by B Estilo

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PEOPLE v. PO2 ALBERT ABRIOL, GR No. 123137, 2001-10-17 (/juris/view/cce66?
user=fK1RJa3lXbWVDTzMwUXozcjdQSmFiUT09)

Facts:

That on or about the 5th day of June, 1993, at about 11:50 P.M., in the City of Cebu, Philippines and within
the jurisdiction of this Honorable Court, the said accused, armed with handguns, conniving and confederating
together and mutually helping one... another, with treachery and evident premeditation, with deliberate
intent, with intent to kill, did then and there shot one Alejandro Flores alias Alex with the said handguns,
hitting him on the different parts of his body, thereby in icting upon him the following physical... injuries:

CARDIO RESPIRATORY ARREST DUE TO SHOCK AND HEMORRHAGE SECONDARY TO MULTIPLE

Appellant Astellero was a former prisoner at BBRC, who had served time for grave threats.[4] The warden
then, Chief Inspector Navales,[5] employed him as his personal driver and general factotum.

Abriol and Dosdos... enjoyed special privileges at BBRC as the warden's errand boys[8] or "trustees."

Alejandro Flores alias "Alex," was a former policeman.  He was dismissed from the PNP in August 1992 after
testing positive for prohibited drugs

While the patrol cars were chasing the "Jiffy," another police team proceeded to the crime scene in response
to the alarm.  This team from Police Station No. 3 in San Nicolas, Cebu City rushed the victim to the Cebu City
Medical Center, where he was pronounced dead on... arrival.  Meanwhile, PO3 Celso Seville, Jr., a homicide
investigator of Police Station No. 3 found four (4) .45 caliber shells some four (4) feet away from the victim's
body, and two (2) deformed slugs where the victim had lain, and submitted them to the Region 7 PNP Crime

Laboratory for ballistics testing... appellants underwent a paraf n test.  The hands of appellants were found
positive for gunpowder residues.  A chemistry test on the rearms showed that the three handguns were also
positive.

The widow and relatives of the victim testi ed on the possible motive behind the killing.  They claimed the
victim, a confessed drug user, may have been "rubbed out" on the orders of Navales for failure to remit
P31,000 as proceeds from pushing prohibited drugs. After... failing to deliver the drug money to Navales, for
whom he was repeatedly pushing drugs, the victim went into hiding, but later returned to Cebu City because
he missed his family.[17]

Appellants deny the accusations.

The defense also presented Dr. Jesus P. Cerna, medico-legal of cer of the Cebu City PNP Command, to testify
on the caliber of the rearms which might have caused the gunshot wounds of the victim.

Dr. Cerna testi ed that it was impossible to determine the caliber of the... rearm used.[24]

Issues:
issue is whether the prosecution's evidence, which is mainly circumstantial, suf ces to convict appellants for
murder and violation of Presidential Decree No. 1866, beyond reasonable doubt.

Ruling:

First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as the culprits.  At no point in his
testimony did eyewitness Sta. Cruz, Jr., positively identify any of the appellants or appellant Abriol as the
gunman.

Since the sole eyewitness could not identify the gunman and his companions, the prosecution relied on
circumstantial evidence from which the trial court could draw its ndings and conclusion of culpability.[26]
Circumstantial evidence may be relied upon,... as in this case, when to insist on direct testimony would result
in setting felons free.

Second, appellants assert that the paraf n tests are judicially recognized as unreliable and inconclusive.  A
paraf n test could establish the presence or absence of nitrates on the hand.  However, it cannot establish
that the source of the nitrates was the... discharge of rearms.  Nitrates are also found in substances other
than gunpowder.  A person who tests positive may have handled one or more substances with the same
positive reaction for nitrates such as explosives, reworks, fertilizers, pharmaceuticals, tobacco,... and
leguminous plants.  Hence, the presence of nitrates should only be taken as an indication of a possibility that a
person has red a gun.[27] However, it must be borne in mind that appellants were not convicted on the sole
basis of the paraf n... test.

Since no rearm smaller than a .38 caliber pistol was seized from appellants, they claim the observation of Dr.

Cerna only shows that they could not have shot the victim.

The Of ce of the Solicitor General points out that Dr. Diola's testimony is supported by Dr. Pedro P. Solis, a
medical expert,... Such expert opinions disprove appellants' theory that the .45 caliber handguns con scated
from them could not have been used in killing the victim.

appellants allege that the testimony of P/Inspector Lemuel Caser, the prosecution's ballistics expert, clearly
shows that: (1) He is ignorant about such ballistics instruments such as the micrometer, goniometer, and
pressure barrel.[35] (2)

He is not conversant with "the required references concerning ballistics," particularly books on the subject by
foreign authorities.[36] (3) He could not "scienti cally determine the caliber of a bullet."

