THIRD DIVISION

[G.R. No. 127573. May 12, 1999.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . JOSE SILVESTRE

y CRUZ , accused-appellant.

The Solicitor General for plaintiff-appellee.

Siruelo Muyo and Associates Law Office for accused-appellant.

SYNOPSIS

The case under consideration is an appeal from the decision of the Regional Trial
Court of Malabon dated August 7, 1996 nding the accused-appellant guilty beyond
reasonable doubt of the crime of murder in Criminal Case No. 16579-MN and sentencing
him to suffer the penalty of reclusion perpetua. In this appeal, appellant contended that the
trial court erred in convicting him on the basis of the lone testimony of the prosecution
witness and for treating judicial admission of the parties as hearsay in character.cdasia

The Supreme Court found the appeal not meritorious. Particularly, the Court ruled
that there was nothing in Felicitas Torres' account of the events that showed that her
testimony suffered from incredibility. Felicitas Torres categorically stated that she saw the
accused whom she identi ed in court, shoot at the fallen man two times after hearing two
gunshots. Thus, there was no cogent reason to disturb the trial court's appreciation of the
evidence and nd no basis in the record to rule that Felicitas Torres' testimony was not
credible. However, the Court said that the trial court erred in nding the appellant guilty of
the crime of murder because both treachery and evident premeditation was not duly
proven. In view thereof, the Court a rmed the decision of the RTC but modi ed it by
finding the appellant guilty of homicide only.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TRIAL COURT IS IN

THE BEST POSITION TO DETERMINE FACTS AND TO ASSESS THE CREDIBILITY OF
WITNESSES; CASE AT BAR. — This Court has ruled on countless occasions that the trial
court is in the best position to determine facts and to assess the credibility of witnesses
as it is in a unique position to observe the witnesses' deportment while testifying which
opportunity the appellate court is denied on appeal; this Court will respect the ndings and
conclusions of the trial court provided that they are supported by substantial evidence on
record. We nd no cogent reason to disturb the trial court's appreciation of the evidence
and find no basis in the record to rule that Felicitas Torres' testimony was not credible.
2. ID.; ID.; ID.; INCONSISTENCIES BETWEEN THE STATEMENTS AND DIRECT
TESTIMONY GIVEN IN OPEN COURT DO NOT NECESSARILY DISCREDIT THE WITNESS
SINCE AFFIDAVITS ARE OFTENTIMES INCOMPLETE AND ARE GENERALLY INFERIOR TO
THE TESTIMONY OF THE WITNESS IN OPEN COURT; CASE AT BAR. — With regard to
appellant's argument that there was an inconsistency between Torres' sworn statement
and her testimony in court, we agree with appellee that the alleged inconsistency pertains
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 to a trivial matter. While she stated in her sworn statement that the accused was in front of
("sa harapan") the victim she thereafter testi ed that the gunman was "beside" the victim.
This statement refers only to how the accused stood in relation to the victim and is not
su cient to weaken her positive assertion that she saw the accused shoot the victim two
times after hearing two shots previously red. This Court has repeatedly ruled that
inconsistencies between the sworn statements and direct testimony given in open court
do not necessarily discredit the witness since a davits are oftentimes incomplete and are
generally inferior to the testimony of the witness in open court.
aADSIc

3. ID.; ID.; ID.; THE TESTIMONY OF A SINGLE WITNESS, WHEN CREDIBLE AND
TRUSTWORTHY IS SUFFICIENT TO CONVICT; CASE AT BAR. — In addition, the appellant
has failed to show any improper motive on the part of Torres to falsely impute such a
terrible crime to him. Torres did not know either the appellant or the victim prior to the
shooting on January 18, 1996. The testimony of a single witness, when credible and
trustworthy, is su cient to convict and must be given full faith and credence when no
reason to falsely testify is shown.
4. ID.; ID.; IDENTIFICATION OF ACCUSED; THERE IS NO LAW WHICH REQUIRES
A POLICE LINE-UP AS ESSENTIAL TO A PROPER IDENTIFICATION PROVIDED THAT THE
IDENTIFICATION WAS NOT SUGGESTED TO THE WITNESS BY THE POLICE; CASE AT BAR.
— As regards the lack of a police line-up when Torres identi ed Jose Silvestre as the
assailant, we agree with appellee that there is no law which requires a police line-up as
essential to a proper identi cation provided that the identi cation was not suggested to
the witness by the police. In the present case, there is no showing that the identi cation
made by Torres in the police station was suggested to her.
5 ID.; ID.; TESTIMONY OF WITNESSES; WHEN TESTIMONY IS PRESENTED TO
ESTABLISH NOT THE TRUTH BUT THE TENOR OF THE STATEMENT OR THE FACT THAT
THE STATEMENT WAS MADE, IT IS NOT HEARSAY; CASE AT BAR. — The appellee's
admission only referred to the fact that the statement was made by Matias. In People vs.
Gaddi, it was ruled that when testimony is presented to establish not the truth but the
tenor of the statement or the fact that the statement was made, it is not hearsay. The
lower court was therefore correct in admitting only the existence and contents and not the
truth or veracity of the unsworn statement of Matias as an "independently relevant
statement." This statement cannot be used to establish the veracity of it; it would be
hearsay as Matias was not presented in Court. aSTECA

