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SECOND DIVISION
vs.
PFC FLORO MALEJANA, Accused-Appellant.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari of the decision1of Branch 51 of the Regional Trial Court of Sorsogon in
Criminal Case No. 91-2896 convicting appellant Floro Malejana of murder defined and penalized under Article 248
of the Revised Penal Code (RPC). After trial on the merits, the lower court found appellant guilty beyond reasonable
doubt of the crime charged and sentenced him to suffer an indeterminate penalty of imprisonment ranging between
fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal as minimum to twenty (20) years of
reclusion temporal as maximum. The Court of Appeals affirmed the judgment but raised the penalty imposed to
reclusion perpetua. Hence, this case is now before us on automatic review.
In the information2 filed with the Regional Trial Court of Sorsogon, appellant was charged with murder as follows:
That on or about the 28th day of July, 1990, at barangay Marifosque, municipality of Pilar, province of Sorsogon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and
evident premeditation, armed with an armalite rifle, did then and there, willfully, unlawfully and feloniously attack,
assault and sho[o]t one Janus (Bong) Roces, thereby inflicting upon the latter multiple mortal wounds which directly
caused the death of said Janus (Bong) Roces, to the damage and prejudice of his legal heirs.
CONTRARY TO LAW.
On arraignment, appellant pleaded not guilty to the charge. Pre-trial was thereafter held and terminated and trial
proceeded accordingly.
The prosecution presented five witnesses: (1) Three eyewitnesses to the incident, namely, Andres Madrid, Antonio
Sy and Samuel Andrade; (2) Domingo Luvidioro, the property custodian of the Philippine National Police (PNP) of
Pilar, Sorsogon; and (3) Dr. Jose Luna, the rural health physician of Pilar, Sorsogon who performed the autopsy on
and prepared the death certificate of Janus Roces (Roces), the victim.
Andres Madrid testified that he knew Roces because, apart from being one of the drivers of his (Madrid’s)
passenger jeepneys, Roces was his brother-in-law who lived with him in Marisfoque, Pilar, Sorsogon. On the other
hand, Madrid stated that he was acquainted with appellant because the latter is a member of Pilar-PNP.
As to the events that transpired on July 28, 1990, Madrid narrated that around 7:15 p.m., while he was seated in
front of his jeep parked at the side of the road at Marisfoque, Pilar, Sorsogon in the company of Roces, Sy, Andrade,
Bernarda Sy, Jose Belmonte and Ernesto Francisco, he saw appellant at about 30 meters away heading towards
their direction. Upon reaching their group, appellant asked them where Roces was. When he noticed Roces who
was sitting at a distance of 1 meter beside Madrid, appellant brandished an armalite rifle and fired a shot into the air.
Then he pointed the barrel of the gun at Roces and fired five (5) times, hitting Roces thrice. After the victim fell to the
ground, appellant left the scene of the incident and went to his house about 150 meters away. Madrid and his other
companions tried to assist Roces but discovered that the latter was already dead, presumably from the gunshot
wounds that were inflicted upon him by appellant.3
The statement of Madrid was corroborated by the testimonies of Antonio Sy4 and Samuel Andrade5 who both
confirmed that, on the day in question, appellant approached their group looking for Roces and after locating him,
fired his armalite rifle once in the air and then at least five times at the victim.6
The prosecution also presented Domingo Luvidioro who testified that, as property custodian of the PNP, he issued
to appellant an M-16 armalite rifle with 260 rounds of live ammunition. When the firearm was returned to him on July
30, 1990, only 230 rounds of live ammunition were returned.7
On January 28, 1992, Dr. Jose Luna, the rural health physician of Pilar, Sorsogon, testified that after conducting an
autopsy on the victim on July 29, 1990, he concluded that the immediate causes of death were shock and
hemorrhage while the antecedent cause was the multiple gunshot wounds on the chest. He set forth the following
findings in the Autopsy Report:8
External Findings:
HEENT- Hairs black, scalp has no contusions nor lacerations. Lower part of the face bloody. Bloody fluid coming out
of both external nares. Black mustache.