We agree with the trial court that P/Inspector Caser quali es as a ballistics expert.  He is a licensed
criminologist, trained at the Ballistics Command and Laboratory Center in Fort Bonifacio, in the PNP Crime
Laboratory in Camp Crame, and in the National Bureau of

Investigation. He had previously testi ed as an expert witness in at least twenty-seven (27) murder and
homicide cases all over the country.

Fifth, appellants aver that the prosecution failed to show any plausible motive for appellants to kill the victim. 
The prosecution tried to prove that their co-accused Navales instigated them to kill the victim because
Navales had a grudge against him. 

However, as Navales was acquitted, appellants insist that Navales' acquittal should redound to their bene t
since no motive was imputed on their part.
Navales and the victim, a former BBRC jailguard, were associates in dealing with prohibited drugs, until they
had a falling out allegedly after the victim failed to remit to

Navales proceeds from the sale of illegal drugs amounting to P31,000.  Appellants apparently killed the victim
to return the "special favors" Navales had showered them.  Lack of a motive does not necessarily preclude
conviction.  Persons have been killed or... assaulted for no reason at all, and friendship or even relationship is
no deterrent to the commission of a crime.

However, minor lapses do not mean that the State had failed to show an unbroken chain of custody of the
subject rearms and ammunition, nor that said rearms and... ammunition were tampered.  The slugs and
spent shells recovered from the scene of the crime and the victim's corpse were plainly identi ed in open
court by the PNP investigators.

...PO3 Rustela who was nearby, immediately ran to the scene of the crime and met the red jiffy with three
persons on board, that speedily passed by him proceeding towards Leon Kilat Street. Car 208 readily picked
up the trail and pursued the red jiffy from Leon

Kilat, then making abrupt turns on downtown streets until other patrol cars joined the chase and captured
them in Lahug, near the BBRC.  The identity of the red jiffy was never interrupted.

Instead of stopping, Abriol ordered Astellero to accelerate their speed.  Their obvious purpose was to elude
the patrol cars.  Flight is indicative of guilt.[

These unbroken chain of events prove not only appellants' identities but also their participation and
collective responsibility in the murder of Alejandro Flores.  They reveal a unity of purpose and concerted
action evidencing their conspiracy to kill him.  Against... this matrix of facts and circumstances, appellants'
bare denials cannot stand.  Their story of chasing a red "Jiffy" is merely a disingenuous diversion of no
evidentiary value for the defense.

Concerning treachery, however, it was shown that: (1) the means of execution employed gave the person
attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or
consciously adopted.[55] These twin requisites... were adequately proved.

Appellants had superiority in numbers and weapons.  The victim was without any means to defend himself as
no weapon was found or even intimated to be in his possession.  The victim was running away from the "Jiffy"
prior to the killing.  That he was warned or... threatened earlier is of no moment.  Even when the victim is
warned of danger to his person, if the execution of the attack made it impossible for the victim to defend
himself or to retaliate, treachery can still be appreciated.[56] The victim was... lying prostrate on the ground
when he was deliberately and mercilessly riddled with bullets.

No doubt there was treachery.

In this case, the warrantless search and seizure of the subject handguns and ammunition is valid for two
reasons.  It was a search incidental to a lawful arrest.  It was made after a fatal shooting, and pursuit of a fast-
moving vehicle seeking to elude pursuing police... of cers, and a more than reasonable belief on the part of
the police of cers that the eeing suspects aboard said vehicle had just engaged in criminal activity.

ppellant

Abriol is not licensed to hold any rearm; that the .45 caliber pistols were unlicensed; and that a certi cation
from the PNP Firearms and Explosives Of ce attesting that a person is not a licensee of any rearm, proves
beyond reasonable doubt the second element of illegal... possession of rearm.[67]
Appellants are thus guilty only of murder with the special aggravating circumstance of use of unlicensed
rearms.  The imposition of the penalty of reclusion perpetua cannot however be... modi ed since the murder
took place before the effectivity of R.A. No. 7659.

Appellants Albert Abriol, Macario Astellero, and Januario Dosdos are hereby found

GUILTY of murder, quali ed by treachery, with the special aggravating circumstance of use of unlicensed
rearms and are hereby sentenced to suffer the penalty of reclusion perpetua with the accessory penalties
provided for by law.  Appellants Abriol,... Astellero, and Dosdos are also ordered to pay, jointly and severally,
the heirs of Alejandro Flores the sum of P50,000 as death indemnity, P20,000 as temperate damages,
P10,000 as exemplary damages, and P30,000 as attorney's fees, as well as the costs.

Principles: