People of the Philippines vs. Mario Abendan

Where a killing is qualified to murder by treachery and no aggravating or mitigating circumstance attends its commission, the penalty of death may not be imposed; the lower of the two indivisible penalties prescribed by Article 248 of the Revised Penal Code — reclusion perpetua — must be imposed. The defense of alibi, to prosper, must prove both that the accused was elsewhere when the crime was committed and that it was physically impossible for him to be at the locus delicti or within its immediate vicinity; failing this, it cannot overcome the positive identification of the accused by an eyewitness.

Mario Abendan, a thirty-year-old rattan worker, was a neighbor of the Obsiquias family in Barangay Candulawan, Talisay, Cebu, and had been known to them for about seven years. The case reached the Supreme Court on automatic review because the Regional Trial Court imposed the death penalty for murder. The governing statute was Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, which penalized murder with the penalties of reclusion perpetua to death.

Mario Abendan, a thirty-year-old rattan worker, was a neighbor of the Obsiquias family in Barangay Candulawan, Talisay, Cebu, and had been known to them for about seven years. On the evening of November 3, 1994, at around 6:20 p.m., Rizalde Obsiquias — the seventh of the nine children of Vicente Obsiquias — was in the sala of the family home with his stepsister Lourdes Labajo and their cousin Rosalie (Sally) Padigos, singing in a sing-along, while his stepmother Estefa Obsiquias was in the kitchen preparing a vegetable dinner.

According to the prosecution, Abendan suddenly barged into the house through the second door and pointed a short firearm at the three persons in the sala. He was looking for Alberto "Aga" Gabato, the husband of Estefa's eldest daughter Estefaniza and the son of Victorio Gabato, whom Abendan had allegedly shot earlier. When Abendan approached Estefa in the kitchen, less than an arm's length away, and aimed his firearm at her, she could do nothing but bow her head in fear. He then went upstairs to continue looking for Gabato; unable to find him, he came back down and confronted Rizalde, who told him, "Boss, we are not involved. Gabato is not around." Abendan pointed his gun at Rizalde, asked where Alberto was, and when Rizalde could not answer, remarked, "Ah, you are a cousin of Gabato," and thereupon shot him three times, hitting him in the left jaw and the right side of the forehead and causing instantaneous death.

Lourdes Labajo testified that when Abendan went upstairs, she and Sally ran to the house of their cousin Julia Padigos about three arms' length away, leaving Rizalde behind; minutes later she heard a burst of gunfire. When her mother called her back after Abendan had left the house, she saw Rizalde lifeless and was told by her mother that Rizalde had been killed by Mario Abendan. Both Estefa and Lourdes testified that the victim and his family had no previous quarrel or misunderstanding with Abendan, and that Rizalde was killed simply because he was a cousin of Alberto Gabato, whom Abendan was intent on finding and killing that day. Estefa executed an affidavit to the same effect.

Dr. Nestor Sator, the Medico-Legal Officer of the PNP Crime Laboratory for Region 7, examined the body the day after the shooting and found it already in a state of post-mortem rigidity. He testified that death was caused by either or both of two fatal gunshot wounds — one entering through the right cheek and the other at the neck — and concluded that the first shot was fired frontally by the assailant while the second was fired more to the rear of the victim. He also noted tattooing at the points of entry, placing the muzzle of the gun within two feet of the victim. Vicente Obsiquias, the victim's father, testified that the family incurred Fifty Thousand Pesos (P50,000.00) in funeral expenses and suffered moral damages.

The defense rested principally on the testimony of Abendan himself and that of his neighbor Letecia Amancia. Abendan claimed that he had transferred to Sitio Calachuchi, Consolacion, Cebu, sometime in August 1993, and that on November 3, 1994, at around 4:00 p.m., he was in Amancia's house with his common-law wife Rosemarie Loon watching betamax tapes, returning home only at about 9:30 in the evening. He said he learned the following day from Amancia that Rizalde Obsiquias had been shot the previous night and that he was the suspect; although surprised, he did not surrender for fear of his life, claiming he was being hunted by vigilantes or "Tadtad" because he had witnessed the January 1987 shooting of his uncle Santos Llamedos and the latter's son Ricardo by Gualberto Gabato. He fled to Manila and returned to Cebu in 1993, and in June of that year wrote to President Ramos to explain his side; the Office of the Presidential Consultant for Legal Affairs responded, but he never received the reply because he had already moved. He admitted knowing the Obsiquias family but denied responsibility for Rizalde's death. On cross-examination, he admitted that he was facing four separate cases for murder in different salas of the Regional Trial Court of Cebu City.

Amancia testified that Abendan was with her on the night of the incident. She admitted, however, that although she knew the police were looking for him and had heard radio news reports naming him as the assailant, she never informed any person in authority of his whereabouts because she did not want to get involved; she merely advised him to go to the police. She came forward to testify only three years after the fatal incident. The records also showed that she had testified as a corroborating alibi witness for Abendan in another double murder case, where she used her married name, Letecia Luga, and gave a strikingly similar account — that Abendan was at her house on the night of the fatal shooting and never left.

The trial court found the prosecution's eyewitness evidence credible and forthright, and gave it greater weight than the accused's alibi, which it characterized as inherently weak and fabricated. It found that the fatal attack on Rizalde was swift and unexpected and without the slightest provocation on his part, and that the accused had the time and opportunity to reflect on his actions upon realizing that his intended victim was not in the premises, yet proceeded to shoot the victim twice at close range.

• Alibi: Accused-appellant argued that his conviction was erroneous because his guilt was not proved beyond reasonable doubt, insisting that the trial court dismally failed to give any weight and credence to his truthful testimony. He invoked People vs. Pidia, where it was held that "the constitutional presumption of innocence guaranteed to every individual is of primary importance, and courts should not precipitately conclude that a person is guilty when his alibi appears weak." He stressed that his defense of alibi should have been given weight and credence because he was able to establish that he was nowhere near the scene of the crime when it happened, and that his alibi was corroborated by his neighbor, Letecia Amancia.
• Presumption of Innocence: Accused-appellant contended that the trial court overthrew the constitutional presumption of innocence because of patent prejudice, which put the fairness of the trial court's judgment in question.
• Treachery and Evident Premeditation: Accused-appellant assailed the trial court's conclusion that the killing was attended by treachery and premeditation, arguing that the prosecution failed to establish the presence thereof, and that the circumstances that qualify the killing to murder must be proven as indubitably as the killing itself.
• Penalty: Accused-appellant posited that the proper penalty imposable under the circumstances is reclusion perpetua, not death.

• Treachery: The Solicitor General agreed that treachery qualified the killing to murder.
• Penalty: The Solicitor General conceded that the penalty of death imposed by the trial court should be reduced to reclusion perpetua, considering that there is no other aggravating or mitigating circumstance.

• Alibi and Positive Identification: Whether the trial court erred in rejecting accused-appellant's defense of alibi and in convicting him on the basis of the prosecution eyewitnesses' positive identification.
• Presumption of Innocence: Whether the trial court overthrew the constitutional presumption of innocence.
• Treachery: Whether the qualifying circumstance of treachery attended the killing of Rizalde Obsiquias.
• Evident Premeditation: Whether the qualifying circumstance of evident premeditation attended the killing.
• Penalty: Whether the penalty of death was correctly imposed.
• Moral Damages: Whether moral damages should be awarded to the heirs of the victim.

• Alibi and Positive Identification: No. Alibi is inherently weak and cannot overcome the positive identification of the accused by an eyewitness where the accused failed to prove that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.
• Presumption of Innocence: No. The constitutional presumption of innocence was not overthrown; a thorough review of the records showed that guilt was established beyond reasonable doubt.
• Treachery: Yes. The fatal attack was swift, unexpected, and without the slightest provocation on the victim's part, and the accused employed means and methods of execution to ensure his safety from defensive or retaliatory acts.
• Evident Premeditation: No. The conviction was qualified by treachery; the Court did not predicate liability on evident premeditation.
• Penalty: No. Under Article 248 of the Revised Penal Code, murder is penalized with reclusion perpetua to death; absent any aggravating or mitigating circumstance, the lower of the two indivisible penalties — reclusion perpetua — must be imposed under Article 63(2).
• Moral Damages: Yes. Moral damages, which cover physical suffering and mental anguish, may be awarded in crimes resulting in physical injuries or in the death of the victim.

• Alibi and Positive Identification: The defense of alibi is inherently weak and obviously fabricated; it is little more than an empty denial. For alibi to prosper, the accused must prove that he was somewhere else when the crime was committed and that it was physically impossible for him to have been at the place and at the time the crime took place. Abendan sought to establish his alibi by mere say-so and failed to prove physical impossibility. On cross-examination, he admitted that Barangay Candulawan in Talisay, the site of the crime, was near Cebu City; that Consolacion, where he claimed to be watching betamax tapes, was also accessible from Cebu City; and that there were several means of transportation between these points at any time of the day or night. The proximity of the two municipalities and the easy availability of transport negated any protestation that he could not have perpetrated the crime. The testimony of Letecia Amancia, his corroborating witness, was likewise highly suspect and obviously fabricated. If she was certain of his innocence, it could not be explained why it took her three years before she volunteered the information that she and the accused-appellant were together at the time the crime was committed; her story appeared to have been concocted as a mere afterthought. The records further showed that in another double murder case where Abendan was a co-defendant, she supported his alibi with a strikingly similar account, using her married name, Letecia Luga — a ploy to mislead the trial court into concluding that different persons were testifying. Her testimonies in the two separate cases were too alike and too scripted to be credible and could not prevail over the testimonies of the more credible witnesses for the prosecution. Against this, eyewitness Estefa Obsiquias positively and categorically identified Abendan in no uncertain terms: she was present when he barged into their home brandishing his gun, she cowered in fear when he aimed his gun at her, she watched helplessly as the victim pleaded that his life be spared, and she witnessed in shock as he gunned down the victim at close range. Her testimony left no room for doubt as to the identity of the perpetrator and how he committed the deed; she was forthright and candid, did not waver on cross-examination, and was not fazed even by the trial judge's probing questions. There being no showing of ill motive on the part of the prosecution witnesses, the defense of alibi was worthless, and the trial court did not err in finding Abendan guilty of the crime charged.
• Presumption of Innocence: A thorough review of the records and of the arguments raised on appeal led to the inevitable conclusion that the accused-appellant was indeed guilty beyond reasonable doubt of the crime of murder. The conviction rested on the prosecution's credible evidence consisting of the witnesses' positive identification, which far outweighed the alibi of the accused; the constitutional presumption of innocence was therefore not overthrown.
• Treachery: While at the outset the victim was not the intended target of the accused-appellant, the fatal attack on him was so swift and unexpected, and without the slightest provocation on his part, which are the very earmarks of treachery. Abendan barged into the victim's home looking for someone and had the time and opportunity to reflect on his actions upon realizing that his intended victim was not in the premises; yet, despite the victim's pleas, he went ahead and shot the victim, delivering not only one but two fatal shots. The records showed that one shot was fired while the victim had his back turned to the accused-appellant, as testified to by the medico-legal expert, who described the first wound as entering through the right cheek and exiting at the back of the head, and the second as entering at the right posterior lateral aspect of the neck and directed upwards and to the left; tattooing at the points of entry placed the muzzle of the gun within two feet of the victim. Even if the victim sensed that his life was in danger, that did not diminish the suddenness of the attack, for treachery may still be appreciated even though the victim is forewarned of danger to his person. Coupled with the victim's obvious helplessness, such that he never had the slightest opportunity to defend himself, the unprovoked killing could not but lead to the conclusion that there was treachery. There was no question that the accused-appellant's conscious intention was to kill, not merely to maim or injure, judging from the manner he executed the act, aiming at point-blank range at the victim's head and neck. Both conditions before treachery may be considered a qualifying circumstance were present: first, the accused-appellant employed the means, methods, or manner of execution to ensure his safety from defensive or retaliatory acts on the part of the victim; and second, he deliberately adopted such means, methods, or manner of execution. The trial court thus correctly qualified the killing to murder, the treacherous manner of attack having been sufficiently proven as indubitably as the crime itself.
• Evident Premeditation: The conviction was qualified by treachery, and the Court resolved the appeal on that basis; evident premeditation was not the ground on which liability was predicated.
• Penalty: The trial court described Abendan as a ruthless, compulsive, and wanton murderer who should be meted the supreme penalty so that society might be protected from other murders he would surely commit if he managed to roam freely again, relying on the fact that while the instant case was being tried, he was also convicted of two other crimes of murder and one of frustrated murder. Such previous convictions, however, do not make the accused-appellant a recidivist until and unless said convictions become final, and there was no showing that the judgments in those cases had indeed become final; there was thus no legal basis for the imposition of the death penalty. While there could have been other attendant aggravating circumstances, such as dwelling, recidivism, and the use of an unlicensed firearm, these were not sufficiently established to be appreciated. There was no definite testimony or evidence to prove that the house where the victim was killed was also his dwelling, and such a presumption cannot be made considering that it could spell the difference between mere incarceration and death. Likewise, the murder weapon was never presented as evidence because it was not confiscated by the police, so there was no opportunity to prove that the accused-appellant used an unlicensed firearm. Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death; there being neither ordinary aggravating nor mitigating circumstances, the correct penalty to be imposed should be the lower of the two indivisible penalties. Hence, the trial court erred in imposing the supreme penalty of death.
• Moral Damages: The trial court also erred in not awarding moral damages to the grieving heirs of the victim, whose life was mercilessly snuffed out by the accused-appellant. The mental anguish and emotional suffering visited upon the victim's family cannot be expiated by monetary awards, but it may in some small measure ease the hardship and trauma of those left behind, especially by one who was so young and full of promise. Moral damages, which cover physical suffering and mental anguish, may be awarded in crimes resulting in physical injuries or in the death of the victim, as in the instant case.