Thorax: Anterior and portion aspect unremarkable. (On) the right aspect of the thorax (with) the RUE abducted there
are three small bullet wound measuring 1X1 cm. arranged in a linear fashion at the midaxilliary line immediately
inferior of the axilla at 1 ½ inches apart. Bloody fluid oozing from the wounds. Left aspect of the thorax
unremarkable.
Internal findings:
A T incision was made in the chest and the thoracic cavity was exposed. The heart appears (NORMAL) in size lying
in the pericardial sac and containing a clear serous fluid. Both pleural cavity is half filled with bloody fluid. The lower
lobes of the lungs are torn to pieces. The upper lobes appear (NORMAL). The right sight of the rib cage at about the
bullet wounds were fractured.
2. Hemothorax
4. Fractures ribs
CAUSE OF DEATH:
IMMEDIATE CAUSE:
ANTECEDENT CAUSE:
UNDERLYING CAUSE:
For its part, the defense presented as its sole witness ballistics expert Vicente R. De Vera9 who was the chief of the
Ballistics Division of the PNP Crime Laboratory Service. After examining the autopsy report, De Vera testified
against the likelihood of an armalite being used to kill the victim and posited that the gunshot wounds were more
consistent with those inflicted by bullets from a .45 caliber pistol. He explained that an armalite rifle would have cut
off ½ of the body of the victim if fired at a distance of 1 ½ meters. He also opined that the velocity of the bullet of an
armalite is 3,500 feet per second with an energy of 1,300 feet per pound. As a consequence, it would have
destroyed or disturbed the internal organs of the person shot, in direct contrast to the victim in the case whose heart
had not been disturbed.10
After the parties presented their respective evidence, the prosecution was allowed, over the objections of opposing
counsel, to introduce rebuttal evidence culled from the records of the administrative case against appellant filed with
the National Police Commission in connection with the same incident.11 The following were marked as exhibits for
the prosecution:
Exhibit F: Motion to Admit Counter-affidavit in Admin. Case No. 91-0466 against accused Floro Malejana in the
National Police Commission.
Exhibit J series: AAD form No. 1 of Napolcom in the Administrative Case No. 91-0466.
On February 16, 1993, appellant filed a Petition for Certiorari13 with prayers for the issuance of a writ of preliminary
injunction and temporary restraining order, to nullify the trial court’s Order dated November 3, 1992 which admitted
into evidence Exhibits "F" to "J" as well as the Order dated December 22, 1992 denying his motion for
reconsideration. The Court of Appeals subsequently dismissed the petition in a Decision dated 24 August 1993.14
Aggrieved, appellant filed with this Court a Petition for Review on Certiorari.15 This Court dismissed the petition for
having been filed out of time.16
ACCORDINGLY, the Court finds accused Floro Malejana guilty beyond doubt of Murder defined and penalized
under Article 248 Revised Penal Code, without mitigating or aggravating circumstances present, hereby sentences
him to suffer an indeterminate penalty of imprisonment of fourteen (14) years and eight (8) months and one day of
reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum and to indemnify the heirs of
Janus Roces P50,000.00 for his death.17
On appeal, the decision of the trial court was upheld by the Court of Appeals with the following modification:
WHEREFORE, the ruling of the court a quo finding the accused-appellant guilty is AFFIRMED with the modification
that the penalty to be imposed be RECLUSION PERPETUA. Pursuant to Section 13 of Rule 124 of the Rules on
Criminal Procedure, as amended, let the entire record of this case is (sic) elevated to the Supreme Court for
review.18
I. THE TRIAL COURT AS AFFIRMED BY THE COURT OF APPEALS ERRED IN CONVICTING ACCUSED-
APPELLANT FLORO MALEJANA OF MURDER AND IN NOT ACQUITTING HIM NOTWITHSTANDING
THAT HIS GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.