6. ID.; ID.; ID.; THE PROSECUTION HAS DISCRETION TO DECIDE ON WHO TO

CALL AS WITNESS DURING TRIAL AND ITS FAILURE TO DO SO DID NOT GIVE RISE TO THE
PRESUMPTION THAT EVIDENCE WILLFULLY SUPPRESSED WOULD BE ADVERSE IF
PRODUCED; CASE AT BAR. — Appellant cannot fault the prosecution for the failure to
present Bernadette Matias. The prosecution has discretion to decide on who to call as
witness during trial and its failure to do so did not give rise to the presumption that
"evidence willfully suppressed would be adverse if produced" since the evidence was at the
disposal of both parties. If the defense believed that the testimony of Bernadette Matias
was important to its case, it should have insisted on presenting her as a witness, or as the
appellee points out, made a tender of excluded evidence of the witness in question under
Section 40, Rule 132 of the Rules of Court. The same may be said of Joanna Santiago,
another supposed witness to the shooting, who was also not presented during trial.
7. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; ELEMENTS
THEREOF CANNOT BE CONSIDERED WHEN WITNESS DID NOT SEE COMMENCEMENT OF
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 ASSAULT; CASE AT BAR. — The next issue to settle is whether treachery and evident
premeditation can be appreciated to qualify the crime into murder. In nding the presence
of treachery and evident premeditation, the court a quo ruled that: "A person being shot at
while standing in a public place and talking to a woman must have been shot with evident
premeditation and treachery because he was unaware of the impending attack which
prevented him from putting up a defense that will repel the attack that will also place the
attacker under some sort of risk by reason of said defense. After having fallen to the
ground head rst, said person's being shot two times more would have been indicative of
the treacherous plan to kill him." There is treachery when the offender commits any of the
crimes against persons, employing means, methods, or forms in the execution thereof
which tend directly and speci cally to insure its execution without risk to himself arising
from the defense which the offended party might make. For treachery to be appreciated as
a qualifying circumstance, two elements must concur: (1) the employment of means of
execution which gives the person attacked no opportunity to defend himself or retaliate;
and (2) the means of execution is deliberately or consciously adopted. We nd the
evidence of the prosecution insu cient to prove treachery as a qualifying circumstance.
The fact that Torres saw the accused-appellant shoot the victim while he was already on
the ground does not mean that that was the only assault made by the accused-appellant
on the victim. When Torres saw the accused-appellant shoot the victim, she had already
heard two shots red. The autopsy report shows that the victim also sustained two
unexplained stab wounds. Given these facts, Torres cannot be considered as having
testi ed as to how the incident began since she saw the incident already in progress.
Treachery cannot be considered when the witness did not see the commencement of the
assault. Moreover, treachery cannot be appreciated when no particulars are known with
respect to the manner by which the aggression was made or how the act began or
developed or when the evidence lacks any details showing the manner of attack, its
suddenness or unexpectedness, the relative positions of the victim and his assailant, and
the victim's defenselessness.
8. ID.; ID.; ID.; ID.; ID.; ALTHOUGH THE FATAL WOUNDS WERE FOUND AT THE
BACK OF THE VICTIM, THIS DOES NOT, OF ITSELF, COMPEL A FINDING OF TREACHERY;
CASE AT BAR. — Lastly, although the fatal wounds were found at the back of the victim,
this does not, of itself, compel a nding of treachery. We disagree with the Regional Trial
Court's ratiocination that a person who, after falling to the ground head rst, was shot two
more times indicates the treacherous plan to kill him as it does not prove the suddenness
of the attack which prevented the victim from defending himself or retaliating. The
conclusion is speculative and based on a presumption not on the evidence. It is a basic
precept that treachery must be proven as indubitably as the killing itself and it cannot be
deduced from the mere presumption or sheer speculation.
9. ID.; ID.; ID.; CIVIL INDEMNITY; ACTUAL DAMAGES; CAN ONLY BE GRANTED IF
THEY ARE SUPPORTED BY RECEIPTS; CASE AT BAR. — The last issue to be resolved is
whether the heirs of Luisito Palencia are entitled to actual and moral damages and loss of
income which would have been earned had it not been for the victim's untimely death. We
cannot sustain the award of P66,500.00 as actual damages in favor of the heirs of Luisito
Palencia. The records show that the prosecution failed to substantiate the bare assertion
of the widow, Marina Palencia, with other corroborative evidence. The Court can only grant
such amount for expenses if they are supported by receipts. In the absence thereof, no
award for actual damages can be granted. We a rm the award of P50,000.00 as
indemnity for the loss of Luisito's life as this is in accord with prevailing jurisprudence.
However, the award of moral damages must be reduced from P100,000.00 to P50,000.00
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 as the purpose of this award is not to enrich the heirs of the victim but to compensate
them for the injuries to their feelings.
10. ID.; ID.; ID.; ID.; LOSS OF EARNING CAPACITY; FORMULA AND
COMPUTATION THEREOF; CASE AT BAR. — We must also modify the award for loss of
earning capacity. The absence of documentary evidence to substantiate the widow's claim
for the loss will not preclude recovery for said amount. Marina Palencia testi ed that her
deceased husband earned P14,877.00 per month as a P.L.D.T. repairman and installer. It
was also established that at the time of his death, the victim was forty-four (44) years old.
Loss of earning capacity is computed based on the following formula:

Net life expectancy Gross living expenses

Earning = [2/3(80-age at x Annual - (50% of GAI)
Capacity death)] Income
(x) (GAI)
x = 2(80-44) x 178,524.00 - 89,262.00
————
3
x = 24 x 89,262.00

Net Earning Capacity = P2,142,288.00

DECISION

GONZAGA-REYES , J : p

This is an appeal from the decision 1 of the Regional Trial Court (RTC) of Malabon,
Branch 72, dated August 7, 1996, nding the accused–appellant Jose Silvestre y Cruz alias
Jojo Bungo guilty beyond reasonable doubt of the crime of murder in Criminal Case No.
16579-MN. cdll

The accused, Jose Silvestre y Cruz alias Jojo Bungo, was charged with the crime of
murder in an information 2 that reads:
"That on or about the 18th day of January, 1996, in the Municipality of
Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, and with treachery and evident
premeditation while armed with a gun, did then and there, willfully, unlawfully and
feloniously shoot one LUISITO PALENCIA y TOBIAS hitting him four (4) times on
the different parts of his body, as a consequence said LUISITO PALENCIA y
TOBIAS, sustained injuries which directly caused his death."

