DIVISION COMMITTED AN ERROR
WHEN IT RELIED HEAVILY ON AN UNFOUNDED, BASELESS AND
ALLEGED MOTIVE OF PETITIONER, BEING A CRUSADER OF ILLEGAL
DRUGS IN THEIR OWN TOWN, TO BE THE BASIS THAT HE IS THE
ASSAILANT.[17]

Petitioner questions the conclusion of the CA when it found him guilty of the
crime of less serious physical injuries. He argues that Rudy failed to positively
identify him as the assailant, since Rudy never admitted that he was able to identify
the petitioner through his physical appearance, but only through his voice, despite
the fact that it was the first time Rudy heard petitioners voice when he allegedly shot

him. Petitioner also insists that when the incident occurred, Rudys vision was
impaired as he just drank half a bottle of gin and the place was not properly lit. Rudy
also failed to identify the type of gun used during the shooting. Moreover, the
prosecution failed to establish that the car used by the perpetrator was owned by the
petitioner.
Further, petitioner maintains that it was impossible for him to have shot the
victim on the night of September 2, 1998, since he was not in the Province of
Cagayan Valley from September 1, 1998 to September 4, 1998.
The petition is bereft merit.
In sum, petitioner submits before this Court two issues for resolution. First,
whether or not the prosecution established beyond reasonable doubt that petitioner
was the one who shot the victim; Second, whether or not petitioners defense of alibi
would prosper.
As regards the first issue, this Court finds that the prosecution established
beyond reasonable doubt that petitioner was the one who shot Rudy that fateful night
of September 2, 1998. Both the RTC and the CA found that petitioner indeed shot
Rudy. In arriving at this conclusion, the RTC ratiocinated in this wise:
Private complainant Rudy Baclig averred that he personally knew the
accused since he was of the age of reason. Rudy knew accused Engr. Carlito
Pentecostes Jr. to be working with the NIA at Sta. Cruz, Gonzaga, Cagayan. Both
private complainant Rudy Baclig and accused Engr. Carlito Pentecostes Jr. were
residents of Gonzaga, Cagayan, although they reside in different barangays. Rudy
was residing at Brgy. Batangan, while the accused was living two-and-a-half
kilometers away at Brgy. Flourishing. Rudy Baclig categorically stated that when
the car of the accused passed by him, it slowly stopped then moved backward and
when the car was at a distance of about two arms length, which was about three (3)
meters, the accused called Rudys nickname Parrod. Hearing his nickname, Rudy
went towards the car, but he was only able to take one step, accused Engr. Carlito
Pentecostes Jr. opened the door of the car and shot Rudy once and afterwards the
accused hurriedly sped away. Asked how he was able to identify Engr. Carlito

Pentecostes Jr. to be the person who shot him when it was night time, Rudy said
that he was able to identify the accused through the lights of the car and on crossexamination he said that aside from the lights of the car, there were also lights
coming from a store nearby the place of the incident. The Court believes that with
these kinds of lights, Rudy Baclig was able to identify the accused, considering the
distance between the assailant and the victim was only three (3) meters.
x x x x.
Rudy Baclig was not telling a lie when he declared that he was shot at about
two arms length only because the doctor who treated him, Dr. Mila M. Marantan,
declared that Rudy Baclig suffered a gunshot wound, the entry was with powder
burns which is an evidence that Rudy Baclig was shot at a close range.
The defense harped on the fact that the private complainant smelled
liquor.The complainant at first denied having taken liquor, but he admitted he took
one-half bottle of gin before he went to buy coffee and sugar. On crossexamination, the complainant admitted also that every afternoon, he drank
liquor. He admitted that he could still walk naturally a distance of about one
kilometer. He also said that his vision might be affected. This testimony of Rudy
Baclig cannot be considered as evidence that he was not able to identify the
accused. He was categorical in stating that he was able to identify the accused. The
doctor who treated Rudy of his injury declared the patient smelled liquor, but she
could not tell how much liquor the patient took, however, the patient could answer
all her questions.
x x x x.