II. ASSUMING THAT THE GUILT OF THE ACCUSED-APPELLANT HAS BEEN PROVEN BEYOND
REASONABLE DOUBT, THE TRIAL COURT ERRED IN APPRECIATING TREACHERY AS PURPOSELY
EMPLOYED BY THE ACCUSED-APPELLANT TO COMMIT THE ALLEGED CRIME IN THE INFORMATION.
The issue in this case boils down to a question of credibility and relative weight of evidence adduced by the parties
with respect to the surrounding circumstances of the killing. When the credibility of the witnesses is at issue,
appellate courts will not disturb the findings of the trial court, the latter being in a better position to decide the
question, having heard the witnesses and observed their deportment and manner of testifying during the trial unless
certain facts of substance and value had been overlooked which, if considered, might affect the results of the
case.20 The underlying reason for this principle has been explained as follows:
Having the opportunity to observe them, the trial judge is able to detect that sometimes thin line between fact and
prevarication that will determine the guilt of the accused. That line may not be discernible from a mere reading of the
impersonal record by the reviewing court.
The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush
of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer of the
forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in
confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears
were shed in anger, or in shame or in remembered pain, or in feigned innocence. Only the judge trying the case can
see all these on the basis of his observations arrive at an informed and reasoned verdict.21
After a thorough review of the evidence on record, this Court finds no reason to disturb the factual findings of the
trial court.
The defense hinges its case upon the testimony of ballistics expert De Vera to impugn the conviction of appellant
and particularly to support the assertion that the bullets that killed the victim came from a .45 caliber gun and not
from an M-16 armalite rifle similar to the one issued to appellant as member of the PNP. Based on the foregoing, it is
contended that the substance of De Vera’s testimony sufficiently disproved and discredited the testimonies of
Madrid, Sy and Andrade which were alleged to be mere fabrications.
The Court does not find such testimony compelling enough to overturn the trial court’s decision and acquit appellant.
As correctly pointed out by the court a quo, the proffered opinion of the expert witness does not conclusively rule out
the possibility that an armalite rifle had been used, to wit:
Q: The findings as it appears, there were 3 bullet wounds on the thorax of the victim that is 1 ½ inches apart. Based
on the distance, could it not be possible that such bullet wounds could have been fired from an Armalite rifle?
Q: Based on what we have exhibited and the evidence, the distance from the firer and the victim, the former used an
Armalite Rifle. Could it not inflict the same wounds as found on the body of the victim?
Q: The distance?
A: I cannot say that it was fired from an Armalite Rifle. It could have been fired.
Q: You cannot be sure from what particular firearm that caused the wounds sustained by the victim?
A: Based on the findings in the autopsy report from 2 to 4 that could not be the basis what was the firearm used.
A: It could have been caused because an Armalite Rifle with 700 rounds per minute, once you press the trigger or
tendency of it is that it will emit no less than 10 to 12 bullets per second.
Q: In a single shot of an Armalite Rifle, can that kind and type of injuries found on the victim be sustained?
A: It could be because automatic shot and single shot are one and the same.
xxx
Q: You said on cross-examination that the three bullet wounds found on the body of the victim could have been
caused by an Armalite Rifle fired in a single shot stage. My question is, will the other findings in the autopsy report
sustained (sic) the same conclusion?
A: It will be in contradiction with the findings. Based on the distance, M-16 is possible but based on the gun used, M-
16 is not possible. It could not be the basis in determining.
Q: Based on the findings in the autopsy report and the relative position that we have shown in the demonstration,
could it be possible that the firearm used was an Armalite Rifle?