On April 24, 1996, accused-appellant was arraigned whereupon he entered a plea of

not guilty to the crime charged. 3
The prosecution presented three witnesses: the victim's widow, Marina Palencia; an
eyewitness to the shooting, Felicitas Torres; and the arresting o cer, SPO2 Benjamin
Querubin.
Marina Palencia testi ed that she was the widow of the victim, Luisito Palencia; that
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 they have three children: Harry, 18; Regine, 16; and Carmille, 11; and that when he was alive,
he was employed as an installer and repairman of P.L.D.T. earning P14,877.00 a month. As
a consequence of the death of her husband, she had incurred actual expenses in the
amount of P66,500.00. 4
Felicitas Torres testi ed that on 11:45 a.m. of January 18, 1996, she bought bread
from the Concepcion Bakery in Malabon, Metro Manila. While waiting for a ride in front of
the said bakery, she observed a man and a woman talking with each other. She then heard
two shots red. When she turned her head, she saw a man on the ground face down and
beside him, a man holding a gun. She sought cover "for a short while," then saw the man
with a gun re two more times at the fallen man. She boarded a jeep after the last two
shots were fired. While boarding, she heard someone say "binaril na ni Jojo si Palencia."
On February 5, 1996, she went to the branch o ce of P.L.D.T. in Malabon to pay for
the telephone bill of her employer. While there, she overheard that no one was willing to
testify about the shooting. She informed one of the employees that she was a witness to
the incident, and was brought to the manager who asked her to testify as one of the
witnesses in the case. On the same day, she was accompanied by a certain Jun, an
employee of the P.L.D.T., to the police station to give her statement.
At the police station, she identi ed the only person presented to her for purposes of
identi cation as the assailant. She was later informed that this person was Jojo Bungo. In
court, Torres also identi ed the accused Jojo Bungo, whose real name is Jose Silvestre, as
the assailant. 5
The parties dispensed with the presentation of Dr. Alberto Bondoc by making
admissions concerning the manner and nature of his testimony, to wit:
"1. that he is duly quali ed and competent as a physician and medico-
legal officer who had conducted an autopsy examination;
2. that he conducted the actual autopsy on the cadaver of the victim in
this case by the name of Luisito Palencia to be marked as Exhibit B;
3. that in the course of the autopsy examination the witness prepared
a sketch of the human body showing the locations and number of gunshot
wounds sustained by the victim marked as Exhibit C;
4. that in the course of its examination he extracted a slug embedded
on the said victim which cannot be traced to any gun because there was no
ballistic examination; and,

5. that the nal report containing the ndings and conclusions

particularly with respect to the fact and cause of death was prepared, thereby
dispensing with the actual presentation of Dr. Bondoc as a prosecution witness."
6

The prosecution's last witness was SPO2 Benjamin Querubin who testi ed that on
February 5, 1996, Jojo Bungo was arrested outside his residence at Bagong Bantay,
Quezon City after a six-hour stakeout. At the time of arrest, a .38 snub nose "paltik" revolver
was recovered from Silvestre after he was frisked. He also identified Jojo Bungo in court.
On cross-examination, Querubin testi ed that there was a witness who gave her
statement regarding the crime committed on January 18, 1996 but that she did not
cooperate and even failed to subscribe to her statement. 7
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 The defense presented SPO2 Angelito Balacaña, the investigating o cer, who
testi ed 8 that he was the o cer who took the statement of Felicitas Torres. On cross-
examination, he stated that there was no line-up made when Torres identi ed the accused
because when Torres' statement was taken, she readily mentioned the name of the
suspect. When he presented the suspect to Felicitas, the latter identi ed him as the one
who shot Luisito Palencia.
The defense next called SPO1 Crizaldo Castillo who did not appear despite his being
subpoenaed. Castillo was supposed to testify on a statement made by a certain
Bernadette Matias, a witness to the shooting, who was not presented at the trial. His
testimony was dispensed with when the prosecution admitted the existence and the
contents of her written statement after the Court persuaded both parties to stipulate on
his testimony. 9
The defense rested its case and made its offer of evidence as follows:
"I will no longer present the accused. I am offering Exhs. 1, 1-A and 1-A-1 a statement
taken by SPO1 Castillo immediately after the incident took the statement of witness Bernadette
Matias on 18 of January, 1996 at 1:00 o'clock in the afternoon and in that affidavit statement the
witness stated that the suspect that she does know the name of the suspect and he is 5'5"
between 120 to 130 ang bigat and kulot ang mabuhok, maiksi ang buhok, brushed up, likewise
Exh. 1-A-1 the word 'kayumanggi' on Question No. 7 answer of the witness is to prove the person
whom the eyewitness saw who shot the victim was a 'kayumanggi' likewise offering this
affidavit as part of his testimony of the witness." 1 0

The prosecution objected to the purpose for which the exhibit was offered since the
a davit was not presented for identi cation; and the Court admitted it only as proof of its
existence and contents.
On August 7, 1996, the Regional Trial Court rendered its decision nding the
accused guilty beyond reasonable doubt of the crime of murder. The dispositive portion of
the decision reads:
"WHEREFORE, premises considered, judgment is hereby rendered nding
accused Jose Silvestre y Cruz @ Jojo Bungo GUILTY beyond reasonable doubt of
the crime of murder and he is hereby accordingly sentenced to the prison term of
reclusion perpetua.
Accused Silvestre is also ordered to pay Mrs. Marina Palencia, the
following amounts: (1) P66,500.00 for the actual expenses spent in connection
with the death and burial of Luisito; (2) P50,000.00 for the loss of Luisito's life; (3)
P100,000.00 by way of moral damages for the pain and anguish suffered by the
victim's family due to the untimely death of Luisito and an additional amount
equivalent to three (3) years salary computed at the rate of P14,877.00 a month
corresponding to Luisito's monthly salary by way of lost income.