• Alibi — Alibi is a defense that is inherently weak and easily fabricated, and it cannot prevail unless the accused proves two requisites: (a) that he was somewhere else when the crime was committed, and (b) that it was physically impossible for him to have been at the place and at the time the crime took place. In this case, Abendan failed to prove physical impossibility; his own admissions on cross-examination established that Barangay Candulawan in Talisay and Barangay Calachuchi in Consolacion were both accessible from Cebu City, with transport available at any time of the day or night, negating any claim that he could not have been at the locus delicti.
• Positive Identification Prevails Over Alibi — The defense of alibi cannot overcome the positive identification of the accused by an eyewitness. Estefa Obsiquias positively and categorically identified Abendan as the assailant, having witnessed the shooting at close range; her testimony remained unshaken on cross-examination and under the trial judge's probing questions, and no ill motive was shown on her part.
• Treachery — Treachery as a qualifying circumstance requires the concurrence of two conditions: (a) the employment of means, methods, or manner of execution that would ensure the offender's safety from any defensive or retaliatory act on the part of the offended party; and (b) the deliberate or conscious adoption of such means, method, or manner of execution. Treachery may still be appreciated even though the victim is forewarned of danger to his person, since a forewarned victim does not necessarily lose the opportunity to defend himself. In this case, the attack was swift, unexpected, and without the slightest provocation on the victim's part; the accused had time and opportunity to reflect upon realizing his intended victim was absent, yet proceeded to shoot the victim twice at close range, one shot striking the victim from behind, with the muzzle within two feet.
• Indivisible Penalties and Article 63(2) — Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death, both of which are indivisible penalties. Where there are neither ordinary aggravating nor mitigating circumstances, Article 63(2) of the Revised Penal Code requires the imposition of the lower of the two indivisible penalties, which is reclusion perpetua.
• Recidivism Requires Final Conviction — Previous convictions do not make an accused a recidivist until and unless said convictions become final; absent a showing that the judgments in prior cases had become final, there is no legal basis for appreciating recidivism as an aggravating circumstance.
• Aggravating Circumstances Must Be Established with Certainty — Aggravating circumstances such as dwelling and the use of an unlicensed firearm must be sufficiently established by definite testimony or evidence; they cannot be presumed, especially where the presumption could spell the difference between mere incarceration and death. In this case, there was no definite testimony that the house where the victim was killed was also his dwelling, and the murder weapon was never presented as evidence because it was not confiscated.
• Moral Damages in Crimes Resulting in Death — Moral damages, which cover physical suffering and mental anguish, may be awarded in crimes resulting in physical injuries or in the death of the victim. The mental anguish and emotional suffering of the victim's family, while not fully expiable by monetary awards, may in some small measure be eased by such an award.