A: I cannot say.22
The argument by the defense that the lower court did not take into consideration the testimony of De Vera as a
whole is untenable and completely belied by the records of the case. On the matter of weight to be given to the
testimony of an expert, this Court has held as follows:
Expert testimony no doubt constitutes evidence worthy of meriting consideration, although not exclusive on
questions of professional character. The courts of justice, however, are not bound to submit their findings
necessarily to such testimony; they are free to weigh them, and they can give or refuse to give them any value as
proof, or they can even counterbalance such evidence with other elements of conviction which may have been
adduced during the trial.23
Suffice it to state, expert opinion evidence is to be considered or weighed by the court like any other testimony, in
the light of their own general knowledge and experience upon the subject of inquiry.24 The probative force of the
testimony of an expert does not lie in a mere statement of the theory or opinion of the expert, but rather in the aid
that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon
which the logic of his conclusion is founded.25
In addition, the inclusion or exclusion by the expert of factors or elements that should or should not be considered in
the determination of his opinion is to be considered in determining the weight to be attached to his testimony. In the
present case, the factor that De Vera used as the basis of his initial statement that a .45 caliber gun was used in the
shooting, namely the nature and character of the wounds sustained by the victim, did not take into account the
distance and relative position of appellant. Thus, when these points were raised during cross-examination, De Vera
no longer categorically ruled out the possibility that an armalite rifle was used. On this score, it must be remembered
that the character of a gunshot wound depends upon the kind of shot, the distance from the body and the gun, and
the velocity with which the shot strikes the body.26 Thus, the trial court was acting well within its discretion in not
lending full-faith and credence to the testimony of De Vera which, on its face, is inconclusive as to the point being
made, that is, that an armalite rifle could not have possibly been used in the killing of Roces.
Consequently, appellant’s attempts to destroy the prosecution witnesses’ testimonies have been rendered futile. A
foundation must be laid for showing bias or prejudice of a witness in order to discredit his evidence. The absence of
evidence as to an improper motive actuating the principal witness for the prosecution strongly tends to sustain the
conclusion that no such improper motive existed.27 Where there is nothing on the record to show that the witnesses
were actuated by an improper motive, their testimony shall be entitled to full faith and credit.28 For if an accused had
really nothing to do with the crime, it is against the natural order of events and of human nature and against the
presumption of good faith that the prosecution witness would falsely testify against the former.29 Evidence to be
believed must not only come from the mouth of a credible witness, but must be credible in itself, such as the
common experience of mankind can approve as probable under the circumstances.30
Based on the evidence on record, the prosecution was able to establish that appellant was issued a firearm and
shot the victim thrice in the body on July 28, 1990. The wounds sustained by Roces were the direct and proximate
result of his death. lawphi1.net
In contrast, appellant’s alibi and denials have not been proven by positive, clear and satisfactory evidence. It bears
stressing that alibi is the weakest of all defenses because it is facile to fabricate and difficult to disprove, and is
generally rejected.31 For alibi to prosper, it is not enough to prove that the defendant was somewhere else when the
crime was committed, but he must likewise demonstrate that it was physically impossible for him to have been at the
scene of the crime at the time.32 In this case, appellant admits that on the night in question, he approached the
victim and the latter allegedly attempted to strike him. In response thereto, appellant allegedly fired a warning shot in
the air then left after reprimanding the group. However, this defense cannot prevail over the positive identification of
appellant as the author of the crime by no less than three credible witnesses.33
Passion and obfuscation similarly cannot be appreciated in favor of appellant. To be entitled to this mitigating
circumstance, the following elements must be present: (1) There should be an act both unlawful and sufficient to
produce such condition of mind; (2) the act that produced the obfuscation was not far removed from the commission
of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.34
The bare assertion that the victim and appellant had an argument does not provide justifiable basis for applying to
him this mitigating circumstance. The cause that produced the passion and obfuscation has not been established
nor proven by clear and convincing evidence.35 The defense advances mere speculations and conjectures to gloss
over the fact that there is lack of proof of the cause. Courts are not permitted to render judgments upon guesses or
surmises. Suspicion, it has been said, cannot give probative force to testimony which in itself is insufficient to
establish or justify an inference of a particular fact.36
Finally, this Court agrees that treachery attended the slaying of Roces. This qualifying circumstance can be
appreciated when the killing was sudden and unexpected and the victim is not in a position to defend himself.37 The
essence of treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving
the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor.38 The
existence or non-existence of treachery is not dependent on the success of the assault, for treachery may still be
appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of
the attack made it impossible for the victim to defend himself or to retaliate.39 Thus, even a frontal attack could be
treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid
it.40lawphil.net
The swift unfolding of events placed the victim in a position where he could not effectively defend himself from the
assault on his person. The defense cannot refute the evidence of treachery on the pretext that the victim and his
companions already saw appellant carrying an armalite and approaching their general direction. It is a well-known
fact in the community that appellant is a member of the PNP-Pilar. For appellant to be seen bearing arms in the
street, therefore, would not be something out of the ordinary nor would it cause panic and alarm. Neither could the
fact that appellant first fired his weapon into the air be construed as sufficient warning upon the victim and his
companions such that they would have had the opportunity to put up a defense. The interval of time between the
first warning shot and the subsequent fatal shots is not sufficient to put the victim on guard:
Q: Is it not true, Mr. Witness, that after the first shot fired by Floro Malejana upward there [were] several seconds
interval before the second shot was fired. Is that it?