Costs against accused Silvestre.

SO ORDERED.
Malabon, Metro Manila, August 7, 1996." 1 1

Hence, this appeal where accused assigns the following errors:

"I. THE GUILT OF THE ACCUSED WAS NOT ESTABLISHED BY PROOF
BEYOND REASONABLE DOUBT OR PROSECUTION EVIDENCE HAS NOT OVER-
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 COME ACCUSED CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

II. THE COURT A QUO ERRED WHEN IT CONVICTED THE ACCUSED

SOLELY BASED ON THE LONE TESTIMONY OF PROSECUTION'S PRINCIPAL
WITNESS WHO IS NOT CREDIBLE AND POSITIVE.
III. THE COURT A QUO GRAVELY ERRED IN TREATING JUDICIAL
ADMISSION OF THE PARTIES AS HEARSAY IN CHARACTER.
IV. THE COURT A QUO ERRED IN APPRECIATING EVIDENT
PREMEDITATION AND TREACHERY FOR WANT OF EVIDENCE.
V. THE COURT A QUO ERRED IN SENTENCING ACCUSED OF A PRISON
TERM OF RECLUSION PERPETUA.
VI. THE COURT A QUO ERRED IN ORDERING PAYMENT OF ACTUAL,
MORAL DAMAGES, LOSS OF INCOME ABSENCE OF PROOF IN SUPPORT
THEREOF OR FORMALLY OFFERED IN EVIDENCE." 1 2

The accused-appellant argues that the lower court erred in nding the accused
guilty beyond reasonable doubt on the basis of the lone testimony of Felicitas Torres.
According to the accused-appellant, Torres testi ed that she did not actually witness the
accused shooting the victim because she merely heard two shots red and sought cover
for a short while, and hence it was doubtful whether she saw the man with a gun shooting
at the fallen man two more times. As it was a startling or frightful experience for a woman,
it was not probable that she was brave enough to witness the shooting which was merely
ve arm's length away from her; and that the prosecution witness merely speculated on
the identity of the perpetrator from what she heard i.e., "binaril na ni Jojo si Palencia." 1 3
Moreover, accused-appellant claims that there was an inconsistency between the
sworn statement of Torres and her testimony in Court. In her sworn statement, she had
stated that ". . . nakita ko ang isang lalaki na natumba at isa pang lalaki na nakatayo sa
harapan noong natumba . . . " 1 4 while in her direct testimony, she testi ed that: ". . . I saw a
man slumped head face down . . . besides that man slumped on the ground a man with a
gun." 1 5 He also avers that the identi cation made by Torres was not positive and was a
"suggested identi cation" since no police line-up was conducted when she identi ed him
at the police station. 1 6
In addition, appellant argues that the lower court erred in treating the statement of
Bernadette Matias as hearsay despite the fact that the prosecution admitted the existence
and contents of her statement. He claims that he vigorously tried to secure subpoenas ad
testificandum for the witnesses, Bernadette Matias and SPO1 Crizaldo Castillo but the trial
court opted instead to have the parties stipulate on their testimonies. It is alleged that the
trial court's insistence that the parties stipulate on Matias' declaration led him to believe
that it was not necessary to present her to testify under oath as the contents thereof were
already admitted.
Lastly, the accused-appellant contends that the lower court erred in appreciating the
qualifying circumstances of treachery and evident premeditation, and in the absence of
these circumstances, the crime is not murder but simple homicide. He nally argues that
the lower court erred in awarding actual and moral damages despite the absence of proof
of the factual basis therefor, and despite the absence of a formal offer of evidence.
The appellee, on the other hand, posits that the guilt of the accused has been proven
beyond reasonable doubt.
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 First, Felicitas Torres positively identi ed the accused as the man who shot Luisito
Palencia as she had witnessed the shooting in broad daylight, while she was merely five (5)
arm's length away from the accused.
Second, Felicitas' testimony is consistent with the ndings of the autopsy report
which shows that the victim sustained four (4) gunshot wounds.
Third, the defense did not show any improper motive on the part of Torres to falsely
impute the murder against the appellant. It was not shown that she knew the victim's
family nor the accused prior to the incident.
Fourth, as regards the alleged contradictory statements of Felicitas, the prosecution
argues that from the viewpoint of a "stunned" witness, the appellant could well be standing
beside or in front of the victim. Assuming her statements were in fact inconsistent, such
inconsistency pertains to a trivial matter as there was no inconsistency with respect to the
fact of the shooting.
The appellee also argues that there is no law requiring a police line-up as a requisite
for proper identi cation. Moreover, accused was not entitled to have counsel present at
the time he was identi ed since he was not subjected to any investigation or interrogation.
17

As regards the a davit of Bernadette Matias, the same is hearsay as she was not
presented as witness. Finally, the appellee contends that the presence of treachery as
shown by the sudden and unexpected assault upon the defenseless victim quali ed the
crime to murder.
The rst issue to be resolved is whether Felicitas Torres, the lone witness to the
killing was a credible witness. We have carefully gone over the records and nd nothing in
her account of the events that shows that her testimony suffers from incredibility. Felicitas
Torres testified as follows:
"DIRECT EXAMINATION BY FISCAL ACUÑA:

Q. Now, at 11:45 in the morning of January 18, 1996, do you remember where
you were?

A. I was then near Concepcion Bakery.

Q. Will you please tell us in what municipality is this Concepcion Bakery
located?

A. Malabon, Metro Manila.

Q. Now, what were you doing at that time?
A. Buying bread, sir.
Q. Were you able to buy bread?

A. Yes, sir.
Q. After buying bread what did you do, if any?
A. I waited for a tricycle to go home.
Q. And you said you were waiting for a tricycle in going home when you said
going home you are referring to Hulo, Malabon?
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 A. Yes, sir.
Q. While you were waiting what happened while you were waiting for a ride?
A. I noticed something, sir.