• "This falls short of the cardinal rule that for alibi to prosper, the accused must prove that he was somewhere else when the crime was committed and that it was physically impossible for him to have been at the place and at the time that the crime took place." — This passage states the canonical two-requisite test for the defense of alibi and explains why Abendan's alibi failed, his own admissions having established the accessibility of the two municipalities.
• "It is a cardinal rule that the defense of alibi cannot overcome the positive identification of the accused by an eyewitness." — This passage states the ratio for rejecting the alibi in light of Estefa Obsiquias's categorical identification of Abendan, a rule frequently cited in subsequent criminal jurisprudence.
• "Under the circumstances, the two conditions before treachery may be considered a qualifying circumstance were present. First, the accused-appellant employed the means, methods or manner of execution to ensure his safety from defensive or retaliatory acts on the part of the victim. Secondly, he deliberately adopted such means, methods, or method of execution." — This passage articulates the two requisites of treachery as a qualifying circumstance and applies them to the swift, unprovoked, and close-range shooting of the victim.
• "Under Article 248 of the Revised Penal Code, the penalty for murder is reclusion perpetua to death. There being neither ordinary aggravating nor mitigating circumstances, the correct penalty to be imposed should be the lower of the two indivisible penalties." — This passage states the controlling rule on the imposition of indivisible penalties under Article 63(2) of the Revised Penal Code and supplies the basis for reducing the penalty from death to reclusion perpetua.

• People vs. Pidia, 249 SCRA 687 (1995) — Cited by the accused-appellant for the proposition that the constitutional presumption of innocence is of primary importance and that courts should not precipitately conclude that a person is guilty when his alibi appears weak; the Court did not apply it to reverse the conviction, the alibi having been rejected on the evidence.
• People vs. Cabiles, 284 SCRA 199, 216 (1998) — Cited for the principle that the defense of alibi is inherently weak and obviously fabricated.
• People vs. Taneo, 284 SCRA 251, 271 (1998) and People vs. Gargar, 300 SCRA 542, 553 (1998) — Cited for the requisites of alibi, particularly the requirement of proving physical impossibility of presence at the locus delicti.
• People vs. Ballesteros, 285 SCRA 438, 446 (1998) and People vs. Oliano, 287 SCRA 158, 178 (1998) — Cited for the rule that the proximity of the two municipalities and the easy availability of transport negate the defense of alibi.
• People vs. Jerez, 285 SCRA 393, 402 (1998) — Cited for the treatment of a corroborating witness whose testimony is patently bereft of veracity and necessarily suspect.
• People vs. Aquino, 284 SCRA 369, 375 (1998) and People vs. Pili, 289 SCRA 118, 140 (1998) — Cited for the rule that alibi cannot overcome the positive identification of the accused by an eyewitness.
• People vs. Tenorio, 284 SCRA 420, 432 (1998) and People vs. Reyes, 287 SCRA 229, 243 (1998) — Cited for the same rule on alibi vis-à-vis positive identification.
• People vs. Sumalpong, 284 SCRA 464, 483 (1998) — Cited for the appreciation of treachery where the attack is swift and unexpected and without provocation on the victim's part.
• People vs. Timblor, 285 SCRA 64, 77 (1998) and People vs. Villonez, 298 SCRA 566, 583 (1998) — Cited for the rule that treachery may still be appreciated even though the victim is forewarned of danger to his person.
• People vs. Lozada, G.R. No. 130589, June 29, 2000 — Cited for the rule on the imposition of the lower of the two indivisible penalties under Article 63(2) of the Revised Penal Code where no aggravating or mitigating circumstance attends the commission of the crime.
• People vs. Molina, 292 SCRA 742, 775 (1998) and People vs. Asis, 286 SCRA 64, 74 (1998) — Cited for the rule that aggravating circumstances must be sufficiently established and cannot be presumed.
• People vs. Monte, G.R. No. 125332, March 2, 2000 and People vs. Bohol, G.R. No. 130587, July 12, 2000 — Cited for the rule that moral damages may be awarded in crimes resulting in physical injuries or in the death of the victim.

• Article 248, Revised Penal Code — Defines and penalizes the crime of murder; the provision, as applied, fixes the penalty for murder at reclusion perpetua to death, both indivisible penalties, and supplies the basis for the Court's reduction of the penalty from death to reclusion perpetua.
• Republic Act No. 7659 — The law in relation to which the Information was filed, charging Abendan with murder under Article 248 of the Revised Penal Code; it is the statutory backdrop for the death penalty imposed by the trial court.
• Article 63(2), Revised Penal Code — Provides that when there are neither aggravating nor mitigating circumstances, the lower of the two indivisible penalties shall be imposed; applied by the Court to reduce the penalty from death to reclusion perpetua, no aggravating or mitigating circumstance having been established.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.