A: It did not take ten (10) seconds that the second shot was fired.41
To reiterate, treachery may still be appreciated even when the victim was forewarned of the danger to his person.42
Neither does the fact that other people were present during the shooting negate the attendance of treachery. The
suddenness of the attack prevented the victim’s unarmed companions from coming to his aid.
In light of these premises, the Court finds no reversible error in the decision of the trial court. The penalty for murder
under Article 248 of the RPC is reclusion perpetua to death. Considering that neither mitigating or aggravating
circumstances attended the commission of the crime, the imposition by the appellate court of reclusion perpetua is
proper pursuant to Article 63, paragraph 2 of the RPC.
WHEREFORE, the decision of the Regional Trial Court, Branch 51, of Sorsogon in Criminal Case No. 91-2896, as
modified by the Court of Appeals, finding appellant Floro Malejana guilty beyond reasonable doubt of the crime of
murder and imposing upon him the penalty of reclusion perpetua is AFFIRMED. Appellant is likewise ordered to
indemnify the heirs of the victim in the amount of P50,000 for his death.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chairperson
CANCIO C. GARCIA
Associate Justice
ATTESTATION
I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairman’s Attestation, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
3 Transcript of Stenographic Notes (TSN), January 21, 1992, pp. 3-27; CA Rollo, p. 86.
6 CA Rollo, p. 86.
16 Id. at p. 267.
17 Id. at p. 293.
18 CA Rollo, p. 92.
19 Rollo, p. 13.
20 People v. Flores, G.R. No. 116524, January 18, 1996, 252 SCRA 31.
21 People v. de Guzman, G.R. No. 76742, August 7, 1990, 188 SCRA 407.
28 People v. Kyamco, G.R. No. 103805, May 17, 1993, 222 SCRA 183.
29 People v. Roldan, G.R. No. 98398, July 6, 1993, 224 SCRA 536.
30 People v. Ulpindo, G.R. No. 115983, April 12, 1996, 256 SCRA 201.
31 People v. Prieto, G.R. No. 141259, July 18, 2003, 406 SCRA 620.
32 People v. Colonia, G.R. No. 138541, June 12, 2003, 403 SCRA 713.
33 People v. Torio, G.R. No. 122109, June 25, 2003, 404 SCRA 623.
34 People v. Pansensoy, G.R. No. 140634, September 12, 2002, 388 SCRA 669.
35 People v. Javier, G.R. No. 130654, July 28, 1999, 311 SCRA 576.
36 People v. Ganan, G.R. No. 119722, December 2, 1996, 265 SCRA 260.
38 People v. Delada, Jr., G.R. No. 137406, March 26, 2003, 399 SCRA 538.
39 People v. Pinuela, G.R. Nos. 140727-28, January 31, 2003, 396 SCRA 561; People v. Rivera, G.R. No.
125895, July 4, 2002, 384 SCRA 12; People v. Villonez, G.R. Nos. 122976-77, November 16, 1998, 298
SCRA 566.
40 People v. Alfon, G.R. No. 126028, March 14, 2003, 399 SCRA 64.