Q. What was that you noticed?

A. I noticed a man and a woman talking with each other.
Q. How far were you more or less from this man and woman who was
conversing with each other?
A. More or less five arms length.
Q. Now, what happened after that, if any?
A. I heard two shots then I turned my head.

Q. Now, when you turned your head after hearing two shots, what did you see
if any?

A. And then I saw a man slumped head face down.

Q. What else did you see?
A. Then I saw besides that man slumped on the ground a man with a gun.
Q. What then did you do if any after that?
A. I sought cover for a short while.

Q. What happened after seeking cover?

A. Then I saw that man with a gun shot the man two times more.
Q. Now who was this man whom you saw red twice more the man who was
slumped face down?
A. I do not know him personally but I recognized him.
Q. Now, if you see this man were you be able to identify him?
A. Yes, sir.

Q. Now, look around and point him to us if he is inside the Court room?
A. Witness pointing to the person, step down and approached the person
whom she pointed to and when asked to stand and asked his name, he
answered Jose Silvestre.

Q. Now, after ring two more shots at the man whom you saw " pasubsob,"
what then did the accused do if any?
A. I do not know anymore because I boarded a jeep after he red the last two
shots.
Q. Now, while you were boarding that vehicle that you take home did you hear
anything on that occasion?
A. There was a commotion and then I heard "binaril na ni Jojo si Palencia."
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 Q. When did you come to know the complete name of Palencia?
A. When I went to PLDT office.
Q. When was that?
A. February 5, 1996.

Q. Do you recall what happened when you went to the PLDT before that
which place of PLDT did you go on February 5?

A. Malabon office, sir.

Q. Now, do you remember what happened when you went at PLDT branch in
Malabon?

A. I heard that no one wanted to testify for Palencia.

Q. From whom did you hear this?
A. From the PLDT personnel.
Q. So, what then did you do, if any?

A. I approached one of them.

Q. For what purpose did you approach this PLDT employee?
A. I told him about the killing incident that I witnessed.
Q. What did this PLDT employee do, if any?
A. He brought me to the office of PLDT at the second floor.

Q. What happened at the second floor of PLDT office at Malabon?

A. I said I will testify.
Q. What then happened after that?
A. The complainant was called as she is a resident of Bulacan.

Q. Now, did the complainant arrive?

A. In the afternoon, sir.
Q. Now, after the arrival, by the way, who was that person who arrived?
A. Mrs. Palencia, sir.
Q. After Mrs. Palencia arrived what happened, if any?

A. The PLDT employee told her that I will be the one to testify in their favor.
Q. After that what happened?
A. Then after that we proceeded to the Malabon police station.
Q. What happened at the headquarters of Malabon?
A. My statement was taken down." 18

Felicitas Torres categorically stated that she saw the accused Jose Silvestre whom she
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 identi ed in Court, shoot at the fallen man two times after hearing two gunshots. While
she did not see the accused-appellant actually re the rst two shots, she turned her
head upon hearing the two gunshots and saw a man slumped on the ground and a man
with a gun beside him. After seeking cover for a short while, she saw the man with the
gun shoot the fallen man two more times moments after the rst two shots were red.
This leads to no other logical conclusion than that the accused-appellant was the one
who fired them. 1 9
Her testimony is corroborated by the autopsy report 20 prepared by Dr. Alberto
Bondoc, the findings of which are:
"FINDINGS:

1. Abrasions/Contusions: forehead, left.

2. Lacerated Wound: eyebrow, left, 22 mm.
3. Stabbed Wounds:
3.1 angle of mandible, left, 9 mm., directed superiorly, posteriorly and
medially.
3.2 back, level of L2, PVL, left, 11 mm., directed anteriorly, superiorly
and slightly laterally, non-penetrating.
4. Gunshot Wounds:

4.1 POE: back, level of L2, PVL, right, 8 x 10 mm., directed anteriorly,
superiorly and medially, puncturing the right lobe of the liver from
inferior to superior, puncturing the diaphragm, and lacerating the
heart from the posterior wall of the right ventricle to the anterior wall
of the left atrium, and puncturing the anterior chest wall;

POX: none. A metallic slug, 9 x 18 mm. was recovered from the

subcutaneous tissues of the anterior chest wall, along the 2nd ICS,
MCL, left.

4.2 POE: nape, level of C5, right, 8 x 8 mm., directed anteriorly, inferiorly
and slightly medially, fracturing T1;

POX: none. The slug embedded within the spinal canal.

4.3 POE: abdomen, AAL, just above the anterior iliac spine, right, 10 x
12 mm., directed posteriorly, inferiorly and medially;

POX: none. The slug was embedded deep within the muscle tissues of
the right thigh.

4.4 POE: abdomen, MAL, just above the iliac crest, left, 10 x 12 mm.,
directed posteriorly, inferiorly and medially;

POX: none. The slug was embedded deep within the muscle tissues of
the left thigh.

5. Hemopericardium, massive.

6. Hemoperitoneum, moderate.
CAUSE OF DEATH: Cardiorespiratory Arrest due to Hemorrhagic Shock due
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 to Multiple Gunshot Wounds, Back and Nape."