There are other evidences that tend to show that Rudy Baclig was able to
identify the assailant. Immediately after he was shot, Rudy told a police
investigator, a certain Torres and Dr. Mila Marantan that it was Engr. Carlito
Pentecostes, Jr. who shot him.[18]

This conclusion was concurred into by the CA, which categorically stated in
its decision that [t]he prosecution was able to present a witness, in the person of
Baclig, who categorically identified petitioner as his assailant and whose testimony
was characterized by frankness.[19] Contrary to petitioners contention, Rudy saw him
and positively identified him as his shooter, viz:

Q: When you heard the driver of the car calling you by your nickname Parrod, what
was your reaction?
A: I went near because I thought he was telling me something.
Q: And what made you decide to go near the driver of the vehicle?
A: Because he called me by my name, Sir.
Q: When the driver of the car called you by your [nickname], were you able to
recognize the driver of the car who called you?
A: Yes, Sir.
Q: And who was that person who called you by your name Parrod?
A: It was Engr. Pentecostes, Sir.
Q: The same person you identified a while ago?
A: Yes, Sir.[20]

Corollarilly, petitioner already raised these arguments in his motion for

reconsideration of the decision of the court a quo, which the CA addressed point by
point in the assailed resolution denying the motion. We quote with approval the
following discussion of the CA:
On the first allegation, accused-appellant wrongly read the decision. The
Court upheld the trial courts finding that it was indeed accused-appellant who
attacked the private complainant, not because the latter heard accused-appellants
voice but that he was able to see him through the lights of the car when he opened
the window and the door. x x x
xxxx
Clearly, it was not merely hearing the assailants voice, but that he was able
to see him, that private-complainant was able to identify the accused-appellant. It
was admittedly a fact that private complainant had a drink but it does not mean that
he was intoxicated, especially since he admitted that he drinks everyday. Thus, his
bodys tolerance to alcohol is probably heightened. There was also no proof that his
vision had been affected by the alcohol intake, and that he would have mistaken
someone else for the accused.
Again, positive declaration is given more weight than the denial of the accusedappellant. In addition, the same findings were previously reached by the trial court
which had the opportunity to observe first-hand the demeanor of the witnesses, and
assess their credibility.

Regarding the Solicitor Generals recommendation, the Court is not bound to

follow it although in some cases, we are persuaded by the same. However, in this
case, it was not able to persuade Us as it only adopted the same arguments advanced
by accused- appellants counsel.
Some of these arguments include the failure to present any document or
evidence showing that the car used was owned by the accused-appellant. The
ownership of the car, however, is immaterial in the light of the positive
identification of the accused. In addition, the statement of the prosecutions
witnesses that the car was often used by accused-appellants father does not remove
the possibility that he may also use it.
On the third allegation of error, again, accused-appellant has misread the
decision and exaggerated by accusing us of relying heavily on the existence of a
probable motive on the part of accused-appellant to commit the act complained
of.This is clear in the decision that the same was meant to assess whether there was
a probable motive for the private complainant to lie. [21]

It is clear that the arguments advanced by the petitioner in the case at bar,
questioning the conclusion of the RTC and the CA that petitioner shot the victim,
are trivial. The fact remains that Rudy has been shot with a gun and he positively
identified his shooter as the petitioner. Petitioner faulted the RTC and the CA for
giving credence to the testimony of Rudy. However, it is to be noted that even the
lone declaration of a sole eyewitness is sufficient to convict if that testimony is found
to be credible. Credibility of witnesses is to be weighed and should not be based on
numbers. The matter of assigning values to declaration on the witness stand is best
and most competently performed by the trial judge who had the unmatched
opportunity to observe the witnesses and to assess their credibility by
various indiciaavailable but not reflected on the record.[22]
This Court has meticulously scrutinized the transcripts of stenographic notes
of this case and finds that the RTC, as well as the CA, committed no error in giving
credence to the evidence of the prosecution. The Court has long adhered to the rule
that findings of the trial court on the credibility of witnesses and their testimonies
are accorded great respect unless it overlooked substantial facts and circumstances,
which if considered, would materially affect the result of the case. This deference to