The autopsy report shows that the victim sustained four (4) gunshot wounds. This
tallies with the testimony of Torres whose account of the events reveals that a total of four
shots was fired.
This Court has ruled on countless occasions that the trial court is in the best
position to determine facts and to assess the credibility of witnesses as it is in a unique
position to observe the witnesses' deportment while testifying which opportunity the
appellate court is denied on appeal; this Court will respect the ndings and conclusions of
the trial court provided that they are supported by substantial evidence on record. 2 1 We
nd no cogent reason to disturb the trial court's appreciation of the evidence and nd no
basis in the record to rule that Felicitas Torres' testimony was not credible.
With regard to appellant's argument that there was an inconsistency between
Torres' sworn statement and her testimony in court, we agree with appellee that the
alleged inconsistency pertains to a trivial matter. While she stated in her sworn statement
that the accused was in front of ("sa harapan") the victim she thereafter testi ed that the
gunman was "beside" the victim. This statement refers only to how the accused stood in
relation to the victim and is not su cient to weaken her positive assertion that she saw
the accused shoot the victim two times after hearing two shots previously fired. This Court
has repeatedly ruled that inconsistencies between the sworn statements and direct
testimony given in open court do not necessarily discredit the witness since a davits are
oftentimes incomplete and are generally inferior to the testimony of the witness in open
court. 2 2
In addition, the appellant has failed to show any improper motive on the part of
Torres to falsely impute such a terrible crime to him. Torres did not know either the
appellant or the victim prior to the shooting on January 18, 1996. 2 3 The testimony of a
single witness, when credible and trustworthy, is su cient to convict 2 4 and must be given
full faith and credence when no reason to falsely testify is shown. 2 5
As regards the lack of a police line-up when Torres identi ed Jose Silvestre as the
assailant, we agree with appellee that there is no law which requires a police line-up as
essential to a proper identi cation provided that the identi cation was not suggested to
the witness by the police. 2 6 In the present case, there is no showing that the identi cation
made by Torres in the police station was suggested to her. In her sworn statement, 2 7
Torres stated that:
"Question # 22.
T: Inihaharap ko ngayon sa iyo ang taong ito, ano ang masasabi mo sa
kanya? (This investigator confronting a ant with the suspect who is
presently under detention at the Malabon Municipal Jail.)

S: Siya nga ho ang nakita kong bumaril kay Tito Palencia. (Affiant pointing to
the suspect Jojo Bungo whose real identity is JOSE SILVESTRE Y CRUZ,
40 yrs. old, married, jobless, and res. at 240 C. Arellano St., Baritan,
Malabon, Metro-Manila.)"

While on cross-examination, Torres testified that:

"Q. Now when you were already at the police station of Malabon with the
employee of PLDT in the name of Jun whom did you talk to?

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 A. Jun asked them who is the investigator because I was going to give a
statement.

Q. Then where were you when Jun asked about the investigator?

A. I was at the lobby, sir.

Q. You were left by Jun at the lobby of the police station?

A. Yes, sir.
Q. And Jun went somewhere else inside the police station.

A. Yes, sir.

Q. So, at the time Jojo the alleged assailant was not still around?
A. Yes, sir.

Q. When Jun the police investigator came out they were already or Jun was
already with them?
A. I gave the statement first.

Q. Now, while you are giving your statement to the police investigator who
was with you?
A. No one because I was told to enter the room alone.

COURT:

Q. Now Jojo Bungo was eventually presented to you, is that not correct?
A. Yes, sir.

Q. Did you point him the assailant face to face?

A. Yes, sir.

Q. And what was his reaction as being pointed to you as the assailant?

A. Nothing.
Q. Did he not deny the accusation against him?

A. He did not, sir.

ATTY. SIRUELO:
Q. Now, when he was presented for your identification he was alone?

A. Yes, sir.
Q. And you were told that this was Jojo Bungo?

A. Yes, sir." 28

There is nothing in the testimony of Torres nor in her sworn statement that would
show that the police suggested that the suspect to be presented to her was Jojo Bungo.
The police merely asked what she could say about the person presented to her, and she
spontaneously answered that he was the one who shot Luisito Palencia. She was only
informed that the person presented was Jojo Bungo after she had already pointed him out.
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 She could not have been mistaken in her identi cation of the gunman as she was only ve
arm's length away from them when the shooting occurred. During her cross-examination,
she explained how she was able to see the face of the gunman as follows:
"Q. . . . when you arrived there at the headquarters you were already
confronted with the suspect Jojo?
A. Yes, sir.

Q. And that was only the first time that you saw his face?

FISCAL ACUÑA:
Misleading.

COURT:
Witness may answer.

WITNESS:

A. No, because I saw him when he shot the victim.

ATTY. SIRUELO:

Q. You testi ed that during those dates that you saw the assailant at the
actual place of incident thru his back only, is that not correct?
FISCAL ACUÑA:

That is misleading.
COURT:

Let us put this way.

Q. On direct examination you said you saw a person who turned out to be
Jojo Bungo shooting at the victim who was already lying on the ground
face down. On direct examination you said that when you again saw the
assailant Jojo for the rst time his back was turned to you. Now, the
question is: how then did you see his face or recognize him as you claim?

A. Because he was turning his head from side to side." 29

Appellant also argues that the court a quo erred in treating the judicial admission of
the statement of Bernadette Matias made by the prosecution as hearsay. The records
show that the prosecution only admitted the existence and contents of the supposed
statement made by Bernadette Matias as shown by the following excerpt from the
transcript: dctai

"Atty. Siruelo:

My next witness is SPO1 Crizaldo Castillo he was subpoenaed, Your Honor.

Court:

Can we not have stipulation or admissions concerning the testimony of

Castillo as corroborative only of that of Balacaña?
Atty.:
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 No, Your Honor, very material on our defense on the con icting testimony of
the witness.