the trial courts appreciation of the facts and of the credibility of witnesses is
consistent with the principle that when the testimony of a witness meets the test of
credibility, that alone is sufficient to convict the accused.[23] This is especially true
when the factual findings of the trial court are affirmed by the appellate court. [24]
As regards petitioners defense of alibi, well settled is the rule that alibi is an
inherently weak defense which cannot prevail over the positive identification of the
accused by the victim.[25] Moreover, in order for the defense of alibi to prosper, it is
not enough to prove that the petitioner was somewhere else when the offense was
committed, but it must likewise be demonstrated that he was so far away that it was
not possible for him to have been physically present at the place of the crime or its
immediate vicinity at the time of its commission. [26] In the case at bar, it was
established that petitioner personally appeared before Engr. Hondrade only on
September 1 and 4, 1998. His whereabouts for the two days in between the said dates
are unaccounted for. There was no showing that he could not have gone back to
Cagayan, committed the crime, and went back to Quezon City during those two
days.Petitioners defense of denial and alibi cannot prevail as against the positive,
straightforward and consistent testimony of Rudy that it was petitioner who shot him
on the night of September 2, 1998.
As to the crime committed by petitioner, this Court also concurs with the
conclusion of the CA that petitioner is guilty of the crime of less serious physical
injuries, not attempted murder.
The principal and essential element of attempted or frustrated murder is the
intent on the part of the assailant to take the life of the person attacked. Such intent
must be proved in a clear and evident manner to exclude every possible doubt as to
the homicidal intent of the aggressor.[27] In the present case, intent to kill the victim
could not be inferred from the surrounding circumstances. Petitioner only shot the
victim once and did not hit any vital part of the latters body. If he intended to kill

him, petitioner could have shot the victim multiple times or even ran him over with
the car. Favorably to petitioner, the inference that intent to kill existed should not be
drawn in the absence of circumstances sufficient to prove this fact beyond reasonable
doubt.[28] When such intent is lacking but wounds are inflicted upon the victim, the
crime is not attempted murder but physical injuries only. Since the Medico-Legal
Certificate[29] issued by the doctor who attended Rudy stated that the wound would
only require ten (10) days of medical attendance, and he was, in fact, discharged the
following day, the crime committed is less serious physical injuries only. The less
serious physical injury suffered by Rudy is defined under Article 265 of the Revised
Penal Code, which provides that "(A)ny person who inflicts upon another physical
injuries not described as serious physical injuries but which shall incapacitate the
offended party for labor for ten (10) days or more, or shall require medical
attendance for the same period, shall be guilty of less serious physical injuries and
shall suffer the penalty of arresto mayor."
As to the aggravating circumstance of treachery, this Court finds that the CA
erroneously concluded that treachery attended the commission of the crime. To
establish treachery, the following must be proven: (1) the employment of such means
of execution as would give the person attacked no opportunity for self-defense or
retaliation; and (2) the deliberate and conscious adoption of the means of
execution.[30] The circumstances attending the commission of the crime negate the
existence of treachery in its execution. Although petitioner deliberately assaulted
Rudy and there was suddenness in his attack, he did not logically plan to assault the
latter when he chanced upon him while he was driving. In treachery, the perpetrator
intentionally and purposely employs ways and means to commit the crime. There
was no evidence, however, to show that petitioner employed such means of
execution that would ensure the commission of the crime without harm to his
person. Thus, treachery did not attend the commission of the crime.

There being no aggravating and no mitigating circumstance, the penalty for

the crime of less serious physical injuries should be taken from the medium period
of arresto mayor, which is from two (2) months and one (1) day to four (4)
months. The Indeterminate Sentence Law finds no application in the case at bar,
since it does not apply to those whose maximum term of imprisonment is less than
one year.[31]
As regards the awards for damages, moral damages may be recovered in
criminal offenses resulting in physical injuries, but there must be a factual basis for
the award.[32] We have studied the records and find no factual basis for the award of
moral damages.
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals, dated February 18, 2005, and the Resolution dated April 19, 2005 in CAG.R. CR No. 27458, are AFFIRMED with MODIFICATION. Petitioner Engr.
Carlito Pentecostes, Jr. is sentenced to suffer the straight penalty of three (3) months
of arresto mayor.
SO ORDERED.