Court:
Do you have a copy thereof?

Atty.:

I am referring to the witness, Bernadette Matias. I have a statement of the

other witness.
Court:

Then show it to the Fiscal and probably the Fiscal can admit it.
Fiscal:

The reason why we did not present the witness because she was afraid in
fact that was sworn to.
Court:

The existence and contents you can admit it Fiscal?

Fiscal:
Yes, Your Honor.

Court:
So we can dispense with the testimony of Castillo." 30

The appellee's admission only referred to the fact that the statement was made by
Matias. In People vs. Gaddi, 3 1 it was ruled that when testimony is presented to establish
not the truth but the tenor of the statement or the fact that the statement was made, it is
not hearsay. 3 2 The lower court was therefore correct in admitting only the existence and
contents and not the truth or veracity of the unsworn statement of Matias as an
"independently relevant statement." 3 3 This statement cannot be used to establish the
veracity of it; it would be hearsay as Matias was not presented in Court.
Appellant cannot fault the prosecution for the failure to present Bernadette Matias.
The prosecution has discretion to decide on who to call as witness during trial and its
failure to do so did not give rise to the presumption that "evidence willfully suppressed
would be adverse if produced" 3 4 since the evidence was at the disposal of both parties. 3 5
If the defense believed that the testimony of Bernadette Matias was important to its case,
it should have insisted on presenting her as a witness, or as the appellee points out, made
a tender of excluded evidence of the witness in question under Section 40, Rule 132 of the
Rules of Court. The same may be said of Joanna Santiago, another supposed witness to
the shooting, who was also not presented during trial.
The next issue to settle is whether treachery and evident premeditation can be
appreciated to qualify the crime into murder. In nding the presence of treachery and
evident premeditation, the court a quo ruled that:
"A person being shot at while standing in a public place and talking to a
woman must have been shot with evident premeditation and treachery because
he was unaware of the impending attack which prevented him from putting up a
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 defense that will repel the attack that will also place the attacker under some sort
of risk by reason of said defense. After having fallen to the ground head rst, said
person's being shot two times more would have been indicative of the
treacherous plan to kill him." 3 6

There is treachery when the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution thereof which tend directly and
speci cally to insure its execution without risk to himself arising from the defense which
the offended party might make. 3 7 For treachery to be appreciated as a qualifying
circumstance, two elements must concur: (1) the employment of means of execution
which gives the person attacked no opportunity to defend himself or retaliate; and (2) the
means of execution is deliberately or consciously adopted. 3 8
We nd the evidence of the prosecution insu cient to prove treachery as a
qualifying circumstance. The fact that Torres saw the accused-appellant shoot the victim
while he was already on the ground does not mean that that was the only assault made by
the accused-appellant on the victim. 3 9 When Torres saw the accused-appellant shoot the
victim, she had already heard two shots red. The autopsy report shows that the victim
also sustained two unexplained stab wounds. Given these facts, Torres cannot be
considered as having testi ed as to how the incident began since she saw the incident
already in progress. 4 0 Treachery cannot be considered when the witness did not see the
commencement of the assault. 4 1
Moreover, treachery cannot be appreciated when no particulars are known with
respect to the manner by which the aggression was made or how the act began or
developed 4 2 or when the evidence lacks any details showing the manner of attack, its
suddenness or unexpectedness, the relative positions of the victim and his assailant, and
the victim's defenselessness. 4 3
Lastly, although the fatal wounds were found at the back of the victim, this does not,
of itself, compel a nding of treachery. 4 4 We disagree with the Regional Trial Court's
ratiocination that a person who, after falling to the ground head rst, was shot two more
times indicates the treacherous plan to kill him as it does not prove the suddenness of the
attack which prevented the victim from defending himself or retaliating. The conclusion is
speculative and based on a presumption not on the evidence. It is a basic precept that
treachery must be proven as indubitably as the killing itself and it cannot be deduced from
mere presumption or sheer speculation. 4 5
The court a quo also appreciated evident premeditation as a qualifying
circumstance. For evident premeditation to be appreciated, the following must be proved:
1.) the time when the accused determined to commit the crime;
2.) an act manifestly indicating that the accused has clung to his
determination; and
3.) su cient time between such determination and execution to allow
him to reflect upon the consequences of his act. 46
Neither are we convinced that evident premeditation was proven. The records are
bereft of evidence of any of the above requisites of evident premeditation. There is
absolutely no proof of the time the accused decided to commit the crime. There is no
showing how the accused, Jose Silvestre, planned the killing of the victim, Luisito Palencia.
Neither is there any showing of how much time elapsed before he executed his plan.
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 Absent all these, evident premeditation cannot be appreciated. 47
Since both treachery and evident premeditation cannot be appreciated to qualify the
crime into murder, the accused-appellant can only be convicted of the crime of homicide.
4 8 Article 249 of the Revised Penal Code provides that the penalty for homicide is reclusion
temporal. Since there are no mitigating nor aggravating circumstances in the present case,
the penalty that should be imposed on the accused-appellant is reclusion temporal in its
medium period. Applying the Indeterminate Sentence Law, the accused-appellant is
sentenced to prision mayor, as the minimum, and reclusion temporal in its medium period,
as the maximum. 4 9
The last issue to be resolved is whether the heirs of Luisito Palencia are entitled to
actual and moral damages and loss of income which would have been earned had it not
been for the victim's untimely death.
We cannot sustain the award of P66,500.00 as actual damages in favor of the heirs
of Luisito Palencia. The records show that the prosecution failed to substantiate the bare
assertion of the widow, Marina Palencia, with other corroborative evidence. The Court can
only grant such amount for expenses if they are supported by receipts. 5 0 In the absence
thereof, no award for actual damages can be granted.
We a rm the award of P50,000.00 as indemnity for the loss of Luisito's life as this
is in accord with prevailing jurisprudence. 5 1 However, the award of moral damages must
be reduced from P100,000.00 to P50,000.00 5 2 as the purpose of this award is not to
enrich the heirs of the victim but to compensate them for the injuries to their feelings. 5 3
We must also modify the award for loss of earning capacity. The absence of
documentary evidence to substantiate the widow's claim for the loss will not preclude
recovery for said amount. 5 4 Marina Palencia testi ed that her deceased husband earned
P14,877.00 per month as a P.L.D.T. repairman and installer. 5 5 It was also established that
at the time of his death, the victim was forty-four (44) years old. 5 6 Loss of earning
capacity is computed based on the following formula: 5 7

Net = life expectancy x Gross - living

Earning [2/3(80-age at Annual expenses
Capacity death)] Income (50% of GAI)
(x) (GAI)
x = 2(80-44) x 178,524.00 - 89,262.00
3
x = 24 x 89,262.00

Net Earning Capacity = P 2,142,288.00

WHEREFORE, the appealed decision of the Regional Trial Court is hereby MODIFIED,
and the accused-appellant is found GUILTY OF HOMICIDE and sentenced to an
indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum. 5 8 Accused-
appellant is further ordered to pay the heirs of the victim the following: (1). death
indemnity P50,000.00, (2). moral damages P50,000.00, (3). loss of earning capacity
P2,142,288.00. cda

SO ORDERED.
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 Romero, Vitug, Panganiban and Purisima, JJ., concur.

Footnotes
1. Penned by Judge Benjamin M. Aquino, Jr., Rollo, pp. 12-17.

2. Rollo, p. 6.
3. Record, p. 33.
4. T.S.N., May 13, 1996, pp. 5-10.

5. T.S.N., May 20, 1996, pp. 6-35.

6. Order of June 3, 1996; Record, pp. 48-49.

7. T.S.N., June 10, 1996, pp. 3-16.

8. T.S.N., July 1, 1996, pp. 3-12.

9. T.S.N., July 1, 1996, pp. 12-16.

10. T.S.N., July 1, 1996, pp. 15-16.

11. Decision of the Regional Trial Court, p. 6; Rollo, p. 38.

12. Appellant's Brief, p. 2.

13. Appellant's Brief, p. 16.

14. Record, p. 54.

15. T.S.N., May 20, 1996, p. 9.

16. Appellant's Brief, p. 24.

17. Appellee's Brief, pp. 7-11.

18. T.S.N., May 20, 1996, pp. 7-12.

19. People vs. Salveron, 228 SCRA 92 at p. 97 [1993]; People vs. Agunias, 279 SCRA 52 at
pp. 62-66 [1997].

20. Record, pp. 45-46.

21. People vs. Mahinay, G.R. No. 122485, February 1, 1999 at p. 16; People vs. Banela, G.R.
No. 124973, January 18, 1999 at p. 5.

22. People vs. Banela, Supra, at p. 7.

23. T.S.N., May 20, 1996, pp. 9-10.

24. People vs. Bajar, 281 SCRA 262 [1997].

25. Ibid., see Note 25.
26. People vs. Salguero, 198 SCRA 357 at p. 362 [1991]; People vs. Espiritu, 191 SCRA 503
at pp. 505-506 [1990].

27. Exhibit A-1, Record, p. 55.

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 28. T.S.N., May 20, 1996, pp. 33-35.

29. T.S.N., May 20, 1996, pp. 30-32.

30. T.S.N., July 1, 1996, pp. 12-13.

31. 170 SCRA 649.

32. Ibid., at 658; People vs. Porras, 255 SCRA 514 at p. 527 [1996].
33. Ricardo J. Franciso, Evidence, 3rd ed., 1996, pp. 250-251.

34. Rule 131, Rules of Evidence, § 3(e).

35. People vs. Andal, 279 SCRA 474 at pp. 495-496 [1997].
36. Decision, p. 5; Rollo, p. 16.
37. Revised Penal Code, Article 14 (16); People vs. Tavas, G.R. No. 123969, February 11,
1999 at p. 13.

38. People vs. Tavas, Supra at p. 12; People vs. Dorado, G.R. No. 122248, February 11,
1999, at p. 9.
39. People vs. Oscimar, 253 SCRA 689 at p. 698 [1996].
40. People vs. Oscimar, Supra.
41. People vs. Garcia, 258 SCRA 411 at p. 422, [1996]; People vs. Tiozon, Supra.
42. People vs. Cruz, 262 SCRA 237 at p. 243 [1996]; People vs. Tiozon, 198 SCRA 368 at p.
388 [1991].

43. People vs. Zamora, 278 SCRA 60 at p. 77 [1997].

44. People vs. Maturgo, Sr., 248 SCRA 519 at p. 531 [1995].
45. People vs. Tavas, Supra, at pp. 10-11.
46. People vs. Bahenting, G.R. No. 127659, February 24, 1999, p. 8; People vs. Realin, G.R.
No. 126051, January 21, 1999, p. 14.

47. People vs. Bahenting, Supra.

48. Article 249, Revised Penal Code; People vs. Tavas, Supra.
49. People vs. Tavas, Supra.
50. People vs. Gutierrez, Jr., G.R. No. 116281, February 8, 1999 at p. 24.
51. People vs. Verde, G.R. No. 119077, February 10, 1999 at p. 17.
52. Ibid.
53. Ibid.
54. Ibid., at p. 18.
55. T.S.N., May 13, 1996, p. 5.
56. Record, p. 45.

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 57. People vs. Verde, Supra; People vs. Gutierrez, Jr., Supra at p. 26.
58. People vs. Tavas, Supra.

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